After the Supreme Court in Doe and Roe had held that a pregnant woman has a continuing right to an abortion during the first three months of pregnancy, and after the General Assembly of North Carolina had adopted appropriate remedial legislation, the defendants took steps to frustrate the exercise of the freedom which Doe and Roe had declared. They passed a regulation, unjustified by medical or health considerations and discriminatory on its face, which would leave up to the untrammelled whim of public and private hospital administrators the decision upon which the exercise of the legal right to abortion depends. For these and the other reasons so correctly and clearly stated by Judge Craven, I heartily concur in his decision on the merits of the case.
For the same reasons, I respectfully dissent from the failure to award attorneys’ fees to plaintiffs.
Attorneys’ fees for winners should be awarded by courts only after serious thought; courts should be open to all litigants rather than closed to or extra-hazardous for those with lean bankrolls; the reported British practice of routinely or frequently taxing attorneys’ fees against losers should therefore not be followed.
Such fees, as Justice Frankfurter observed in Sprague v. Ticonic National Bank, 307 U.S. 161, 167, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939) are, however, appropriate “in exceptional cases and for dominating reasons of justice.”
Although the individual plaintiff does not evoke pity, and does not claim indigency, and makes no appeal beyond the obvious justice of his cause, nevertheless this is an “exceptional” case, and award of fees for plaintiffs’ lawyers is sup*1161ported by “dominating reasons of justice.”
State authorities attempted by administrative regulation to inhibit the exercise by North Carolinians of a freedom newly recognized by the Supreme Court.
The administrative regulation when drawn was clearly unconstitutional; in fact, no serious legal argument to the contrary was made by the defendants. This suit should not have been necessary.
Plaintiffs have prevailed on all the merits of the case.
The ruling of this court will benefit all persons who might in the future have been harmed by the unconstitutional regulation; plaintiffs have well performed the function of “private attorneys general,” with benefits to others similarly affected.
However, defendants will go scot-free for thus intentionally violating the constitutional rights of many North Carolina citizens, unless they are required to pay the attorneys’ fees for those who were forced either to sue or to submit to the unlawful regulation.
Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), does not control the fee issue. It is true that by a vote of five to four, with three dissenting opinions, Edelman held that the Eleventh Amendment (which says that a wow-resident may not sue a state) means that a resident may not sue a state, for recovery of past due but wrongfully withheld Social Security payments.
Edelman, however, is clearly distinguishable. It did not deal with denial of express constitutional rights like the present case; rather, it dealt with federal statutory rights which the state's must recognize only because of the Supremacy Clause. The wrong done in Edelman was treated as something like breach by the state of a contract with the federal government, with relief measured in the traditional form of damages ; by contrast, the further relief sought by Dr. Hoke is attorneys’ fees, which in proper cases are traditionally awarded by courts as a normal part of equitable relief.
Because the relief sought in Edelman was damages and because that relief originated in the 1787 Constitution’s Supremacy Clause, the court in Edelman could reach the result it reached on traditional principles of interpretation: The Eleventh Amendment (1798) came after the Supremacy Clause (1787); the court had previously decided there was a conflict between the two; in such event, the later amendment prevails. That is the rationale of Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), upon which Edelman relies.
In the present case, by contrast, plaintiffs’ rights are based upon the due process clause and the equal protection clause of the Fourteenth Amendment. The Fourteenth Amendment was adopted in 1868, some seventy years after the Eleventh Amendment, and shortly after the long and bloody Civil War which established the principle that state governments are required to deal fairly with all citizens and to treat them, under the law at least, as equals. The post-war amendments to the Constitution, especially Section One of the Fourteenth Amendment, modified the Constitution to provide expressly that citizens of all states had the right to fair treatment by government; and where, as here, the Fourteenth Amendment conflicts with the Eleventh, the latter (the Fourteenth) should prevail.
To deny fees here is therefore to extend rather than restrict Edelman.
This, I submit, should not be done.
Vast power has been placed in the hands of government—particularly in the hands of administrators in executive departments.
Executive power should be checked by responsibility—not unleashed through immunity.
*1162Today’s decision on fees tends to promote governmental irresponsibility.
The irony is that while by denying damages and fees against states the courts are fostering irresponsibility where it hurts the most (in the area of constitutional rights arid freedoms), state and federal governments have waived or been held to have waived much of their immunity from liability in damages for physical torts!
It is thus routine to sue a government or its employees and collect damages from a car wreck, but (if Edelman applies) impossible to sue the state for much more grievous and demonstrable losses from unconstitutional acts.
Americans tend to put dollar signs on everything.
It is time we started putting dollar signs on unconstitutional bureaucratic action, just as we put dollar signs on reckless driving.
Then perhaps administrators and their advisors will be more ready to recognize the Constitution before they invade the rights it guarantees. Protests from taxpayers sometimes get heard where the Bill of Rights gets ignored.
Award of attorney's fees would, then, tend to promote state responsibility. I would abandon the “bad faith” notion (the search for a villain) and base the decision on the dominating reasons of justice which abundantly appear on this record.
Such an award of fees has in fact been summarily affirmed by the Supreme Court in the only case that seems to have reached that court; see Amos v. Sims, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972), affirming 336 F.Supp. 924 and 340 F.Supp. 691 (M.D.Ala.1972). The Fifth Circuit upheld such an award in Gates v. Collier, 489 F.2d 298 (5th Cir. 1973).
I respectfully dissent from the failure to award attorneys’ fees.