667 F.2d 754 (8th Cir. 1982), 80-2132, Nyberg v. City of Virginia

Docket Nº:80-2132.
Citation:667 F.2d 754
Party Name:George W. NYBERG, Nancy R. Nyberg, Fern Arpi, William A. Arpi, Rachel Arpi, Dr. Charles J. Mock, Dr. Charles A. Tietz, Melodie J. Wilson, James E. Williams on behalf of themselves and all others similarly situated, Appellees, v. The CITY OF VIRGINIA and Lewis A. McMillan, Mrs. Joyce Fleming, Raynold Lahti, Fred Teller, Virginia Municipal Hospital C
Case Date:January 11, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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667 F.2d 754 (8th Cir. 1982)

George W. NYBERG, Nancy R. Nyberg, Fern Arpi, William A.

Arpi, Rachel Arpi, Dr. Charles J. Mock, Dr. Charles A.

Tietz, Melodie J. Wilson, James E. Williams on behalf of

themselves and all others similarly situated, Appellees,

v.

The CITY OF VIRGINIA and Lewis A. McMillan, Mrs. Joyce

Fleming, Raynold Lahti, Fred Teller, Virginia Municipal

Hospital Commission and Norman Kaye, Virginia Municipal

Hospital Administrator, Appellants.

No. 80-2132.

United States Court of Appeals, Eighth Circuit

January 11, 1982

Submitted Oct. 14, 1981.

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O. C. Adamson, II (argued), Minneapolis, Minn., for appellants; Greenberg, Bloomquist & Colosimo, Ltd., Virginia, Minn., of counsel.

Eve Paul, Dara Klassel, Planned Parenthood Federation of America, Inc., New York City, for amicus curiae Planned Parenthood Federation of America, Inc.

Sylvia Law, New York City, Nadine Taub (argued), Women's Rights Litigation Clinic, Rutger's University School of Law, Newark, N.J., for amicus curiae, APHA.

Jeanne M. Forneris (argued), Halverson, Watters, Bye, Downs & Maki, Ltd., Duluth, Minn., for appellees; Linda Ojala, Minnesota Civil Liberties Union, Minneapolis, Minn., Janet Benshoof, Reproductive Freedom Project, American Civil Liberties Union Foundation, New York City, of counsel.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and HUNTER, [*] Senior District Judge.

LAY, Chief Judge.

The sole issue presented by this appeal is whether the district court erred in refusing to vacate an earlier injunction entered by the federal district court against the Hospital Commission of the City of Virginia from implementing a resolution prohibiting staff doctors from using the facilities of the Virginia Municipal Hospital for any abortions except for those required to "save the life of the mother."

The earlier injunction was entered in 1973. Nyberg v. City of Virginia, 361 F.Supp. 932 (D.Minn.1973), aff'd, 495 F.2d 1342 (8th Cir. 1974), rehearing en banc denied, 495 F.2d 1342 (8th Cir. 1974), (Gibson and Heaney, JJ., dissenting), cert. denied, 419 U.S. 891, 95 S.Ct. 169, 42 L.Ed.2d 136 (1974) (Nyberg I ). Defendants in the original action (hereinafter the City) now claim that recent developments relating to the constitutional restriction on abortions have changed the constitutional bases relied on in Nyberg I. They urge that they are now entitled to equitable relief under Fed.R.Civ.P. 60(b)(5) and (6). We must respectfully disagree; we affirm the decision of the district court.

Plaintiffs Mock and Tietz are physicians and staff members at the Virginia Municipal Hospital. The hospital is operated by the City of Virginia, Minnesota, and is governed by the Hospital Commission. On February 5, 1973, the Hospital Commission attempted to proscribe by resolution the use of hospital facilities for all abortions except for those "required to save the life of the mother." Plaintiffs sought relief alleging infringement of their constitutional rights. The late Honorable Philip Neville, United States District Court Judge, entered an order enjoining defendants from implementing the resolution. The injunction requires the hospital facilities to be made available to any duly licensed physician for the performance of abortions within and subject to the rules and principles stated in Roe v. Wade, 410 U.S. 113, 164, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973). On appeal, this court held the resolution unconstitutional and affirmed the district court's opinion. Nyberg I, supra.

On August 13, 1980, defendants moved the district court for an order to vacate the injunction, pursuant to Fed.R.Civ.P. 60(b)(5) and (6), on the grounds that a change in law since the entry of judgment made prospective application of the injunction no longer equitable. The district court, the Honorable Donald D. Alsop presiding, held that

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defendants failed both to show a change in circumstances and to show how continued enforcement of the injunction would constitute a grievous wrong. The City appealed from this order.

Rule 60(b)(5).

Fed.R.Civ.P. 60(b)(5) provides that a court may relieve a party from an order if it finds that it is "no longer equitable that the judgment should have prospective application." A change in factual or legal circumstances may make continued enforcement inequitable. System Federation No. 91, Railway Employees' Dep't AFL-CIO v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 371, 5 L.Ed.2d 349 (1961).

The district court held that the City must prove both change in the law and continued enforcement of the injunction would constitute a grievous wrong. The City agrees it has the burden to show change in the law. The City argues that where there is a material change in the law such that the constitutional basis for the injunction no longer exists, the injunction is then per se inequitable and there is no need to demonstrate grievous wrong. Because we have determined that the cases relied upon by the City have not worked a sufficient change in controlling law, we do not reach the question whether the City must also show that continued enforcement of the injunction would constitute a grievous wrong.

Merits.

The City contends that one question not explicitly answered in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) was whether a city could prohibit staff physicians from performing abortions for paying patients at the sole hospital in the community. In Nyberg I, this court determined that the city's attempt to do so was unconstitutional and should be enjoined. The City contends that in Nyberg I this court held:

1. That if a state may not prescribe abortion conduct by a criminal statute, it may not prevent such conduct in its facilities by civil regulation;

2. That a state must show "compelling state interest" before it may regulate in the abortion area; and

3. That since a state may not interfere in the abortion decision, it may not bar the use of its facilities to prevent effectuation of that decision.

The City asserts that recent developments in the constitutional aspects of abortion law demonstrate that the constitutional bases which this court assumed to exist in Nyberg I no longer exist. It urges Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); Poelker v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977); Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); and Williams v. Zbaraz, 448 U.S. 358, 100 S.Ct. 2694, 65 L.Ed.2d 831 (1980) represent a change in abortion law after Roe v. Wade and thus make the injunction no longer supportable. We must disagree. The decisions of the Supreme Court upon which the City relies do not provide a controlling change in the law.

In Maher, the Supreme Court held that even though the state was providing funding for childbirth, a state regulation denying funding for first trimester, nontherapeutic abortions was constitutional. In Harris, the Court upheld the constitutionality of the Hyde Amendment, which prohibited the use of federal funds to reimburse the cost of abortions except where the life of the mother would be in danger or where the rape or incest is reported promptly. In Williams, a state statute prohibiting the use of state funds for all abortions except for those "necessary for the preservation of the life of the woman seeking such treatment" was held constitutional.

In this trilogy of cases it was found that the constitutional freedom of a woman to decide whether to terminate her pregnancy recognized in Roe v. Wade did not prevent the state from making "a value judgment favoring childbirth over abortion, and ... implement(ing) that judgment by the allocation of public funds." Maher, 432 U.S. at 474, 97 S.Ct. at 2382; Harris, 448 U.S. at 314, 100 S.Ct. at 2687. These cases do not

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reach the issue in Nyberg I. Under the resolution, the City of Virginia and the Hospital Commission attempt to do more than simply deny governmental funding for abortions. If the resolution is effective, then no woman could obtain an abortion in the city hospital unless her life was endangered. Thus, the City attempts to eliminate access to abortion services at the sole hospital in the City of Virginia.

The City places primary reliance on Poelker v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977). In that case, an indigent woman challenged a policy directive prohibiting abortions in city hospitals except in cases of threat of grave injury or death to the woman. The hospital where the woman sought to obtain a nontherapeutic abortion was one of two city-owned hospitals in St. Louis. The obstetrical-gynecological department of that hospital was staffed with doctors who were graduates of St. Louis University, a Jesuit school of medicine opposed to abortion. No member of that medical staff was willing to perform an abortion. In enjoining the policy of the hospital, this court cast the issue in an equal protection mold, finding that the provision of publicly financed hospital services for childbirth but not for elective abortions constituted invidious discrimination. In support of its equal protection analysis, this court also emphasized the contrast between nonindigent women who can afford to obtain abortions in private hospitals and indigent women who cannot. Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975), rev'd, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977).

In reversing the decision, the Supreme Court found the constitutional question in Poelker identical with that presented by a state's refusal to provide Medicaid benefits for abortions while providing them for childbirth. 432 U.S. at 521, 97 S.Ct. at 2392. The Court stated that...

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