WOMEN'S HEALTH CTR. OF WEST CTY. v. Webster
| Decision Date | 24 September 1987 |
| Docket Number | No. 87-0050C(6).,87-0050C(6). |
| Citation | 670 F. Supp. 845 |
| Parties | WOMEN'S HEALTH CENTER OF WEST COUNTY, INC., et al., Plaintiffs, v. William L. WEBSTER, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Irving L. "Buddy" Cooper, Karen A. Greenberg, Edwards, Cooper & Singer, St. Louis, Mo., for plaintiffs.
Jerry L. Short, Asst. Atty. Gen., Jefferson City, Mo., for defendants Webster & State of Mo.
Lawrence E. Mooney, Pros. Atty.'s Office, St. Louis, Mo., for defendant Westfall.
This matter is before the Court on defendants' motion for partial summary judgment and plaintiffs' motion for class certification.
Plaintiffs have brought a class action for declaratory and injunctive relief in which they challenge §§ 1.205, 188.010, 188.080, 188.105, 188.110, 197.200(1), 197.205, 197.215, 197.220, 197.221 and 197.235 of the 1986 Missouri act relating to the regulation of abortions (the Act).1 Generally speaking, plaintiffs contend these sections impermissibly burden a woman's right to an abortion by a doctor of her choice in violation of the first, fourth, fifth, ninth and fourteenth amendments of the United States Constitution.
Plaintiffs Women's Health Center of West County, Inc., Women's Health Center of Cape Girardeau, Inc. and Women's Health Center of St. Peters, Inc. (Women's Health Centers) are Missouri corporations which provide gynecological medical services, including first and second trimester abortions. Plaintiff Bolivar M. Escobedo, M.D., (Escobedo) is a physician licensed to practice medicine in the State of Missouri. Escobedo provides gynecological services, including abortions, and operates the Women's Health Centers. Although Escobedo has staff privileges at two Peruvian hospitals, he does not have staff privileges at a Missouri hospital which offers obstetrical or gynecological services. Plaintiff C.J.E. was, at the time of filing the present action, a twenty-two year old unmarried woman approximately in her sixth week of pregnancy who wished to obtain an abortion from Escobedo. Defendants are the State of Missouri, William L. Webster, the Attorney General of the State of Missouri, and George "Buzz" R. Westfall, the Prosecuting Attorney of St. Louis County, Missouri.
Plaintiffs, except C.J.E., wish to bring this action on behalf of themselves and on behalf of all medical care providers and their patients who perform or wish to obtain an abortion in St. Louis County, Cape Girardeau and St. Peters, Missouri. C.J.E. wishes to bring this action on behalf of herself and on behalf of all other similarly-situated women.
At the outset, the Court notes that summary judgment is an extreme remedy which is only available to a moving party who "has established his right to judgment with such clarity as to leave no room for controversy" and who has demonstrated that the non-moving party "is not entitled to recover under any discernible circumstances." Greco v. ABC Transnational Corp., 623 F.Supp. 104, 105 (E.D.Mo.1985), citing Steele v. Armour & Co., 583 F.2d 393 (8th Cir.1978). The burden of proof is on the moving party, and the Court should not grant summary judgment unless it is convinced that there is no evidence to sustain a recovery under any circumstances. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). However, the party opposing the motion cannot rest upon the allegations of his pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If appropriate, summary judgment serves a "salutary purpose in avoiding a useless, expensive, and time consuming trial where there is no genuine, material fact issue to be tried." Lyons v. Board of Education of Charleston, etc., 523 F.2d 340, 347 (8th Cir.1975).
In their motion for partial summary judgment, defendants contend plaintiffs have failed to allege facts demonstrating a justiciable case or controversy concerning the constitutionality of §§ 1.205, 188.010, 188.105, 188.110, 197.200(1), 197.205, 197.215, 197.220, 197.221 and 197.235.2 For the reasons set forth below, the Court agrees.
Section 1.205 provides in pertinent part:
The District Court for the Western District of Missouri recently declared § 1.205.1(1) and (2) unconstitutional and issued an order permanently enjoining both the State of Missouri and Attorney General William L. Webster from enforcing it. Reproductive Health Services v. Webster, 655 F.Supp. 1300 (W.D.Mo.1987). The court's order is currently on appeal to the Court of Appeals for the Eighth Circuit. As a result, defendants contend that the issue as to the constitutionality of § 1.205.1(1) and (2) is now moot and that plaintiffs' challenge of § 1.205.1(1) and (2) should be dismissed. Plaintiffs, however, contend that the issue should be stayed or abated until such time as the court of appeals issues its decision. As the Court finds no purpose would be served if the issue were stayed or abated, it dismisses plaintiffs' cause of action as to § 1.205.3
The reasons for the Court's decision are two-fold. First, plaintiffs in the present case are bound by the decision in Reproductive Health Services, supra. In Reproductive Health Services, the named plaintiffs brought suit not only on their own behalf, but also on behalf "of the entire class consisting of facilities, Missouri licensed physicians, or other health care professionals offering abortion counseling and services, and pregnant females." Id. at 1303. Consequently, both the named plaintiffs here and the classes they wish to represent were in fact parties to the suit. Second, the defendants are bound, as is this Court, by whatever decision the Court of Appeals for the Eighth Circuit reaches as to the constitutionality of § 1.205.1(1) and (2). There would thus be no reason for the Court to reconsider the constitutionality of § 1.205.1(1) and (2) once the issue is resolved on appeal.
Section 188.010 provides as follows: It is the intention of the general assembly of the state of Missouri to grant the right to life to all humans, born and unborn, and to regulate abortion to the full extent permitted by the Constitution of the United States, decisions of the United States Supreme Court, and federal statutes.
Such a statement of intent, plaintiffs contend, both impinges upon a woman's right to receive counseling concerning the abortion decision and impermissibly burdens her right to obtain an abortion in violation of the Supreme Court's mandate in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and its progeny.
Although the Court finds § 188.010 may be relevant in construing Missouri statutes relating to the regulation of abortions, it finds that it is not subject to constitutional attack. First, it merely enunciates the intent of the legislature and does not enact any substantive provision. Second, it simply instructs those responsible for construing the Act to do so in a manner which is consistent with the Constitution itself. Accordingly, the Court dismisses plaintiffs' cause of action as to § 188.010.
Insofar as it is pertinent here, § 188.105 prohibits an employer from discriminating against any individual because of such individual's "refusal to participate in abortion" unless the refusal constitutes an "undue hardship on the conduct of that particular business or enterprise" or unless "participation in abortion is a bona fide occupational qualification reasonably necessary to the normal operation of the business or enterprise." However, § 188.105 does not "require any employer to grant preferential treatment to any individual because of such individual's refusal to participate in abortion." Section 188.110.1 prohibits any public or private college, university or hospital from discriminating "against any person for refusal to participate in abortion."
Plaintiffs contend that §§ 188.105 and 188.110.1, when read in conjunction with § 188.080,4 are underinclusive and violate the right of those physicians who perform abortions to equal protection under the law as guaranteed by the fourteenth amendment of the Constitution. Thus, plaintiffs argue, Escobedo has failed in his attempt to obtain surgical privileges at a hospital, as he is required to do under § 188.080 if he wishes to perform abortions, in large part because these sections prohibit discrimination only against those physicians who do not perform abortions. If these sections included physicians who perform abortions as a protected class, they argue, Escobedo and physicians similarly situated to him could obtain surgical procedures at a hospital. In response, defendants contend that plaintiffs have failed to demonstrate they have suffered any actual or threatened injury as a result of these sections and therefore do not have standing to challenge their constitutionality. The Court agrees.
In order to demonstrate that he has standing to challenge the action sought to be adjudicated in a lawsuit, a plaintiff must show that he has suffered a personal "injury" which is "fairly traceable" to the challenged action and which is "likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). However, as the Supreme Court observed in Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), exactly what a plaintiff must demonstrate to establish his standing to challenge allegedly unlawful conduct eludes precise definition:
The injury alleged must be, for example, "`distinct and palpable,'" Gladstone Realtors v. Village of Bellwood, 441 U.S. 91,...
To continue reading
Request your trial
-
U.S. v. Horne
... ... has refused transfer to the Mental Health Unit at the Federal Medical Center in Rochester, ... ...
-
Molloy v. Monsanto
... ... See West Indian Co. v. Government of the Virgin Islands, ... Bailey, 376 U.S. 910 (1964); Women's Health Ctr. v. Webster, 670 F. Supp. 845, 852 (E.D. Mo ... ...
- Women's Health Center of West County, Inc. v. Webster
-
Pottinger v. City of Miami
... ... , on the East by Biscayne Bay, and on the west by Interstate 95." Plaintiffs allege that they ... Women's Health Center of West City v. Webster, 670 F.Supp. 845, ... ...