(concurring in part and dissenting in part):
This involved an attempt by the plaintiffs to make abortions of indigents in the District of Columbia free merely on demand. Abortion laws are under attack throughout the nation, but in my opinion these involve primarily a legislative problem. Such abortions are prohibited now by statute and requested changes in that statute should be addressed to Congress just as state legislatures elsewhere are considering such changes.
I concur in our refusal to find the individual defendants in civil contempt of this court’s order. Without specifying all my grounds for so concluding, I consider it to have been wholly reasonable to require a second psychiatrist to examine the patient in view of the changing situation that resulted when the trial court struck down the Hospital’s practice of not considering abortion requests on health grounds unless there had been no prior history of mental illness. Also, the psychiatrists’ recommendation was woefully weak and the court order had not been received by the Director of the General Hospital nor by the Director of the Hospital’s Department of Obstetrics and Gynecology. With the matter of the Hospital admission practices having been determined I would leave D.C. General to process any woman requesting a therapeutic abortion on mental health grounds in accordance with its own rules and regulations. The control and management of D.C. General Hospital and the making of rules and regulations relating to the admission of persons thereto and the management and control of that institution is vested by statute in the duly acting and appointed Government officials of the District of Columbia. D.C.Code, §§ 3-106, 3-107, 3-108. See also subsequent Reorganization Plans. The one order binding on the Hospital is that no previous history of mental health problem be required. With this one alteration in their practices, the Hospital will be in conformance with their own rules and regulations and with the legislative policy established by Congress that recognizes that abortions are not criminal if they are “done as necessary for the preservation of the mother’s life or health and under the' direction of a competent licensed practitioner of medicine.” D.C. Code, § 22-201.
Having so acted, this court has exhausted its judicial powers. To the extent that it now by opinion seeks to establish regulations, even on an interim basis for the future to supplant perfectly valid Hospital regulations, it usurps the power vested by statute in the District of Columbia and acts in a purely legislative capacity. The management of the Hospital is for the Congress and officials of the District of Columbia. They are the ones who are to authorize or promulgate the governing regulations in the first instance. They are the ones to decide in conformance with established legislative policy what procedures should be followed and those regulations are only to be set aside if they are unreasonable. The duly constituted authorities have promulgated regulations dated January 27, 1970, attached hereto. I think those regulations are entirely adequate for the situation and that the proper governmental authorities should be authorized to proceed thereunder or to amend same as they consider may be necessary. For our court to arrogate unto itself the power to prescribe regulations is to assume legislative power it has never been given. Then the court goes farther, and undertakes to prescribe in general what is proper medical practice for the physicians and surgeons involved. The statute authorizes abortions “under the direction of a competent licensed practitioner of medicine,” (D.C. Code, § 22-201) and the court is not empowered to substitute its direction for that of the licensed practitioner of medicine. The court here is usurping legislative powers and acting as the Supreme *427Court of Parliament which Lord Coke described as “having transcendent jurisdiction to maketh, enlargeth, diminisheth, abrogateth, replaceth and resisteth laws, statutes, acts, and ordinances concerning matters, ecclesiastical, criminal, common, civil, martial and maritime.” 2 Bacon, Abridgement p. 109.
In my opinion we should not promulgate any interim regulations and we should proceed in due course to hear and consider the matter on its merits.
Memorandum, Government of the District of Columbia
Department, Public Health
Agency, Office: Maternal Health Div.
Date: January 27, 1970
TO: ALL PERSONNEL
FROM: Leroy A. Jackson, Jr., M.D. Chief, Maternal Health Division
SUBJECT: ABORTIONS
The Department of Public Health is now in the process of establishing its official policy concerning abortions in Washington, D.C.
Until official policy has been established, the following procedure will be followed:
1. Only residents of the District of Columbia eligible for care at D.C. General Hospital will be considered for therapeutic abortions.
2. Abortion may be performed only for the preservation of the physical and/or mental health of the mother or for pregnancy resulting from rape or incest.
3. Abortions on demand will not be considered.
4. Pregnancy will be confirmed at any of the public health maternity intake clinics by the physician i.e. Goles, Centers #17 and 18, or D.C. General Hospital.
5. Patients are then referred to one of the Area Mental Health Clinics for psychiatric evaluation if indicated.
6. If after psychiatric evaluation therapeutic evaluation is recommended, the patient is referred to D.C. General Hospital with signed forms being sent to Dr. Lowe’s office.
7. In cases of confirmed rape or incest, patients are referred directly to D.C. General Hospital after confirmation of pregnancy.
Questions related to procedures and all out of city inquiries should be referred to this office — 629-2121.
LAJ/ep