George W. Nyberg v. The City of Virginia

On Petition for Rehearing.

HEANEY, Circuit Judge,

joined by GIBSON, Circuit Judge (dissenting from denial of the petition for rehearing en banc.

We would grant the petition for rehearing en bane. Two questions deserve more thorough consideration: (1) Do staff physicians of a public hospital have standing to maintain an action against that hospital to require it to permit non-therapeutic abortions in the hospital; and (2) do Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), require that every public hospital make its facilities available for non-therapeutic abortions.

STANDING

The District Court gave the physicians standing on two grounds:

(1) They have a right to practice medicine according to the highest medical standards without arbitrary restraints — a right inextricably bound up with the private rights of a woman seeking an abortion.

(2) They cannot be arbitrarily deprived of an opportunity to perform abortions which may account for a portion of their livelihood.

This Court adopted the trial court’s reasoning. It held that the physicians had standing on both of the grounds set forth by the District Court. With respect to ground (1), this Court went further than other courts1, in granting standing to physicians who failed to allege or prove "that“they had patients who desired to have abortions performed.

The Supreme Court stated in Roe that a childless married couple lacked standing because:

* " * their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. * * *

Roe v. Wade, supra at 128.

Dr. Mock and Dr. Tietz appear to be in substantially the same position as the childless couple in Roe. Their injury, if any, appears to rest on their acquiring patients in the future who may wish to have abortions performed in the municipal hospital. We are reluctant to extend Roe and give standing to these physicians without a more thorough consideration of the implications of that extension.

*1348With respect to ground (2), Dr. Mock simply alleged and proved that he was a practicing physician on the staff of the Virginia Municipal Hospital, and Dr. Tietz simply alleged and proved that he was a gynecologist on the staff of the Virginia Municipal Hospital. Neither physician alleged nor proved that his economic interest would be adversely affected by the hospital policy. The trial court recognized that fact in its findings when it stated that the hospital could not deprive the physicians of an opportunity to “perform abortions which may account for a portion of their livelihoods.” 361 F.Supp. 932, 936 (D. Minn.1973) (Emphasis added.). It, nonetheless, found that the potential economic injury was sufficient to give standing.

This Court, perhaps realizing the difficulty of granting standing on such a tenuous ground, found that the physicians’ economic interests were in fact directly affected. It stated:

* * * the practical effect of the stringent limitation on the use of hospital facilities for performing abortions is to arbitrarily bar the physicians from activities that directly affect their economic interests. * * *

George W. Nyberg et al. v. The City of Virginia et al., 495 F.2d 1342, p. 1344 (8th Cir. 1974).

We would have no quarrel with extending standing to physicians who allege or prove that their economic interests has been or will be directly affected. We do question the extension of standing to physicians who fail to allege or prove that their economic interests have been or will be directly affected. Cf., Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

MERITS

This Court appears to hold that all public hospitals with adequate facilities must permit qualified staff members to perform abortions in such hospitals. They seem to assume that Doe and Roe require this result. We find no such compulsion in those decisions and are reluctant to extend their holdings without more careful consideration.

Doe and Roe are primarily concerned with protecting the right of a pregnant woman to have an abortion. If that right can be reasonably protected without compelling every public clinic and hospital in the United States to perform the procedure, consideration should be given to doing so. An inquiry should perhaps be made into the question of whether the order is reasonably necessary to protect the constitutional rights of pregnant women. Central to such an inquiry would be the cost and availability of alternate facilities, the effect on-the staff and routine of the hospital being asked to perform the procedure, and whether public assistance is available to assist the person in having the abortion performed at another public or private facility willing to undertake the procedure.

In Minnesota, for example, many public and private clinics and hospitals perform abortions in accordance with the decisions in Doe and Roe. It may be, therefore, that the rights of those desiring abortions who live in the Virginia area are not significantly dampened by the policy of the municipal hospital in that community. We believe that a decent regard for the deep-seated convictions of those in the community who favor abortions, as well as those who oppose abortions, can be recognized by determining whether the rights of pregnant women desiring abortions can be reasonably protected without requiring the municipal hospital to perform abortions against its will. At least, the full Court should consider the alternative before a far-reaching precedent is established.

. In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the physicians alleged that they were regularly consulted by pregnant women desiring abortions. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the physician involved had given birth control advice to married persons and was convicted for doing so. In Abele v. Markle, 452 F.2d 1121 (2nd Cir. 1971), the physicians alleged that they had pregnant patients who in their medical judgment should have abortions. In Young Women’s Christian Ass’n of Princeton, . N. J. v. Kugler, 342 F.Supp. 1048 (D.N.J. 1972) (3-judge court)',) the physicians alleged fKeWwere-forced — to"turn away patients interested in abortions. In Doe v. Turner, 361 F.Supp. 1288 (S.D.Iowa 1973) (3-judge cotirt), the physicians alleged that they had pregnant patients who wanted abortions.