Doe v. Charleston Area Medical Center, Inc., 75--1161

• Citation: 529 F.2d 638
• Decision Date: 06 November 1975
• Docket Number: No. 75--1161,75--1161
• Parties: Jane DOE, Individually and on behalf of all others similarly situated, Appellant, v. CHARLESTON AREA MEDICAL CENTER, INC., a corporation, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 638

529 F.2d 638

Jane DOE, Individually and on behalf of all others similarly situated, Appellant, v. CHARLESTON AREA MEDICAL CENTER, INC., a corporation, et al Appellees.

No. 75--1161.

United States Court of Appeals Fourth Circuit.

Argued Aug. 22, 1975.

Decided Nov. 6, 1975.

David Grabill, Charleston, W. Va. and (Katharine Welch, Charleston, W. Va., on brief), for appellants.

Edward W. Eardley, Charleston, W. Va. (Steptoe & Johnson, Charleston, W. Va., on brief), for appellees.

Stanton J. Price and Stephen Axelrad, Los Angeles, Cal., on brief, for amicus curiae for National Health Law Program.

Before HAYNSWORTH, Chief Circuit Judge, and WINTER and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

Appellant, suing under the fictitious name of Jane Doe, brought this action under 42 U.S.C. § 1983 on behalf of herself and others similarly situated to redress deprivation of rights under color of state law. She sought declaratory and injunctive relief against enforcement of the policy of Charleston Area Medical Center, Inc. (CAMC) of prohibiting abortions except those done for the purpose of saving the life of the mother. The district court, after conducting an expedited hearing, denied Doe's motion for a preliminary injunction and dismissed the complaint on the grounds that she had failed to show irreparable injury and the required 'state action.' We reverse the district court's determinations that Doe failed to demonstrate irreparable injury and deprivation of rights under color of state law and remand with instructions.

The court also ruled that Doe had failed to satisfy the requisites for a class action. We think otherwise, and direct injunctive relief for the class.

I.

According to Doe's affidavit, she was at the time this action commenced a 21-year-old unmarried student in her first trimester of pregnancy. Wishing to terminate her pregnancy, she found a doctor willing to perform the operation on an in-patient basis at the Charleston Area Medical Center, Inc., Memorial Division, where the doctor had staff privileges. ¹ Her request for permission to have an abortion performed at CAMC was denied by an official of that facility who explained that the rules of CAMC did not permit a doctor to perform an abortion at any of the divisions of CAMC unless the abortion was necessary to save the life of the mother or child. ²

The complaint in this suit for declaratory and injunctive relief against the hospital's policy and its enforcement was filed with accompanying affidavit on December 6, 1974. The court scheduled an expedited hearing on the motion for a preliminary injunction for Monday, December 9.

At that hearing, appellant called Mr. Don L. Arnwine, president of CAMC, as a witness. His testimony revealed the following facts:

The hospital's policy on abortions 'is regulated to the existing West Virginia statute which allows the performance of abortions only in the interest of the life of the mother' and that abortions are not permitted in CAMC's facilities where the life of the mother does not appear in danger; the hospital has facilities to perform abortions and performs some 'therapeutic' abortions, defined by CAMC to mean those necessary for protection of the life of the mother; CAMC had in the past received Hill-Burton ³ funds for construction purposes; CAMC is affiliated with West Virginia University Medical Center ⁴ 'for the purposes of providing educational experience to medical students and post graduate training;' it receives Medicare and Medicaid funds for the reimbursement of hospitalization expenses; and it receives state funds in support of its maternity clinic.

With respect to the availability of facilities for abortions, Mr. Arnwine further testified that the beds in the gynecological section which would be utilized for in-patient abortions were occupied at virtually 100 percent capacity but that there existed some immediate capacity for abortions on an out-patient basis.

On December 11, the court entered an order denying the preliminary injunction and dismissing the complaint for failure 'to state a cause of action.' The court grounded its decision on the finding that Doe had failed to show the requisite state action and the necessary irreparable injury. In addition, the court ruled that the suit could not be maintained as a class action since Doe had not satisfied the prerequisites for a class action under Fed.R.Civ.P. 23.

On January 15, 1975, 12 days after Doe's notice of appeal from the order of December 11, the court entered an amended order which affirmed in substance the earlier order, except that language dealing with the dismissal of the complaint was deleted. ⁵

II. COLOR OF LAW

The district court concluded that CAMC, a private nonprofit hospital organized under the laws of West Virginia, was not acting under color of state law and thus not amenable to suit under 42 U.S.C. § 1983 because receipt of Hill-Burton funds and present participation in Medicare and Medicaid programs did not amount to state action. ⁶ In so holding, the court completely ignored a clear line of Fourth Circuit decisions to the contrary. Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512 (4th Cir. 1974). Cf. Christhilf v. Annapolis Emergency Hospital Ass'n, 496 F.2d 174 (4th Cir. 1974); Sams v. Ohio Valley General Hospital Ass'n, 413 F.2d 826 (4th Cir. 1969); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964).

The applicability of Duffield is especially easy to discern. In that case we held that this very same hospital corporation, CAMC, was sufficiently imbued with state action by receipt of Hill-Burton funds to invoke application of the fourteenth amendment. Such a decision is binding, not only upon the district court, but also upon another panel of this court--unless and until it is reconsidered en banc. ⁷

Although aware that receipt of Hill-Burton funds has been treated differently by other circuits, ⁸ we adhere to our rule. Even if we were inclined to suggest en banc reconsideration, this case would not be an appropriate vehicle. Here, in addition to Hill-Burton funding and other financial and regulatory involvement by the state, ⁹ we find state involvement in the specific hospital policy under attack. ¹⁰

In his initial order, the district judge found that CAMC's 'policy of refusing all but therapeutic abortions . . . is based in part upon Chapter 61, Article II, Section 8, of the West Virginia Code, which prohibits nontherapeutic abortions.' ¹¹ We hold that CAMC's anti-abortion policy based on West Virginia's criminal abortion statute involved the state sufficiently to constitute the policy 'state action' under 42 U.S.C. § 1983.

In Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the Supreme Court held that Adickes would establish the requisite 'color of law' ¹² under 42 U.S.C. § 1983 to recover damages against S. H. Kress & Co., a private corporation, if she showed on remand (1) that there existed 'a state-enforced custom of segregating the races in public eating places in Hattiesburg at the time of the incident in question; and (2) that Kress' refusal to serve her was motivated by that state-enforced (action) . . ..' Id. at 173--74, 90 S.Ct. at 1617. Since state involvement through a custom having the force of law satisfies the 'color of law' requirement of 42 U.S.C. § 1983, a fortiori the statute in this case meets the requirement.

Adickes and Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963) hold that where private actions are required by local ordinance or custom having the effect of law the initiative for those actions is the responsibility of the 'state.' Thus, conduct otherwise private in nature may assume the character of state action under the fourteenth amendment and 42 U.S.C. § 1983. Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172--73, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). Furthermore, in Simkins, supra at 968, we stated that 'government sanction need not reach the level of compulsion to clothe what is otherwise private discrimination with 'state action."

In this case, a letter from Mr. Arnwine, president of CAMC, set forth the hospital's policy and the motivation for that policy as follows:

The present policy of the Charleston Area Medical Center with respect to performance of abortions at its hospital facilities is to literally adhere to the mandate set forth in Chapter 61, Article 2, Section (8) of the West Virginia Code. As you are aware, this statute limits the performance of abortions in the State of West Virginia to those instances where such act is done in good faith with the intention of saving the life of such woman and child. Charleston Area Medical Center will continue its present policy with respect to limiting the performance of abortions to those instances where authorized under the provision of the aforesaid statute unless and until the same is changed by legislative act or Court decision. ¹³

It seems clear that the anti-abortion hospital policy rests firmly upon what was thought to be the compulsion of state law. Thus the hospital acted 'under color of law' when it refused to allow its facilities to be used by Doe for an abortion. Clearly there is jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3).

III. IRREPARABLE INJURY

In the initial order denying the preliminary injunction and dismissing Doe's complaint, the district judge found that Doe had failed to show irreparable injury:

Who can say that irreparable injury will result from the inability to terminate a pregnancy which has the potential to give life and love beyond measure.

The court's statement is surely an accurate reflection of human experience where the birth of a child is desired. It is not an accurate statement of the law where a woman wishes to terminate her pregnancy. The Supreme Court in Roe v. Wade, 410 U.S....