Doe v. Poelker, 74-1232.

• Decision Date: 04 June 1974
• Docket Number: No. 74-1232.,74-1232.
• Citation: 497 F.2d 1063
• Parties: Jane DOE, Appellant, v. John H. POELKER, Mayor of the City of St. Louis, Missouri, and R. Dean Wochner, M.D., Director of the Department of Health and Hospitals and Acting Hospital Commissioner of the City of St. Louis, Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

497 F.2d 1063 (1974)

Jane DOE, Appellant, v. John H. POELKER, Mayor of the City of St. Louis, Missouri, and R. Dean Wochner, M.D., Director of the Department of Health and Hospitals and Acting Hospital Commissioner of the City of St. Louis, Missouri, Appellees.

No. 74-1232.

United States Court of Appeals, Eighth Circuit.

Submitted May 17, 1974.

Decided June 4, 1974.

Rehearing and Rehearing Denied June 27, 1974.

COPYRIGHT MATERIAL OMITTED

Frank Susman, St. Louis, Mo., for appellant.

Eugene P. Freeman, St. Louis, Mo., for appellee.

Before BRIGHT and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.^*

Rehearing and Rehearing En Banc Denied June 27, 1974.

ROSS, Circuit Judge.

This is an action for a declaratory judgment and a permanent injunction against implementation of the policies, rules, regulations and procedures barring the performance of abortions in the two public hospitals in the City of St. Louis, Missouri. From an order dismissing the complaint for lack of standing and mootness, Doe appeals. For the reasons hereinafter expressed, we reverse.

Jane Doe alleged in her complaint, and verified by way of affidavit, that she was pregnant, was the mother of two children, was in severe financial straits, and was suffering from cervical fibroid tumors and polyps, a retroverted uteris, and trichomycosis. Twice she consulted staff members at Starkloff Memorial Hospital, owned and operated by the City of St. Louis, and was advised that she would require a hysterectomy. They told her to procure an abortion elsewhere and then return to the hospital for the hysterectomy. The reasons proffered by the hospital for the two-operation recommendation was the hospital's stated policy¹ against performing abortions. Doe thereupon commenced this action against the Mayor of St. Louis and the Director of the Department of Health and Hospitals on her own behalf and on behalf of the entire class of pregnant women residents of the City of St. Louis, Missouri, desiring to utilize the personnel, facilities and services of the general public hospitals within the City of St. Louis for the termination of pregnancies.

After the complaint had been filed and service perfected upon one of the defendants, but before service on the other defendant, Doe procured an abortion from an alternative source.² Defendants thereafter moved the court to dismiss Doe's complaint for lack of standing.³ In granting defendants' motion, the court held that, by virtue of the fact that Doe had obtained an abortion, Doe was no longer a member of the class she purported to represent. The court then ordered that Doe could not represent the class of pregnant female residents of St. Louis. Next, the court determined that although she may have had standing to proceed on her own behalf on the date she filed her complaint, her individual case had become moot after she procured an abortion. 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. 739, 35 L.Ed.2d 201 (1973) compel a different result on both standing and mootness.

The question of standing in the federal court is to be considered in the framework of Article III which restricts the judicial power to "cases" and "controversies." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968). The prerequisites of standing are a "logical nexus between the status asserted and the claim sought to be adjudicated," Flast v. Cohen, supra, 392 U.S. at 102, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).

These requirements are met on these facts. Plaintiff's injury and that of her class is her inability to obtain an abortion prior to fetal viability in St. Louis public hospitals free from regulations other than those that advance interests in maternal health. The interest sought to be protected is the constitutionally guaranteed right to an abortion prior to viability. The defendants are attempting to regulate that interest by the challenged rules and policies of the hospital which inhibit and (in effect) proscribe abortions.

This conclusion that Doe has standing is mandated by the resolution of the identical issue in Roe v. Wade, supra, 410 U.S. at 124, and Doe v. Bolton, supra, 410 U.S. at 187. Each of the plaintiffs in those actions was, like the plaintiff here, not shown to have been pregnant at the time of the district court hearing. Likewise, each of the plaintiffs was, at the relevant time, precluded from implementing her previability abortion decision by the challenged statutes and regulations. In Roe, the Supreme Court said:

Viewing Roe\'s case as of the time of its filing and thereafter until as late as May yet prior to the May 22 district court hearing, there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. . . . The "logical nexus between the status asserted and the claim sought to be adjudicated," and the necessary degree of contentiousness are both present.

Id. at 124 (emphasis supplied and citations omitted). The court thereupon found that Roe had standing to undertake the litigation. Id. at 125. A similar result was reached in Doe v. Bolton where it was concluded that Doe's pregnant state on the date of the commencement of the action gave her standing to maintain the action. Id. at 187. Recently, in Doe v. Israel, 482 F.2d 156, 158 (1st Cir. 1973), cert. denied, ___ U. S. ___, 94 S.Ct. 2406, 40 L.Ed.2d 772, 42 U.S.L.W. 3627 (1974), the First Circuit has said:

In response to questioning defendant essentially suggests only one: that plaintiffs, no longer being pregnant, have no sufficient interest or standing. In the light of Roe, this argument proves too much.

We consider that defendant\'s claim of mootness is a will-o\'-the-wisp and assumes the very question at issue. If a plaintiff has a right to terminate her pregnancy — which is the legal question before us — the sooner she succeeds in doing so, the better. We have in mind the trimester trilogy, on which defendant relies in another connection, and its effect on viability and the pregnant plaintiff\'s health. It seems not only illogical but, to use a polite word, harsh, to argue that in order to establish her right to an abortion a woman must decline to have it. (Citation omitted.)

We conclude here that Doe has standing to challenge the hospital policy. Moreover, since she has adequate standing to proceed in her own behalf, on the authority of Doe v. Bolton, supra, 410 U.S. at 188, Doe and her class can be recognized.

Separate and distinct from standing is the doctrine of mootness. That question is also a product of the Article III requirement of a case or controversy. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). The usual rule in federal cases is that an actual controversy must exist at all stages of appellate or certiorari review, and not simply at the date the action is initiated. SEC v....