Reproductive Health Services v. Webster

• Decision Date: 30 April 1987
• Docket Number: No. 86-4478-CV-C-5.,86-4478-CV-C-5.
• Citation: 662 F. Supp. 407
• Parties: REPRODUCTIVE HEALTH SERVICES, et al., Plaintiffs, v. William L. WEBSTER, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

662 F. Supp. 407

REPRODUCTIVE HEALTH SERVICES, et al., Plaintiffs, v. William L. WEBSTER, et al., Defendants.

No. 86-4478-CV-C-5.

United States District Court, W.D. Missouri, C.D.

March 17, 1987.

As Amended April 30, 1987.

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Frank Susman, Thomas M. Blumenthal, Susman, Schermer, Rimmel & Parker, St. Louis, Mo., Roger K. Evans, Planned Parenthood Federation of America, New York City, for plaintiffs.

Michael Boicourt, Jerry E. Short, William L. Webster, Office of Atty. Gen., Jefferson City, Mo., for defendants.

Andrew F. Puzder, St. Louis, Mo., for amicus curiae.

ORDER

SCOTT O. WRIGHT, Chief Judge.

This is a class action for declaratory and injunctive relief in which plaintiffs challenge the constitutionality of several sections of the 1986 Missouri act relating to the regulation of abortions ("the Act").¹ This Court has jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1331 and § 1343(3).

The named plaintiffs include Reproductive Health Services, a not-for-profit Missouri corporation operating an outpatient clinic in St. Louis, Missouri, which offers gynecological medical services to the public, including abortion services up to 22 weeks "gestational age."² Planned Parenthood of Kansas City is a not-for-profit Missouri corporation which provides pregnancy-related counseling and services, including abortions up to 14 weeks gestational age.

Plaintiff physicians are Howard I. Schwartz, M.D., Robert L. Blake, Jr., M.D., and Carl C. Pearman, M.D. These physicians are licensed to practice medicine in the State of Missouri and are associated with the University of Missouri Schools of Medicine, public facilities as defined in § 1(2) of the Act.³ As such, they are "public employees" as defined in § 1(1), and are paid for the services they render by "public funds" as defined by § 1(3) of the Act. In the scope of that employment, these plaintiffs are consulted by pregnant female patients and, where medically indicated, have occasion to encourage or counsel such women to terminate their pregnancies. As part of their medical practice, Drs. Schwartz and Pearman also perform or assist with abortions, although not necessary to actually save their patients' lives.

Plaintiffs Carroll Metzger, R.N.C., C.M.A., and Mary L. Pemberton, B.S.W., are other health care providers, a registered nurse and social worker, respectively. Both are licensed in Missouri and employed at Truman Medical Center in Kansas City, Missouri, a "public facility." Both are "public employees" who, within the capacity of their employment, occasionally encourage or counsel certain patients to have abortions, even though the pregnancy is not life-threatening. Their services are paid for by "public funds."

These named plaintiffs bring this case on their own behalf and also as representatives of the entire class consisting of facilities, Missouri licensed physicians, or other health care professionals offering abortion counseling and services, and pregnant females.

Defendant William L. Webster is Attorney General of the State of Missouri. The State of Missouri has waived its 11th Amendment immunity from suit in federal court for this action only.

The Act was passed by the Missouri General Assembly on April 23, 1986, signed into law by Governor Ashcroft on June 26, 1986, and was to become effective on August 13, 1986. This action was filed on July 14, 1986. On July 31, 1986, this Court temporarily restrained enforcement of §§ 1.205.1(1), 188.025, 188.029, 188.039, 2, 3, and 4 of the Act. A full trial on the merits was heard on December 15-18, 1986.

I. Class Certification

Prior to trial, the Court certified the plaintiff class pursuant to Rule 23 of the Federal Rules of Civil Procedure, after concluding that all prerequisites set forth in Rule 23(a) had been met.⁴

In evaluating whether the numerosity requirement is met, the Court considers the number of persons in a proposed class, the nature of the action and the inconvenience of trying individual suits. The Court finds that the number of health care providers, facilities and pregnant females in the State is sufficiently numerous. No arbitrary rules regarding the necessary size of classes have been established. Paxton v. Union Nat. Bank, 688 F.2d 552, 559 (8th Cir.1982).

The commonality requisite set forth in Rule 23(a) does not demand that every question of law or fact be common to every member of the class. Id. at 561. Rather, the issues are sufficiently common "where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated." Id.

Similarly, the claims of the representative parties are typical of those of the class if they emanate from the same legal theory, remedial theory or offense" as those they represent. U.S. Fidelity & Guaranty v. Lord, 585 F.2d 860, 870 (8th Cir.1978). Here, the necessary commonality and typicality exist where the statute would prohibit or mandate certain actions of all health professionals who are public employees dealing with pregnant women. Additionally, all women seeking abortions after a specified gestational period would be confronted with other provisions of the Act.

The fourth component of Rule 23(a) focuses on whether the class representatives have common interests with the class members and would vigorously prosecute the interests of the class through qualified counsel. Paxton, 688 F.2d at 562-63. Here, there are no apparent conflicts with the interests of the named plaintiffs and the rest of the class. Plaintiffs' counsel is well-established in this genre of litigation. However, in opposing class certification, the defendant contends that the failure to name as plaintiff a pregnant female seeking abortion services or counseling renders the proposed class description broader than the named plaintiffs' interest. This argument must fail. It is clear that a plaintiff physician has standing to assert the rights of his/her patients, including those seeking abortions. Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 2873-76, 49 L.Ed.2d 826 (1976).

Further, this is the type of case appropriate for a 23(b)(2) class since the defendant has acted on grounds generally applicable to all members of the class and final injunctive and declaratory relief would be the appropriate remedy.⁵ In cases which involve sensitive and highly personal matters, the reasons for certification become more substantial. A class action not only assures anonymity and prevents the chilling effect associated with public exposure concerning abortions, but also provides a fluid membership which guarantees a case or controversy. Singleton, 428 U.S. at 117, 96 S.Ct. at 2875.

The Court disagrees with the defendant's argument that class certification should be denied where the only relief sought is declaratory and injunctive in nature and would automatically inure to the benefit of those similarly situated with the plaintiff. There is no language in Rule 23(b)(2), as there is in Rule 23(b)(3), that requires the Court to consider the necessity for a class action. Rule 23(b)(2) was specifically designed to allow for the class action mechanism in civil rights cases. See Advisory Committee's Note to 1966 Amendment to Rule 23, 39 F.R.D. 98, 102 (1966). Accordingly, the requirements of the rule are given a liberal construction in civil rights suits. Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir.1980). If the requirements of Rule 23(a) are met, a district court's discretion to deny certification on the basis of Rule 23(b)(2) is limited.

While a district court generally should hold an evidentiary hearing before certifying a class, this is not mandatory where the Court has sufficient material before it to determine the nature of the allegations and whether the requirements of Rule 23(a) have been met. See Walker v. World Tire Corp., Inc., 563 F.2d 918, 921 (8th Cir.1977). Here, in the interest of judicial economy and considering the nature of the case, the Court determined that the class certification was proper on the basis of pleadings, affidavits and the law.

II. § 1.205 When Human Life Begins

Section 1.205.1 provides in part:

(1) The life of each human being begins at conception;

(2) Unborn children have protectable interests in life, health, and well-being.

Prior to trial, the Court granted plaintiff's motion in limine to exclude any evidence relating to this provision. In Roe v. Wade, 410 U.S. 113, 162, 93 S.Ct. 705, 731, 35 L.Ed.2d 147 (1973), the United States Supreme Court declared that a state may not adopt one theory of when life begins to justify abortion regulation. The general principles laid down in Roe, reaffirmed in City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), and Thornburgh v. American College of Obstetricians, ___ U.S. ___, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), remain true today. It is inappropriate for this Court to conduct an inquiry into such a difficult and philosophical question:

"When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus when life begins the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

Roe, 410 U.S. at 158, 93 S.Ct. at 729.

Similarly, "the word `person', as used in the Fourteenth Amendment does not include the unborn." Id.

This legislative pronouncement by the Missouri General Assembly clearly conflicts with the essence of Roe v. Wade. Consequently, §§ 1.205.1(1) and (2) are invalid as a matter of law.

III. Summary Judgment

Prior to trial, the plaintiffs moved for summary judgment, urging that Mo.Rev. Stat. §§ 188.025, 188.029, 188.039, 2, 3, and 4 be declared unconstitutional as a matter of law. The standard for determining the propriety of summary judgment under Rule 56(a) is well-settled....