Coe v. County of Cook

• Decision Date: 04 December 1998
• Docket Number: No. 98-1164,98-1164
• Parties: John COE, individually, on behalf of Infant Coe, and on behalf of all others similarly situated to John Coe and all others similarly situated to Infant Coe, Plaintiff-Appellant, v. COUNTY OF COOK, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 491

162 F.3d 491

John COE, individually, on behalf of Infant Coe, and on

behalf of all others similarly situated to John

Coe and all others similarly situated to Infant Coe, Plaintiff-Appellant, v. COUNTY OF COOK, et al., Defendants-Appellees.

No. 98-1164.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 17, 1998.

Decided Dec. 4, 1998.

Robert J. Dargis, Mallen & Associates, Chicago, IL, for Plaintiff-Appellant.

Richard A. Devine, Allen Kirsh, Office of the State's Attorney of Cook County, Chicago, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and CUMMINGS and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

Cook County, Illinois, owns the Cook County Hospital, which caters primarily to what used to be called "charity" patients; it does not turn away patients on the ground of inability to pay. In 1992 the County issued guidelines for the performance of abortions at the hospital. The guidelines track the Supreme Court's current views on the permissible scope of state regulation of abortions, and thus do not require notice to or the consent of the father of a fetus that the mother wants to abort. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 887-98, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In 1995, a woman whom the plaintiff John Coe (a pseudonym) had impregnated, but to whom he was not married, had an abortion at the Cook County Hospital, and Coe was not notified. In this suit for damages under 42 U.S.C. § 1983, Coe argues that the hospital's policy of performing abortions without notice to and other safeguards for fathers in his position violates his federal constitutional and state statutory rights and those of the aborted fetuses, on whose behalf the suit is also brought. The district court dismissed Coe's federal claims under Fed.R.Civ.P. 12(b)(6) and then relinquished jurisdiction over his state-law claims under 28 U.S.C. § 1367(c)(3).

So far as appears, all the abortions that Coe wishes to impede are privileged by the Supreme Court's decisions defining the constitutional right of abortion, in the sense that a state could not forbid these abortions; for Coe does not know the age of "his" fetus when it was aborted, and the mother's right to abort a fetus that has not yet become viable is essentially absolute. Since, however, Cook County Hospital is not required to perform abortions at all (it did not do so for a period ending with the adoption of the challenged guidelines), we may assume without having to decide that it could limit itself to performing a subset of privileged abortions--that it could, for example, tell women that if they want an abortion at Cook County Hospital they must agree to notification of the father--since there is no constitutional right to obtain any abortion at public expense. Rust v. Sullivan, 500 U.S. 173, 192-93, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); Webster v. Reproductive Health Services, 492 U.S. 490, 511, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989); Harris v. McRae, 448 U.S. 297, 325, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); Poelker v. Doe, 432 U.S. 519, 521, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977); Maher v. Roe, 432 U.S. 464, 474, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). That is, we may assume that it would not be unconstitutional for Cook County Hospital to accede to Coe's demand that it stop performing abortions of which the fathers have no notice. Whether that demand has any constitutional backing is a separate question; the only point we are making now is that the constitutional right to abortion does not automatically cut off Coe's claim.

We are mindful that in constitutional law the greater power does not always include the lesser. The power of Cook County Hospital to discontinue all abortions does not necessarily entail a power to discontinue just those abortions of which the fathers are not notified. The fact that the government could abolish the postal service and make the carriage of mail an entirely private activity would not entitle it to detain mail containing "communist propaganda." Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); see also Board of County Commissioners v. Umbehr, 518 U.S. 668, 674-75, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); Dolan v. City of Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). But that is because the effect of granting such an entitlement would be to impair the market in ideas or opinions. It would have this effect because of the lack of good substitutes for postal service (especially back when Lamont was decided) and because of the unlikelihood that the service would be privatized in response to a ruling protecting the mailing of communist propaganda. It is not at all clear that permitting Cook County Hospital to pick and choose among abortions would burden the right to an abortion as much as permitting the postal service to censor mail would burden the right of free speech. For if Cook County Hospital were forbidden to impose a notification requirement, it might very well decide, as it would have a perfect right to do, to perform no abortions at all--which was in fact its policy before 1992. In that event, forbidding it to pick and choose would be a Pyrrhic victory for women seeking abortions. Cf. Chicago Acorn v. Metropolitan Pier & Exposition Authority, 150 F.3d 695, 704 (7th Cir.1998). Forbidding the postal service to censor communist propaganda was not a Pyrrhic victory for free-speech advocates because it was out of the question that the government would respond by getting out of the mail business, with the consequence that all mail would be carried by private carriers who would be free to censor communist propaganda because the First Amendment does not constrain private conduct.

We need not pursue this issue of "unconstitutional conditions." Whatever the rights of the hospital are, we do not see how, as a matter of either legal logic or common sense, the constitutional right of a woman to have an abortion without interference from the man who impregnated her can coexist with a constitutional right of the man to interfere. Although the cases do recognize family relations as a form of "liberty" within the meaning of the due process clauses, e.g., Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion); Ellis v. Hamilton, 669 F.2d 510, 512-14 (7th Cir.1982), they have refused to extend this recognition to the bare biological relation between father and child, Lehr v. Robertson, 463 U.S. 248, 261-62, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Michael H. v. Gerald D., 491 U.S. 110, 123-30, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (plurality opinion); Pena v. Mattox, 84 F.3d 894, 899-900 (7th Cir.1996); Crumpton v. Gates, 947 F.2d 1418 (9th Cir.1991), let alone to the relation between a father and a fetus. But even if they would take this large step, perhaps in a case in which the father could prove that he would have established a loving and intimate relationship--a family relationship in the fullest sense--with the child that the fetus would have become if not aborted, Coe would lose. In establishing the constitutional right of a woman to have an abortion without having to notify the father, the Supreme Court necessarily as well as explicitly weighed the woman's interest in reproductive freedom against the man's interest in potential paternity, and found the former interest to be the weightier. Planned Parenthood of Southeastern Pennsylvania v. Casey, supra, 505 U.S. at 896, 112 S.Ct. 2791; Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 71, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). "Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two [the man and the woman], the balance weighs in her favor." Id. Coe envisages a situation in which a woman has a right to have an abortion at a private hospital without notifying the father--since the State of Illinois and its subdivisions could not constitutionally impose such a requirement--but is constitutionally debarred from having such an abortion at a public hospital. If a father's right to notice had the constitutional heft that Coe believes it has, it would have been irrational for the Supreme Court to forbid the states to require such notice of private hospitals.

Indeed, Coe's argument implies, though he does not contend, that it is unconstitutional for a public hospital to perform any abortions. Since no woman has a constitutional right to have an abortion at public expense, or in a public hospital, the only constitutional interest in play in this case, in Coe's view, is the interest (however attenuated) of the father, and perhaps the fetus, in the fetus's survival. It is true that because the Constitution in general constrains only state action, the same acts that are prohibited to the state may be permitted to private entities. What is unusual is the implication of Coe's argument that conduct which the Constitution forbids to states is the very conduct that the Constitution forbids the states to prohibit private persons from engaging in. Unusual; not unprecedented. A state can neither forbid nor endorse religion and can neither censor nor forbid private "censorship" (for example, a newspaper's exercise of editorial judgment). But that is because either form of intervention in the religious or speech realms impairs weighty constitutional values. The father's interest in the survival of his fetus has not been deemed such a value. If it were, it would entitle the states to impose a notification requirement on private as well as public hospitals and abortion clinics.

And again, if the fetus's right to life, which Coe seeks to represent, were deemed to outweigh the pregnant woman's interest in being allowed to make the choice for abortion without being impeded by the father of the fetus (here not even the husband), the Supreme...