Roe v. Arizona Board of Regents

549 P.2d 150, 113 Ariz. 178, 1976 Ariz. LEXIS 259

• Court: Arizona Supreme Court
• Decided: May 11, 1976
• Docket: 12143-PR
• Status: Published

Opinions

HOLOHAN, Justice.

Jane Roe, a nineteen-year-old unmarried female, filed an action against the Arizona Board of Regents and the Attorney General seeking a declaratory judgment that an Arizona statute prohibiting certain types of abortions at the University Hospital was unconstitutional. Summary judgment was granted in favor of the defendants. On appeal, Division Two of the Court of Appeals reversed the decision of the superior court, and we granted review. The opinion of the Court of Appeals, Division Two, 23 Ariz.App. 477, 534 P.2d 285 (1975) is vacated.

The sole issue¹ in the case is the constitutionality of A.R.S. § 15-730 which provides ;

“No abortion shall be performed at any facility under the jurisdiction of the board of regents unless such abortion is necessary to save the life of the woman having the abortion.”

Miss Roe’s situation is best described by reference to her affidavit in support of her motion for a temporary restraining order:

“2. I am nineteen years old and I am unmarried. I am a County patient, eligible for medical assistance from Pima County. I am presently pregnant and wish to have an abortion. I have been pregnant twice before; once in 1971, when the fetus died in útero in the third trimester and was delivered by Ceserean [sic] Hysterotomy, and again in 1972, when a full term child was delivered on February 28, 1973, by Ceserean [sic] Section. After the birth of my child I had an I.U.D. inserted to prevent pregnancy.

“3. 1 am a patient of Dr. Harlan Giles. On March 21, 1974, I received a medical examination at the University Hospital and it was determined that I was six to seven weeks pregnant in spite of the use of the I.U.D. On April 1, 1974, a suction D & C was performed on me to terminate the pregnancy and remove the I.U.D. Dr. Giles was the attending physician. I subsequently began taking birth control pills.

“4. On or about the 19th day of June, 1974, I went to University Hospital and was again examined by Dr. Giles, who determined I was still pregnant and in the sixteenth to seventeenth week of pregnancy. On that date I advised Dr. Giles that I wished to terminate my pregnancy. After consultation, Dr. Giles and I agreed that I should have an abortion immediately. Dr. Giles advised me I would have to have a saline abortion and that it should be performed as soon as possible. Dr. Giles advised me, however, that because of the Arizona law and the Regents’ policy, the University Hospital refuses to permit abortions to be performed in the Hospital, and refuses to permit him to perform abortions on his patients.

“5. I do not have funds to arrange an abortion at any private hospital. Dr. Giles had advised me that I should have the abortion as soon as possible because the longer I wait the more risky the procedure will become. I wish Dr. Giles to perform the abortion because he is my physician and I have confidence and trust in him. I wish to have the abortion performed at University Hospital because Dr. Giles had advised me that in his judgment it is the Hospital of preference under the circumstances.

“6. I already have one child to care for. I have not married. I do not have the physical strength nor the funds to support another baby. I want to have an abortion as soon as possible. . . .”

Over the objections of the defendants, the superior court granted a temporary restraining order preventing the enforcement of the statutory prohibition against non-therapeutic abortions at the University Hospital. Before the hearing on the motion for preliminary injunction, an abortion was performed on Miss Roe.

By reason of the decisions of the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973) and in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) the termination of Miss Roe’s pregnancy after the filing of her action does not moot the case.

Essentially, it is the position of the plaintiff that the statute forbidding non-therapeutic abortions in the University Hospital interferes with her decision, which is constitutionally protected, to terminate a pregnancy. She contends that the state government may not interfere with that decision. In support of her position the following cases have been called to our attention: Doe v. Poelker, 515 F.2d 541 (CA8, 1975); Doe v. Hale Hospital, 500 F.2d 144 (CA1, 1974); Word v. Poelker, 495 F.2d 1349 (CA8, 1974); Nyberg v. City of Virginia, 495 F.2d 1342 (CA8, 1974); Hathaway v. Worcester City Hospital, 475 F.2d 701 (CA1, 1973).

The decision in the Nyberg case typifies the rationale in the above cases.

“It would be a nonsequitur to say that the abortion decision and its effectuation is an election to be made by the physician and his patient without interference by the state and then allow the state, through its public hospitals, to effectively bar the physician from using state facilities to perform the operation.” 495 F.2d at 1346.

Nyberg and the above cases are distinguishable from the present case in that the cited, cases involved facilities used for treatment of indigents without adequate alternate facilities being available. Such is not the situation in the present case.

“[A] pregnant woman does not have an absolute constitutional right to an abortion on her demand.” Doe v. Bolton, 410 U.S. 179, 189, 93 S.Ct. 739, 746, 35 L.Ed.2d 201, 211. The individual choice is the right protected, and the state may not significantly interfere with that decision in the so-called “first trimester.” Nyberg and similar cases found that by barring abortions from public hospitals there was state action which negated the right of individual choice. The present case presents the situation in which only one public facility is closed to the plaintiff — the University Hospital. We are unaware of any constitutional right which requires that anyone be treated at the University Hospital. The fact that the state restricts the use of such hospital does not significantly interfere with the right of choice to have an abortion.

Plaintiff has not alleged that the only facility reasonably available to carry out her choice is the University Hospital.² The affidavits in the file by the physician do not make such a claim. The whole matter is in reality a matter of preference. Even as plaintiff does not have an absolute right to an abortion on demand, she also does not have a right to select any public facility she chooses for an abortion. If there are alternate adequate public facilities available to her, her right of choice has been protected, and she cannot complain that she would rather have a different facility.

The University Hospital is a teaching hospital. The sole and exclusive responsibility for the hospitalization and medical care of the indigent rests with the county. A.R.S. § 11-291. Pima County, where plaintiff resides, has established a county hospital. There is no suggestion that this facility would not have been available to the plaintiff for the abortion procedure. Under such circumstances there was an alternate public facility available to plaintiff and others in similar condition.

From our review we find that the rights of plaintiff have not been denied; that her freedom of choice is protected by having public facilities available to carry out her choice; that A.R.S. § 15-730 is constitutional.

Affirmed.

HAYS-, J., concurs.

1 . Pursuant to A.R.S. § 36-2151 a hospital is not required to admit a patient for the purpose of performing an abortion. This section has no relevancy to this case because A.R.S. § 15-730 applies to facilities under the jurisdiction of the Board of Regents, and it does not allow the discretion provided in A.R.S. § 36-2151. It must also be noted that A.R.S. § 36-2151 is substantially the same as that portion of the Georgia statute (26-1202(e)) which was not declared unconstitutional in Doe v. Bolton, supra.

2 . There is a statement in plaintiff’s memorandum in support of class action and partial summary judgment which claims that no public hospitals in Tucson perform abortions. Such a statement is not evidence, and it certainly did not meet the requirements of Rule 56(e) Rules of Civil Procedure, 16 A.R.S. There is no evidence in the record that plaintiff was unable to obtain an abortion in the Pima County General Hospital.

2 . As the Court of Appeals noted, the Arizona State Legislature passed this statute as a rider to a bill authorizing the Board of Regents to issue revenue bonds in order to remodel the football stadium at the University of Arizona.