The opinion of the court was delivered by: WADDY
This class action was filed on February 26, 1970, seeking declaratory and injunctive relief. Plaintiffs allege that they seek to enjoin on behalf of plaintiff, Mary Doe, and others similarly situated the enforcement of the abortion policy of the General Hospital of the District of Columbia (hereinafter referred to as "D.C. General"), and to declare said policy unlawful.
This matter is before the Court on the motion of the plaintiff Mary Doe for a preliminary injunction. She alleged in her motion that she was seeking a preliminary injunction restraining defendants from denying her an abortion at the facilities of D.C. General "except insofar as said abortion is medically contra-indicated according to standards of medical practice generally applied by the hospital as to other forms of treatment." At trial her counsel conceded that she is seeking, by what in effect is a mandatory injunction, a free abortion on demand at D.C. General. Evidentiary hearing commenced on March 6, 1970, and was resumed and concluded on March 9, 1970.
Having considered the testimony presented, the affidavits and depositions on file, the memoranda submitted by counsel, and having heard closing argument by counsel for the plaintiff and counsel for defendants, the Court, pursuant to Rule 52(a), Federal Rules of Civil Procedure, makes the following findings of fact and conclusions of law:
1. Plaintiff Mary Doe is a resident of the District of Columbia, and has been a continuous resident thereof for more than one year. She is 21 years of age and unmarried. Her taxable income is less than $2,400 per year. She meets the income and residence requirements necessary to receive free medical treatment at the facilities of the defendant General Hospital of the District of Columbia ("D.C. General Hospital").
2. The defendant D.C. General Hospital is an agency of the Government of the District of Columbia and is administered under the supervision of the Department of Public Health of the District of Columbia. It is the only government-owned Hospital within the District of Columbia furnishing comprehensive medical treatment to residents of the District of Columbia.
3. The defendant Walter E. Washington is the duly appointed, qualified and acting Commissioner of the District of Columbia.
4. The defendant Dr. Raymond L. Standard is the duly appointed, qualified and acting Director of Public Health in the District of Columbia, and is by law charged with administering the Department of Public Health under the authority delegated to him by the defendant Walter E. Washington.
5. The defendant Dr. John Nasou is the duly appointed, qualified and acting Director of D.C. General Hospital, and is by law charged with administering the Hospital.
6. The defendant Dr. Ernest Lowe is the duly appointed, qualified and acting Chief Medical Officer of the Obstetrics and Gynecology Department of D.C. General Hospital, and is charged with responsibility for administering that Department.
8. On or about February 5, 1970, the plaintiff Mary Doe was informed by a competent and licensed physician within the District of Columbia that a pregnancy test showed her to be four to six weeks pregnant. She had attempted to prevent the pregnancy by the use of a contraceptive device which failed.
9. On February 17, 1970, plaintiff, Mary Doe, went to D.C. General and spoke with the defendant, Dr. Ernest Lowe. She told him that she was a resident of the District of Columbia, over 21 years of age and indigent; that she was single, pregnant and desired an abortion at D.C. General. Without giving Mary Doe any physical or mental examination whatsoever to determine whether she qualified for an abortion in accordance with the Hospital's rules and regulations, Dr. Lowe failed and refused to even consider her for an abortion; related to her the current practice at D.C. General concerning abortions, and refused to abort her.
10. The Department of Public Health and its director has the official responsibility for establishing the regulations and policies of D.C. General. There has never been any written delegation of that power with respect to the performance of therapeutic abortions. Over the years, however, the Chief Medical Officer of the Obstetrics and Gynecology Department, together with the Director of the hospital have promulgated rules and regulations which are known to the Director of Public Health and which have not been disapproved by him but, on the contrary, have been approved by his acquiescence therein. Such rules and regulations become a part of the official regulations of D.C. General.
11. D.C. General is accredited by the Joint Commission on Accreditation of Hospitals which, from time to time conducts a review of the hospital. On September 19, 1967, defendant, Nasou, by written memorandum reported to Dr. Murray Grant, who was then the Director of Public Health, that a representative of that Commission had informed the defendant, Nasou:
"* * * that the medical staff of each hospital must delineate a medical policy for itself concerning * * * therapeutic abortion, and that this policy should be part of the Rules and Regulations for the medical staff appended to the By-Laws. This must be consistent with and not more liberal than legislation and statutes of the jurisdiction, though the policy may be more stringent than the laws in effect."
Attached to the memorandum was a proposal dated July 18, 1967, which Dr. Nasou had received from the Division of Obstetrics and Gynecology at D.C. General stating the policy for therapeutic abortion ...