Womens Services, PC v. Thone
| Decision Date | 09 November 1979 |
| Docket Number | No. CV78-L-289,CV79-L-85 and CV79-L-100.,CV78-L-289 |
| Citation | 483 F. Supp. 1022 |
| Parties | WOMENS SERVICES, P. C., a Nebraska Corporation, and G. William Orr, M. D., Plaintiffs, v. Charles THONE, Governor of the State of Nebraska; Paul L. Douglas, Attorney General for the State of Nebraska; and Donald L. Knowles, County Attorney for the County of Douglas, State of Nebraska, Defendants. WOMENS SERVICES, P. C., a Nebraska Professional Corporation, and G. William Orr, M. D., Plaintiffs, v. Charles THONE, Governor of the State of Nebraska; Paul L. Douglas, Attorney General for the State of Nebraska; and Donald L. Knowles, County Attorney for the County of Douglas, State of Nebraska, Defendants, Marilyn A. Schneider, Intervenor-Defendant. LADIES CENTER, NEBRASKA, INC., a corporation; M. John Epp, M. D.; and Betty Roe, by her next friend, Barbara Gaither, Plaintiffs, Elizabeth F., Intervenor-Plaintiff, v. Charles THONE, Governor of the State of Nebraska; Paul L. Douglas, Attorney General for the State of Nebraska; and Donald L. Knowles, County Attorney for the County of Douglas, State of Nebraska, Defendants, Marilyn A. Schneider, Intervenor-Defendant. |
| Court | U.S. District Court — District of Nebraska |
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Lawrence I. Batt, Omaha, Neb., for plaintiffs Womens Services, P. C. and G. William Orr, M. D.,
Michael T. Levy, Omaha, Neb., for plaintiffs Ladies Center, Nebraska, Inc. and M. John Epp, M. D.
Judith Levin, New York City, for plaintiff Betty Roe and plaintiff-intervenor Elizabeth F.
Jerold V. Fennell, Asst. Atty. Gen., Lincoln, Neb., for defendants Charles Thone and Paul L. Douglas.
Henry L. Wendt, Deputy Douglas County Atty., Omaha, Neb., for defendant Donald L. Knowles.
James E. Schneider, North Platte, Neb., for defendant-intervenor Marilyn A. Schneider.
On April 20, 1979, this court preliminarily enjoined several portions1 of the Nebraska abortion law, Legislative Bill 316.2 This opinion follows a full hearing on the merits; it speaks to the standing and religious freedom issues before addressing the specific sections in question.3
The standing doctrine, as it limits the jurisdiction of federal courts, consists of "both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The constitutional aspect, which presents the threshold and only standing question in this case,4 stems from Article III of the Constitution of the United States, which restricts judicial power to "cases" and "controversies." This aspect of standing focuses on:
The plaintiff Ladies Center, Inc. is a Florida corporation authorized to do business in Nebraska. It provides facilities and support staff to physicians who perform abortions and other gynecological services on its premises. While Ladies Center does not employ the physician, who is an independent contractor, it does employ the members of the support staff. The "informed consent" currently obtained from patients, as well as other steps in the preparation of the patient for an abortion, is routinely carried out by Ladies Center employees.
By the order of April 20, 1979, the court certified a class of plaintiffs, consisting of all organizations which offer and provide facilities and a support staff to physicians who perform abortions. Ladies Center, the moving party, was designated class representative.
That Ladies Center satisfies the Article III dimension of standing is beyond serious dispute. It has a direct interest in how the court resolves the challenged statutory sections. As the physician who performs abortions faces potential criminal liability for failing to comply with the disputed sections, Ladies Center faces potential criminal liability as a person5 who aids, abets, or causes another to commit a crime. This potential criminal liability is of the same magnitude as that of the physician. § 28-206, R.R.S.Neb. (Cum.Supp.1978). The physician, against whom the criminal statutes are aimed, clearly has standing. Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Accomplice liability creates a similar "direct threat of personal detriment," see id., and therefore gives rise to standing. Baird v. Bellotti, 393 F.Supp. 847, 851 (U.S.D.C.Mass.1975), vacated and remanded on other grounds, sub nom. Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976).
Because there is potential criminal liability, Ladies Center does not have standing problems of a nonconstitutional nature.6 Its personal involvement is direct, specific, and concrete.
At the time of the filing of her complaint Betty Roe alleged that she was pregnant and desired an abortion. Testimony at the trial indicates that although she was pregnant at the time of passage of Legislative Bill 316, March 22, 1979, she procured an abortion before the date on which L.B. 316 became operative, April 21, 1979.
By the order of April 20, 1979, this court certified on the motion of Betty Roe a class of plaintiffs, consisting of all patients desiring abortions. In addition, by the order of September 14, 1979, the court granted intervention on behalf of Elizabeth F. and certified again the class of pregnant women seeking an abortion in Nebraska.
The defendants contend that, because Betty Roe was not pregnant at the time the challenged legislation became operative, she could allege no more than speculative injury due to that legislation. Her status, they argue, cannot be distinguished from that of the Does in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Supreme Court in Roe v. Wade denied standing to a married, childless couple, John and Mary Doe. Although Mrs. Doe had been advised by her doctor to avoid pregnancy, she was not pregnant at the time of the filing of her pleading. Their injury due to the Texas abortion statutes, thus, was too speculative to engender standing. The court said:
The plaintiff Betty Roe argues that L.B. 316 became "effective" when Governor Thone signed it into law on March 22, 1979; thus, because she was pregnant at the time she filed her complaint, April 3, 1979, she was then faced with a threat of harm from the legislation. She contends that the emergency clause, § 15, caused the act to operate immediately after its passage. The plaintiff Roe also argues that if a pregnant woman does not have standing because an abortion law is not presently operating, then it is possible that she may never have standing to challenge that law, because it may be enjoined before it becomes operative.
Section 15 of L.B. 316 provides:
"Since an emergency exists, this act shall be in full force and take effect, from and after its passage and approval, according to law."
Section 12 of that bill states that the
While the act may be deemed, as a matter of semantics, "effective" after its passage due to the terminology of § 15, the dictates of the act do not impinge upon anyone until the statute becomes operative. A plain reading of § 12 and the bill as a whole clearly indicates that the act was not to operate until thirty days had passed after its approval.
Betty Roe contends that the thirty-day hiatus before operation of the statute was to permit the institution of lawsuits challenging the law. Although this may have been so, there is nothing in the language of the act or in its legislative history to indicate that the legislature intended to create standing on behalf of those who would not otherwise have standing. Certain persons — for example, physicians desiring to perform abortions — already unquestionably possessed standing to challenge the act. The inference, then, if the legislature intended to permit legal action during the thirty-day period, is that it intended to allow those with standing to challenge the act. Nothing would lead one to believe that the legislature intended to create a personal interest in that action on behalf of women who would not be pregnant at the time of the act's operative date.
To obtain standing the plaintiff must allege a personal stake in the outcome of the controversy sufficient to warrant exercise of the court's remedial powers on her behalf. Warth v. Seldin, 422 U.S. at 498, 95 S.Ct. 2197. The time at which the plaintiff must possess that personal interest is at the filing of the complaint. Once the plaintiff has standing, the question of the effect of a change in circumstances goes to mootness.
The crucial date at which the provisions of the act create a personal stake on behalf of its proposed subjects is the date the act becomes operative, not...
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