Certiorari Denied June 15, 1964. See 84 S.Ct. 1883.
J. SKELLY WRIGHT, Circuit Judge.
Attorneys for Georgetown Hospital applied
Initially, it may be well to put this matter into fuller legal context, including "the nature of the controversy, the relation and interests of the parties, and the relief sought in the instant case."
At any time during the series of transfusions which followed, the cause could have been brought on for hearing by motion before the motions division of this court,
That a "case or controversy" existed in the District Court, and before this court, seems clear under the tests laid down by the Supreme Court:
Aetna Life Ins. Co. v. Haworth, supra Note 5, 300 U.S. at 240-241, 57 S.Ct. 461, at 464, 81 L.Ed. 617.
Clearly the "case or controversy" raised here is "justiciable," that is, of the type that courts may be called upon to decide. See Baker v. Carr, supra Note 2, 369 U.S. at 198, 82 S.Ct. at 699, 7 L.Ed.2d 663. Were a patient in a hospital, unable to leave, to protest its planned treatment, for the most fundamental reasons, it could hardly be questioned that the judiciary would have jurisdiction to rule upon the issue of the patient's, and the hospital's, rights and duties. In this area, failure of the courts to declare the law would not place the responsibility for decision in the executive or legislative branches of government. Judicial abdication would create a legal vacuum to be filled only by the notions, and remedies, of the private parties themselves. And if the courts are to act in this area, damage suits post facto are a poor substitute for timely declaratory or injunctive relief. Thus if Mrs. Jones had brought an action to restrain the hospital from administering the transfusions, a justiciable controversy would certainly have been presented. The fact that it was the hospital which sought judicial declaration of its rights does not make the controversy less justiciable.
Reference to the Court of Appeals, immediately after the denial of the application by the District Court, was proper under the power of federal courts to issue "all writs necessary or appropriate in aid of their respective jurisdictions." 28 U.S.C. § 1651.
The power of a single judge to issue such emergency temporary writs cannot be disputed.
The power recognized by Rule 62(g) and the All Writs Statute, 28 U.S.C. § 1651, inheres in the single Supreme Court Justice and the single circuit court judge equally, each exercising the same power within the "respective jurisdictions" of his court. 28 U.S.C. § 1651; 6 Moore, Federal Practice ¶ 54.10  at 61, text at n. 6.1. "The extent to which federal statutes empower a Supreme Court justice
Additionally, "if this broadly phrased subsection [(b) of § 1651] is not construed to grant this power [to issue injunctions] to individual Justices, then the power may be found in 28 U.S.C. § 1651(a) which, although it merely confers upon `courts' the power to `issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law', may nevertheless be construed as also conferring upon individual Justices or judges the power to issue such writs where such issuance is customary. Cf. Bennett v. Bennett, 3 Fed.Cas.No. 1318 [power of lower court judge]." Robertson & Kirkham, Jurisdiction of the Supreme Court § 438, at 893 n. 10 (emphasis added). Illustrative examples of the exercise of this power are given in Stern & Gressman, Supreme Court Practice § 15-23, "Application to an individual Justice — practice in chambers." (3d ed. 1962.)
Let us now reconstruct the narrative of events through the medium of the contemporaneous Memorandum of Facts filed in this cause, the substance of which is as follows:
Mrs. Jones was brought to the hospital by her husband for emergency care, having lost two thirds of her body's blood supply from a ruptured ulcer. She had no personal physician, and relied solely on the hospital staff. She was a total hospital responsibility. It appeared that the patient, age 25, mother of a seven-month-old child, and her husband were both Jehovah's Witnesses, the teachings of which sect, according to their interpretation, prohibited the injection of blood into the body. When death without blood became imminent, the hospital sought the advice of counsel, who applied to the District Court in the name of the hospital for permission to administer blood. Judge Tamm of the District Court denied the application, and counsel immediately applied to me, as a member of the Court of Appeals, for an appropriate writ.
I called the hospital by telephone and spoke with Dr. Westura, Chief Medical Resident, who confirmed the representations made by counsel. I thereupon proceeded with counsel to the hospital, where I spoke to Mr. Jones, the husband of the patient. He advised me that, on religious grounds, he would not approve a blood transfusion for his wife. He
I asked permission of Mr. Jones to see his wife. This he readily granted. Prior to going into the patient's room, I again conferred with Dr. Westura and several other doctors assigned to the case. All confirmed that the patient would die without blood and that there was a better than 50 per cent chance of saving her life with it. Unanimously they strongly recommended it. I then went inside the patient's room. Her appearance confirmed the urgency which had been represented to me. I tried to communicate with her, advising her again as to what the doctors had said. The only audible reply I could hear was "Against my will." It was obvious that the woman was not in a mental condition to make a decision. I was reluctant to press her because of the seriousness of her condition and because I felt that to suggest repeatedly the imminence of death without blood might place a strain on her religious convictions. I asked her whether she would oppose the blood transfusion if the court allowed it. She indicated, as best I could make out, that it would not then be her responsibility.
I returned to the doctors' room where some 10 to 12 doctors were congregated, along with the husband and counsel for the hospital. The President of Georgetown University, Father Bunn, appeared and pleaded with Mr. Jones to authorize the hospital to save his wife's life with a blood transfusion. Mr. Jones replied that the Scriptures say that we should not drink blood, and consequently his religion prohibited transfusions. The doctors explained to Mr. Jones that a blood transfusion is totally different from drinking blood in that the blood physically goes into a different part and through a different process in the body. Mr. Jones was unmoved. I thereupon signed the order allowing the hospital to administer such transfusions as the doctors should determine were necessary to save her life.
This opinion is being written solely in connection with the emergency order authorizing the blood transfusions "to save her life." It should be made clear that no attempt is being made here to determine the merits of the underlying controversy. Actually, the issue on the merits is res nova. Because of the demonstrated imminence of death from loss of blood, signing the order was necessary to maintain the status quo and prevent the issue respecting the rights of the parties in the premises from becoming moot before full consideration was possible. But maintaining the status quo is not the only consideration in determining whether an emergency writ should issue. The likelihood of eventual success on appeal is of primary importance, and thus must be here considered.
Before proceeding with this inquiry, it may be useful to state what this case does not involve. This case does not involve a person who, for religious or other reasons, has refused to seek medical attention. It does not involve a disputed medical judgment or a dangerous or crippling operation. Nor does it involve the delicate question of saving the newborn in preference to the mother. Mrs. Jones sought medical attention and placed on the hospital the legal responsibility for her proper care. In its dilemma, not of its own making, the hospital sought judicial direction.
It has been firmly established that the courts can order compulsory medical treatment of children for any serious illness or injury,
Of course, there is here no sick child or contagious disease. However, the sick child cases may provide persuasive analogies because Mrs. Jones was in extremis and hardly compos mentis at the time in question; she was as little able competently to decide for herself as any child would be. Under the circumstances, it may well be the duty of a court of general jurisdiction, such as the United States District Court for the District of Columbia, to assume the responsibility of guardianship
The child cases point up another consideration. The patient, 25 years old, was the mother of a seven-month-old child. The state, as parens patriae, will not allow a parent to abandon a child, and so it should not allow this most ultimate of voluntary abandonments. The patient had a responsibility to the community to care for her infant. Thus the people had an interest in preserving the life of this mother.
Apart from the child cases, a second range of factors may be considered. It is suggested that an individual's liberty to control himself and his life extends even to the liberty to end his life. Thus, "in those states where attempted suicide has been made lawful by statute (or the lack of one), the refusal of necessary medical aid [to one's self], whether equal to or less than attempted suicide, must be conceded to be lawful." Cawley, Criminal Liability in Faith Healing, 39 Minn.L.Rev. 48, 68 (1954). And, conversely, it would follow that where attempted suicide is illegal by the common law or by statute, a person may not be allowed to refuse necessary medical assistance when death is likely to ensue
If self-homicide is a crime, there is no exception to the law's command for those who believe the crime to be divinely ordained. The Mormon cases in the Supreme Court establish that there is no religious exception to criminal laws, and state obiter the very example that a religiously-inspired suicide attempt would be within the law's authority to prevent. Reynolds v. United States, 98 U. S. (8 Otto) 145, 166, 25 L.Ed. 244 (1878); Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States (Romney v. United States), 136 U.S. 1, 49-50, 10 S.Ct. 792, 34 L.Ed. 478 (1890). But whether attempted suicide is a crime is in doubt in some jurisdictions, including the District of Columbia.
The Gordian knot of this suicide question may be cut by the simple fact that Mrs. Jones did not want to die. Her voluntary presence in the hospital as a patient seeking medical help testified to this. Death, to Mrs. Jones, was not a religiously-commanded goal, but an unwanted side effect of a religious scruple. There is no question here of interfering with one whose religious convictions counsel his death, like the Buddhist monks who set themselves afire. Nor are we faced with the question of whether the state should intervene to reweigh the relative values of life and death, after the individual has weighed them for himself and found life wanting. Mrs. Jones wanted to live.
A third set of considerations involved the position of the doctors and the hospital. Mrs. Jones was their responsibility to treat. The hospital doctors had the choice of administering the proper treatment or letting Mrs. Jones die in the hospital bed, thus exposing themselves, and the hospital, to the risk of civil and criminal liability in either case.
The final, and compelling, reason for granting the emergency writ was that a life hung in the balance. There was no time for research and reflection. Death could have mooted the cause in a matter of minutes, if action were not taken to
"In re: APPLICATION OF THE PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE, INC., A BODY CORPORATE
Though the papers may be irregular in form, in substance they perform the office of a complaint, indicating the nature of the matter in dispute, the grounds of jurisdiction, and the relief sought. Rule 8(a) and (f), F.R.Civ.P. Defects in the complaint are not fatal under the Rules, certainly where the deficiency is explained by lack of time or skill or the like. Compare Dioguardi v. Durning, 2 Cir., 139 F.2d 774 (1944); 1A Barron & Holtzoff, Federal Practice and Procedure § 255 (Wright ed. 1960). In any case, it is well settled that shortcomings in the complaint are matters for challenge by motion, and do not go to jurisdiction. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 13 A.L.R. 2d 383 (1946); Baker v. Carr, 369 U.S. 186, 200, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
Even "the lack of a complaint is not jurisdictional and * * * when there has been no timely objection, a valid judgment may properly be entered in such an informal litigation." 2 Moore, Federal Practice ¶ 3.04 at 719. In Engineers Ass'n v. Sperry Gyroscope Co., etc., 2 Cir., 251 F.2d 133, 135 (1957), cert. denied, 356 U.S. 932, 78 S.Ct. 774, 2 L.Ed.2d 762 (1958), where a proceeding was commenced by petition and motion, without objection in the District Court to the absence of a complaint, the cause was held to be properly before the court.
It does not appear whether or not counsel intended to file new or amended pleadings articulating in more formal terms the nature of the relief demanded, e. g., declaratory judgment. The patient's rapid recovery may have led both the hospital and the patient to abstain from taking subsequent action in the District Court. The patient, Mrs. Jones, did file a motion for rehearing en banc in this court, asking this court to declare the rights of the parties inter se. See Note 8, infra.
"The applicant having appeared before me for the issuance of a writ permitting the applicant to administer such transfusions as are in the opinion of the physicians in attendance necessary to save the life of Mrs. Jesse E. Jones and it appearing that on September 17, 1963, the District Court denied such application; and a hearing having been conducted before me at which all the interested parties were present and upon due consideration had thereon, I signed, pursuant to the provisions of Section 1651, Title 28, United States Code, the attached order granting such relief which counsel had presented to the District Court Judge and which had been denied by him, it is therefore
"ORDERED that the Clerk of this court is hereby directed to file this memorandum order and attachment."