Taylor v. St. Vincent's Hospital, 74-1142

• Decision Date: 26 August 1975
• Docket Number: No. 74-1142,74-1142
• Citation: 523 F.2d 75
• Parties: James Michael TAYLOR and Gloria Jeane Taylor, husband and wife, on behalf of themselves, Individually, and on behalf of others who may be members of a class of persons similarly situated, Plaintiffs-Appellants, v. ST. VINCENT'S HOSPITAL, a Montana Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 75

523 F.2d 75

James Michael TAYLOR and Gloria Jeane Taylor, husband and wife, on behalf of themselves, Individually, and on behalf of others who may be members of a class of persons similarly situated, Plaintiffs-Appellants, v. ST. VINCENT'S HOSPITAL, a Montana Corporation, Defendant-Appellee.

No. 74-1142.

United States Court of Appeals Ninth Circuit.

Aug. 26, 1975.

Robert L. Stephens, Jr. (argued), Billings, Mont., for plaintiffs-appellants.

Stephen H. Foster (argued), Billings, Mont., for defendant-appellee.

OPINION

Before KOELSCH and CARTER, Circuit Judges, and SCHNACKE ^*, District Judge.

JAMES M. CARTER, Circuit Judge.

The Taylors appeal from the judgment of the district court, sitting without a jury, based upon the stipulated facts which appear in the court's final pre-trial order. We affirm.

In its Opinion, 369 F.Supp. 948 (D.Montana 1973), the court aptly summarized the pertinent facts as follows:

"St. Vincent's Hospital is a private corporation which operates a hospital facility in Billings, Montana, known as St. Vincent's Hospital. It has done so since May 1, 1972, when it took over the operation of the hospital from the Sisters of Charity of Leavenworth, also a private corporation, whose members are all members of a religious order of that name. The physical facilities of St. Vincent's Hospital are now and at all times material in this case have been owned by the Sisters of Charity of Leavenworth, a corporation.

"As a private, charitable, non-profit corporation, St. Vincent's Hospital received certain tax benefits from the State of Montana. The Sisters of Charity of Leavenworth, a corporation, when it operated St. Vincent's Hospital, also applied for and received funds under the Hill-Burton Act (42 U.S.C. §§ 291-291(c)) during the years 1956 through 1963.

"Tubal ligation as a sterilization procedure had not, prior to the preliminary injunction issued by this court in this cause, been performed at St. Vincent's Hospital because of the interpretation placed upon the publication entitled "Ethical and Religious Directives for Catholic Hospitals" which is incorporated by reference in the By-laws of the medical staff of St. Vincent's Hospital. The Bishop of Eastern Montana of the Roman Catholic Church has the responsibility to interpret the directives for members of the Church of Eastern Montana, including members of the congregation of the Sisters of Charity of Leavenworth who are on the Board of Directors or are employed at St. Vincent's Hospital. The Preamble in the "Ethical and Religious Directives" makes it clear that they are based upon moral convictions.

"St. Vincent's Hospital and Billings Deaconess Hospital are the only hospitals in Billings, Montana. In June, 1972, the maternity departments of the two hospitals were combined in St. Vincent's Hospital, and an intensive care nursery was constructed in St. Vincent's Hospital in order to reduce infant mortality in the community and to reduce the cost to the community of duplicated maternity services. Prior to approving consolidation of maternity services at St. Vincent's Hospital, the Trustees of Sisters of Charity of Leavenworth advised local obstetricians and trustees of the Billings Deaconess Hospital that surgical sterilizations would not be allowed at St. Vincent's Hospital. The consolidation was completed and the combined maternity department with intensive care facilities opened in June, 1972.

"The plaintiffs, James and Gloria Taylor, are a married couple who were expecting a second child to be delivered by Caesarian (sic) section on October 31, 1972. The couple decided that they wished Mrs. Taylor to be sterilized by tubal ligation at the time of the Caesarian (sic) section and requested permission of St. Vincent's Hospital for the procedure. Permission was denied." Id. at 949.

Initially, the district court issued an injunction allowing Mrs. Taylor to have a tubal ligation with the cesarean section, and found that the hospital had acted "under color of state law" (42 U.S.C. § 1983) by virtue of its advantageous state tax position and receipt of Hill-Burton Act funds, Supra. However, on June 18, 1973, the "Church Amendment (§ 401(b)) of the Health Programs Extension Act of 1973, P.L. 93-45, 87 Stat. 91, was signed into law. ¹ Finding that "(b)y its plain language, the Act prohibits any court from finding that a hospital which receives Hill-Burton funds is acting under color of state law," the court dissolved its prior injunction and denied all relief. This appeal ensued.

First, despite the fact that Mrs. Taylor has already had the tubal ligation performed, this case is not moot because of its class action nature. See Sosna v. Iowa, 419 U.S. 393, 438-441, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).

Second, virtually all of the issues raised by this appeal have recently been resolved adversely to appellants by another panel of this court. Chrisman v Sisters of St. Joseph of Peace, 506 F.2d 308 (9 Cir. 1974). With respect to those issues relevant to the present case, Chrisman held that:

I. The Church Amendment (§ 401(b)) properly permits denominational hospitals to refuse to perform sterilizations. 506 F.2d at 310-312.

II. Section 401(b) is not an impermissible legislative limitation upon judicial power, Id. at 311, nor does it violate the Establishment Clause of the First Amendment. Id.

III. If the hospital's refusal to perform sterilization infringes upon any constitutionally cognizable right to privacy, such infringement is outweighed by the need to protect the freedom of religion of denominational hospitals "with religious or moral scruples against sterilizations and abortions." Id. at 312. See Doe v. Bolton, 410 U.S. 179, 197-198, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Allen v. Sisters of St. Joseph, 361 F.Supp. 1212 (N.D.Texas 1973), app. dism'd, 490 F.2d 81 (5 Cir. 1974); Watkins v. Mercy Medical Center, 364 F.Supp. 799 (D.Idaho 1973); Doe v. Bellin Memorial Hospital, 479 F.2d 756, 759-760 (7 Cir. 1973) (abortions).

IV. Neither "the enjoyment by the hospital of tax exemptions, its regulation by the state and its performance of a public function" in addition to receipt of Hill-Burton funds, are proper grounds for holding that it acted under color of state law with respect to 42 U.S.C. § 1983. Chrisman, 506 F.2d at 312-314.

There is one significant difference between the present case and Chrisman, supra, namely, the fact that St. Vincent's Hospital had the only maternity department in Billings, Montana, where the plaintiff could secure a tubal ligation at the time of her cesarean delivery. In Chrisman the hospital involved was not the only hospital in Eugene, Oregon, to supply such services. As a result, in Chrisman, it was not necessary to consider whether the "state action" might be found from the fact that the hospital was the only one in the area able to supply the services above.

However, the Supreme Court in Jackson v. Metropolitan Edison Company, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), decided about a month after this court decided Chrisman, held that private conduct may not be regarded as that of the state unless the state is involved in the specific activity complained of, and that the monopoly status of a private utility company did not in itself or in combination with state regulation and the fact that an essential public service was involved, constitute "state action." There the Supreme Court in upholding the district court and the affirmation by the Third Circuit, stated:

"All of petitioner's arguments taken together show no more than that Metropolitan was a heavily regulated private utility, enjoying at least a partial monopoly in the providing of electrical service within its territory, and that it elected to terminate service to petitioner in a manner which the Pennsylvania Public Utilities Commission found permissible under state law. Under our decision this is not sufficient to connect the ...