Doe v. Bellin Memorial Hospital

• Decision Date: 01 June 1973
• Docket Number: No. 73-1396.,73-1396.
• Citation: 479 F.2d 756
• Parties: Jane DOE and Herbert F. Sandmire, M.D., Plaintiffs-Appellees, v. BELLIN MEMORIAL HOSPITAL et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

479 F.2d 756 (1973)

Jane DOE and Herbert F. Sandmire, M.D., Plaintiffs-Appellees, v. BELLIN MEMORIAL HOSPITAL et al., Defendants-Appellants.

No. 73-1396.

United States Court of Appeals, Seventh Circuit.

Argued May 30, 1973.

Decided June 1, 1973.

Alexander R. Grant, Gregory B. Conway, Green Bay, Wis., for defendants-appellants.

Paul L. Jonjak, Sturgeon Bay, Wis., for plaintiffs-appellees.

Before KILEY, PELL and STEVENS, Circuit Judges.

STEVENS, Circuit Judge.

The district court ordered the defendant hospital to make its facilities and staff available to the plaintiff doctor for the immediate performance of an abortion on the plaintiff, Jane Doe. We stayed that order and expedited defendants' appeal. The ultimate issue is whether the defendants, who are regulated by the State of Wisconsin and have accepted financial support pursuant to the Hill-Burton Act, 42 U.S.C. § 291, may refuse to perform abortions without offending the Civil Rights Act, 42 U.S. C. § 1983. We hold that they may, since the record does not indicate that their refusal was directly or indirectly influenced by the State or by persons acting under color of State law.

On April 26, 1973, plaintiff filed a verified complaint, together with the affidavit of Dr. Sandmire, plaintiff Doe's attending physician and a member of the staff of the defendant hospital. For purposes of decision we accept the facts as stated in those documents notwithstanding defendants' objection to the district court's refusal to hear their witnesses.¹ These facts are fairly summarized in plaintiffs' brief from which we quote:

"This case arises from Bellin Memorial Hospital\'s refusal to permit use of its facilities for an abortion for Jane Doe and its enforcement of abortion-restricting rules.

"Jane Doe, a resident of Shawano County, Wisconsin, became pregnant on February 4, 1973, and was scheduled for an abortion in a Madison, Wisconsin, clinic on April 4, 1973, but could not keep the appointment because of a severe snow storm. Her pregnancy had advanced too far to permit a clinic abortion, so Jane Doe\'s personal physician referred her to Dr. Herbert F. Sandmire, who performed an examination on April 19, 1973. Dr. Sandmire determined, after consultation with his patient, that in his medical judgment, the patient\'s pregnancy should be terminated in a hospital.

"Practical considerations, such as time, distance, and expense, normally limit Dr. Sandmire\'s practice to Green Bay hospitals and he has practiced his profession at Bellin Memorial Hospital for a number of years. He contacted St. Vincent Hospital, St. Mary\'s Hospital, and Bellin Memorial Hospital, the only Green Bay hospitals with suitable facilities, to request their use for the operation, but in each instance his request was refused.

"Bellin Memorial Hospital informed Dr. Sandmire it was enforcing rules restricting abortions to cases where pregnancy would: seriously threaten the health or life of the mother, or result in delivery of an infant with grave and irreparable physical deformity or mental retardation, or if the pregnancy has resulted from legally established rape or incest. These rules make no provision for seeking consent from a putative father. All abortions are to be reviewed by a medical committee which then reports to the staff and Board of Directors.

"Bellin Memorial Hospital is regulated by the state, has received funding under the Hill-Burton Act from the federal government and has been an agency through which the State of Wisconsin and the United States Government have provided medical services for residents of Northeastern Wisconsin, but the hospital is now denying Jane Doe and Dr. Sandmire use of its facilities by enforcing abortion-restricting rules virtually identical to those required by portions of the Georgia statute declared unconstitutional in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, on January 22, 1973. In the past it has denied Dr. Sandmire use of its facilities for an abortion restricted by these rules, it has denied the facilities for Jane Doe because of these rules, and apparently it intends to continue to enforce these rules against Dr. Sandmire\'s patients in the future.

"Every passing day increases the medical risk to Jane Doe and at the time of Dr. Sandmire\'s examination, she was nearing the end of her first trimester of pregnancy on May 4, 1973, at which point medical risks increase dramatically.

"Dr. Sandmire and Jane Doe, therefore, brought this action against Bellin Memorial Hospital and certain of its officials and agents seeking: an injunction restraining defendants from denying the use of their facilities for an abortion to be performed on Jane Doe or any other patients of Dr. Sandmire in the future, and for certain other relief."²

On May 2, 1973, the district court granted a preliminary injunction. Because we seriously doubted that plaintiffs would ultimately succeed on the merits, and saw a practical risk that immediate performance of the abortion might result in a termination of the litigation in advance of appellate review, we granted defendants' application for a stay on May 3.³ We now reverse.

I.

Defendants argue that we should not reach the merits because plaintiffs have failed (a) to join the putative father as a party, or (b) to establish irreparable harm. We are not persuaded by either of these arguments.

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court held that the right to make the "abortion decision" is an aspect of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. In both Mr. Justice Blackmun's opinion for the Court⁴ and Mr. Justice Stewart's concurring opinion, the possessor of that right is plainly identified as the woman; no reference is made to the putative father. The analysis in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L.Ed.2d 349 from which Mr. Justice Stewart quoted, plainly indicates that the constitutionally protected right of privacy is an individual rather than a joint right. He stated:

"As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, we recognized `the right of the individual married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.\' That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.

* * * * * *

"Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment." 410 U.S. at 169, 93 S. Ct. at 735 (Mr. Justice Stewart concurring).

We find nothing in these opinions to support the suggestion that the woman's right to make the abortion decision is conditioned on the consent of the putative father.⁵ In fact, the conclusion that the word "person," as used in the Fourteenth Amendment, does not include the unborn (at p. 729), points in the other direction and serves to distinguish Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, on which defendants rely. The putative father, whoever he may be, is not an indispensable party.

Defendants argue that plaintiff has not proved irreparable injury because the record does not foreclose the possibility that she could travel to another community and obtain the care she needs.⁶ But if she has a federal right to have the operation performed in Bellin Memorial Hospital, where her doctor is a member of the staff, and if, as her doctor has attested, there are increasingly serious hazards associated with the performance of the abortion, it is doubtful that the recovery of purely monetary damages would provide her with an adequate remedy. The quality, rather than the magnitude, of the potential risks supports the district court's evaluation of the character of her possible injury as "irreparable". In view of the sensitive interests at stake, we are persuaded that the record contains an adequate showing of the element of irreparable damage needed for preliminary injunctive purposes. We therefore turn to the merits.

II.

A woman's right to make the abortion decision is protected by the Fourteenth Amendment from deprivation by a state. For that reason a statute which makes the performance of an abortion a crime, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 1471 (1973), or which requires the medical profession to observe unnecessary abortion-restricting rules, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), is invalid. The rationale of those cases has also been applied to rules adopted by the Worcester City Hospital, Hathaway v. Worcester City Hospital, 475 F.2d 701 (1st Cir. 1973), and by the New York Commissioner of Social Services, Klein, et al. v. Nassau County Medical Center, et al., 347 F.Supp. 496 (E. D.N.Y.1972).

The rationale of those cases is, however, inapplicable to private institutions. There is no constitutional objection to the decision by a purely private hospital that it will not permit its facilities to be used for the performance of abortions. We think it is also clear that if a state is completely neutral on the question whether private hospitals shall perform abortions, the state may expressly authorize such hospitals to answer that question for themselves.

The Georgia abortion statute which was reviewed in detail in Doe v. Bolton, supra, contained such a provision. The Supreme Court did not expressly pass on the validity of that provision, but since it was attacked in one of the amicus briefs,⁷ and since the Court reviewed the entire statute in such detail, it is reasonable to infer that it considered such authorization unobjectionable. After summarizing the other provisions of the Georgia statute, the Court noted:

"There is also a provision (subsection (e) ) giving a hospital the right not

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