Davis v. Fieker
| Decision Date | 23 December 1997 |
| Docket Number | No. 88420,88420 |
| Citation | 952 P.2d 505,1997 OK 156 |
| Parties | Frank W. DAVIS, Larry Ferguson, Robert Worthen, Tim Pope, Dan Webb, Charles Gray, Charles Key, Joan Greenwood, Carolyn Coleman, Wayne Cozort, Leonard Sullivan, Grover Campbell, Wayne Pettigrew, Mike O'Neal, Jim Reese, Richard Phillips, John Smaligo, Mike Thornbrugh, Doug Miller, John Sullivan, Scott Adkins, Fred Perry, Odilia Dank, Sharon Golmoradi and Craig Evans, M.D., Appellants, v. Dan H. FIEKER, President of Oklahoma State Board of Health, Gordon H. Deckert, Vice President of the Oklahoma State Board of Health, Beth Anita Gordon, Glen Diacon, Jr., R. Brent Smith, Frank W. Merrick, John B. Carmichael, Jay A. Gregory, Walter Scott, Members of the Oklahoma State Board of Health, Jerry Nida, Commissioner of the Oklahoma State Board of Health and the Department of Health of the State of Oklahoma, Appellees. |
| Court | Oklahoma Supreme Court |
William D. (Bill) Graves, Oklahoma City, for Appellants.
Jack L. Atkinson, Suzanne W. Nichols, Oklahoma State Department of Health, Oklahoma City, for Appellees.
Dara Klassel, Legal Action for Reproductive Rights Planned Parenthood Federation of American, Inc., New York City, Linda G. Scoggins, Oklahoma City, Margaret A. Swimmer, William H. Hinkle, Tulsa, for amici curiae Planned Parenthood of Central Oklahoma, Inc., Planned Parenthood of Eastern Oklahoma and Western Arkansas, Inc., The Religious Coalition for Reproductive Choice, American Civil Liberties Union of Oklahoma, and Oklahoma National Abortion Rights Action League.
Michael L. Tinney, Oklahoma City, Mark D. Mitchell, John B. Davis, Metheny, Mitchell, Davis, & Klein, Steve Nash, Oklahoma City, for amici curiae, The Oklahoma Family Policy Council, The Oklahoma Christian Coalition, Eagle Forum, Concerned Women of America, and Oklahomans for Children and Families.
¶1 The principle issue in this case is whether the district court erred in finding that sections 1-731 and 1-737 of title 63 restricting abortions to certain facilities are unconstitutional. The other issue in this case is whether the trial court erred in dismissing individual members of the Oklahoma State Board of Health (Board) as defendants and denying the petition for writ of mandamus. We find that, on the record before this Court, sections 1-731 and 1-737 are not unconstitutional and a writ of mandamus should issue against the Commissioner of the Oklahoma State Board of Health.
¶2 In 1973, the United States Supreme Court in Roe v. Wade 1 severely limited a state's ability to regulate abortion particularly in the first and second trimesters. In 1978, the Oklahoma Legislature enacted legislation requiring first trimester abortions to be performed in facilities licensed by the state, 2 requiring abortions performed between the end of the first trimester and pre-viability be carried out in general hospitals, 3 and banning nontherapeutic 4 abortions after viability. 5
¶3 In 1984, Oklahoma's Attorney General opined that these restrictions on abortion were unconstitutional 6 and that the Department of Health (Department) was not required to follow his opinion but was bound by the United States Constitution. 7 Thereafter, the Department refused to enforce these restrictions. In 1992, the United States Supreme Court issued Planned Parenthood of Southeastern Pennsylvania v. Casey 8 which held that the right to abortion was a liberty interest, abortions should be reviewed under an "undue burden test", and overruled several of its previous decisions regulating abortions.
¶4 Twenty-three Oklahoma legislators, a physician practicing in Oklahoma, and a woman who allegedly had suffered injury from an abortion performed in a clinic 9 (collectively, plaintiffs) filed this suit against the individual members of the Board, the Commissioner of the Department, and the Attorney General of Oklahoma, asking that the Department be compelled to enact standards regulating abortions and to enforce the Oklahoma Statutes requiring abortions be performed in certain facilities. Later, the Department was added, and the Attorney General was dismissed as a defendant.
¶5 The parties stipulated to the following facts. The legislative plaintiffs have standing to bring the suit. Certain plaintiffs are members on the Board, and the Commissioner has the duty to administer and enforce the laws regarding the Department. In 1979, the Board promulgated rules for the licensure and governance of abortion facilities, but the Commissioner has not enforced either the rules or statutes since the Attorney General rendered his opinions finding Oklahoma's statutes were unconstitutional. Currently, ambulatory surgical centers, hospitals, nursing facilities, hospices, home care agencies, birthing centers, alcoholism treatment centers, and emergency medical services are regulated by the Department. Between 1981 and 1997, there were three abortion-related deaths in Oklahoma.
¶6 At the hearing, the trial judge refused to admit petitions filed in district courts alleging malpractice by doctors performing abortions. The trial judge also refused to hear plaintiffs' evidence regarding the need to regulate abortion facilities and the need for certain emergency equipment. Also rejected was the testimony of the plaintiff, Ms. Golmoradi, regarding the complications from her abortion. The defendants argued without presenting supporting evidence that the effect of the statutes and rules regulating abortion would create an undue burden on the right to have an abortion. 10 The district court held that the individual members of the Board were not proper parties and dismissed them from the suit. The district court found that the statutes regulating abortions were unconstitutional and denied the petition for writ of mandamus.
¶7 The plaintiffs filed a petition in error preserving for this Court's review the following issues: (1) whether mandamus is an appropriate remedy in this case, (2) whether sections 1-731 and 1-737 of title 63 of the Oklahoma Statutes are constitutional, and (3) whether the trial judge improperly excluded testimony of plaintiff's expert and evidence of malpractice suits filed in district courts. This Court retained the case for disposition.
¶8 Standing is based on an interest in the proceeding that is "direct, immediate and substantial." 11 The plaintiff Sharon Golmoradi has undergone two abortions which were done in private clinics. One of the abortions resulted in her suffering physical injury in the form of hemorrhaging. The plaintiff Dr. Craig Evans is a physician who is practicing medicine in Oklahoma County, Oklahoma. Both of these plaintiffs have a direct, immediate and substantial interest in the enforcement of the statutes and regulations at issue in this case: Ms. Golmoradi because of her previous injury and Dr. Evans because of his status as a practicing physician.
¶9 We need not address the standing of the plaintiffs which are members of the Oklahoma Legislature since we find that the other two plaintiffs have standing. 12 Rather our decision rests on the standing of Ms. Golmoradi and Dr. Evans.
¶10 The defendants argue that mandamus is not a proper remedy in this case because promulgation of rules and enforcement of both rules and statutes are discretionary functions and there is not a plain legal duty to perform discretionary functions.
¶11 We first note that in 1979, the Board promulgated regulations governing the licensure of abortion facilities. The defendants have not argued that the 1979 regulations which are still effective, even though not enforced, are inconsistent with the abortion statutes or that the regulations do not meet the mandate of section 1-737. This leaves the question of whether mandamus is proper as to the enforcement of the statutes and regulations.
¶12 Writs of mandamus are governed by sections 1451 and 1452 of title 12 of the Oklahoma Statutes. Section 1451 provides that a writ of mandamus may issue "to any ... board or person ... to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station." Section 1452 prohibits the issuance of a writ "where there is a plain and adequate remedy in the ordinary course of the law."
¶13 Here, the Commissioner has the duty to enforce the "rules, regulations and standards adopted by the State Board of Health." 13 Although the Commissioner has the discretion as to the enforcement in individual cases, he does not have the discretion to ignore valid regulations regarding licensure of abortion facilities. 14 Because the Commissioner has the clear legal duty to enforce valid regulations, the next issue in this case is whether the statutes underlying the licensure standards are constitutional.
¶14 As stated above, under Oklahoma's statutory scheme, the Oklahoma State Board of Health has the power to adopt rules and regulations to carry out the provisions of the Oklahoma Public Health Code. 15 The State Commissioner of Health is charged with enforcing the rules and regulations adopted by the Board. 16
¶15 In 1978, the Oklahoma Legislature enacted sections 1-731(B) and 1-737 of title 63 of the Oklahoma Statutes as part of the Oklahoma Public Health Code. Section 1-731(B) provides:
No person shall perform or induce an abortion upon a pregnant woman subsequent to the end of the first trimester of her pregnancy, unless such abortion is performed or induced in a general hospital.
Section 1-737 provides:
An abortion otherwise permitted by law shall be performed only in a hospital, as defined in this article, which meets standards set by the Department. The Department shall develop and promulgate reasonable standards relating to abortions.
Section 1-732 prohibits abortions after the fetus is viable 17 except for preservation of a...
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