Doe v. General Hospital of District of Columbia

• Decision Date: 15 May 1970
• Docket Number: No. 24011.,24011.
• Citation: 434 F.2d 427
• Parties: Mary DOE et al., Appellants, v. GENERAL HOSPITAL OF the DISTRICT OF COLUMBIA et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

434 F.2d 427 (1970)

Mary DOE et al., Appellants, v. GENERAL HOSPITAL OF the DISTRICT OF COLUMBIA et al., Appellees.

No. 24011.

United States Court of Appeals, District of Columbia Circuit.

May 15, 1970.

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Mr. Michael Nussbaum, with whom Miss Caroline Nickerson, Washington, D. C., was on the motion for appellants.

Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, and David P. Sutton, Asst. Corporation Counsel, for appellees.

Before BAZELON, Chief Judge, McGOWAN and MacKINNON, Circuit Judges, in chambers.

BAZELON, Chief Judge:

This is a motion to hold respondents, various persons connected with the administration of D.C. General Hospital,¹ in civil contempt. At an earlier stage of this litigation, the district court granted preliminary injunctive relief to the class of indigent women resident in the District of Columbia who seek therapeutic abortions at D.C. General Hospital.² Respondents were ordered simply to comply with the hospital's own regulations concerning the grounds for performing such operations; and specifically, to end the practice of limiting abortions performed to protect the woman's mental health to those patients who could establish a history of mental illness predating the pregnancy.³ The day after the district court issued its preliminary injunction, we denied petitioners' motion for summary reversal. Because the papers filed by the parties indicated some confusion regarding the scope of the preliminary injunction, we sought in our order denying summary reversal to state our understanding of what it required.

Thereafter, one of the original named plaintiffs sought and was denied a therapeutic abortion at the hospital under the terms of the preliminary injunction. Petitioners sought to have us hold respondents in civil contempt. We entertained the motion because of the emergency nature of the matter at that time,⁴ but denied the motion because the relief of civil contempt was inappropriate, inasmuch as Mary Doe had received the relief she sought from another source. We noted also that the hospital's action was within an interpretation of the terms of the two outstanding judicial orders which, although clearly wrong, was barely plausible as a first attempt on the part of the hospital administrators to accommodate hospital practices to the requirements of the preliminary injunction. In light of that misunderstanding, however, and with a purpose to avoid further claims of contempt of the preliminary injunction, we accompanied our order with an opinion setting forth, this time in some detail, precisely what compliance with the district court's preliminary injunction appeared in our view to entail.⁵

A second contempt motion demands closer scrutiny, for it calls into question not only the specific denial of treatment to the named petitioner, but also the general practice of the hospital with respect to the members of the class she represents. The facts set forth in the uncontroverted affidavits filed in support of the instant motion are simple. "Mary Doe II" is fourteen years old and eight to eleven weeks pregnant. Her father is an unemployed alcoholic; her mother, who supports Mary and four other children, works as a charwoman in two jobs and earns less than $100 a week. Mrs. Molly Doe, Mary's mother, herself became pregnant for the first time at the age of fourteen. She bore the child, but hopes for a better future for her daughter. Mrs. Doe sought advice from a more affluent and better educated neighbor, who telephoned D.C. General on Mary's behalf. The neighbor was told by Dr. Ward, one of the four staff physicians in the department of obstetrics and gynecology, that abortions on mental health grounds were available only to persons with a prior history of psychiatric treatment.

The chief of obstetrics at D.C. General Hospital testified that the proper response to such a telephone inquiry would be to refer the patient to a public mental health clinic to find out whether there are present mental health indications for a therapeutic abortion.⁶ Dr. Ward, however, made no such referral. He stated that Mary's age was a "social" rather than a "psychiatric" ground for abortion, and consequently she could not obtain a therapeutic abortion without charge at D.C. General Hospital, although she could probably obtain the abortion for a fee at a private hospital.⁷ When the neighbor argued that the Doe family could not afford a private abortion, Dr. Ward told her to "inform the family that it would cost less money to have the abortion now than it would cost to have a baby." On the basis of these facts, petitioners ask us to hold the responsible city and hospital officials in civil contempt, and to afford appropriate supplementary relief.⁸

I

Respondents do not deny that Dr. Ward's action was in violation of the hospital regulations which they have been enjoined to follow. They assert, however, that Dr. Ward acted under a good-faith misunderstanding of the scope of the injunction, and that in any event petitioners' claim is not ripe because Mary Doe II failed to appear in person at the hospital to request an abortion.

We need not pause long over the latter contention. A telephone inquiry is a reasonable and common way of approaching the hospital to request treatment.⁹ Dr. Ward's response gave no indication that further steps would be helpful in Miss Doe's attempt to obtain an abortion. Even now respondents do not suggest that she would have received a more favorable response in person than on the telephone. It would be a cruel and empty formality to require any patient seeking an abortion to present herself at the hospital for certain rejection.¹⁰

The motion for civil contempt does not turn on the question whether Dr. Ward acted in good faith. Its purpose is not to punish intentional misconduct, but rather to enforce compliance with an order of the court and to remedy any harm inflicted on one party by the other party's failure to comply.¹¹ Even though the district court's preliminary injunction affords only temporary relief and may eventually be superseded, nevertheless until it expires it is an order of the court creating important legal rights.¹² If petitioners have been deprived of those rights, then the role of the court on a motion to hold respondents in civil contempt is not to fix blame but to ascertain how the violation occurred, how to prevent a recurrence, and how to repair any damage that has been done.

II

The primary basis for this contempt motion is the preliminary injunction issued by the district court. We need not decide whether, as petitioners allege, the challenged conduct violates orders of this court as well; and whether, in any event, we have jurisdiction to reach the merits of the instant motion.¹³ For we deem it appropriate in the present circumstances to defer in the first instance to the trial court's power to protect the integrity of its own order.¹⁴ That court presently has before it the merits of the litigation; and furthermore, a full evidentiary hearing will be necessary to fashion adequate safeguards to prevent recurrent violations of its injunction. Obviously, the district court is far better equipped than we to hold a hearing to resolve possibly controverted issues of fact. We therefore remand the case to the district court to consider the issue of compliance with its preliminary injunction.

We believe, however, that in light of the tortured course of this litigation, and the repeated instances of administrative confusion or worse, sound judicial practice, as well as fairness, make it highly desirable for us to discuss several issues which will be faced on remand. This discussion will assist the trial court and the parties in facilitating the proceedings on remand, so that indigent patients and their volunteer counsel will not have to shuttle back and forth between courts and have their cases handled in piecemeal fashion.¹⁵

A. What measures have been taken by city and hospital officials to assure that the injunction is obeyed? Respondents assert that Dr. Ward did not know the court orders related to any patients other than the two plaintiffs named in the suit. We find it surprising, to say the least, that any of the four staff physicians assigned to the hospital's department of obstetrics and gynecology could fail to understand the general applicability of either his hospital's regulations or the highly publicized findings by the District Court with respect to the nature of those regulations.¹⁶ But it will be up to the trial court to determine whether this episode should be treated as the isolated mistake of a single doctor, or whether that mistake calls into question the responsibility of the city and hospital officials charged with the administration of the hospital. The mayor, the public health department, the hospital administration, and the department of obstetrics and gynecology all have an obligation to ensure that medical care is provided for the indigent residents of the District of Columbia in an even-handed manner and in conformity with the law. It may be that they also have some responsibility for the events that provide the basis for this motion. After exploring the lines of communication among them, and ascertaining the steps they have taken or could take to comply with its injunction, the trial court should be able to fashion relief adequate to protect the rights of petitioners from erosion by any bureaucratic act of omission or commission.

B. To what extent is compliance with the injunction prevented or hindered by inadequate resources? Respondents represent that an abortion will be promptly available to Mary Doe II "if, upon making the appropriate investigations, it is determined that a therapeutic abortion is legally and medically justified, and if there are available sufficient hospital facilities and resources." Emphasis added. They...