Appeal from the United States District Court for the Eastern District of Wisconsin - No. 74 C 224 John W. Reynolds, Judge.
Pell and Tone, Circuit Judges, and Perry, Senior District Judge.*fn**
This is an appeal under 28 U.S.C. § 1292(a)(1) from a judgment granting a preliminary injunction. The original plaintiff, under the pseudonym Jane Doe, brought this action on behalf of herself and all others similarly situated against the Director of Institutions and Departments of Milwaukee County and the Administrator, governing body, and certain officials of Milwaukee County General Hospital. Virginia Thoms later joined as a named plaintiff. Invoking the District Court's jurisdiction under 28 U.S.C. § 1343(3), plaintiffs sought injunctive and declaratory relief as authorized by 42 U.S.C. § 1983. They attacked, as a violation of their rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments, Rule 26(b) of the Hospital's Rules and Regulations of the Medical Staff, which permits the use of hospital facilities for an abortion only when a pregnancy "is complicated by medical conditions of such nature and advanced to such degree that continuation of pregnancy threatens the life of the mother." (Emphasis in the original.) The District Court, on July 24, 1974, entered a judgment granting plaintiffs' motion for a preliminary injunction.
Defendants prosecute this appeal, arguing that it was necessary to convene a three-judge court to consider the constitutionality of a Wisconsin statute which purported to authorize hospitals to refuse to perform abortions and another Wisconsin statute, which the District Court refused to consider, concerning public aid to pregnant mothers, and that, in any event, the District Court erred in granting the preliminary injunction because the statute and the rule are constitutional. For the reasons stated below we affirm the District Court's order granting the preliminary injunction.
We first consider whether the case is moot and whether this is a proper class action. Mootness, to the extent that it is raised at all, and the class-action objections are raised by the amici curiae, St. Thomas More Society and Catholic Physicians' Guild.
From the complaint and affidavits the following facts appear: Jane Doe was ten weeks pregnant and wished to have an abortion at the time the complaint was filed. Prior thereto she had gone to a physician, who advised her that she was pregnant, and, when she requested an abortion but was without funds, advised her to apply for public assistance and to go to the Milwaukee County General Hospital and request an abortion. This she did, and a hospital representative advised her that the hospital's policy was not to perform elective abortions. Virginia Thoms was pregnant and in the first trimester of her pregnancy at the time she filed her affidavit. She desired an elective abortion. Her physician examined her and found her to have a normal pregnancy but, for reasons that do not appear, considered it "medically imperative that she have a therapeutic abortion performed before her first trimester" ended. Since she did not have the funds to obtain an abortion elsewhere, she went to the Milwaukee County General Hospital and requested that an abortion be performed. She was refused, a representative of the hospital stating that the hospital did not perform elective abortions.
The District Court in its Decision and Order noted that Jane Doe's pregnancy had been terminated prior to its judgment, and defendants, in their brief, state that after the entry of judgment Virginia Thoms's pregnancy was terminated. Plaintiffs, in adopting defendants' statement of facts, do not dispute the latter contention. The termination of the pregnancies does not moot the case. When the complaint was filed and when the preliminary relief was granted, a live and justiciable controversy existed between the defendants and one of the representatives of the class. Now that the case is on review as a class action, the right of the unnamed members of the class to a determination of the constitutionality of Rule 26(b), which acquired a separate legal status when the District Court concluded that the action could be maintained as a class action, keeps the controversy alive. Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 556-559, 42 L. Ed. 2d 532 (1975). The short duration of the first trimester of pregnancy would make litigation and appellate review of the rights asserted in this case impossible, if it were required that the member of the class who serves as its representative be within the first trimester of pregnancy when the complaint is filed, when preliminary relief is granted, and when the case is argued and decided on appeal. See Roe v. Wade, 410 U.S. 113, 124-125, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973).
In its Decision and Order, the District Court defined the class that plaintiffs represent as "all women residents of Milwaukee County who are less than three months' pregnant, who presently desire or will desire in the future to have abortions performed at Milwaukee County General Hospital, who have received doctor's advice to have an abortion performed, and who are presently unable to receive abortions at Milwaukee County General Hospital because of the expressed policies of that hospital concerning 'elective' abortions." The class is so numerous that joinder of all members is impractical, and there is a common question of law, whether the hospital's rule is constitutional. Fed. R. Civ. P. 23(a)(1) and (2). The contentions that the claims of Doe and Thoms are not typical of the claims of members of the class and that therefore Doe and Thoms will not fairly and adequately protect the interests of the class (Fed. R. Civ. P. 23(a)(3) and (4)) are also without merit.
The doctor Jane Doe consulted told her to go to the Milwaukee County General Hospital to request an abortion, since she did not have the funds to pay for one herself. Implicit in this recommendation is the doctor's advice to obtain an abortion. Furthermore, the hospital turned her away, not for any medical reasons, but because it did not perform elective abortions. Her need to be examined to determine whether she needed a therapeutic abortion or was physically able to have an elective abortion at a public hospital gave her the requisite common interest necessary to permit her to adequately represent the class. Her indigency, coupled with the public hospital's refusal even to examine her, frustrated her claimed constitutional right. Jane Doe is a proper representative of the class with an interest and a constitutional claim co-extensive with those of other members of the class. Finally, plaintiff's anonymity does not weaken her ability to represent the class: an anonymous plaintiff, Jane Roe, maintained a class action in Roe v. Wade, supra, 410 U.S. at 120, 124.
Virginia Thoms, it is argued, cannot represent the class because although she has a doctor's advice, it is advice that she have a "therapeutic abortion." She, nevertheless, was unable to receive an abortion because of the hospital's Rule 26(b), which permitted an abortion only if a pregnancy "is complicated by medical conditions of such nature and advanced to such degree that continuation of pregnancy threatens the life of the mother." The doctor's affidavit gives no indication that Virginia Thoms's life was threatened by the pregnancy. In view of the hospital's narrow definition of therapeutic abortions, Virginia Thoms was, according to the hospital's lexicon, seeking an elective abortion, because she had no indication from her doctor that the pregnancy threatened her life. Furthermore, when Virginia Thoms went to the hospital, she requested an elective abortion and was informed that the hospital did not perform abortions. Virginia Thoms is also a member of the class with a sufficiently common interest fairly and adequately to represent the class.
We now turn to the three contentions raised by the defendants.
First, defendants argue that since the hospital's policy was promulgated under an enabling state statute, the plaintiffs are attempting to enjoin operation of the statute itself without convening of the three-judge court required by 28 U.S.C. § 2281. The statute, Wis. Stat. § 140.42,*fn1 reads in its relevant part:
"(1) No hospital shall be required to admit any patient or to allow the use of the hospital facilities for the purpose of performing a sterilization ...