Poe v. Menghini

Decision Date13 March 1972
Docket NumberCiv. A. No. KC-3411.
Citation339 F. Supp. 986
PartiesJane POE et al., Plaintiffs, v. Frank D. MENGHINI, Wyandotte County Attorney, and all others similarly situated, Defendants.
CourtU.S. District Court — District of Kansas


Roy Lucas, New York City, Frederick K. Cross, Kansas City, Kan., Herbert Horowitz, Kansas City, Mo., and Hartzell J. Whyte, Kansas City, Kan., for plaintiffs.

Frank D. Menghini, Wyandotte County Atty., and David P. Mikesic, Asst. County Atty., Kansas City, Kan., for defendants.

Before HILL, Circuit Judge, BROWN and THEIS, District Judges.


THEIS, District Judge.

Several years ago, the Kansas Legislature recognized that many Kansas criminal statutes were archaic and obsolete and that a complete modernization of the Criminal Code was required. Accordingly, the Kansas Judicial Council was commissioned to study and update the Criminal Code and report its findings to the Legislature. In 1969, the Legislature, acting upon the recommendations of the Judicial Council, enacted the new Kansas Criminal Code. One provision of this Code substantially liberalized the circumstances under which a woman could obtain an abortion.1 Modeled on the provision suggested by the Model Penal Code,2 K.S.A. 21-3407 permits an abortion when the following circumstances exist:

1. Continuance of the pregnancy would impair the physical or mental health of the mother;
2. The child would be born with a physical or mental defect;
3. The pregnancy resulted from rape, incest, or other felonious intercourse.

In addition to the suggested procedural requirement that three physicians certify in writing their belief in the justifying circumstances, the Legislature, for reasons known only to itself, added an additional procedural requirement. The Legislature provided in Section 2(a) of the statute that abortions could be performed only in state-licensed hospitals accredited by the Joint Commission on Accreditation of Hospitals (hereinafter referred to as "JCAH").

Following the effective date of the statute, Dr. Weller, in conjunction with the Douglass Hospital, established a therapeutic abortion program which provided family planning counseling, as well as abortion services. The Douglass Hospital in 1970 was not JCAH-accredited, although it previously had been. Otherwise, all the statutory requirements were fully complied with by the Douglass Hospital. During the period of September, 1970, to July, 1971, some 2,000 abortions were performed by Dr. Weller at the Douglass Hospital. On July 28, 1971, the defendant notified the Douglass Hospital by letter that it was in violation of K.S.A. 21-3407, because it was not JCAH-accredited. The Douglass Hospital, fearing prosecution, immediately ceased performing abortions.

Plaintiffs, Jane Poe and Sally Poe, are women who, at the time this action was commenced, were in need of abortions and had allegedly met all the statutory prerequisites. But, due to the limited facilities available and to the restrictive policies of local hospitals, they assert they have been unable to procure abortions. There appear to be only 80 state-licensed hospitals in Kansas accredited by JCAH out of a total of 169.3 However, all plaintiffs state that were it not for the procedural restrictions imposed by K.S.A. 21-3407, the two female plaintiffs could have obtained abortions at Douglass Hospital. Believing the JCAH-accreditation requirement and the three-physician requirement to infringe upon fundamental rights to individual and marital privacy guaranteed by the United States Constitution, plaintiffs filed this action attacking the constitutionality of these provisions of K.S.A. 21-3407. K.S.A. 65-444 is also attacked, since it incorporates and implements the objectionable provisions of K.S.A. 21-3407. Plaintiffs request a declaratory judgment and appropriate injunctive relief.

This action is maintained by plaintiffs both as individuals and as representatives of a class. Jurisdiction is invoked under 28 U.S.C.A. §§ 1331, 1343(3), 2201 and 42 U.S.C.A. § 1983. Actually, there are three subclasses. Plaintiffs Jane Poe and Sally Poe purport to represent all female patients who are now or will in the future seek abortions. Dr. Weller represents all physicians who are prevented from caring for patients because of the restrictive provisions of K. S.A. 21-3407. The Douglass Hospital represents all state-licensed hospitals who are not JCAH-accredited.

Plaintiffs' motion for a temporary restraining order was heard on September 24, 1971, by Chief Judge Brown, who denied the motion. However, since a state statute of statewide application was being challenged as contrary to the Constitution of the United States, he did initiate procedures for convening a three-judge court pursuant to 28 U.S.C.A. § 2281. Board of Regents, etc. v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972). On October 1, 1971, the three-judge court was ordered convened and on October 20, 1971, arguments were heard. On the basis of those arguments and on the affidavits and briefs on file, the provisions of K.S.A. 21-3407 requiring certification of the circumstances by three physicians and limiting performance of the procedure to JCAH-accredited hospitals, are found by this Court, for reasons to be discussed at length, to be in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment; however, these objectionable provisions may be severed from the statute without perverting its ultimate purpose.

Before proceeding to the substantive considerations, there are certain procedural aspects which demand consideration. As previously noted, this action purports to be a class action. Rule 23 of the Federal Rules of Civil Procedure sets out the criteria which must be satisfied before a class action may be maintained. In general, class actions have been favorably viewed by the courts.4 They are especially efficacious in actions such as this where there is a common question of law and relief is sought with respect to the class as a whole. It plainly appears from the affidavits that joinder of all members of the class would be impracticable. Indeed, it is doubtful the members of the class are capable of "specific enumeration,"5 and hence a class action is particularly apropos. This is, in fact, the type of action which is contemplated by Rule 23(b) (2), F.R.Civ.P., since defendant Menghini has acted on grounds generally applicable to all members of the class and final injunctive or declaratory relief with respect to the whole class will be appropriate. Maintenance of the instant case as a class action is not only proper in this case, but also will effectuate the "interests both of judicial administration and of justice."6

Regardless of whether the action is maintained as a class action or as a private action, plaintiffs must demonstrate to the satisfaction of this Court that their claims meet the basic jurisdictional requirements of Article III and of 28 U.S.C.A. § 2201. These jurisdictional requirements embrace two distinct elements. First, the parties must have the requisite standing and, second, they must present a justiciable issue. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The standing requirement is satisfied where, after an examination of the substantive claims, there appears to be a "logical nexus between the status asserted by a plaintiff and the claim sought to be adjudicated." Flast v. Cohen, supra, 392 U.S., at 102, 88 S.Ct., at 1953. A justiciable controversy exists where plaintiffs with a personal stake and interest are arrayed against persons with adverse legal interests in a sufficiently immediate adversary context to warrant declaratory relief. Golden v. Zwickler, supra. It is not necessary that plaintiffs have violated the statute or that a prosecution be pending before the constitutionality of a statute may be challenged, so long as actual interference with fundamental rights is alleged or is shown. Grossen v. Breckenridge, 446 F.2d 833 (6th Cir.1971); Doe v. Dunbar, 320 F.Supp. 1297 (D.Colo.1970).

By this time, it is almost beyond question that Jane Poe and Sally Poe have the requisite standing.7 The fact that they cannot be prosecuted under K. S.A. 21-3407 is of no consequence, since they allege the statute infringes on their fundamental rights of individual and marital privacy. See Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L. Ed.2d 228 (1968). Plaintiffs Weller and Douglass Hospital have standing for the reason that if they perform abortions or permit them to be performed in accordance with their convictions about the fundamental right of a woman to determine whether to have children and to seek medical assistance, they will subject themselves to possible criminal liability.8 Doe v. Dunbar, supra; Roe v. Wade, 314 F.Supp. 1217 (N.D.Tex.1970).

The requisite controversy, apart from a continuing infringement on fundamental rights, is supplied by defendant Menghini's letter dated July 29, 1971, in which he advises the Douglass Hospital "to cease performing abortions immediately." Plaintiffs allege they ceased performing abortions only because they feared prosecution should they continue. The imminency of prosecution is buttressed by plaintiffs' evidence tending to show an ongoing investigation from March, 1971, carried on by the defendant and members of his staff. Part of this investigation, according to the plaintiffs, included harassment and coercion of patients leaving the hospital. A threat of prosecution, when accompanied by acts such as those described in plaintiffs' affidavits, unquestionably gives rise to a real, immediate and substantial controversy.

However, since plaintiffs are challenging the constitutionality of a state statute, it might be proper for this Court to decline to exercise its jurisdiction and...

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