Poelker v. Doe – Oral Argument – January 11, 1977

Media for Poelker v. Doe

Audio Transcription for Opinion Announcement – June 20, 1977 in Poelker v. Doe

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Warren E. Burger:

We will hear argument next in 75-442, Poelker against Doe.

Mr. Freeman, I think you may proceed when you are ready.

Eugene P. Freeman:

Mr. Chief Justice and if it pleases the court.

The nature of this case generally involves the assertion of an indigent pregnant woman that she has a constitutional right to require municipality to provide the surgeon and all hospital facilities to carry out her first trimester decision to be aborted.

The city after this court’s decision in Doe versus Bolton did not recognize a constitutional duty that provide such abortions, but continued its policy against the establishment of an abortion service in its hospitals.

St. Louis has two general hospitals and I say advisedly the last time I left St. Louis, indeed there is debate going on right now whether to abandon one or not, and they are physically separated from the other department or governmental buildings and that through the years it has reflected culture of the state which as the court well knows, Missouri has had a criminal abortion statute and that was infused within all of our civil governmental structure, including the hospitals and that situation obtained up till the time of this court’s rule and Doe’s decisions, and thereafter, although at that time there was considerable debate, confusion addressed to the problem, but there never any express direct changing of the established hospital policy against abortion and what I refer to as abortion is non-therapeutic or elective abortion.

This case rolls over that policy in the hospital and later changed by a trial tactic which shall allude to, by reason of the fact that an indigent lady appeared at hospital and our hospital does not allow practice by private physicians.

In other words, all of the physicians in the hospital are governmental or city employees and are selected through civil service procedure.

The lady appeared at the hospital and went to the GYN clinic and then was referred to the obstetrical clinic of the hospital.

She was told that she was pregnant and there is some dispute in the position of the parties as to whether she asked for a non-therapeutic or elective abortion at the time from the physicians there.

Now the physicians at the hospital at the GYN and OB clinics represent a dual position.

Many years ago and I think I am accurate in telling the court that it was probably 20 to possibly 25 years ago, the City of St. Louis was some in accreditation trouble and the universities that provide medical schools in St. Louis came to the aid of the city and St. Louis University was one of those, Washington University the other, and entered into an arrangement where the physicians of the staffs in the medical schools would staff the various services of the hospitals and that was done with respect to the GYN and OB and in this case there is a vestige of that by St. Louis University which is Jesuit Catholic Institution in City Hospital Number 1 as distinguished from another hospital called Homer G. Philips Hospital which is City Hospital number 2 which was staff by Washington University which is a non-sectarian hospital.

Through the passage of the years, the Homer G. Philips Hospital, the Number 2 encountered the difficulty of Washington University with its increased demands upon its own organic hospital facilities to the extent that the physicians were not furnished or at least in sufficient amounts by Washington University to that hospital where in the case of City Hospital Number 1, St. Louis University did maintain the OB and GYN services in the hospital in contention in this case.

It has a state that is an accident of history.

The lady was refused of her request of an abortion after she was told that she was pregnant by several medical students who were associated with St. Louis University undergoing their training under the auspicious or ages of St. Louis University under the instruction of senior physicians who headed the various services there, including these two, OB and GYN.

The reasons given at the time were the physicians’ personal reluctance or personal morality or ethical positions against performing abortions on, in this case happened to be principally a financial indication, the lady was without funds, felt she could not do with her husband unemployed, felt she could not support another child and in this case the physicians there felt that they could not render an abortion service to a woman because of that type of indication without any medical, physiological indication.

The plaintiff or respondent here did not get the abortion, went to a private institution through, I believe the arrangement later counsel in the case and she was aborted on August 27.

Now, five days before that she had filed suit in the District Court, August 17 and this was before service was had upon one of the defendants here.

The case proceeded and in fine developing each of the facts in it, but attempting to allude to them as they come into because of the issues, the case developed three principal matters with two subordinate ones to one of them and that is abortion on demand and the appellant abuse of digression through unreasonably overturning the District Court’s findings and the appellant conviction and punishment of the Mayor, one of the petitioners here of bad faith and then there was the initial question of judiciablity or the standing and mootness of the question when it was existent in this District Court.

There was a trial; an appeal on the judiciable controversy question, a reversal by the Eight Circuit with remand.

There was a trial on the merits with the reversal by the Eight Circuit and remand and then ultimate two appeals after that on the question of the attorney’s fees in the case.

The Eight Circuit’s reasoning is based upon its finding of a denial of equal protection is based upon an assumption that child bearing and abortion are equivalent, and therefore, to assist childbearing, but not offer abortion is unequal treatment without legal justification.

In the arguments of some of the other cases, I think this question has been lightly touched, but I think I can provide a service to this court by respectfully suggesting a different analysis or an enlarged analysis.

I think I could suggest to the court to contrast the universe of childbearing with abortion.

I think the judicial point of view is required to be different in a case such as this than it has been in any other type of cases.

Your Honor’s attention in the abortion cases, Roe and Doe and Parenthood versus Central Missouri and some of the others has been centered towards abortion.

This case involves something far more broader than abortion and I think by respectfully suggesting these things to your Honors that it maybe of help in your Honor’s analysis.

The court will certainly recall that childbearing is a consummation of a person.

It is a value of infinite worth, an event of incalculable consequences, generation as its process and life as its end.

Abortion is just the opposite.

Eugene P. Freeman:

It is the prevention of the birth of the person.

It is the obliteration of the possibility of a person.

It is the interference with life and death or nonexistence as its end.

Childbearing is a natural process.

The attitude of the community, including the medical science and it is associated with in part is to support and assist childbearing, not to cause it, this natural phenomena.

Abortion on the other hand is an interruption and deliberate termination of this natural process and thwarts it.

In objective logical extension, childbearing is essential for the continuation of the human race, the family, the community, the state and the nation.

Abortion is in an objective philosophical sense, genocidal.

Mr. Freeman, we must over rule (Inaudible)

Eugene P. Freeman:

Not in this proceeding Your Honor, but I am trying to lay the basis to show the interest of the state in childbearing that is non-existent in abortion.

It is interesting, the way you want to end up.

Eugene P. Freeman:

Abortion is genocidal, only its acceptation or antithesis childbearing allows for survival of mankind.

Resulting from this essence is the individual relationships to childbearing and abortions are totally different.

They are unique in themselves and foreign to each other and hostile in some respects.

In childbearing, a woman’s objective is a live healthy infant.

The fulfillment of her womanhood and a wife accomplishes her physical and spiritual function in the marital status.

The father and the husband realizes the establishment or enlargement of his family and realizes an important aspect of his manhood and a progeny of his family.

A lot of this is true with respect to the whole spectrum here whether the payment is made by the state or whether the city furnishes the service or whether it does not, is that not so?

Eugene P. Freeman:

That is true Your Honor, but those considerations underlie the propriety and persuasiveness of the distinctions that the constitution ought to recognize in the different treatment of abortion and childbearing.

As a matter of polity, as another state policy, as state quite apart from our constitution, but simply as a matter polity or state policy, a state could have either polity, could it not and state have historically had both policies.

States have historically given bounties for large families and states have historic, I am talking about states in the world, not states necessarily in the United States, but organized government, organized society has decided to encourage large families in some states in some points in history and states equally have hit upon a policy of encouraging small families and there are states today that are doing that, India and others.

Each has a permissible rational state policy.

States have historically done both, have they not?

Eugene P. Freeman:

I believe that.

As a matter of public policy.

Eugene P. Freeman:

Lately, historically accurate, I believe Your Honor, but I do not think the fact that it occurs vitiates or denies the rationality underlying childbearing with respect to —

Either as rational policy from the point of view of state policy I would presume, at least each has historically been followed at one time or another by one nation or another, is it not that true?

Eugene P. Freeman:

Yes, I believe it is.

Suppose Mr. Freeman there were no hospitals in the city of Missouri and the City of St. Louis, except those maintained those maintained by public authority, so there was monopoly.

Would you suggest that all of those hospitals could refuse under any circumstances to have abortions performed?

Eugene P. Freeman:

Well, I think you force me to the logical position that that is probably right that they could refuse abortion, Your Honor, but I believe an answer to Mr. Justice Stewart’s question, there is another facet of the intellectual investigation that is required and that is here you have not only the interest of a woman in one disposition or the other, you have the interest of a child and these certainly must be constitutionally recognized and it is dependent upon that choice of the woman.

The state is certainly, I would suggest, entitled to recognize these interests in childbearing where they are non-existent in abortion.

But do you not implicitly recognize the right to be treated in a public hospital when you point out as I believe you do in your brief that in the Hospital Number 2, there are no barriers, is that right?

Eugene P. Freeman:

No Your Honor, if you gather that from my brief I gave the court a wrong impression.

Do you mean barriers exist in both hospitals?

Eugene P. Freeman:

Let me detail a little bit of the facts and explanation in answer to your question.

In the political campaign for the Mayoral election in St. Louis, this question emerged and both the existing Mayor at the time and his successor who is one of the petitioners in this case both stated that they were opposed to abortion as a political platform in their election.

They made that statement publicly and broadly.

Now, in the merits of this case, the evidence showed in the trial that the physicians of the City Hospitals were unaware of this position of both, the previous Mayor and the Mayor and existent at the time of the trial at both hospitals.

There is no evidence that the physicians at Hospital Number 2 knew anything about that City Hospital Policy and certainly there is positive expressed evidence by physicians themselves that they knew nothing about the policy in this particular case.

(Inaudible)

Eugene P. Freeman:

Well, what I tried to fairly answer the question Your Honor was no insinuation of the policy by direct action of the Mayor down to the operative level in either of the hospitals, but there certainly was an adopted position by the Mayor which was known to the Chief Administrator of the Hospital, but nonetheless unknown to the Operating Physicians.

(Inaudible) the rule was not as strict as it was in Hospital Number 1?

Eugene P. Freeman:

I cannot answer that Your Honor.

There were no abortions performed to my knowledge in Hospital Number 2.

None?

Eugene P. Freeman:

None that I know of, no sir.

I think I might further enlarge on that answer by saying City Hospital Number 2 is largely staffed by persons of Spanish or Portuguese –

(Inaudible) hospital 20 years ago.

Eugene P. Freeman:

That is right Your Honor, but I am telling about the physicians there now in the relation and you have a Moslem and Catholic situation at the City Hospital Number 2 that you do not have that influence, but on the other hand St. Louis University provides the physicians, the Chief of Staff at City Hospital Number 1.

Then is it fair to infer from what you said that neither hospital as a hospital had a policy, but it is depended upon the views of the staff and in both hospitals apparently the staff had views, moral or religious views that made them object to performing non-therapeutic abortion.

Eugene P. Freeman:

Well, I can certainly answer for City Hospital Number 1.

I am trying my best from hearsay and so forth about City Hospital Number 2 because that was not litigated nor did we investigated in the trial at, City Hospital Number 2.

But did City Hospital Number 1 have an official hospital policy?

Eugene P. Freeman:

Yes it did, but as I stated it did not get down to physicians and the policy itself was subject to the interpretation, as the Mayor testified in the trial that is an ultimate question for the physician to determine whether the woman’s life or her health is in danger.

But both the hospital and the staff in Hospital Number 1 presumably had a practice and a rule that they followed of not performing non-therapeutic abortions?

Eugene P. Freeman:

That is right.

That is clear.

Eugene P. Freeman:

That is clear.

That is the hospital apart from its staff.

No one, but the doctors can perform abortion, is that not right?

Eugene P. Freeman:

Well, its administration is another level Your Honor.

They cannot perform abortion?

Eugene P. Freeman:

No, I meant to illustrate what I am —

When the doctors individually decide, it is an individual decision of the physician I thought you told us earlier.

Eugene P. Freeman:

That is right.

And they all decide the same way, does that make it a policy of the hospital?

Eugene P. Freeman:

Well, I would say that it had coincided with the policy of the hospital in this case, but I would not think it would be the causative factor of the policy of the hospital because the City recognizes the right of each physician to make up his own mind and practice medicine according to his own lights, at least to the extent of not providing abortions.

Does this record show that there is any doctor who was excluded from the staffs because he would perform abortions, the elective abortion so called?

Eugene P. Freeman:

No Your Honor, there was not up till the time of trial.

Now to be fair in that question, I understand, since the Eight Circuit declared that City had the right, there were two successive physicians who had volunteered their services for a part time and did perform a limited number of abortions, but they left the staff after that and my understanding now is that there are no physicians that will perform abortions and that it is contracted out to a private facility.

This Court has recognized a limited privacy right of abortion in absence of state power in the abortion context, but it did not diminish or degrade society’s historical role in childbearing, nor did it create opposition or make any connection between childbearing and abortion.

The woman, the Court thought does have an absolute constitutional right to abortion, but the woman’s constitutional does not have, not to say and it is related to her privacy interest and admits only of limited right in abortion.

Realization of her interest, this privacy right in abortion occurs in a medical context in relation to her life or her health.

Abortion determination is essentially a medical decision made by a physician for her life and health and in privacy.

But in childbearing, the opposite is the case where woman is not in the abortion context that is she has determined to bear children, whether she is pregnant at the time or not or antecedent or post pregnancy, she is in a totally different continuum that exists.

No abortion decision, her legal considerations arise for her or the State.

The putative child’s interest emerges and it would seem to be very constitutionally considerable by the State.

The interest of the child would seem to emerge as a fundamental factor where the woman makes her election to enter childbearing or childbirth.

There is a perfect harmony that emerges, that can at least be contemplated between the various interests.

The mother, she is interested in the situation with respect to herself.

The child certainly, the putative child, the father as a husband at least and the community, state and nation emerge at this point.

All of these legal relations are perfectly accommodated to one another and without friction or opposition to one another.

Well at all times, Mr. Freeman?

Eugene P. Freeman:

Well, there can be situations of course Your Honor would postulate it where maybe the father of the child has no desire or legal relationship to the child.

Well, I was digging up of those occasions when the mother’s health is in danger and then the physician and the patient have to make a position as between the two interests.

So I am merely asking whether at all times what you are saying to what compatible is true?

Eugene P. Freeman:

Well, Your Honor if I understand your question accurately, I would say that my statement still holds true because once the woman has made the decision not to be aborted that she has elected for childbearing, all of the considerations of health and so forth are abstracted from her situation.

The interest now lies in protecting her health in childbearing and the child that she is bearing and everyone associated with her because —

What if it is the other way, then what?

Eugene P. Freeman:

Then, that is what I am trying to illustrate that you are in a totally different context or continuum where the woman has made an abortion decision in consistent with this court’s teachings.

Well, now let us get away from the woman.

The physician has advised that because of her health, her life will be endangered.

All I am trying to point out is and contradistinction your general statement that sometimes the interest of the mother, the child, the father are not always compatible, are they?

Eugene P. Freeman:

Your Honor, I may not be apprehending the thrust of your question, but as I see it and what I am trying to say to the Court, that where the woman has made the election for childbearing whether it is a threat to her health or not, different interests emerge that are compatible, whereas she has made the election albeit within the teachings of the court, the medication decision, but ultimately she is not going to be operated on unless she consents to it.

In that sense, that ultimate choice, there is a world of difference between abortion and childbearing and these other interests irresistibly emerge in childbearing that do not emerge in abortion.

How about where it was an accident?

Eugene P. Freeman:

An accident in what way Your Honor, you mean that –?

You know.

Eugene P. Freeman:

That is the way I thought you mentioned.

The woman still must make the election.

She still must determine and if she had —

(Voice Overlap) she goes to the Hospital Number 1 and you say uh, uh, am I right?

Eugene P. Freeman:

No.

Your Honor is taking me in to the context of another situation.

I was trying to illustrate not the —

Am I right that if it was an accident and she goes to Hospital Number 1 and she explains this accident, she does not get an abortion.

Eugene P. Freeman:

That is right Your Honor.

And if she was raped the same would be true?

Eugene P. Freeman:

She does not get an abortion, no.

You do not see a thing wrong with that.

Eugene P. Freeman:

I have not developed my argument to that point, but I believe that barriers and can be explained in terms of equal protection.

Does your argument end up to that, is that where you go?

Eugene P. Freeman:

No, it does not Your Honor, it goes farther than that.

You are making exceptions though?

Eugene P. Freeman:

No.

The abortion question I see is in a totally different universe than the question of childbearing.

In childbearing, of the child that is a result of rape, do you say that (Inaudible) is interested in that?

Eugene P. Freeman:

Yes I believe so Your Honor.

As a commentary on the situation of the difference between abortion and childbearing, the time continuum of the several interests existent in childbearing commences and continuous since before conception until the adulthood of the child which certainly is not the case in the question of abortion.

Eugene P. Freeman:

You have the marriage, family, health and counseling for the wife, parental care, medical and social, GYN and obstetrical care, birth, post birth, pediatric, postpartum, and medical and social services, educational formation of the child, moral trainings, school, formal schooling and ultimately citizenship.

They would all revolve and are intimately connected with childbearing that are abstracted from the abortion question.

The Court of Appeals concluded that there an equivalency exists between abortion and childbearing and this, I believe results from an erroneous viewing that child bearing and abortion are surgical procedures.

They both admittedly are surgical procedures, but that does not lead to the conclusion of their general equivalency.

Factually and legally, I believe that such view is too limited and inaccurate.

Legally, this Court has said that the nature of a woman’s constitutional right is essentially a medical decision by a personal physician confined to matters that relate to her life or health.

This Court has showed concern for woman’s life and health by insistence that her welfare be determined by a freely acquired totally independent professionally medical judgment.

It did not say —

Warren E. Burger:

Your time is consumed Mr. Freeman.

Mr. Susman, whenever you are ready.

Mr. Susman, you may proceed.

Frank Susman:

Mr. Chief Justice and may it please the Court.

In 1973, this Court in Roe versus Wade and Doe versus Bolton recognized with the entire nation the constitutional right of a woman to terminate her pregnancy.

In the succeeding four years since that decision enormous benefits have accrued to the women of this country and for example, the rates of septic abortion, illegal abortion, infant mortality for the use of amniocentesis, maternal mortality and other comparable rates have all dropped precipitously and yet, there has been one segment of the female population of this country which has not benefited or been allowed to share in these advantages that have come to pass, and that of course if the indigent female.

This has occurred due to two basic reasons.

One is the restriction on Medicaid payments which occupied this Court’s time this morning and part of this afternoon in regard to the cases arising in jurisdiction of Pennsylvania and Connecticut and the second encumbrance from the public sector has been the foreclosure of public hospitals.

To date less than 25% of the public hospitals in this country offer the procedure of abortion and this segment of society, the indigent female was not been allowed to share in the advantages of this Court’s decision in 1973, contribute in large part —

Public hospitals, you mean that governmentally operated hospitals that serve the indigent patients?

Frank Susman:

For the purposes of this case, public hospitals are intended to include only those basically owned by the government and operated by them.

They do not include those which we sometimes call semi-private or semi-public.

They do not include sectarian—

Either establishment owned and/or operated hospitals that serve indigent patients.

Frank Susman:

That is correct.

Well, your 25% figure is for public hospitals or all hospitals?

Frank Susman:

Public hospitals.

This segment of the society that we are discussing, the indigent female is the largest portion of that group which contributes to the fact that —

Will the particular problem of public hospitals go away if the Social Security Act for Medicaid required a payment for abortion?

Frank Susman:

No, it would not, because the reasons that have foreclosed the public hospitals from providing abortions in the City of St. Louis has nothing to do with whether or not they will be reimbursed by Medicaid and in fact, the State of Missouri is presently under Court Order to do so as a regard of Singleton versus Wulff —

You publicly stated that if the State is going to participate the Medicaid, what if it is required to pay for abortion?

Frank Susman:

If it were require to offer abortion then what the policy of the hospital (Voice Overlap)

Your problem will go away or not?

Frank Susman:

I am not sure because I do not know how the city would respond.

They might decide not to participate in the program.

This is just located in the cities, not the state, I suppose by a State statute.

The State legislature decides whether to participant or not.

Frank Susman:

Yes, correct.

Or the City corresponded to the decision of the Court of Appeals in this case?

Frank Susman:

Since the second reversal by the Eight Circuit, they have been performing abortions.

In the hospitals or by contracting them out to –

Frank Susman:

They initially started by performing the procedures within the hospital facilities themselves, but only within City 1.

They have never have offered abortions in City 2.

Then there was period of time in which they had some difficulties whether for reasons of their own or otherwise I will not into and the record that does not support, but they stopped.

They had some reasons procuring physicians and during that period of time they contracted out with a private non-profit tax exempt facility which is basically a clinic doing abortion procedures and nothing else.

That also came to an end and as we stand here today the City of St. Louis has reinstituted in City Hospital Number 1 its own program for doing abortion procedures.

What about Number 2?

Frank Susman:

Number 2 has never done abortion procedures and has no plans to do so.

If a woman shows up at City 2 and as you pointed out Mr. Justice that that basically serves the black area of the City of St. Louis, she is referred, always has —

That is correct, no question about it.

She is referred to City Hospital Number 1 for the treatment.

Do you make any separate complaint of the fact Mr. Susman that abortion even under the Eight Circuit mandate are available only at Hospital Number 1 and not at Hospital Number 2?

Frank Susman:

No we do not, I do not think because there is a constitutional obligation of the city to its public hospitals to provide abortions, so that means they must do them at every hospital facility assuming there is not some great inconvenience.

I also do not personally believe that they could not fulfill this constitutional obligation by in fact contracting out with a private facility.

I do not think you have a constitutional right to onsite procedures.

I think they are contracting out during this period of time we have been previously discussing was in fact constitutional and did comply with the order of the Eight Circuit.

It is this segment of society, the indigent female which is the largest group and has contributed greatly to the fact that the illegitimate C rate in the City of St. Louis is presently 46%.

One out of every 2 births is now illegitimate in the city.

The poor segment of society has always utilized the City Hospitals as their sole source of receiving medical assistance and the poor have neither the economic means nor the sophistication to seek out a broad range of medical services and they never have.

The public hospital stands as an exclusive provider of medical services, the delivery of medicine, physicians, facilities and related services and yet as this case demonstrates clearly and as the record shows, these public hospitals are the subject of political vagaries.

They have become involved in the political campaigns for mayor and for lesser opposition at the City of St. Louis.

This is not a case as the petitioner’s attempt to des-state it as a case of that every woman has the right that we are seeking to imply that every woman has right to an abortion at a public hospital.

Frank Susman:

We do not believe that there is an obligation of the State to furnish the exercise of any fundamental right and clearly abortion has been held by this court to be such a fundamental right.

We do not believe for example that there would be a constitutional right, a requirement for the public hospitals of the City of St. Louis to offer maternity care is merely an equal protection argument, that if they offer maternity care then they also must offer the procedure of abortion.

So your whole constitutional argument is bottomed on equal protection promises of the Fourteenth Amendment, is it?

Frank Susman:

In large, in almost exclusively, yes sir it is.

This case really is merely a plea that the badge of indigency not be used as some type of financial bludgeon to coerce the indigents to submit to the religious and moral philosophies of those in political control and those who manipulate the medical and financial dole, that —

In comparison with whom, are your clients being denied equal protection?

Frank Susman:

Those indigent women eligible for care at the City Hospitals who elect and wish to carry the pregnancy as the term.

That is just a comparison between indigent, I think.

Frank Susman:

This case is basically the class of indigents, although in the City of St. —

The evidence of class of indigent.

The indigency does not make a difference.

Frank Susman:

I do not believe it does although the Eight Circuit saw that as an additional equal protection.

Did you see it as discrimination as between two classes of pregnant indigent woman, do you?

And the one class gets medical care at the City Hospital if they give birth or if they have a miscarriage and the other class of pregnant woman does not get care at the City Hospital if they want to have an abortion, is that it?

Are those the two classes?

Frank Susman:

I do not believe they are Your Honor.

I do not believe that the requirement of indigency really affects the class.

The Eighth Circuit found —

They are all the indigent.

The universe is indigent women or they would not be at the public hospital, as you defined it earlier?

Frank Susman:

That is, yes sir correct.

Those who go to the public hospitals for treatment of any type and who can afford to pay our bill for the services rendered.

Well, then who are your classes?

I (Inaudible) think well, in compared to whom are your clients being denied equal protection of the law?

Frank Susman:

Well, I think to answer that we first have to identify who the clients are and I would say that the clients are the class of pregnant women who desire to terminate those pregnancies and in comparison to them is the class of pregnant women who desire to carry those pregnancies to term.

Indigent and affluent?

Frank Susman:

Correct.

But if they are affluent they can go anywhere to realize their desire to have an abortion at the same price as they would have to pay at the public hospital.

Frank Susman:

More easily, yes.

They would go to the private hospital, certainly.

Frank Susman:

That is correct.

They have that extra option.

Then how can you make that class then?

How can you put them in your class?

Frank Susman:

Because I think there is still the equal protection denial regardless of whether or not they are indigent.

How is the millionaire person, female denied any protection as she goes to private hospital in Switzerland and has a baby, I mean an abortion.

She cannot be in the same category, can she would be indigent?

Frank Susman:

I think there is clearly an extra argument for the indigents.

I think that is an extra argument for denial and a separate basis of denial of equal protection, but I think any woman whether indigent or prosperous has a right to equal treatment at the City Hospital.

As a purest legally yes, as a practical matter no.

Do you need that to win?

Frank Susman:

No Your Honor.

What comparison do you want us to make now?

Frank Susman:

I am asking for a comparison between those women regardless of their economic means will have right to treatment at the City Hospital who are pregnant and desire to terminate as opposed to those women who regardless of means have a right to treatment at City Hospital and who desire to carry to term.

When you say right to treatment, do you mean right to treatment under the practices of City Hospital?

Frank Susman:

And the charter and operation of the institution, yes.

And the practices, I mean, at first you can pay or will be treated that they will collect from.

Frank Susman:

That is correct.

That is always been the practice regardless of the treatment.

What you are saying is that the City of St. Louis as a governmental entity cannot maintain a hospital which declines to perform abortions?

Frank Susman:

Provided it performs simultaneously the full range of maternity services and many public hospitals, although not in the City of St. Louis, but throughout this country, there are many public hospitals that do not have any maternity departments whatsoever, that they have close them down for variety of reasons.

Our legal theory would not allow us to bring a case against such a public hospital and demand that they offer abortion procedures if they do not simultaneously offer the treatment of maternity and delivery.

Mr. Susman you say that you want your clients to be freed from the prejudices and moral judgments of the majority, and yet if we sustain your argument here, if that majority in St. Louis City or St. Louis County, whatever feels strongly about it, they can simply cut off the rendering of any sort of maternity service.

Frank Susman:

That is correct.

I suppose could they cut out this furnishing any maternity services without payment, but still furnish the service if somebody can pay?

Frank Susman:

Yes, I believe they could.

Is there any first amendment issue in this or has there ever been?

Frank Susman:

I think there is a first amendment issue, but it has not been raised.

It has been raised in many previous abortion cases and no court to date to my knowledge has seen fit to recognize it, but always choosing other alternative grounds and for that reasons it was not in our history.

It is clearly they are working.

But if it is not raised, we perhaps are not permitted really to look at your argument about the religious use of the majority of the community and thing?

Frank Susman:

That is true, but I had not raised such argument Your Honor.

Well, you mentioned them passionately.

Frank Susman:

The only religious view involved here, our moral view is that of the petitioner Poelker who testified at trial that the only reason for the imposition of the policy of his edict that there will be no abortions performed in the public hospitals in the City of St. Louis was that in his personal belief abortion is murder.

He further testified that he never made any investigations or studies or whatsoever as to whether they have the necessary facilities, whether the personnel there was willing to do it, whether they can offer them, what the effect would be on other services offered, whether there is any possibility of contracting out with a private facility to do them, he never made any investigations or study.

He had a sole reason and that was he thought it was murder and that is why he issued the edict.

And contrary to the statements of my brother counsel, two of the four positions were examined and treated and talked with Jen Doe when she appeared on her visits to the City Hospital, two of the four clearly stated to her that the hospital policy would not allow it to be done there.

All four of the physicians or students classing them together, two were students; two were actually physicians at the time, all four testified that they had personal moral beliefs against providing the procedure.

One of the doctors, the one in charge, the Chief Resident of OB/GYN would even refuse to give to Jen Doe a statement as to the existence of her pregnancy so she could take the statement elsewhere and seek relief.

He would not even give her such a statement.

He said that was his policy never to give statement of pregnancy to any woman who desired an abortion.

Now, all of these persons whether students or physicians are associated with St. Louis University, but the trial court itself stated clearly and there was no dispute that it was a Catholic university, but the trial court further stated that no one associated with that university would ever perform an abortion.

And in fact, it was introduced in the evidence and it appears in the record that the faculty manual at St. Louis prohibits anybody associated with the University of doing an abortion and a judge would so testify and that if you did such a procedure you would be subject to loss of appointment, contract and tenure for doing so.

What if in fact in a small town, all of the doctors in the public hospital have those religious beliefs?

Do you think the constitution compels the city to compel them to perform an abortion?

Frank Susman:

Absolutely not and I would be the first to come here and defend any individual physician’s right, nurses or orderlies to refuse on their personal religious moral grounds to participate in such a procedure which violates their religious principles.

Then where would you end up?

In a hypothetical case where the only people on the hospital staff and the only competent people they can get on the hospital staff have those religious beliefs?

Frank Susman:

I think there has to be and the word reasonable gets tossed around so much with lawyers and judges, but I think there has to be reasonable efforts to procure the services of individuals who do not share those personally held —

My hypothesis is those reasonable efforts have been made and they cannot find anybody competent who is willing to work in that hospital as doctors on the staff who do not have those religious beliefs?

Frank Susman:

Alright, then you are weighing in the balance, in my opinion, the choice of compelling a physician to do this procedure which he is personally opposed to for religious or moral reasons as against on the other side of the balance compelling the woman who wants the abortion to travel to some indeterminate distance to procure it elsewhere and putting those two in the balance in my opinion would weigh and favor the physician who does not want to participate.

She must travel.

Or the town had constitutional duty to subsidize the travel of the woman, is that it?

Frank Susman:

That is also a realistic and possibility, but I would again point out here that ever since the Eight Circuit Court of Appeal ruled in this case, the city has been furnishing these procedures, has been able to find physicians because they got them from Washington University which is a nonsectarian institution.

And that Washington University has always maintained its own clinic which does outpatient terminations to pregnancy.

They could not provide the physicians before because St. Louis University was contracted to provide all of the GYN services.

Obviously you are playing with a stacked deck or you were in the past.

Mr. Susman, you seem to me, you have admitted that the deck was stacked by the physicians’ religious and moral convictions that would be permissible, but when you look at the Mayor and the supervisor’s moral convictions, you say that is intolerable even to consider as a factor?

Frank Susman:

I think the Mayor is entitled to his personal opinions.

He does not have to participate in any abortion decision, but he does not have the right by edict to forbid the performance of abortions within the public hospital institutions.

Well, if it is a complete justification for the doctor, why is not a factor that might be considered by the hospital administration at least?

Frank Susman:

This was not a factor considered by the administration.

I thought you said the whole reason for was their religious and moral opposition to abortions?

Frank Susman:

The physicians because —

No, I thought the Mayor, maybe I misunderstood you, I thought the Mayor himself was opposed on moral and religious grounds.

Frank Susman:

That is correct Perhaps I did not understand your question.

It seems to me if that is illegitimate consideration for a doctor, why is it not also at least a legitimate, maybe it should not be controlling, but at least the legitimate consideration for another government official?

Frank Susman:

Because I can draw a vast distinction between the opinion of the doctor who must participate in the actual procedure and performance as opposed to the Mayor having his private beliefs.

He does not have to participate in.

He can believe anything he wants.

Nobody is asking him to participate or perform one.

Well, let us say his private strongly held beliefs that he has publicized and on the basis of which he is been elected to office to run the hospitals by majority of the people.

Frank Susman:

I do not believe that is a legitimate reason or rationale with the government or the City of St. Louis in this case to justify the deprivation of women’s constitutional rights to an abortion as stated by this court in Roe and Doe.

First of all, I think the standard is clear that we are talking about a compelling a state interest and the moral beliefs of the Mayor do not in my mind constitute a compelling state interest.

What can we have in this record to show exactly?

Is there anything in the writing about this policy?

Frank Susman:

It was admitted.

It was no question that the policy existed.

My question was is there anything in writing, written down?

Frank Susman:

No it was not.

It was not in ordinance.

It was not in the regulation of the hospital.

Frank Susman:

It was not an ordinance.

It was not a hospital regulation.

There is nothing written?

Frank Susman:

No sir.

The edict you say that the Mayor issued, is that in the record?

Frank Susman:

It is, in quotation as to what the edict was, no, that is not in the record.

There is the testimony from the Mayor that he did issue such an order to his codefendant petitioner Dr. Wagner who is commissioner of hospitals who testified that he would have wanted to perform the procedures and thought they ought to be performed but could not because of the Mayor who appointed him and —

What I am trying to get is that what do we set aside that the city did?

Frank Susman:

I think there are two things.

We set aside the fact that two employees refuse to do the job, four employees, is that right?

Frank Susman:

I think it becomes less a question of setting aside than taking the top chosen by the Eight Circuit and imposing it in a permitted duty upon the petitioners to allow and to provide the necessary facilities and personnel and resources on a comparable basis as they are provided for those who choose maternity.

I am trying to find them.

Frank Susman:

I think there are some serious questions as to whether the edict or lack of a better word, the Mayor or the petitioner Poelker in this case really had much legal substance.

Well, that is exactly what I am talking about.

So if that has no substance, what do we do, we enjoin these four people from doing it because they are gone by now?

They have graduated out.

Frank Susman:

Well, two of the students have graduated.

I think Dr. Adman —

Normally we have an ordinance that we declare on such students.

Do we have a statute here or we have an order of a state agency?

Here I am trying to find out what was done by the state that was wrong?

Frank Susman:

Ignoring for the moment the legally or illegality of the Mayor’s edict, the record clearly demonstrates that the co-petitioner Dr. Wagner relied upon it in not providing abortions which he choose to do were it not for the edict.

So number one, I think that petitioner Wagner could be directed to ignore this edict, legal or illegal and be allowed to proceed to offer these procedures, that physicians be obtained as they have been since November of 1974, several months after the Eight Circuit ruled and they have been providing these procedures.

(Inaudible)

Frank Susman:

I understand that, but what we do have are the un-contra worded facts that abortions have never been performed in the City Hospitals of St. Louis.

We also have the un-contra worded fact that there were two things that prevented these abortions from being provided and one was the Mayor’s —

One hospital was doing.

Frank Susman:

Well, the edict applied to both.

Well, I thought you said that it was (inaudible) it was not really the case?

Frank Susman:

Well, there were no evidence as to the practice of two because there was only one identifiable named plaintiff and she only went to City Hospital Number 1, but the Mayor’s edict, the record shows applied to both hospitals.

The staffing procedure only applies to City Hospital Number 1, that hospital at which Jen Doe appeared and attempted to procure the medical services desired by her.

Are the doctors in the City Hospital in St. Louis seek offices under the laws of Missouri?

Frank Susman:

I do not believe they are.

They are employees, independent contractors.

Are they state (Inaudible)

Frank Susman:

I do not believe they are Your Honor.

So where do you get the state action?

Frank Susman:

State actions comes not in the individual practices of both physicians, but again to the Mayor’s policy in number 2, the staffing procedure which allows them to be staffed in such a manner that you will not have a position who does not have moral principles against performing abortions.

Frank Susman:

The state action is not in the individuals who actually comprise the staff, but the policy of the state that allows it to be staffed in such in a fashion.

It is a staffing policy that was attacked, not the staff per se and that policy clearly is state action.

Again, petitioner Poelker never offered any justification nor was there any in the record nor has counsel indicated any in argument other than the Mayor’s personal beliefs resulted in this policy that presently exists.

I do not think there is much reason to devote much time to the issue of standing which is one of the other three issues in this case, because I think that is clearly decided under the prior decisions to this court.

I would briefly mention the attorney’s fee issue.

Although, counsel did not have time to argue with it orally, I would suggest all of the arguments included in their brief are completely undercut and obviated by the recent passage of Public Law 94-559 allowing for attorney’s fees under the original appellant court theory a private attorney general.

I think under the whole lien of Bradley versus Richmond School District, it is retroactive.

I think the legislative history which we furnished to the court by reference in a letter updating our brief shows that it was intended to be retroactive.

There have been two decisions today, one by the Northern District of Mississippi on December 14, 1976 and one by United States Court of Appeals of the Eight Circuit last Thursday, on January 6 both holding in fact that this public law is in fact retroactive.

If you win?

Frank Susman:

Correct, absolutely prevailing party only.

Then you are concerned with these in the District Court?

Frank Susman:

And the Appellant Court, they will award it at both levels.

Were they finally awarded in both levels?

Frank Susman:

They were Your Honor.

In fact, the Appellant Court fees were awarded first and then it was remanded to the District Court for awarding the counsel fees.

So chronologically, the appellant fees came first.

All of these fees are presently now in the registry of the court having paid in.

In conclusion, while it is true that the policies of the petitioners have not totally foreclosed abortions for women of low and marginal incomes in the City of St. Louis, the effect upon their access to services has in fact been devastating.

For no other reasons in the petitioner’s hospital policies, they have been denied the equal protection in the making of a constitutionally protected choice.

They have suffered in fact a cruel coercion of financial support to choose carrying the term, although against their desires and against in many cases their best interest of life and health.

To ignore the economic bait forces them to rely upon the charity and beneficence to the private medical sector for assistance, a degrading alternative.

And lastly, we would note that to deny the indigent women the same rights of access to control over their own reproduction fosters a perpetuation of the cycle of poverty generation after generation and denies them an opportunity to escape and to rise above the conditions of their environments.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.