dissenting.
I respectfully dissent. In my view, the majority opinion is inconsistent with the Supreme Court’s decision in Poelker v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977), and is not required by 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).
The majority would distinguish Poelker v. Doe, supra, 432 U.S. at 519, 97 S.Ct. at 2392, on the grounds that, here, the government (the City of Virginia) does not “incur any expenditure of public funds,” and that in Poelker, the City of St. Louis did incur such expenditures. Supra at 758.
The argument fails for two important reasons:
(1) The record does not support the statement that the City of Virginia incurs no public expenditures when abortions are performed in the municipal hospital. It only supports the statement of Judge Stephenson in Nyberg v. City of Virginia, 495 F.2d 1342, 1345 (8th Cir. 1974) (Nyberg I), that the City would not be required to establish new or different facilities and staff in order to perform the operations. If the decision is to turn on the issue of whether costs are incurred, the matter should be remanded to the district court for additional findings.
(2) This Court based its decision in Nyberg I on the premise that under Wade and Bolton, a public hospital with suitable facilities cannot bar physicians from using the facilities to perform all nontherapeutic abortions. A panel of this Court followed Nyberg I in Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975). In Poelker, Judge Ross stated:
Stripped of all rhetoric, the city here, through its policy and staffing procedure, is simply telling indigent women, like Doe, that if they choose to carry their pregnancies to term, the city will provide physicians and medical facilities for full *760maternity care; but if they choose to exercise their constitutionally protected right to determine that they wish to terminate the pregnancy, the city will not provide physicians and facilities for the abortion procedure, even though it is probably safer than going through a full pregnancy and childbirth. Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). No rational or legally cognizable basis for this distinction is offered. And it is certainly trué that this distinctive treatment represents as much interference in the abortion decision of an indigent woman by the city as the prohibition of all nontherapeutic abortions in city-operated hospitals condemned by this Court in Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir.), appeal dismissed, 419 U.S. 891, 95 S.Ct. 169, 42 L.Ed.2d 136 (1974)...
Id. at 544-545 (footnote omitted).
In setting forth a remedy, the Court stated:
We declare the city’s policy prohibiting all nontherapeutic abortions in its publicly owned hospitals to be unconstitutional as an unwarranted infringement on pregnant women’s right to privacy and as a denial of equal protection to indigent pregnant women. * * * We hold that both city owned hospital facilities must be made available for abortion services as they are for other medical procedures. Nyberg v. City of Virginia, supra, 495 F.2d at 1347.
Id. at 546 (citations omitted).
We remanded the matter to the district court to fashion prompt and appropriate declaratory relief. (Our order was subsequently stayed pending appeal to the United States Supreme Court.) The Supreme Court reversed this Court, and remanded the matter to us for further proceedings consistent with its opinion. Poelker v. Doe, supra, 432 U.S. at 521-522, 97 S.Ct. at 2393. We promptly vacated our opinion and affirmed the dismissal of the action by the District Court for the Eastern District of Missouri. Poelker v. Doe, 558 F.2d 1346 (8th Cir. 1977). Thus, as matters stand, it appears that notwithstanding the dicta in Planned Parenthood Association of Kansas City v. Ashcroft, 655 F.2d 848, 855 n.9 (8th Cir. 1981), the City of St. Louis can prohibit all nontherapeutic abortions, either paid or nonpaid, from being performed in its publicly owned hospital while the City of Virginia cannot. This is an. intolerable situation.
One final point. The majority states that the municipal hospital is the sole hospital in the City of Virginia. Supra at 757, 758 n.2. In doing so, it suggests that access to abortions may be curtailed or eliminated for those who live in Virginia and its environs. The record does not . support this view. If reasonable access to abortions is to be a deciding factor in this and other similar cases, we should remand to the district court for further factfinding. If not, the fact that the municipal hospital is the only hospital in Virginia is irrelevant.