U.S. Supreme Court
POELKER v. DOE, 432 U.S. 519 (1977)
432 U.S. 519
POELKER, MAYOR OF ST. LOUIS, ET AL. v. DOE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 75-442.
Argued January 11, 1977
Decided June 20, 1977
The city of St. Louis, in electing, as a policy choice, to provide publicly
financed hospital services for childbirth but not for nontherapeutic abortions,
held not to violate any constitutional rights. Maher v. Roe, ante, p. 464.
515 F.2d 541, reversed and remanded.
Eugene P. Freeman argued the cause for petitioners. With him on the brief was
Jack L. Koehr.
Frank Susman argued the cause and filed a brief for respondent.*
[Footnote *] Briefs of amici curiae urging
affirmance were filed by Leo Pfeffer for the American Jewish Congress et al.;
and by Sylvia A. Law, Harriet F. Pilpel, and Eve W. Paul for the American Public
Health Assn. et al.
Briefs of amici curiae were filed by Dennis J. Horan, Dolores V. Horan, and
Victor G. Rosenblum for Americans United for Life, Inc.; by Jerome M. McLaughlin
for Missouri Doctors for Life; and by Robert E. Ratermann for James R. Butler et
al.
PER CURIAM.
Respondent Jane Doe, an indigent, sought unsuccessfully to obtain a
nontherapeutic abortion at Starkloff Hospital, one of two city-owned public
hospitals in St. Louis, Mo. She subsequently brought this class action under 42
U.S.C. 1983 against the Mayor of St. Louis and the Director of Health and
Hospitals, alleging that the refusal by Starkloff Hospital to provide the
desired abortion violated her constitutional rights. Although the District Court
ruled against Doe following a trial, the Court of Appeals for the Eighth Circuit
reversed in [432 U.S. 519, 520] an opinion
that accepted both her factual and legal arguments. 515 F.2d 541 (1975).1
The Court of Appeals concluded that Doe's inability to obtain an abortion
resulted from a combination of a policy directive by the Mayor and a
longstanding staffing practice at Starkloff Hospital. The directive,
communicated to the Director of Health and Hospitals by the Mayor, prohibited
the performance of abortions in the city hospitals except when there was a
threat of grave physiological injury or death to the mother. Under the staffing
practice, the doctors and medical students at the obstetrics-gynecology clinic
at the hospital are drawn from the faculty and students at the St. Louis
University School of Medicine, a Jesuit-operated institution opposed to
abortion. Relying on our decisions in Roe v. Wade, 410 U.S. 113 (1973), and Doe
v. Bolton, 410 U.S. 179 (1973), the Court of Appeals held that the city's policy
and the hospital's staffing practice denied the "constitutional rights of
indigent pregnant women . . . long after those rights had been clearly
enunciated" in Roe and Doe. 515 F.2d, at 547. The court cast the issue in an
equal protection mold, finding that the provision of publicly financed hospital
services for childbirth but not for elective abortions constituted invidious
discrimination. In support of its equal protection analysis, the court also
emphasized the contrast between nonindigent women who can afford to obtain
abortions in private hospitals and indigent women who cannot. Particular
reliance was placed upon the previous decision in Wulff v. Singleton, 508 F.2d
1211 (CA8 1974), reversed on other grounds, 428 U.S. 106 (1976), in which the
Court of Appeals [432 U.S. 519, 521] had
held unconstitutional a state Medicaid statute that provided benefits for women
who carried their pregnancies to term but denied them for women who sought
elective abortions. The court stated that "[t]here is no practical distinction
between that case and this one." 515 F.2d, at 545.
We agree that the constitutional question presented here is identical in
principle with that presented by a State's refusal to provide Medicaid benefits
for abortions while providing them for childbirth. This was the issue before us
in Maher v. Roe, ante, p. 464. For the reasons set forth in our opinion in that
case, we find no constitutional violation by the city of St. Louis in electing,
as a policy choice, to provide publicly financed hospital services for
childbirth without providing corresponding services for nontherapeutic
abortions.
In the decision of the Court of Appeals and in the briefs supporting that
decision, emphasis is placed on Mayor Poelker's personal opposition to abortion,
characterized as "a wanton, callous disregard" for the constitutional rights of
indigent women. 515 F.2d, at 547. Although the Mayor's personal position on
abortion is irrelevant to our decision, we note that he is an elected official
responsible to the people of St. Louis. His policy of denying city funds for
abortions such as that desired by Doe is subject to public debate and approval
or disapproval at the polls. We merely hold, for the reasons stated in Maher,
that the Constitution does not forbid a State or city, pursuant to democratic
processes, from expressing a preference for normal childbirth as St. Louis has
done.2
The judgment of the Court of Appeals for the Eighth Circuit [432 U.S. 519, 522] is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
[For dissenting opinion of MR. JUSTICE MARSHALL, see ante, p. 454.]
[For dissenting opinion of MR. JUSTICE BLACKMUN, see ante, p. 462.]
Footnotes
[Footnote 1] The facts concerning Doe's
visit to the hospital and the reason for her inability to obtain an abortion are
hotly disputed. Our view that the Court of Appeals erred in the application of
the law to the facts as stated in its opinion makes it unnecessary to describe
or resolve this conflict.
[Footnote 2] The Court of Appeals awarded
attorney's fees to respondent under the "bad faith" exception to the traditional
American Rule disfavoring allowance of such fees to the prevailing party. See
Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240 (1975). It follows from
our decision on the constitutional merits that it was an error to award
attorney's fees to respondent.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN
join, dissenting.
The Court holds that St. Louis may constitutionally refuse to permit the
performance of elective abortions in its city-owned hospitals while providing
hospital services to women who carry their pregnancies to term. As stated by the
Court of Appeals:
"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 maternity 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." 515 F.2d 541, 544 (1975).
The Court of Appeals held that St. Louis could not in this way "interfer[e]
in her decision of whether to bear a child or have an abortion simply because
she is indigent and unable to afford private treatment," ibid., because it was
constitutionally impermissible that indigent women be "`subjected to State
coercion to bear children which they do not wish to bear [while] no other women
similarly situated are so coerced,'" id., at 545.
[432 U.S. 519, 523]
For the reasons set forth in my dissent in Maher v. Roe, ante, p. 482, I
would affirm the Court of Appeals. Here the fundamental right of a woman freely
to choose to terminate her pregnancy has been infringed by the city of St. Louis
through a deliberate policy based on opposition to elective abortions on moral
grounds by city officials. While it may still be possible for some indigent
women to obtain abortions in clinics or private hospitals, it is clear that the
city policy is a significant, and in some cases insurmountable, obstacle to
indigent pregnant women who cannot pay for abortions in those private
facilities. Nor is the closing of St. Louis' public hospitals an isolated
instance with little practical significance. The importance of today's decision
is greatly magnified by the fact that during 1975 and the first quarter of 1976
only about 18% of all public hospitals in the country provided abortion
services, and in 10 States there were no public hospitals providing such
services.1
A number of difficulties lie beneath the surface of the Court's holding.
Public hospitals that do not permit the performance of elective abortions will
frequently have physicians on their staffs who would willingly perform them.
This may operate in some communities significantly to reduce the number of
physicians who are both willing and able to perform abortions in a hospital
setting. It is not a complete answer that many abortions may safely be performed
in clinics, for some physicians will not be affiliated with those clinics, and
some abortions may pose unacceptable risks if performed outside a hospital.
Indeed, such an answer would be ironic, for if the result is to force some
abortions to be performed in a clinic that properly should be performed in a
hospital, the city policy will have operated to increase rather than reduce
health risks associated with abortions; and in Roe v. Wade,
[432 U.S. 519, 524]
410 U.S. 113, 163 (1973), the Court permitted regulation by the State solely to
protect maternal health.
The Court's holding will also pose difficulties in small communities where
the public hospital is the only nearby health care facility. If such a public
hospital is closed to abortions, any woman - rich or poor - will be seriously
inconvenienced; and for some women - particularly poor women - the
unavailability of abortions in the public hospital will be an insuperable
obstacle. Indeed, a recent survey suggests that the decision in this case will
be felt most strongly in rural areas, where the public hospital will in all
likelihood be closed to elective abortions, and where there will not be
sufficient demand to support a separate abortion clinic.2
Because the city policy constitutes "coercion [of women] to bear children
which they do not wish to bear," Roe v. Wade and the cases following it require
that the city show a compelling state interest that justifies this infringement
upon the fundamental right to choose to have an abortion. "[E]xpressing a
preference for normal childbirth," ante, at 521, does not satisfy that standard.
Roe explicitly held that during the first trimester no state interest in
regulating abortions was compelling, and that during the second trimester the
State's interest was compelling only insofar as it protected maternal health.
410 U.S., at 162-164. Under Roe, the State's "important and legitimate interest
in potential life," id., at [432 U.S. 519, 525]
163 - which I take to be another way of referring to a State's "preference for
normal childbirth" - becomes compelling only at the end of the second trimester.
Thus it is clear that St. Louis' policy preference is insufficient to justify
its infringement on the right of women to choose to have abortions during the
first two trimesters of pregnancy without interference by the State on the
ground of moral opposition to abortions. St. Louis' policy therefore "unduly
burdens the right to seek an abortion," Bellotti v. Baird, 428 U.S. 132, 147
(1976).
I would affirm the Court of Appeals.
[Footnote 1] Sullivan, Tietze, &
Dryfoos, Legal Abortion in the United States, 1975-1976, 9 Family Planning
Perspectives 116, 121, 128 (1977).
[Footnote 2] "The concentration of
services among relatively few providers - mostly clinics - in the nation's
larger cities is clearly associated with the failure of hospitals - especially
the smaller hospitals that are the major health institutions in small cities and
nonmetropolitan areas - to offer abortions along with their other health
services. Since public hospitals are even less likely than private hospitals to
provide abortions, it is poor, rural and very young women who are most likely to
be denied abortions as a result of the need to travel outside their own
communities to obtain terminations. It is these women who are least likely to
have the funds, the time or the familiarity with the medical system that they
need to be able to cope with the problems associated with such travel." Id., at
121. [432 U.S. 519, 526]
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