Word v. Poelker, 73-1739.

• Decision Date: 20 February 1974
• Docket Number: No. 73-1739.,73-1739.
• Citation: 495 F.2d 1349
• Parties: Parker H. WORD, M. D. and Reproductive Health Services, Inc., Plaintiffs-Appellants, v. John H. POELKER, Mayor of the City of St. Louis, Missouri, and Colonel Eugene J. Camp, Chief of Police, City of St. Louis, Missouri, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

495 F.2d 1349 (1974)

Parker H. WORD, M. D. and Reproductive Health Services, Inc., Plaintiffs-Appellants, v. John H. POELKER, Mayor of the City of St. Louis, Missouri, and Colonel Eugene J. Camp, Chief of Police, City of St. Louis, Missouri, Defendants-Appellees.

No. 73-1739.

United States Court of Appeals, Eighth Circuit.

Submitted December 12, 1973.

Decided February 20, 1974.

Rehearing and Rehearing Denied March 21, 1974.

Frank Susman, Susman, Willer & Rimmel, St. Louis, Mo., for plaintiffs-appellants.

Eugene P. Freeman, Deputy City Counselor, St. Louis, Mo., for defendants-appellees.

Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.^*

Rehearing and Rehearing En Banc Denied March 21, 1974.

STEPHENSON, Circuit Judge.

This appeal concerns a constitutional attack on St. Louis City Ordinance No. 56579. The ordinance defines, requires a city permit for, regulates, and restricts abortion clinics. The district court abstained. We reach the merits and hold the ordinance to be unconstitutional.

The ordinance in question which is set out in full as Appendix A of this opinion, attempts to regulate any public place wherein abortions are performed with the exception of public hospitals. Abortions as defined by the ordinance include "the termination of human pregnancy * * * except those found on advice of a licensed physician to be necessary to preserve the life of the mother." The penalty for noncompliance constitutes a misdemeanor carrying a fine of from $250 to $500 or 90 days imprisonment or both. See Appendix A.

The plaintiff-appellants are Dr. Parker H. Word, M. D., a practicing St. Louis, Missouri physician and Reproductive Health Services, Incorporated, a non-profit medical service corporation existing under the laws of Missouri.

United States District Judge Regan invoked the doctrine of abstention and dismissed the case without prejudice urging that "plaintiffs should institute and prosecute in the state courts an appropriate proceeding respecting the validity of the ordinance on state as well as federal grounds." Plaintiffs appeal.

On October 17, 1973 this court granted appellants' motion for injunction pending appeal and expedited the appeal.

Abstention

It is now clear from the decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) that a sweeping regulation of the abortion decision and its implementation raises clear questions of constitutional dimension regarding a medical doctor's right to practice. Doe v. Bolton, supra at 188, 93 S.Ct. 739; Roe v. Wade, supra at 165 of 410 U.S., 93 S.Ct. 705. See also Nyberg v. City of Virginia, 495 F.2d 1342 (CA8 1974) also decided today. Abstention would serve no valid purpose.

This is not one of those "special circumstances" where the federal courts need refrain from ruling on federal constitutional claims. Wisconsin v. Constantineau, 400 U.S. 433, 437-439, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Hathaway v. Worcester City Hospital, 475 F.2d 701, 705 (CA1 1973). The issue in this case relates to the facial constitutionality of the St. Louis city ordinance when viewed against the backdrop now available in the Roe and Doe decisions. That determination can be made on the record before us. We choose to make that determination. See, Wisconsin v. Constantineau, supra at 439 of 400 U.S., 91 S.Ct. 507; Baggett v. Bullitt, 377 U.S. 360, 375-379, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).

The Merits

A careful reading of the United States Supreme Court decisions in Roe v. Wade and Doe v. Bolton¹ establishes the following broad bases for our decision in this case (and in Nyberg v. City of Virginia, 495 F.2d 1342, also decided today):

(1) The "fundamental" right of privacy includes the abortion decision. Roe v. Wade, supra 153-156 of 410 U.S., 93 S.Ct. 705.

(2) Even so, no woman has a right to an abortion "at whatever time, in whatever way, and for whatever reason she alone chooses;" there is no right to abortion on demand. Roe v. Wade, supra at 153, 93 S.Ct. at 727; Doe v. Bolton, supra at 189 of 410 U.S., 93 S.Ct. 739.

(3) The state interest in protecting the health of the pregnant woman and the separate interest of protecting potential human life become compelling at certain points in the pregnancy term (at the end of the first and second trimesters respectively) then and there affording the state the opportunity to reasonably regulate the abortion procedure. Roe v. Wade, supra 162-164 of 410 U.S., 93 S.Ct. 705; Doe v. Bolton, supra 194-195 of 410 U.S., 93 S.Ct. 739.

(4) The state regulation must be reasonably and legitimately related to the recognized state interests set out above. Roe v. Wade, supra 162-166 of 410 U.S., 93 S.Ct. 705; Doe v. Bolton, supra 194-195 of 410 U.S., 93 S.Ct. 739.

(5) Prior to the compelling points (during the first trimester of the pregnancy term) the abortion decision and its effectuation is "inherently, and primarily a medical decision, and basic responsibility for it must rest with the physician." Roe v. Wade, supra at 166 of 410 U.S., 93 S.Ct. at 733. See also Doe v. Bolton, supra 192-200 of 410 U.S., 93 S.Ct. 739.

The city ordinance in question here reflects no recognition of the fundamental rights involved and the commensurate restrictions on state action. Neither are we cited to any persuasive data convincing us that the stringent regulatory measures in the act are necessary to protect either the state's interest in maternal health or future life. No other medical procedures or surgical operations are cited to us where the city or state regulates at the peril of criminal sanctions.

We hold that St. Louis city ordinance No. 56579 is, by reason of its failure to exclude the first trimester of pregnancy, an invalid and overbroad enactment infringing unreasonably upon fundamental rights. Doe and Roe, both supra; Nyberg v. City of Virginia, 495 F.2d 1342 (CA8 1974) also decided today. It is additionally invalid because its stringent requirements are not legitimately related to recognized objectives of the state to protect maternal health and potential human life.

Appellee argues that this result is not warranted since the ordinance here does not prohibit abortion but merely regulates the "persons, conditions and procedures under which abortions are to be performed." While we agree with appellee that the ordinance does not proscribe abortions, we do not agree that that fact, of itself, removes the ordinance from the constitutional realm of Roe and Doe. The Doe decision clearly struck down portions of the Georgia statute governing abortion procedures. Doe v. Bolton, supra 192-200 of 410 U. S., 93 S.Ct. 739. We learn from Doe that sweeping regulation of the abortion procedure without regard for the conflicting interests involved will not withstand constitutional scrutiny. Accord, Nyberg, supra and citations (at 1345 of 495 F.2d) also decided today.

Viewed another way, there is reason to strike down this ordinance. The ordinance seeks to protect interests that are already adequately protected by (1) the physician's medical judgment and professional, ethical standards and (2) the city and state health regulations which are in effect and which have application to clinical procedures in general. The extra layer of regulation which this ordinance imposes becomes unreasonably burdensome of the patients' and physicians' rights.

The ordinance requires that any clinic seeking to perform abortions for a reason other than to preserve the mother's life must obtain a permit.² To obtain the permit the applicant must disclose, among other things, what he has done for the last five years; the names of all physicians who will use the facilities to perform abortions; names of all nurses; training and past experience of the applicant; description of the facilities; fees to be charged; plat showing dimensions of the premises, and; working agreement with the hospital. We think that this myriad of requirements is unduly restrictive of a physician's right to administer his judgment as to an operation that is now established to be, within the first trimester of pregnancy, safer than childbirth. We are referred to no other single surgical procedure where doctors are required to "prove up" their overall fitness as they are here. As the court states in Doe v. Bolton, supra at 199 of 410 U.S., at 751 of 93 S.Ct.: "If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment." To single out physicians and their patients who seek abortions and subject them to this ordinance's overview substantially limits the physician's right to practice and the patient's right to her doctor's independent judgment. Doe v. Bolton, supra at 197, 93 S.Ct. 739.

The abortion clinic permit is subject to restrictions, among others, that the facilities should be kept clean; that the Health Commissioner shall inspect and certify that sanitation standards are up to par with those applicable to clinics in general, and; that the clinic shall comply with all laws and local ordinances relating to health, sanitation and safety. These restrictions accomplish nothing not already accomplished by the health regulations in force and to which the ordinance itself refers.

In short, viewing the ordinance as a whole, its requirements are not based upon differences that are reasonably related to the purposes of the act in which they are found. Morey v. Doud, 354 U. S. 457, 465, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); Doe v. Bolton, supra at 194 of 410 U.S., 93 S.Ct. 739. The restrictions of the instant regulation do not stand up as legitimate and reasonable for the protection of recognized state interests in maternal health and potential human life. The Supreme Court stated in Roe v. Wade: "The State has a legitimate interest in seeing to it that abortion, like...