Doe v. Temple

• Citation: 409 F. Supp. 899
• Decision Date: 17 February 1976
• Docket Number: Civ. A. No. 76-0006-R.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Jane DOE, etc., Plaintiffs, v. T. Edward TEMPLE, etc., Defendants.

409 F. Supp. 899

Jane DOE, etc., Plaintiffs, v. T. Edward TEMPLE, etc., Defendants.

Civ. A. No. 76-0006-R.

United States District Court, E. D. Virginia, Richmond Division.

February 17, 1976.

James R. Jackson, Jr., John M. Levy, Neighborhood Legal Aid Society, Richmond, Va., Richard Edelin Crouch, American Civil Liberties Union, Arlington, Va., for plaintiffs.

Wilbur H. Ryland, Asst. Atty. Gen. of Va., Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, Jane Doe, brings this action on behalf of herself and all others similarly situated against T. Edward Temple, individually and as the President of Virginia Commonwealth University-Medical College of Virginia, and Dr. Hans Bartold Krebs, individually, for declaratory and injunctive relief against the further enforcement of spousal consent provisions for sterilization in § 32-423 of the Code of Virginia. Plaintiff contends that the provision contained therein prohibiting sterilization of married persons without spousal consent violates her and all others similarly situated, right to privacy and reproductive freedom. It is alleged that the plaintiffs' rights under the First, Fourth, Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States have been violated, and that, accordingly, the cause of action arises under 42 U.S.C. § 1983. Jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1331¹ and § 1334(3) and (4). Declaratory relief is sought pursuant to 28 U.S.C. §§ 2201 and 2202, and injunctive relief is sought pursuant to order by a three-judge court under 28 U.S.C. §§ 2281 and 2284.

The defendants, represented by the Attorney General of Virginia, moved to dismiss the complaint on the grounds that § 32-423 of the Code of Virginia, contra to the allegations of the complaint, does not require the spouse's consent as a prerequisite to voluntary sterilization, and thus the section does not deny the plaintiffs any rights secured by the United States Constitution. Since this Court, prior to seeking the designation of a three-judge court panel, has the responsibility of determining whether the complaint is properly cognizable in the federal court, and whether same states a substantial federal claim, the pending motion is ripe for determination. Swift & Company, Inc. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Ex parte Poresky, 290 U.S. 30 (1933); Smith v. Follette, 445 F.2d 955 (2d Cir. 1971); Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F.2d 606 (4th Cir. 1970); Jacobs v. Tawes, 250 F.2d 611 (4th Cir. 1957); Horn v. O'Cheskey, 378 F.Supp. 1280 (D.N.M.1974); Puglia v. Cotter, 333 F.Supp. 940 (D.Conn.1971); Cherry v. Postmaster General, 272 F.Supp. 982 (D.P.R.1967).

Section 32-423 of the Code of Virginia reads as follows:

It shall be lawful for any physician or surgeon licensed by this State, when so requested by any person who has attained the age of twenty-one years, to perform, upon such person a vasectomy, or salpingectomy, or other surgical sexual sterilization procedure, as the case may be, provided a request in writing is made by such person and by his or her spouse, if there be one, prior to the performance of such surgical operation and provided further, that prior to or at the time of such request a full and reasonable medical explanation is given by such physician or surgeon to such person as to the meaning and consequences of such operations. No such request shall be necessary for the spouse of the person requesting such surgical operation if the person requesting such operation shall state in writing under oath that his spouse has disappeared or that they have been separated continually for a period of more than one year prior thereto. Provided, however, that no such surgical operation shall be performed pursuant to the provisions of this section prior to thirty days from the date of consent or request therefor on any person who has not theretofore become the parent of a child. (Emphasis added).

The defendants argue that § 32-423 when read in conjunction with § 32-426 of the Virginia Code only was intended to provide "an immunity against any cause of action a consenting spouse may assert against the physician who performed such a sterilization operation." It does not prohibit sterilization operations without spousal consent. Section 32-426 of the Code of Virginia states as follows:

"Subject to the rules of law applicable generally to negligence, no physician or surgeon licensed by this State shall be liable either civilly or criminally by reason of having performed a vasectomy, salpingectomy, or other surgical sexual sterilization procedure authorized by the provisions of this chapter upon any person in this State." (Emphasis added).

It is asserted that the provision of an immunity from all civil and criminal liability to operating physicians was the exclusive purpose of the chapter of the Virginia Code containing the contested statute, and, therefore, the statute does not in fact declare it unlawful for a physician to perform a sterilization operation without the consent of the spouse.

Support for the defendants' interpretation of the statute is found in an opinion of the Virginia Attorney General. (1972-73) Report of the Attorney General of Virginia at 340 (Letter of December 28, 1973). The Attorney General was replying to an inquiry on whether it would be legal for a physician to perform a salpingectomy on a twenty year old married woman with the consent of her husband for birth control purposes only. The contested statute, § 32-423, expresses the policy that it shall be "lawful" to perform requested sterilization operations on "any such person who has attained the age of twenty-one years", and the inquiry asked if this meant it was unlawful for sterilization operations to be performed on persons less than twenty-one years old. The Attorney General responded by noting the following:

Section 32-423 grants immunity to a physician or surgeon licensed by the Commonwealth from civil or criminal liability, subject to the rules of law applicable generally to negligence, by reason of having performed the vasectomy, salpingectomy, or other surgical sterilization procedure authorized by the provisions of §§ 32-423 through 32-424.1 of the Code.

Therefore, voluntary sexual sterilization solely for birth control purposes of a twenty year old married woman who has two children is not authorized under § 32-423 of the Code as amended. It should be noted that there is no statute which explicitly prohibits a licensed physician from performing a salpingectomy on a twenty year old married woman who has two children with her consent and the consent of her husband. A physician who performs such an operation, however, is not granted statutory immunity from civil or criminal liability, if any, since § 32-426 grants immunity only to physicians who perform those procedures authorized by the provisions of § 32-423, et seq. of the Code. (Emphasis added).

Clearly the Attorney General of Virginia operates under the belief that § 32-423 does not act to prohibit any surgical sterilization activity not expressly covered and permitted by its proscriptions. Rather he believes the section was intended only to legalize specified operations and immunize the doctors involved. In other words, the statute was intended to encourage sterilizations of a specified nature by immunizing the doctors performing the operations from civil or criminal liability, but it was not intended to prohibit those operations not specifically covered therein.

The plaintiff contends for the application of the maxim of statutory construction expressio unius est exclusio alterius to the literal language of § 32-423; § 32-423 prescribes what is lawful and, by exclusion, what is unlawful. The maxim has been increasingly considered to be unreliable, e. g. National Petroleum Refiners Ass'n v. FTC, 157 U.S.App. D.C. 83, 482 F.2d 672, 676 (1972), as it often operates contrariwise of fairly clear legislative intentions or operates to artificially fill a void in the statutory framework with one of several possible solutions, the differences between which the legislators may not have analyzed. The latter situation is present here. While there clearly was a group of sterilization procedures that the legislature intended to sanction, it may not be said that all those not included in the sections in controversy are outlawed. The legislators appear to have desired to protect from civil and criminal immunity doctors performing specified sterilization operations. Operations not so specified were not outlawed, but the physicians performing them were not immunized from potential civil and criminal liability, if indeed it exists at all. The question of whether unsanctioned operations are legally permissible was left open, dependent on existing legal constructions. While the plaintiff may have a valid constitutional claim against the imposition of those civil and criminal penalties, if they exist, on the grounds of the right to privacy in reproductive matters, the sections in controversy do not directly prohibit or penalize the alleged exercise of that right. Accordingly, the plaintiff's argument that the section, as it prohibits sterilization operations without the consent of the spouse, is unconstitutional must fail.

The plaintiff argues further, however, that even if the sole purpose of § 32-423 and 32-426 is to provide civil and criminal immunity to a physician who performs a...