Louisiana Law Review

Volume 34 | Number 3
Employment Discrimination: A Title VII Symposium
Symposium: Louisiana's New Consumer Protection
Legislation
Spring 1974

Abortion Regulation: Louisiana's Abortive Attempt

R. Patrick Vance

Repository Citation
R. Patrick Vance, Abortion Regulation: Louisiana's Abortive Attempt, 34 La. L. Rev. (1974)
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 LOUISIANA LAW REVIEW [Vol. 34

time under the circumstances,"5 or the grantor could sue to have the
option erased from the public records at the end of a reasonable time.
Also, the grantor may urge as a defense to a suit on the option that
the optionholder attempted to exercise his option after a reasonable
time had elapsed.
The rule that options without definite time periods are invalid
is a harsh one. The optionholder is left without even an action for
damages, as he has no contract on which to sue. The optionholder's
only relief is the return of the price of the option, and while this
insures that the property will not be held out of commerce forever,
the optionholder's rights must be sacrificed in order to reach this
result.
A sounder rule is that options are open for a reasonable time,
which time is to be determined by the facts and circumstances of
each case. This result is clearly available under Louisiana law, and
allows courts to give effect to both the intention of the parties to the
agreement and to the public policy against holding property out of
commerce. In light of these considerations, it is suggested that the
present rule, resting, as it does, on a somewhat questionable theory,
be disapproved. The rule that options without definite time periods
are open for a reasonable time rests on firmer theoretical ground,
effects a more equitable balancing of interests, and is more properly
applicable to such cases. H. Evans Scobee

ABORTION REGULATION: LOUISIANA'S ABORTIVE ATTEMPT

During the 1973 fiscal session, the Louisiana legislature enacted

provisions' regarding abortion in apparent response to the United

detriment of the grantor. Joffrion v. Gumbel, 123 La. 391, 48 So. 1007 (1909). The
grantor of an option has an action for lesion beyond moiety against the optionholder,
the value of the property to be calculated at the time the option was exercised. Lake-
side Dairies v. Gregerson, 217 La. 510, 46 So. 2d 752 (1950); Ronaldson & Puckett v.
Bynum, 122 La. 687, 48 So. 152 (1908). Options are specifically enforceable according
to justice and equity, not of right. Chalmette Petro. Corp. v. Chalmette Dist. Co., 143
F.2d 826 (5th Cir. 1944).
38. This situation seems to be within the purview of articles 1871-83 of the Code
of Civil Procedure, which provide for declaratory judgments.

1. LA. R.S. 40:1299.31-.34 (Supp. 1973); LA. R.S. 13:1569 (1950), as amended by
La. Acts 1956, No. 104 § 1, No. 108 § 1, No. 109 § 1, No. 110 § 1; 1968, No. 645 § 1;
1972, No. 139 § 1; 1973, No. 73 § 1; LA. R.S. 13:1570 (1950), as amended by La. Acts
1968, No. 644 § 1; 1973, No. 73 § 1; LA. R.S. 14:87 (1950), as amended by La. Acts
1964, No. 167; LA. R.S. 14:87.1 (Supp. 1973); LA. R.S. 14:87.2 (Supp. 1973); LA. R.S.
14:87.4 (Supp. 1973); LA. R.S. 40:254.1 (Supp. 1973); LA. R.S. 40:309.1 (Supp. 1973);
1974] NOTES

States Supreme Court decisions, Roe v. Wade' and Doe v. Bolton.3

In these cases, the plaintiffs brought separate actions seeking decla-
ratory judgments that the existing criminal abortion statutes of
Texas' and Georgia 5 were unconstitutional in that they abridged the
plaintiffs' rights of personal privacy protected by the first, fourth,
fifth, ninth and fourteenth amendments. The Supreme Court held
both statutes unconstitutional on the ground that they infringed
upon a pregnant woman's right to privacy protected by the due pro-
cess clause of the fourteenth amendment.
Although the right of privacy is not specifically mentioned in the
Constitution, the Supreme Court has recognized that it exists in mar-
riage,6 contraception,' procreation,8 child rearing and education.,
Those areas, within the protected zone of privacy are "so rooted in
the traditions and conscience of our people as to be ranked funda-
mental."' 0 Thus, any regulation limiting or impeding them may be
justified only by a compelling state interest." Since this right of pri-
vacy is not absolute," the Court in Wade established a standard
corresponding to three stages of pregnancy by which state regulation
of abortion is constitutionally scrutinized.' 3 The state does have two
"important and legitimate interests"; protecting maternal health
and protecting the life of the fetus.' 4 "These interests are separate and
distinct. Each grows in substantiality as the woman approaches term

LA. R.S. 40:351-56 (Supp. 1973). This note will not attempt to analyze all of the
provisions, but will limit its examination to Louisiana Acts 72 and 76 of 1973 in light
of the constitutional mandate of Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton,
410 U.S. 179 (1973).
2. 410 U.S. 113 (1973).
3. 410 U.S. 179 (1973).
4. TEX. PENAL CODE ANN. arts 1191-94, 1196 (1961). The Texas abortion law pro-
hibited all abortions except those performed to save the life of the mother.
5. GA. CODE ANN. §§ 26-1201 to-1203 (1968). The Georgia law prohibited abortion
except as performed by a duly licensed physician of the state when necessary in "his
best clinical judgment" because continued pregnancy would endanger the woman's
health; the fetus would likely be born with serious defects; or the pregnancy resulted
from rape.
6. Loving v. Virginia, 388 U.S. 1 (1967).
7. Eisenstadt v. Baird, 405 U.S. 438 (1972).
8. Skinner v. Oklahoma, 316 U.S. 535 (1942).
9. Prince v. Massachusetts, 321 U.S. 158 (1944); Pierce v. Society of Sisters, 268
U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
10. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
11. Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969); Shapiro v.
Thompson, 394 U.S. 618, 634 (1969); Sherbert v. Verner, 374 U.S. 398, 406 (1963).
12. 410 U.S. 113, 154 (1973).
13. Id. at 154.
14. Id. at 162.
 LOUISIANA LAW REVIEW [Vol. 34

and, at a point during pregnancy, each becomes 'compelling'."' Dur-

ing the initial three months of the pregnancy, neither interest is suffi-
ciently compelling to justify any interference with the abortion deci-
sion by the woman." Subsequent to the first trimester, as the health
risks of abortion begin to exceed those of childbirth, the state has a
compelling interest in the health of the woman. Since its interest in
protecting the fetus has not yet reached this point, the state may not
prohibit an abortion during the second trimester. The state's powers
are limited to regulations that reasonably relate to the preservation
and protection of maternal health.'7 The state's second interest, the
protection of the life of the fetus," reaches a compelling point at
"viability""' so that it may limit abortions except where it is neces-
sary to protect the life or health of the woman.
The recent Louisiana enactment provides in part that:
No person employed by the state of Louisiana by contract or
otherwise, or any subdivision or agency thereof, and no person
employed in any public or private social service agency, by con-
tract or otherwise, including workers therein, which is a recipient
of any form of governmental assistance, shall require or recom-
mend that any woman have an abortion. '"
This statute is of dubious constitutionality in light of the Wade
decision. Since legislative enactments regulating fundamental rights
must be narrowly drawn so as to protect only the legitimate state
interest at stake, a statute which prohibits abortion counseling as Act
72 does by the words "[n]o person . .. shall . . . recommend that
any woman have an abortion" is overbroad. Since there exists no
state interest which is compelling during the first trimester, any state
regulation during this period violates the standard of Wade.

15. Id. at 162-63.

16. Id. at 164.
17. "Examples of permissible state regulation in this area are requirements as to
the qualifications of the person who is to perform the abortion; as to the licensure of
that person; as to the facility in which the procedure is to be performed, that is, it must
be a hospital or may be a clinic or some other place of less-than-hospital status; as to
the licensing of the facility, and the like." Id. at 163.
18. Id. The Court held that a fetus is not a "person" within the meaning of the
fourteenth amendment.
19. The fetus becomes "viable," that is, potentially able to live outside of the
mother's womb, albeit with artificial aid, somewhere between the twenty-fourth and
twenty-eighth week of gestation. Id. at 160. See L. HELLMAN & J. PRITCHARD, WILLIAMS
OBSTETRICS 493 (14th ed. 1971); DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1689 (24th
ed. 1965).
20. LA. R.S. 40:1299.34 (Supp. 1973).
1974] NOTES

Similarly, regulations during the second trimester must be reasona-

bly related to maternal health. Although, strictly speaking, Wade
stands for the proposition that abortions may not be made subject to
criminal sanctions, fundamental interests may be infringed in many
ways short of making them illegal." However, as many equal protec-
tion cases involving voting" and welfare 3 rights have indicated, any
infringement of a fundamental right must be strictly scrutinized;
unless the infringing classification or regulation is supported by a
compelling state interest, it will be declared unconstitutional. It
would seem that a statutory plan, such as Act 72, which impedes the
woman's decision to procure an abortion is an impermissible infringe-
ment. The United States Second Circuit Court of Appeals found a
similar statute without justification, stating that it would be a futile
exercise to recognize a woman's right to procure an abortion and then
to impede the means to vindicate that right by prohibiting others
from offering advice. 4 Thus, Act 72 is overbroad in that it prohibits
the recommendation of abortions to a woman before the state has a
compelling interest in taking action to discourage or proscribe abor-
tions.
Act 72 provides further that a doctor may recommend an abor-
tion only when he "is acting to save or preserve the life of a pregnant
woman." The validity of this part of the Act, in so far as the first two
trimesters are concerned, is likewise questionable since it is as over-
broad as the provision prohibiting the recommendation of abortions
where there is no compelling state interest. As to the third trimester,
Wade established that the state may not prevent an abortion where
it is necessary to preserve the life or health of the woman. 5 Justice
Burger's concurring opinion points out that the "term health is used
in its broadest medical context."" Thus, it is apparent that a
woman's health includes her psychological health and is not limited
to her physical well-being." Since Louisiana's Act permits a doctor

21. Hathaway v. Worcester City Hosp., 475 F.2d 701, 705 n.2 (1st Cir. 1973).
22. Dunn v. Blumstein, 405 U.S. 330 (1972); Carrington v. Rash, 380 U.S. 89
(1965).
23. Shapiro v. Thompson, 394 U.S. 618 (1969).
24. Abele v. Markle, 342 F. Supp. 800, 801 n.5 (D. Conn. 1972). The court struck
down Conn. Gen. Stat. 53-29 which provided in part: "Any person who ... advises
...her to take or use anything, . . . with intent to procure upon her a miscarriage or
abortion, unless the same is necessary to preserve her life or that of her unborn child,
shall be fined not more than one thousand dollars or imprisoned in the State Prison
not more than five years or both."
25. Roe v. Wade, 410 U.S. 113, 164 (1973).
26. 410 U.S. 179, 207-08 (1973).
27. See Ely, The Wages of Crying Wolf" A Comment on Roe v. Wade, 82 YALE
 LOUISIANA LAW REVIEW [Vol. 34

to recommend an abortion only to save the life of the woman, it is

not in accord with the mandate of the Court and appears unconstitu-
tional.
The legislature also enacted the following provisions:
[n]o hospital, clinic or other facility or institution of any
kind shall be held civilly or criminally liable . . ."28 and "[nlo
hospital, clinic or other medical or health facility, whether public
or private, shall ever be denied governmental assistance. . for
refusing to permit its facilities, staff or employees to be used in
any way for the purpose of performing any abortion." 0
Public hospitals in Louisiana are established by state law3' and
are under the administrative and regulatory authority of the Louis-
iana Health, Social and Rehabilitation Services Administration.3
Thus, the acts of a public hospital or its governing authority consti-
33
tute state action for the purpose of the fourteenth amendment.
Applying the standard of Wade, the hospital as a governmental entity
must have a compelling interest to justify a policy permitting some
hospital and surgical procedures and prohibiting others, such as abor-
tion, that involve fundamental rights. The United States Court of
Appeals for the First Circuit, subsequent to Wade, held that a munic-
ipal hospital's ban on a surgical procedure (tubal ligation) 34 limited
a fundamental interest in the pregnancy decision and was objectiona-
ble since the hospital permitted the performance of other comparable
surgical procedures involving no greater risk or demands on the staff

L.J. 920, 921 n.19 (1973). "(Thus the statutes of most states must be unconstitutional
even as applied to the final trimester, since they permit abortion only for the purpose
of saving the mother's life... ) This holding-that even after viability the mother's
life or health (which presumably is to be defined very broadly indeed, so as to include
what many might regard as the mother's convenience, see 93 S. Ct. at 755 (Burger,
C.J., concurring)); United States v. Vuitch, 402 U.S. 62 (1971), must, as a matter of
constitutional law, take precedence over what the Court seems prepared to grant at
this point has become the fetus's life."
28. LA. R.S. 40:1299.32 (Supp. 1973).
29. "The term governmental assistance as used in this section shall include fed-
eral, state and local grants, loans and all other forms of financial and other aid from
any level of government or from any governmental agency." LA. R.S. 40:1299.33(A)
(Supp. 1973).
30. LA. R.S. 40:1299.33 (C) (Supp. 1973).
31. LA. R.S. 40:2001 (Supp. 1956).
32. LA. R.S. 46:1751 (Supp. 1972).
33. Robinson v. Florida, 378 U.S. 153 (1964); Cooper v. Aaron, 358 U.S. 1 (1958);
Foster v. Mobile County Hosp. Bd., 398 F.2d 227 (5th Cir. 1968); Cypress v. Newport
News General and Nonsectarian Hosp. Assoc., 375 F.2d 648 (4th Cir. 1967).
34. Consensual sterilization.
19741 NOTES

and facilities. 35 The court applied the equal protection analysis found
in Shapiro v. Thompson " with regard to welfare payments to new and
old residents and found that once the state has undertaken to provide
general hospital care, it may not constitutionally draw the line at
medically indistinguishable surgical procedures that impinge on fun-
damental rights unless shown to be necessary to promote a compel-
ling state interest. 7 The court relied heavily on Wade in finding that
the right to consent to sterilization was as essential a part of the
pregnancy decision as the exercise of the right of abortion and thus
was protected by the same strict scrutiny test as other fundamental
rights. It is apparent, therefore, that the same analysis would pre-
clude a public hospital's ban on abortions.38
The Supreme Court in Doe v. Bolton, 9 a companion case to
Wade, considered a provision in the Georgia statute"0 that permitted
a hospital to refuse to admit a patient for an abortion. While the
Court noted that the provision was intended to afford protection to
the denominational hospital, it did not pass on the validity of a
"private" hospital policy prohibiting abortions. There are several
decisions which have held that actions of "private" hospitals that
receive public assistance or function in the public interest constitute
state action." In these cases it has been found that state and private

35. Hathaway v. Worcester City Hosp,, 475 F.2d 701, 705-06 (1st Cir. 1973).
36. 394 U.S. 618 (1969). See also Klein v. Nassau County Med. Center, 347 F.
Supp. 496 (E.D.N.Y. 1972), appeal pending, 410 U.S. 922 (1973). New York's refusal
of medical assistance for performance of other than "medically indicated" abortions
denies equal protection to indigent pregnant women seeking abortions for other
reasons.
37. Hathaway v. Worcester City Hosp., 475 F.2d 701, 706 (1st Cir. 1973). The
Court's holdings in Shapiro and in Hathaway were framed in equal protection terms.
Wade and Bolton in the application of the compelling state interest analysis has
apparently revived the methodology of substantive due process. The ramifications this
presents for constitutional theory are beyond the scope of this note. See Note, 37
[Link] L. REV. 776 (1973); Note, 47 TUL. L. REV. 1159, 1163 (1973).
38. It should be noted that the circuits were split on the question of whether
Monrw v. Pape, 365 U.S. 167 (1961) would allow equitable relief under 42
U.S.C. § 1983 against entities clothed by immunity. Under such reasoning coupled
with the statutory provisions ILA. R.S. 46: 759 (1950); LA. R.S. 46:897 (1950)], certain
public hospitals might have been sued to furnish effective relief to a woman denied
an abortion by a public hospital. However, the United States Supreme Court in City
of Keno(sha v. Bruno, 412 U.S. 507 (1973) found no justification for treating the munici-
pality as a "person" when equitable relief was sought. See Comment, 34 LA. L. REV.
540, 544 (1974).
39. 410 U.S. 179, 198 (1973).
40. GA. Cone ANN. § 26-1202(e) (1968).
41. Sams v. Ohio Valley Gen. Hosp. Assoc., 413 F.2d 826 (4th Cir. 1969); Meredith
v. Allen County War Mem. Hosp. Comm'n, 397 F.2d 33 (6th Cir. 1968); Simkins v.
 LOUISIANA LAW REVIEW [Vol. 34

goals, functions, and other activities become so intertwined as to be

indistinguishable.42 For instance, when a "private" hospital is li-
censed by the state and subjected to pervasive regulations concerning
its operations, its actions may constitute state action. In Simkins v.
Moses H. Cone Memorial Hospital,13 the court found that the accept-
ance" of Hill-Burton federal funds45 by a private hospital was state
action which obligated an observance of federal constitutional man-
dates. In Eaton v. Grubbs," state action was found even where the
hospital did not receive Hill-Burton funds, because it was subject to
statewide regulations enacted in conjunction with the state's general
participation in Hill-Burton projects. Thus, if there is sufficient in-
volvement47 by the state in the funding or regulation of a so-called
"private" hospital, state action is present. 41 Therefore, it would seem
that the portion of Act 72 which provides that no private hospital

Moses H. Cone Mem. Hosp., 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938
(1964); Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964); Citta v. Delaware Valley Gen.
Hosp. Assoc., 313 F. Supp. 301 (E.D. Pa. 1970). Contra Doe v. Bellin Mem. Hosp.,
479 F.2d 756 (7th Cir. 1973); Shulman v. Washington Hosp. Center, 222 F. Supp. 59
(D.D.C. 1963); Moore v. Andalusa Hosp., Inc., 284 Ala. 259, 224 So. 2d 617 (1969);
Woodward v. Porter Hosp., Inc., 125 Vt. 419, 217 A.2d 37 (1966).
42. Burton v. Wilmington Park. Auth., 365 U.S. 715, 722 (1961).
43. 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964).
44. Cone Hospital received funds that amounted to only 15% of the total construc-
tion expenses. The court said: "We deal here with the appropriation of millions of
dollars of public monies pursuant to comprehensive governmental plans. But we em-
phasize that this is not merely a controversy over a sum of money. . .. Our concern is
with the Hill-Burton program, and examination of its functioning leads to the conclu-
sion that we have state action here." Id. at 959, 967.
45. The Hill-Burton Act, 42 U.S.C. § 291 (1970), is a program which provides
funds to states to be utilized for hospital facilities and which includes an elaborate and
intricate pattern of state and federal regulation.
46. 329 F.2d 710 (4th Cir. 1964).
47. However, the Supreme Court has stated that not all state involvement is
sufficient to imbue acts of private entities with "state action." See Moose Lodge v.
Irvis, 407 U.S. 163, 173 (1972): "Our holdings indicate that where the impetus for the
discrimination is private, the state must have 'significantly involved itself with invidi-
ous discrimination,' Reitman v. Mulkey, 387 U.S. 369, 380 (1967), in order for the
discriminatory action to fall within the ambit of the constitutional prohibition."
48. But see Doe v. Bellin Mem. Hosp., 479 F.2d 756 (7th Cir. 1973), which held
that the refusal of a state-regulated, private hospital, which receives federal financial
support pursuant to the Hill-Burton Act, 42 U.S.C. § 291 (1970), to permit its facilities
to be used to perform abortions does not constitute deprivation under color of state
law. The court distinguished this case from Simkins v. Moses H. Cone Memorial
Hospital, 323 F.2d 959 (4th Cir. 1963) by finding there was no governmental involve-
ment in the very activity being challenged. A careful reading of Simkins will show that
Seventh Circuit decision relied on an "additional theory" not really necessary to the
ultimate decision. The distinction made is not a valid one.
1974] NOTES

shall be denied governmental assistance or be liable for refusing to

permit its facilities to be used for the purpose of performing an abor-
tion is again overbroad in failing to recognize that certain "private"
hospitals cannot refuse to perform abortions. 9
The legislature also passed Act 76 which establishes the crime of
abortion advertising. "Abortion advertising is the placing or carrying
of any advertisement of abortion services by the publicizing of the
availability of abortion services. ' 50 Freedom of speech and freedom
of the press are among the fundamental rights which are protected
by the first and fourteenth amendments. Although it is clear that a
state has a rational and compelling interest in safeguarding the
health, safety, and lives of its citizens, 5' a state may not encroach
upon fundamental rights except upon showing a compelling interest
which supersedes the rights of the individual. 2 Thus, even if a state
has an interest to be protected, "that purpose cannot be pursued by
means that broadly stifle fundamental liberties when the end can be
more narrowly achieved."53 Therefore, a statute which limits the free-
doms of speech and press is subject to strict scrutiny and is valid only
when narrowly drawn to define and punish specific conduct as consti-
tuting a clear and present danger to a substantial interest of the
state."
Act 76 also fails to make a distinction between legal and illegal
abortions since the Act proscribes advertising of the availability of
any abortion services. Since there is no compelling state interest in
the first trimester and clearly defined interests limit the state's regu-

49. The Health Programs Extension Act of 1973, Public Law 93-45, provides in
part that the receipt of any grant, such as Hill-Burton funds, does not authorize any
court or public official to require any individual or entity to perform any sterilization
procedure or abortion if the performance of such acts is contrary to the individual's or
entity's religious or moral convictions. Whether Congress can define the limits of "state
action" is a constitutional issue beyond the scope of this article. However, Katzenbach
v. Morgan, 384 U.S. 641, 651 (1966), indicates that Congress does not have the power
to restrict, abrogate, or dilute the guarantees of the fourteenth amendment. It seems
that if the limits of "state action" is a judicial determination, rather than a legislative
determination, Public Law 93-45 is unconstitutional in attempting to establish that
the receipt of federal funds will not imbue the acts of a private entity with "state
action."
50. LA. R.S. 14:87.4 (Supp. 1973). The penalty for violation of Act 76 is imprison-
ment, with or without hard labor, for not more than one year or a fine of five thousand
dollars, or both.
51. Smith v. California, 361 U.S. 147, 149-50 (1959); Lovel v. Griffin, 303 U.S. 444,
450 (1938).
52. Bates v. Little Rock, 361 U.S. 516, 524 (1960).
53. See N.A.A.C.P. v. Alabama, 377 U.S. 288 (1964); Shelton v. Tucker, 364 U.S.
479, 488 (1960).
54. Cantwell v. Connecticut, 310 U.S. 296, 311 (1940).
 LOUISIANA LAW REVIEW [Vol. 34

lation powers in the second and third trimesters, Act 76 is overbroad.

A recent district court decision 55 supports this conclusion where it was
held that a Michigan ordinance making it unlawful to advertise any
means whereby an abortion may be procured or any information
concerning the procuring of an abortion was violative of the first and
fourteenth amendments for failing to distinguish between legal and
illegal abortions.
There is a distinction between the expression of ideas protected
by the first amendment and commercial advertising in a business
context.-" A legislature in exercising its police power in the field of
medicine may ban commercial practices which it believes violates
public policy.5 7 It is apparent that Louisiana could draft a law, as
New York58 has done, that would bar profit-making organizations
from referring or recommending persons to a particularphysician or
hospital for the purpose of procuring an abortion. New York's law
reflects a concern over fee-splitting and is not to be interpreted as an
impermissible blanket prohibition against such agencies disseminat-
ing information for a fee concerning the availability of abortion serv-
ices."5 Thus, nonprofit agencies that provide abortion information
should not encounter legal barriers. The failure to strictly draft Act
76 makes it constitutionally impermissible regardless of the state

55. Mitchell Family Planning Inc. v. City of Royal Oak, 335 F. Supp. 738 (E.D.
Mich. 1972). See also Y.W.C.A. v. Kugler, 342 F. Supp. 1048, 1063 (D.N.J. 1972).
56. United States v. Hunter, 459 F.2d 205, 211 (4th Cir. 1972). See also Breard v.
City of Alexandria, 341 U.S. 622, 641-45 (1951); Valentine v. Chrestensen, 316 U.S.52,
54 (1942); Broadcasting Co. v. Kleindiest, Acting Attorney General, 333 F. Supp. 582
(D.D.C. 1971), aff'd mem. 405 U.S. 1000 (1972).
57. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955); Semler v. Ore-
gon State Bd. of Dental Exam., 294 U.S. 608 (1935).
58. N.Y. PuB. HEALTH LAW § 4501 (1971): "1. No person, firm, partnership, asso-
ciation or corporation, or agent or employee thereof, shall engage in for profit any
business or service which in whole or in part includes the referral or recommendation
of persons to a physician, hospital, health, related facility, or dispensary for any form
of medical care or treatment of any ailment or physical condition. The imposition of a
fee or charge for any such referral or recommendation shall create a presumption that
the business or service is engaged in for profit."
59. S.P.S. Consultants, Inc. v. Lefkowitz, 333 F. Supp. 1373, 1376 (S.D.N.Y.
1971). This section prohibiting the for-profit referral or recommendation of persons to
a physician, hospital or other health facility for medical care did not abridge for-profit
abortion referral agencies' first amendment right to disseminate information concern-
ing availability of health care facilities and the public's right to receive such informa-
tion in that it did not prohibit the agency from disseminating information for a fee
concerning the availability of health care facilities, but merely prohibited their referral
services. See also State v. Mitchell, 66 Misc. 2d 586, 321 N.Y.S.2d 756 (1971); State
v. Abortion Infor. Agency, Inc., 69 Misc. 2d 825, 323 N.Y.S.2d 597 (1971).
1974] NOTES

interest." ' Furthermore, the legislature in its zeal to prevent abortion

advertising of any kind has failed to protect the legitimate interests
of the state in regulating the public health and general welfare.
Acts 72 and 76 appear to be unconstitutional. The state should
reconsider its response to the Supreme Court's decisions. Irrespective
of its distaste for the rulings, as evidenced by the numerous concur-
rent resolutions denouncing them, the legislature should concern it-
self with enacting those important, permissible state regulations
which would protect the health of women exercising their fundamen-
tal rights under the constitution.
R. Patrick Vance

PRISONERS' RIGHTS-JAILER'S DUTY OF PROTECTION

Two recent decisions by the Louisiana supreme court, Nedd v.

State' and Parker v. State,' point to a trend throughout the country
to recognize the claims of prisoners seeking judicial enforcement of
their rights.3 Nedd, an Angola inmate, was injured when attacked in
his dormitory by the same prisoner who had been convicted of aggra-
vated battery for an attack on Nedd some ten years earlier. Parker
suffered injuries when he was attacked by an inmate who had pre-
viously threatened him. The issue in both cases was whether under
the circumstances the state should be liable for damages in repara-
tion for the injuries intentionally inflicted by other inmates. Though
recovery was denied in both instances under the facts presented, the

60. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965).

1. 281 So. 2d 131 (La. 1973).

2. 282 So. 2d 483 (La. 1973).
3. A majority of states now permit inmates to institute civil suits. Even many of
those states that still have civil death statutes forbidding suits in tort provide that
imprisonment is a disability that interrupts the running of prescription. The Collateral
Consequences of a Criminal Conviction, 23 VAND. L. REv. 929, 1019 (1970). In addition
to the remedy discussed below, an injured prisoner may also have an action under the
Civil Rights Act, 42 U.S.C. § 1983 (1970). Protection of inmates against assaults by
other prisoners is included in the eighth amendment's prohibition against cruel and
unusual punishment. Penn v. Oliver, 351 F. Supp. 1292 (E.D. Va. 1972). Though an
isolated attack upon a prisoner, without special circumstances, is not seen as a consti-
tutional deprivation, a prisoner who is injured by being needlessly exposed to an extra-
hazardous condition may recover under the Civil Rights Act. Roberts v. Williams, 302
F. Supp. 972 (N.D. Miss. 1969). Similarly, if the general conditions at a prison are
insufficient to prevent frequent assaults, the constitutional right of prisoners to be free
from cruel and unusual punishment is violated. Gates v. Collier, 349 F. Supp. 881
(N.D. Miss. 1972).