On petition for writ of certiorari to the United States Court of
Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice WHITE, with whom THE CHIEF JUSTICE joins,
dissenting.
This case presents the question whether a private hospital
largely funded by the state and federal govern-
Page 423 U.S.
1000 , 1001
ments, partly controlled by the state government and the
policymaking body of which is chosen by members of the community
may, consistent with the Constitution, refuse to perform elective
abortions. In unanimously answering the question in the
affirmative, different members of the court below employed two
distinct lines of analysis each of which squarely conflicts with
the rule of law existing in other circuits. The question is
important, the conflict is clear, and this Court has a
responsibility to resolve it.
Petitioner is a doctor who had staff privileges at the
respondent hospital at times relevant to this lawsuit. [
Footnote 1] The hospital had been built
by the Orange County, Tex., government with local government money
and with federal money obtained by Orange County under the
Hill-Burton Act. 42 U.S.C. 291e-291f. The hospital and the land
under it were owned by Orange County. However, in 1957, Orange
County leased the hospital and the land under it for $1.00 per year
to the respondent, Orange County Memorial Hospital Corp. (the
Corporation), a nonprofit tax-exempt corporation. Under the lease
the Corporation agreed: (1) to operate the hospital as a nonprofit
institution and to furnish to the general public medical and
surgical care subject to such terms and regulations as the
Corporation might prescribe; (2) to carry out the assurances
required to the County in order to obtain federal funds and to
relinquish possession of the hospital in the event it failed
adequately to comply; (3) to have all equipment and
Page 423 U.S.
1000 , 1002
supplies inventoried, in a manner approved by the County, and to
dispose of worthless, damaged, or worn-out equipment only with the
prior approval of the Commissioners Court; (4) to be responsible
for the expense of the day-to-day operation and maintenance of the
hospital; (5) to make additions to the hospital with the written
consent of the County and at its own expense; (6) to keep all
appropriate insurance in effect; (7) to submit an annual audit to
the County and to furnish any information which the County felt
would be necessary to inform the people of Orange County about the
operation and financial condition of the institution; (8) to accept
indigent patients certified by the Corporation subject to the prior
obligation to receive emergency cases. Orange County has reserved
the right through its County Health Office to advise the respondent
that an indigent is being kept in the hospital for a longer period
of time than necessary. The lease specifically indicates that the
Corporation 'has undertaken to relieve [the County] of the
responsibility and expense of operating a hospital.'
The policy of the hospital is, as a result of the lease to the
Corporation, set by the Corporation's Board of Directors which
consists of nine members. Five are drawn from 'life
members'-consisting of all people who have contributed $1,000 or
more to the Corporation-and four are elected by
'advisory-members'-consisting of any Orange County property owner
who attends Corporation meetings.
The Board of Directors, on recommendation of the medical staff,
adopted in early 1973 a policy against the performance of
'elective' abortions at the hospital. As a result, petitioner was
unable to accommodate patients who sought his services for that
purpose. Petitioner then brought suit under 42 U.S.C. 1983 against,
inter
Page 423 U.S.
1000 , 1003
alia, the Corporation, its Board of Directors, and the County
Commissioners of Orange County, Tex., seeking damages and
injunctive relief. Petitioner claimed that the actions of the
respondents were unconstitutional in that they interfered with the
liberty of a woman to choose whether or not to bear a child in
violation of the Fourteenth Amendment as construed in Roe v. Wade,
410 U.S. 113d
147, and also interfered with his right to practice his profession
free from unconstitutional interference. [
Footnote 2]
The District Court dismissed petitioner's complaint essentially
on the ground that the Board of Directors of the respondent
Corporation is a nongovernmental body and that the state
instrumentality, i.e., Orange County, was not responsible for the
Board's decision not to give elective abortions. Absent such
responsibility, respondents' conduct is not unconstitutional.
A panel of the Court of Appeals for the Fifth Circuit also
concluded that respondents had not acted in viola-
Page 423 U.S.
1000 , 1004
tion of the Constitution. Two members of the panel agreed with
the District Court and stated that the respondents had not acted in
an unconstitutional manner because the 'state' was not responsible
for the Board of Directors' decisions. This conclusion is squarely
in conflict with the law of two other circuits. In O'Neill v.
Grayson County War Memorial Hospital,
472 F.2d
1140 (CA6 1973), the Sixth Circuit held a hospital to be an
instrumentality of the State, the conduct of which is governed by
the same constitutional limitations as the State's, on facts
virtually identical to those involved here. In O'Neill, hospital
facilities were owned by the County and leased to a foundation for
the sum of $1.00 per year. The foundation agreed to fulfill all
duties and responsibilities incident to the maintenance and
operation of the hospital and agreed to assume the obligations and
agreements that the County governing body had made with the United
States in securing Hill-Burton Funds. Similarly, the governing body
of the hospital was to contain some members selected from the
communities served by the hospital. The only fact even mentioned in
the O'Neill opinion which is not mentioned in the opinion below is
that there the nonprofit corporation was, in the event that it
ceased to function, to pay to the local government any unused
contributions. The provision, which would come into play only in
the very unlikely event that the nonprofit corporation ceased to
exist for other than financial reasons, can hardly explain the
different result in that case. The decision in O'Neill conflicts
with the decision in this case. The conclusion of the two judges
below is also in conflict with the rule in the Fourth Circuit that
a hospital is a governmental instrumentality solely by reason of
receipt of Hill-Burton Funds and the hospital's consequent legal
obligations. Christhilf v. Annapolis
Page 423 U.S.
1000 , 1005
Emergency Hospital Assn., Inc.,
496 F.2d
174 (CA4 1974); Sams v. Ohio Valley General Hospital Assn.,
413 F.2d
826 (CA4 1969); Simkins v. Moses H. Cone Memorial Hospital,
323 F.2d
959 (CA4 1963). Contra, Watkins v. Mercy Medical Center,
520 F.2d
894 (CA9 1975); Ascherman v. Presbyterian Hospital of Pac. Med.
Co., Inc.,
507 F.2d
1103 (CA9 1974); Doe v. Bellin Memorial Hospital,
479 F.2d
756 (CA7 1973); Ward v. St. Anthony Hospital,
476 F.2d
671 (CA10 1973); Jackson v. Norton-Children's Hospitals, Inc.,
487 F.2d
502 (CA6 1973).
The third member of the panel below also concluded that the
respondents had engaged in no unconstitutional conduct. He stated
that the State may properly choose to fund operations by paying for
the hospital in which they are performed, without permitting the
hospital to be used for any particular type of operation. This
conclusion is squarely contrary to the decisions of two circuits,
Doe v. Poelker,
515 F.2d
541 (CA8 1975); Nyberg v. City of Virginia,
495 F.2d
1342 (CA8 1974), and Doe v. Hale Hospital,
500 F.2d
144 (CA1 1974), and contrary in principle to the law in several
others. Doe v. Rose,
499 F.2d
1112 (CA10 1974); Wulff v. Singleton,
508
F.2d 1211 (CA8 1975); Doe v. Mundy,
514 F.2d
1179 (CA7 1975); see also Roe v. Norton,
380 F.
Supp. 726 (D.Conn.1974); Doe v. Wohlgemuth,
376 F.
Supp. 173 (WD Pa.1974); Doe v. Rampton,
366 F.
Supp. 189 (D.Utah 1973); Klein v. Nassau County Medical Center,
347 F.
Supp. 496 (EDNY 1972); Doe v. Westby,
383
F. Supp. 1143 (WDSD 1974), vacated 420 U.S. 968 (1975), and cf.
Hathaway v. Worcester City Hospital,
475 F.2d
701 (CA1 1973).
It is apparent that on either theory adopted by the members of
the court below to support its conclusion that the respondents had
not acted in violation of the
Page 423 U.S.
1000 , 1006
Constitution, there is a conflict with the law in other
circuits. Whether or not the Court agrees with the result reached
below, the conflicts are square; they are on issues which arise
with frequency in the lower federal courts; and they are on
significant questions of law. Perhaps, in light of the current
pressures on our docket, there may be a category of conflicts,
involving insignificant points of federal law, which we simply do
not have the capacity to resolve. However, it would undoubtedly
surprise members of the bar and the public that this Court views
the conflicts created by the decision below to fall within such a
category.
The task of policing this Court's decisions in Roe v. Wade,
410 U.S. 113, and
Doe v. Bolton,
410
U.S. 179, 93 S. Ct. 739, is a difficult one; but having
exercised its power as it did, the Court has a responsibility to
resolve the problems arising in the wake of those decisions. I
would grant the petition for a writ of certiorari and set this case
for oral argument.
Footnotes
Footnote 1 Respondents point
out that petitioner ceased his relationship with the hospital after
the filing of the instant lawsuit and claim that the case therefore
become moot. However, this may be with respect to petitioner's
injunctive and declaratory claims. His suit for damages is plainly
still alive.
Footnote 2 Respondents claim
that Roe v. Wade,
410
U.S. 113, and Doe v. Bolton,
410 U.S. 179, recognize a
constitutional right in the abortion decision of the woman seeking
the abortion and not in the doctor; and argue that a doctor has no
standing to litigate the interests of the pregnant woman except
when he is the defendant in a criminal case. The argument was
rejected by both courts below as being inconsistent with this
Court's decision to extend standing to doctors in Doe v. Bolton,
supra, at 188-189, who had been plaintiffs below and not defendants
in a criminal case. Accord: Wulff v. Singleton,
508 F.2d
1211 (CA8 1975), cert. granted, 422 U.S. 1041 (1975). Nyberg v.
City of Virginia,
495 F.2d
1342 ( CA8 1974); Shaw v. Hospital Authority of Cobb County,
507 F.2d
625 (CA5 1975); YWCA v. Kugler,
342 F.
Supp. 1048, 1055 (N.J.1972). In light of the fact that this
Court will decide in Wulff v. Singleton, supra, the standing issue
presented in this case, an outright denial of this petition can be
justified only by a conclusion that the other issues decided below
do not merit review.
Comments
Be the first to comment
Leave a Comment