Bossier City Medical Suite v. City of Bossier City, Civ. A. No. 79-1336.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
Writing for the CourtMichael G. Latimer, Asst. City Atty., Bossier City, La., for defendants Bossier City, et al
Citation483 F. Supp. 633
Docket NumberCiv. A. No. 79-1336.
Decision Date21 January 1980




Ronald J. Miciotto, Bossier City, La., Roy Lucas, Lynn I. Miller, Lucas & Miller, Washington, D. C., for plaintiffs.

Michael G. Latimer, Asst. City Atty., Bossier City, La., for defendants Bossier City, et al.

Louis M. Kiefer, Jr., Metairie, La., for defendant Employers Insurance of Wausau.


STAGG, District Judge.

On January 22, 1973, the Supreme Court rendered its landmark decisions on abortion. 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). In Roe v. Wade, the Supreme Court held that under the due process clause a woman's right to choose an abortion is a protected liberty, indeed a fundamental right, so important that a governmental body cannot prohibit it entirely or burden it significantly during the first trimester of pregnancy. Although Wade and Bolton established that the constitutionally protected right of privacy encompasses a woman's decision to terminate her pregnancy, the court also held that this right is not absolute. As the pregnancy progresses, the woman's right to terminate diminishes and the state's right to regulate or even override the woman's right increases. The Court held:

With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. . . . It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. . . .
This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

410 U.S. at 163, 93 S.Ct. at 731-732 (emphasis added). Specifically, during the first trimester, the abortion decision must be left to the woman and the medical judgment of her attending physician. During the second trimester the State may impose regulations which are rationally related to the legitimate State interest in the woman's health. After fetus viability in the third trimester, the State's interest in fetal life allows it to prohibit the abortion altogether except where maternal life is endangered. Wade, supra, at 164, 93 S.Ct. 705; Planned Parenthood Association of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Wynn v. Scott, 449 F.Supp. 1302 (N.D.Ill.1978) (three-judge court); Arnold v. Sendak, 416 F.Supp. 22 (S.D.Ind.) (three-judge court), affirmed, 429 U.S. 968, 97 S.Ct. 476, 50 L.Ed.2d 579 (1976).

Since the Supreme Court's decision in Roe v. Wade, heated emotional battles have been enacted in communities across the country. Low cost, outpatient abortion clinics offering first trimester abortions are meeting with stubborn and calculated resistance from the local citizenry and their governing authorities. See, e. g., Fox Valley Reproductive Health Care Center, Inc. v. Arft, 446 F.Supp. 1072 (E.D.Wis.1978); Mahoning Women's Center v. Hunter, 444 F.Supp. 12 (N.D.Ohio 1977); Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861 (8th Cir. 1977). The present suit was brought by the plaintiffs to enjoin zoning discrimination by Bossier City that it is alleged unduly burdens the right of privacy and is so arbitrary and capricious as to violate the due process and equal protection clauses of the Fourteenth Amendment. The suit was filed pursuant to 42 U.S.C. §§ 1983, 1985 and 1988. Plaintiffs also seek a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202. This court's jurisdiction is conferred by 28 U.S.C. §§ 1331 and 1343.

The issue in the present case differs from the problems presented in the typical abortion cases which involved municipal zoning decisions. In this case, there is a preexisting valid zoning ordinance.1 The ordinance was not passed in response to the clinic's location in the community. Neither does the city's ordinance attempt to regulate abortion clinic procedures. The question presented in this case is whether the application of a valid preexisting zoning ordinance has impermissibly restricted the woman's right to a first trimester abortion guaranteed by Roe v. Wade. This court holds that it does not.


In early Spring of 1979, Martin, Martin & Richards, Inc. (hereinafter referred to as "M. M. & R."), a Texas corporation acting on behalf of its wholly-owned subsidiary, Bossier City Medical Suite, Inc. (hereinafter referred to as "B. C. M. S."), sent its employee, Ms. Barbara Oakes, to search the Shreveport-Bossier City area for property suitable for an outpatient abortion clinic. On March 6, 1979, the building located at 1505 Doctor's Drive, Bossier City, Louisiana, was acquired by M. M. & R. This site was selected after viewing only two other alternative locations and apparently without a legal inquiry into possible zoning complications.2

Plaintiff B. C. M. S., a Louisiana corporation, leased the building from its parent corporation, M. M. & R.3 The property was located in a B-1 Transitional Business District Zone which permitted uses including a medical or dental clinic.4 Plaintiff then remodeled the facility and equipped it to handle first trimester abortions on an outpatient basis. Plaintiff has also engaged certain area physicians to perform the abortions using the vacuum currettage technique. Currently, the facility is equipped to handle an estimated 50 patients per week on a six-day work week basis.

The facility was ready to open in September of 1979. However, after talking to Mamie Hatfield, the Bossier City Zoning Administrator, plaintiff's local attorneys, Ronald J. Miciotto and Michael Beam, became aware of possible problems with the City's zoning ordinance.5 On September 12, 1979, as required by Bossier City law,6 an application for a certificate of occupancy was filed on behalf of B. C. M. S. (See Exhibit P-2 attached to plaintiff's original complaint.) The application stated that the use of the building was for "medical purposes — clinic or medical as defined in B-1". Plaintiff's attorneys also indicated on the application that no major surgery would be performed.

By letter dated September 14, 1979, the zoning administrator,7 denied the abortion clinic's certificate of occupancy. (See Exhibit P-3 attached to plaintiff's original Complaint.) In her denial, Ms. Hatfield referred to the uses permitted in a B-1 Transitional Business District Zone and concluded that the building was not properly zoned for the proposed use — an abortion clinic. To reach this result, it was necessary for Ms. Hatfield to decide whether abortion was major or minor surgery. Under the aegis of Section 24-319 of the Bossier City Ordinance, Ms. Hatfield referred to state law to resolve the dispute.

La.R.S. 40:1299.35.6 sets out the information which must be disclosed to a woman before an abortion can be performed. This "informed consent" statute defined abortion as major surgery.8 Since a building located in a B-1 zone could not "include inpatient care or operating rooms for major surgery",9 Ms. Hatfield concluded that an abortion clinic, which would house a major surgical procedure, could not be located in a B-1 zone. Therefore, she denied plaintiff's certificate of occupancy.10 It is this interpretation of Ordinance 33 and the concomitant denial of a certificate of occupancy that plaintiffs attack as an unconstitutional infringement upon a woman's right to a first trimester abortion.

Rather than file an appeal to the Board of Zoning Appeals,11 or chance a possible prosecution,12 the plaintiff filed this action in federal court seeking injunctive, monetary and declaratory relief.13 By Order dated October 2, 1979, this court ordered that the hearing to consider the propriety of issuing the requested injunction be consolidated with the trial on the merits in accordance with Rule 65(a)(2) of the Federal Rules of Civil Procedure. The trial of this case started at 1:00 O'Clock P.M. on Tuesday, October 23, 1979. At the close of plaintiff's case, defendants moved to dismiss this action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The court took defendant's motion, as well as all pretrial motions, under advisement. Before reaching the merits of plaintiff's case, a few preliminary matters must be discussed.


Five days prior to trial, defendant filed several motions to dismiss. In its post-trial brief, the plaintiff acquiesced in the defendant's motion to dismiss the City Council as a defendant in this lawsuit. Finding defendant's additional motions to be without merit, they are DENIED.14


Defendant argues that this court lacks jurisdiction over the subject matter of this action because plaintiff has failed to exhaust its state administrative and judicial remedies. However, the Supreme Court has held that a plaintiff need not exhaust his state administrative remedies in order to file a Section 1983 lawsuit seeking vindication of his constitutional rights. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1962); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Further, it is the...

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