Roe v. Arizona Bd. of Regents

• Decision Date: 21 April 1975
• Docket Number: No. 2,CA-CIV,2
• Citation: 534 P.2d 285,23 Ariz.App. 477
• Parties: Jane ROE, for herself and as a class for all those similarly situated, Appellant, v. ARIZONA BOARD OF REGENTS, a body corporate, and Bruce E. Babbitt, Attorney General of the State of Arizona, Appellees. 1834.
• Court: Arizona Court of Appeals

Page 285

534 P.2d 285

23 Ariz.App. 477

Jane ROE, for herself and as a class for all those similarly situated, Appellant, v. ARIZONA BOARD OF REGENTS, a body corporate, and Bruce E. Babbitt, Attorney General of the State of Arizona, Appellees.

No. 2 CA-CIV 1834.

Court of Appeals of Arizona, Division 2.

April 21, 1975.

Rehearing Denied May 20, 1975.

Review Granted June 24, 1975.

Pollock & Fisher, by Elaine S. Pollock and Barbara E. Fisher, Tucson, Arizona Public Law Advocates, by Barbara E. Fisher, Tucson, for appellant

Bruce E. Babbitt, Atty. Gen., by John S. O'Dowd, Asst. Atty. Gen., Tucson, for appellees.

OPINION

HOWARD, Chief Judge.

Appellant filed this class action in superior court alleging that the State of Arizona unconstitutionally denied her right to have an abortion. She later filed a motion for partial summary judgment declaring A.R.S. § 15--730 unconstitutional and a motion that the action be maintained as a class action. Appellees also filed a motion for summary judgment. This appeal followed the trial court's granting of appellees' motion for summary judgment.

The facts are undisputed. At the time the complaint was filed on June 21, 1974, appellant was a nineteen-year-old unmarried female. She was eligible for medical assistance from Pima County and for several months had been under the care of Dr. Harlan Giles, Professor or Obstetrics and Gynecology at the University of Arizona Medical Center. On June 19, 1974, appellant was sixteen to seventeen weeks pregnant, and she and her physician determined it would be in her best interest to have an abortion. Although the University of Arizona Medical Center had been performing abortions since the decision of the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), her doctor informed her that he had been advised on or about May 17, 1974, that because of Arizona law and the Board of Regents' policy, the University Hospital would not permit use of its facilities for performing an abortion unless it was necessary to save the life of the monther.

Abortions were being performed within the guidelines set forth by Roe v. Wade, supra, until May 16, 1974, when the Arizona State Legislature passed A.R.S. § 15--730 as a rider to a bill authorizing the Board of Regents to issue revenue bonds in order to remodel the football stadium at the University of Arizona. This statute provides:

'No abortions shall be performed at any facility under the jurisdiction of the board of regents unless such abortion is necessary to save the life of the woman having the abortion.'

The enactment of the statute was followed by the Board of Regents passing a resolution conforming to this statute.

The Board of Regents in addition to the aforementioned statute relies on A.R.S. § 36--2151 to justify its actions. This statute, passed in 1973, states:

'No hospital is required to admit any patient for the purpose of performing an abortion. A physician, or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital, doctor, clinic, or other medical or surgical facility in which an abortion has been authorized, who shall state in writing an objection to such abortion on moral or religious grounds shall not be required to participate in the medical or surgical procedures which will result in the abortion.'

When the instant case was filed appellant requested a temporary restraining order, which was granted, restraining appellees from prohibiting her abortion at the University Hospital. ¹ Since the filing of this lawsuit an abortion was performed at the University Hospital upon appellant.

In granting appellees' motion for summary judgment the trial court ruled that while appellant may have a right to obtain an abortion she is not entitled to have one provided by the State as a matter of right at the University Hospital. It further ruled that A.R.S. § 15--730 does not regulate appellant's constitutional rights but rather the operation of a state-owned and state-operated facility and that it is not invalid on its face; that appellant had not established that the statute infringed upon her rights under Roe v. Wade supra; that there was no showing that it was an appropriate case for a class action; and that even if appellant were to prevail her attorneys' fees would not be recoverable from appellees.

Appellant presents the following questions for review:

'1. Did the trial court err in upholding the constitutionality of A.R.S. § 15--730 in light of the Supreme Court's decision in Roe v. Wade and Doe v. Bolton and cases interpreting those decisions?

2. Is A.R.S. § 36--2151 unconstitutional and overbroad in that it permits a state owned and operated hospital to refuse to admit any patient for the performance of an abortion?

3. Did the Defendants violate Title 42 U.S.C. § 1983 by depriving Plaintiff of her constitutional rights under color of State law?

4. Did the trail (sic) court err in denying Plaintiff the right to represent the class of persons similarly situated?

5. Did the trial court err in denying attorneys fees to Plaintiff when Plaintiff has been forced to litigate to exercise her fundamental constitutional rights?'

CONSTITUTIONALITY OF THE STATUTES

The language of Roe v. Wade, supra, and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), makes it clear that an abortion decision and its implementation is a fundamental right of personal liberty embraced within the due process clause of the Fourteenth Amendment and is thereby protected from undue infringement by the State. Absent compelling circumstances of state interest, regulation of abortion is unconstitutional. Roe v. Wade, supra, 410 U.S. at 155, 93 S.Ct. 705.

The point of 'compelling interest' was set out in a tripartite test by the Supreme Court in Roe v. Wade:

'(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.' 410 U.S. at 164--65, 93 S.Ct. at 708.

Where the State fails to take cognizance of the separate trimesters of pregnancy in its regulation of abortion procedures, the regulation is overbroad and invalid. Doe v. Bolton, supra; Roe v. Wade, supra; Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir. 1974), cert. denied 419 U.S. 891, 95 S.Ct. 169, 42 L.Ed.2d 136.

The trial court's rationale in upholding A.R.S. § 15--730 on the basis that there is no requirement that the State provide appellant with an abortion was advanced and rejected by the Court in Nyberg v. City of Virginia, supra:

'Appellant frames the issue to be whether the state has an affirmative duty under Roe and Doe to provide abortion facilities. This record does not present a situation where the hospital would be required to establish new or different facilities and staff in order to perform the operations. For reasons set out below, we find that the district court in this case was correct in ordering the Virginia Municipal Hospital to make its existing facilities available for the performing of abortions.' 495 F.2d at 1345.

As in the Nyberg case, the record here shows that the University of Arizona Hospital had been performing abortions and that it was not necessary to create new facilities or staff in order to perform them. We agree with the Nyberg court's reasons for holding that the Virginia Municipal Hospital had to make its existing facilities available for performing abortions. It adopted the rationale of Hathaway v. Worcester City Hospital, 475 F.2d 701 (1st Cir. 1973):

'But it seems clear, after Roe and Doe, that a fundamental interest is involved, requiring a compelling rationale to justify permitting some hospital surgical procedures and banning another involving no greater risk or demand on staff and facilities. * * * (I)t is clear under Roe and Doe that a complete ban on a surgical procedure relating to the fundamental interest in the pregnancy decision is far too broad when other comparable surgical procedures are performed. * * * (O)nce the state has undertaken to provide general short-term hospital care, as here, it may not constitutionally draw the line at medically indistinguishable surgical procedures that impinge on fundamental rights.' 475 F.2d at 705--706.

As to the constitutionality of the statute in question we approve the following quotation from Nyberg:

'It would be a nonsequitur to say that the abortion decision and its effectuation is an election to be made by the physician and his patient without interference by the state and then allow the state, through its public hospitals, to effectively bar the physician from using state facilities to perform the operation.' 495 F.2d at 1346.

In accord with the Nyberg case is Doe v. Hale Hospital, 500 F.2d 144 (1st Cir. 1974) cert. denied, 420 U.S. 907, 95 S.Ct. 825, 42 L.Ed.2d 837 (1975), which held that a public medical facility may not forbid elective abortions so long as it offers medically indistinguishable procedures, without violating the fundamental right associated with the decision to terminate pregnancy. See also, Friendship Medical Center Ltd. v. Chicago Board of Health, 505 F.2d 1141 (7th Cir. 1974) and Orr v. Koefoot, 377 F.Supp. 673 (D.Neb.1974). As for A.R.S. § 36--2151, in view of the foregoing discussion, the first sentence thereof ('No hospital is required to admit any...