Roe v. Arizona Board of Regents
534 P.2d 285
Ariz. Ct. App.
1975
Check Treatment

*1 find- difficulty in personnel. We regula- justification

ing a rational

tion. and the cause reversed judgment is con- proceedings

is remanded opinion.

sistent KRUCKER, J.,

HOWARD, J., and C.

concur. P.2d ROE, a class for herself and as

Jane Appellant, similarly situated, those body REGENTS, OF

ARIZONA BOARD Babbitt, Attorney corporate, and Bruce E. Appellees. Arizona, the State General

2No. CA-CIV 1834. Arizona, Appeals Division

April 21, 1975.

Rehearing May 20, Denied

Review Granted *2 undisputed. At the

The facts are time 21, 1974, complaint filed was on June appellant nineteen-year-old unmar was eligible for ried was medical female. She County Pima and for аssistance from sev had been under the care of eral months Giles, Harlan Professor of Obstetrics Dr. University Ari Gynecology at the 19, 1974, On zona Medical Center. appellant sixteen to seventeen weeks was pregnant, and she and her deter mined it be in her best interest to would University an Although abortion. per of Arizona Medical Center had forming abortions since the dеcision of the in Roe United States Wade, L.Ed. 2d 147 informed her doctor May he had been advised on or about law and that because Arizona Regents’ policy, Board the Universi Hospital permit its use of fa would unless cilities for necessary save life of the moth er. being performed within

Abortions were Wade, guidelines set forth Roe v. 16, 1974, May until when Arizo- passed Legislature na State A.R.S. 15- authorizing as a a bill rider to Fisher, by & Elaine S. Pollock Pollock Regents revenue bonds Board to issue Fisher, Tucson, Arizona Barbara E. stadium at order remodel the football Advocates, by Law Barbara E. Public University This statute of Arizona. Fisher, Tucson, appellant. for provides: Babbitt, Gen., Atty. E. S. Bruce John performed shall be “No abortions O’Dowd, Gen., Tucson, Atty. for Asst. any under рellees. regents unless board such abortion necessary the woman to save the life of OPINION the abortion.” having HOWARD, Judge. Chief was followed The enactment of the statute supe- class action in Appellant filed this Regents a resolu- passing the Board of Arizo- alleging rior conforming tion statute. unconstitutionally denied her na Regents addition The Board later a mоtion have an abortion. She filed A.R.S. relies on aforementioned summary ‍​‌‌​‌‌‌​​​​‌‌‌‌​‌‌​​‌​‌​​​​‌‌​‌‌​​‌‌‌‌​​​​‌​​​‌​‍judgment declaring partial statute, This justify actions. mo- and a 15-730 unconstitutional A.R.S. § states: passed be maintained the action required to admit “No Appellees a motion action. also filed class performing an purpose appeal fol- summary judgment. This any other physician, A or aрpel- abortion. granting the trial court’s lowed or associated a member of son who is summary judgment. motion for lees’ hospital, em- of her constitutional under color the staff of clinic, doctor, ployee hospital, of State of a law? facility in other medical or Did the trail court err in de- [sic] authorized, has been which an abortion nying represent Plaintiff objection writing shall state in who persons similarly class situated ? religious on moral denying err in 5. Did trial court partici- grounds shall not be *3 attorneys to Plaintiff when Plain- pate proce- surgical in the medical or exer- litigate tiff has forced result in the abortion.” dures which will cise her fundamental constitutional appel- the instant was filed When case rights?” requested temporary or- restraining

lant der, appel- granted, restraining which was CONSTITUTIONALITY OF prohibiting lees from her at the abortion THE STATUTES University Hospital.1 filing the of Since language Wade, The su performed this lawsuit an abortion was at pra, Bolton, and Doe v. 410 U.S. University Hospital upon appellant. the it S.Ct. 35 L.Ed.2d makes appellees’ granting sum- motion for clear its im that abortion decision and mary that judgment trial court ruled per plementation right' is a fundamental appellant may to obtain while liberty proc sonal embraced within the due an abortion she not entitled have one ess clause of the Amendment Fourteenth provided by the as a matter of State thereby protected and is undue in from University Hospital. at It fringement by compel the State. Absent regu- ruled that A.R.S. 15-730 does not' ling interest, regula circumstances of § state appellant’s rights late constitutional abortion unconstitutional. Roe v. operation rather the and Wade, a state-owned at 93 S.Ct. 705. state-operated facility it is and that point “compelling interest” was face; valid on its appellant had not tripartite Supreme set out in a test infringеd upon established that the statute in Court Roe v. Wade: supra; under Roe v. Wade prior approximate- “(a) stage For the showing there was no that it was an trimester, ly the end the first action; propriate case for a class and that decision and abortion its effectuation appellant prevail even if were to her attor- judgment must be left to thе medical neys’ from fees would not be recoverable pregnant attending physi- woman’s appellees. cian. Appellant presents ques- following (b) stage subsequent approxi- For tions review: mately trimester, the end of first uphold- Did trial err in “1. State, promoting in interest ing constitutionality of A.R.S. 15- mother, chooses, may, health of the if it light in deci- of the Court’s regulate рrocedure ways in abortion Bolton sion in Roe v. and Doe v. Wade reasonably related to maternal - interpreting ? and cases those decisions health. unconstitu- Is A.R.S. 36-2151 viability, (c) stage subsequent For the permits a in that it tional overbroad promoting its interest operated hospital state owned may, it potentiality of human life if any patient admit refuse to сhooses, proscribe, regulate, and even formance of an abortion? except necessary, in where it is appropriate judgment, medical Did the Title Defendants violate preservation the life or health by depriving Plaintiff U.S.C. § Roylston. 1. This order the Hon. Richard N. was entered pregnan interest fundamental 164-65, at mother.” other broad when cy decision is far too per procedures are comparable cog take fails to the State Where * * * state has [Ojnce the formed. preg separate trimesters nizance of short-term provide general undertaken to proce regulation in its nancy here, care, consti in dures, regulation overbroad medically in tutionally draw the line Bolton, suprа; Roe valid. procedures that distinguishable surgical City of Wade, supra; F. rights.” impinge on cert. denied 1974), (8th 2d 705-706. 42 L.Ed.2d 136. constitutionality up court’s rationale trial approve following quo- question we on the basis holding A.R.S. Nyberg: tation pro that the State requirement is no there nonsequitur say that be a “It would *4 ad an abortion appellant with vide its effectuation and the abortion deсision Ny rejected by and vanced physi- by the be made is an election to supra: City of berg v. interference and his without cian be the issue to frames “Appellant state, the state and then allow an affirmative state has whether hospitals, to effective- through its provide Doe Roe and duty under using state fa- ly bar does not This record facilities. operation.” 495 perform the cilities to where present a situation F.2d or establish new required would is Nyberg case with the accord staff in facilities and order different Hospital, (1st 144 500 F.2d Hale operations. reasons set For perform the denied, 907, 1974) 420 95 S. cert. U.S. Cir. below, find that the district we out 825, held (1975), 42 L.Ed.2d 837 Ct. ordering case was correct in this not for public medical that a Municipal Hospital to make Virginia long as it so offers bid elective abortions per- for the facilities available existing procedures, indistinguishable medically 495 F.2d at 1345. forming abortions.” right as the fundamental violating without case, the record here Nyberg As in the terminate with the decision to sociated University of Hos- Arizona shows ‍​‌‌​‌‌‌​​​​‌‌‌‌​‌‌​​‌​‌​​​​‌‌​‌‌​​‌‌‌‌​​​​‌​​​‌​‍also, Friendship Medical pregnancy. See performing had beеn abortions pital Health, Chicago Board of Center Ltd. v. necessary to create fa- it was not new 1974) and Orr v. (7th 505 F.2d 1141 Cir. perform staff in order to them. cilities or Koefoot, (D.Neb.1974). F.Supp. 673 377 reasons agree with the court’s We 36-2151, in view for A.R.S. § Municipal holding Virginia discussion, first sentence foregoing Hospital existing had make its facilities (“No hospital is thereof to admit performing It abortions. available for any patient purpose adopted Hathaway rationale v. abortion.”) is and unconstitu overbroad City Hospital, (1st 475 F.2d 701 Worcester applied public hospitals. when tional 1973): Cir. clear, “But it seems after Roe and TITLE VIOLATION OF Doe, that in- a fundamental interest is 42 U.S.C. 1983 volved, requiring a rationale compelling provides 42 U.S.C. 1983 follows: hospital surgi- justify permitting somе who, procedures “Every person under color banning cal another statute, ordinance, cus- greater regulation, volving any risk demand on or * * * tom, Territory, usage, any or staff and facilities. or State [I]t subjected, complete subjects, causes to be clear under and Doe that a procedure or other relating ban on a citizen of the LTnitedStates 481 Poelker, (8th to the ment. Doe son within the thereof 1974). deprivation rights, privileges, Cir. by the

immunities secured Constitution ATTORNEY’S FEES laws, party in- shall be liable to the law, equity, jured in an action suit general rule in proper or other for redress.” proceeding attorney’s fees are not recoverable in added) (Emphasis absence of a contract statute author Times, v. Arizona exceptions New Inc. Board There are to the izing them. 367, court, Regents, 110 Ariz. 519 P.2d in or general rule allow the jurisdic- has (1974), equity, held a state court der to to assess do. un- damages exception

tion to a claim for against entertain the defendant. One adopted der this federal statute. theory fund” “common Zeckendorf, Ariz. Steinfeld However, equitable relief neither (1914), P. 1044 aff’d 239 Title under damages nor can awarded 60 L.Ed. 125 stockhold where against of Re U.S.C. Board corporation er’s suit for benefit of the “per agency, since it is gents, a state not a recovery resulted monies meaning said within the statute. son” corporation. The court stated: City of Kenosha v. Bruno by appel- prosecuted “This action was (1973); Whit 37 L.Ed.2d lee as a stockholder therein for bene- Davis, (9th 1969); ner F.2d 24 *5 and, fit Silver Company, of the Bell as a Nevada, University Adamian F. v. 359 thereof, company result the has been en- Supp. (D.Nev.1973); Lake 825 Webb v. riched the amount . recovered. District, Mills F. Community School 344 justice Right the com- Supp. has (N.D.Iowa 1972). Appellant 791 pany protect appellee against any the asked us to amеnd to the in for leave add may costs that he have in incurred the Regents dividual of the Board of members otherwise, employment attorneys as This defendants. is a matter which 342, . . 15 .” Ariz. at P. should be addressed to the trial court. opinion express as the We ultimate case, In the ‍​‌‌​‌‌‌​​​​‌‌‌‌​‌‌​​‌​‌​​​​‌‌​‌‌​​‌‌‌‌​​​​‌​​​‌​‍instant the fund” “common liability damages 1983 for of the under § theory inapplicable. is Attorney or of thе individual General recognize exception members Some courts another Regents of the Board of who concluded have the interests of merely following statutory were the man- justice require fee-shifting in cases date. We is not a where note plaintiff acting the is panacea “private as wrongs. for a attor ney general”, important vindicating an public policy. Society Wilderness Mor v. CLASS ACTION ton, U.S.App.D.C. 446, F.2d 1026 grant (1974) uniformly have courts granted cert. S.Ct. ed class status in re challenging theory actions 42 L.Ed.2d 47. This has been pub policies strictive laws and applied by the federal in 1983 ac courts hospitals. Bolton, supra; lic Vitek, Doe Hoitt (1st tions. v. 495 F.2d 219 Hospital, supra. Appellant’s preg v. Hale 1974). Cir. noted the nant state when she аction Cole, commenced this Court Hall gave standing to maintain it the L.Ed.2d federal (1973) status though appellant courts, continued even had equitable in the exercise their obtained an the time jurisdiction, liberal than been more hearing on the motion for summary judg- the awarding state courts Fidelity Guaranty Attorney’s See United States & recoverable for Co. fees arе Frohmiller, injunctions. wrongful 71 Ariz. 227 P.2d 1007 Georgia affording statute ad- a argument section party. The

to the successful giv- protection appellees than were “pri- broader favor courts vanced Although the exempli- in the case at bench. en is attorney theory general” vate portion invalidated Geor- Auciello, F.2d 852 by Knight fied providing committee gia statute for 1972): (1st abortions, proval guidelines, with public important violation of “The Grady Memorial Hos- court noted way ac- little policy involve pital, hos- apparently a non-denominational single damages, individu- so far a tual protection pital indigents, was for afforded comparison concerned, little in al hospital did statute in that the the cost of vindication with abortions, stat- accept patients have to may feel that cost of If a defendant ing: and, fi- particularly, litigation, Georgia Viewing par- “. . . injured circumstances of an nancial whole, constitutionally as a we see no the chances of suit may mean that justifiable pertinence in the structure in the face being brought, or continued apprоval by the abortion the advance small, there opposition, will will . . . The woman’s committee. upon wrongdoing. little brake deliberate care in accordance to receive medical public may sug- policy instances In such judgment best physician’s her licensed gest award that will of costs remove administer physician’s and the burden shoulders of by this substantially limitеd statutori plaintiff seeking to vindicate hospital imposed ly overview. And right.” 453 protected. fully Un itself otherwise Assuming, deciding, applica- is free not (e) der bility “private attorney general” It is to admit for an abortion. doctrine, question remains whether com free not to have an abortion even argument is meritorious under Further, mittee. oth case. a defend- faсts instant When refrain, employee er has obeying duly ant state law enacted *6 reasons, partici moral or religious attorney’s against fees be should assessed pating procedure. These the abortion the' that defendant when statute subse- provisions obviously are in quently determined to be unconstitutional? protection appropriate to оrder to afford attorney “private Since the doctrine of to and the denominational individual believe, equitable general” is we origin hospital. 26-1202(e) affords ad Section hold, promote that it would not so protection hospital lit equate to the justice ends of under such circumstances to provided tle more is by committee allow fees. U. prescribed 26-1202(b)(5).” This case is reversed and remanded for 35 L.Ed.2d at S. proceedings consistent 215-6. opinion. City In of heavily majority, upon relied it was KRUCKER, J., concurring. recognized high held in court HATHAWAY, Judge (dissenting). applicant and Doe that an entitled Although upon demand, specifically during abortions first to an as pointed of pregnancy encompassed Burger’s spe- trimester out in Chief Justice cially activities concurring opinion, within the included within the and also that the constitutionally protected upheld of right privacy, high in Doe stat- Georgia court Doe, respectfully my utory protections hospital, Roe and I submit that i. afforded e., patient majority right accept brethren of the and the cases upon they rely have misread Doe v. abortion. The falls into error court Bolton, approved high reading provision being wherein the as available duty-bound hospitals, services the over- of those for denominational Legislature, The the Board to furnish. high court’s endorsement of looking the Grady Regents affording protection administration ‍​‌‌​‌‌‌​​​​‌‌‌‌​‌‌​​‌​‌​​​​‌‌​‌‌​​‌‌‌‌​​​​‌​​​‌​‍Uni- as provision versity hospital position to and the are in a apparently non-de- Hospital, an Memorial event, nature and of services determine the extent hospital. nominational be made statutory protection of should available the Uni- availability of the versity Hospital provide and to decline admission of right payment Many of such services. consider- not made purposes abortion was оbviously reaching ations arise such de- sta- upon the denominational appear to rest cision, not the least include the lack thereof. tus of the teaching hospital, orientation Multitudinous activities are included imposed by burden which be undertak- protective pre- within the mantle of the ing particular activity, risk of liabili- governmen- be cious left alone and provision and the adequate malprac- pro- tal interference with those activities is coverage. tice insurance scribed an invasion the individuals’ By means through should courts privacy. pro- Translation of that judicial require sensitive mandate that all tection into the imposition of affirma- hospitals perform possible services, sim- upon duty every hospital capable tive ply they may capable because doing abortion, medi- other Specialization so. and limitation of serv- service, so, obligation cal do is un- may frequently ices be necessary. Estab- justified. priorities lishment health A look at other beyond sector judicial falls perogative. points up problems accompanying fine-tuning to make available holding. a broad to travel has the best over-all medical services must re- right, a fundamental held main Sha within the deft touch of the medical piro Thompson, community. 1322, 22 L.Ed.2d Vast and I would affirm. transportational activity

constant takes place government. in all levels of Should transportation

courts that available governmental

within these functions be travelers, оpen judiciary or should the 534 P.2d 291 transportation mandate establishment aof Arizona, Appellee, The STATE of system purposes of carrying out the *7 travel? Miguel Angel TIZNADO, Appellant. procreation has been held a fundamental 2No. CA-CR 530. Oklahoma, Skinner L.Ed. 1655 Appeals Arizona, seem, however, This would not Division 2. establishment of clinics to further April 23, 1975. right. Rehearing May 27, Denied ill-equipped to assess and de- Review Granted

Courts capabilities of a termine particular multitudinous

furnish physician- which arise in

services

patient relationship adjudislate1 prac appellate judiciary. legislate. Adjudislate, judicially Effectiveness A degree judi proportion legal beyond is in ‍​‌‌​‌‌‌​​​​‌‌‌‌​‌‌​​‌​‌​​​​‌‌​‌‌​​‌‌‌‌​​​​‌​​​‌​‍review tice ciary, appellate highest judicial power. beyond restraint adjudisla imposes. dealing with means for available higher through echelons review