Doe v. Hale Hospital, No. 74-1078

• Decision Date: 12 July 1974
• Docket Number: No. 74-1078
• Citation: 500 F.2d 144
• Parties: Jane DOE et al., Plaintiffs, Appellees, v. HALE HOSPITAL et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 144

500 F.2d 144

Jane DOE et al., Plaintiffs, Appellees, v. HALE HOSPITAL et al., Defendants, Appellants.

No. 74-1078.

United States Court of Appeals, First Circuit.

Argued June 4, 1974.

Decided July 12, 1974.

Robert d. City, Boston, Mass., with whom A. David Mazzone and Moulton, Looney, Mazzone, Falk & Markham, Boston, Mass., were on brief, for appellants.

Nancy C. Gertner, Boston, Mass., with whom Silverglate, Shapiro & Gertner, John Reinstein, James C. Hamilton, and Hamilton & Lamson, Boston, Mass., were on brief, for appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Once again this court is faced with a legal repercussion of the landmark Supreme Court decisions in 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. 755, 35 L.Ed.2d 147 (1973). This time, as in Hathaway v. Worcester City Hospital, 475 F.2d 701 (1st Cir. 1973), we face the question of the obligation of a public hospital to make its facilities available to women seeking abortions.

The pseudonymous plaintiffs, Jane Doe and Rebecca Doe, and plaintiff-in-tervenors, Jane Doe II, III, IV, and V, at the time they became plaintiffs, were pregnant and had consulted a licensed physician who had found an abortion in their best interest. Although class action status was sought on behalf of a class consisting of women in both first and second trimesters, the district court ruled that since all of the original and intervening plaintiffs were in their first trimesters, class action would be allowed, but restricted to those in their first trimester. The suit is a civil rights action seeking declaratory and injunctive relief against rules, policies and practices of defendants restricting use of the facilities of the Hale Hospital for the performance of abortions, which rules, practices and policies are alleged to infringe rights of privacy associated with the decision of a woman to terminate her pregnancy, and are also alleged to deny equal protection of the laws, all in violation of the United States Constitution.

Defendants are the Hale Hospital, a public hospital owned by the city of Haverhill, Massachusetts, and operated by a Board of Trustees (appointed by the mayor of the city), the Director of the Hospital, and the members of its Board of Trustees. For some time Hospital rules have permitted the performance of 'therapeutic' abortions, but have forbidden 'elective' ones. ¹ After the Supreme Court had handed down its abortion decisions the Executive Committee of the Hale Hospital Medical Staff, on February 22, 1973, issued a report to the Hospital Trustees informing the trustees that the hospital possessed adequate medical staff expertise, adequate physical facilities, and adequate supportive personnel for the performance of elective abortions, and that the pertinent guidelines promulgated by the state Department of Public Health would be met by existing hospital regulations and practices. After approval of the report by vote of the medical staff it was submitted to the Board. On March 29, 1973 the Trustees voted first to allow elective abortions to be performed at the Hospital, but second that implementation of the new policy be deferred until certain matters could be clarified. The City Council of Haverhill then asked the Hospital Trustees to reconsider their decision concerning abortions and on April 9, 1973 the trustees voted to table implementation of the abortion policy approved on March 29 until answers to questions concerning the matter could be received from the state Attorney General and from the leaders of the state Senate and House of Representatives.

On May 21, 1973, Dr. Baratt, a specialist in obstetrics and gynecology and a member of the staff of the Hale Hospital, scheduled the performance of elective abortions upon the two original plaintiffs at the Hospital. On the same day the Hospital Director cancelled the scheduled abortions on the grounds that the Trustees of the Hale Hospital did not permit elective abortions to be performed. Thereafter, on June 26, 1973, the Trustees clarified matters by voting unequivocally to bar the performance of elective abortions at the Hospital.

The district court granted temporary restraining orders in favor of each of the plaintiffs pursuant to which each had an abortion performed at the Hale Hospital. Thereafter the court issued a permanent injunction barring the individual defendants, individually or collectively, from enforcing rules and policies forbidding the use of the Hospital's facilities for elective abortions. Although the court's order is worded broadly its opinion is confined to consideration of first trimester pregnancies only. 'The outcome', in the words of the court, was 'inexorably indicated on the basis of a syllogism whose major premise is the opinion of the Supreme Court of the United States in Roe v. Wade (supra) and whose minor premise is the opinion of the United States Court of Appeals for the First Circuit construing Roe v. Wade in the context of a publicly-supported municipal hospital . . .. In Hathaway v. Worcester City Hospital (supra) . . .'. We agree.

It is undisputed that the Hospital permits use of its facilities for the performance of medical procedures which are in the same general area of medical practice as are abortions, some of which expose the patient to greater risk and impose a greater demand upon the resources of the Hospital, and at least one of which is practically identical to the procedures used to perform a first trimester abortion. Indeed, at the time that the performance of the kinds of abortions sought by plaintiffs was barred, the Hospital, as we have noted, permitted therapeutic abortions to be performed. Thus, it is clear that on a medical basis elective abortions are indistinguishable from procedures permitted and performed at the Hale Hospital, and that what we said in Hathaway v. Worcester City Hospital, supra, is fully relevant here:

'Once the state has undertaken to provide general short-term hospital care, as here,...