Sammon v. New Jersey Bd. of Medical Examiners

• Citation: 66 F.3d 639
• Parties: Alice SAMMON; Michael and Stefania Santomenna; Tracy Leal and Tom Quinn, Tony and Vicki Diioia and Landie Simone, Appellants, v. NEW JERSEY BOARD OF MEDICAL EXAMINERS; State of New Jersey, Christine Todd Whitman, Governor, State of New Jersey. (Caption amended per the Clerk's
• Decision Date: 26 September 1994
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 639

66 F.3d 639

Alice SAMMON; Michael and Stefania Santomenna; Tracy Leal and Tom Quinn, Tony and Vicki Diioia and Landie Simone, Appellants, v. NEW JERSEY BOARD OF MEDICAL EXAMINERS; State of New Jersey Christine Todd Whitman, Governor, State of New Jersey (Caption amended per the Clerk's 9/26/94 order).

No. 94-5495.

United States Court of Appeals Third Circuit.

Argued Feb. 17, 1995.

Decided Sept. 15, 1995.

Michael H. Sussman (argued), Law Offices of Michael H. Sussman, Goshen, NY, John P. Brennan, Jr., Spring Lake Heights, NJ, for appellants.

Deborah T. Poritz, Attorney General of New Jersey, Andrea M. Silkowitz, Assistant Attorney General, Sandra Y. Dick (Argued), Senior Deputy Attorney General, Office of Attorney General of New Jersey, Newark, NJ, for appellees.

Before: STAPLETON and COWEN, Circuit Judges, and HUYETT, District Judge. ^*

OPINION OF THE COURT

STAPLETON, Circuit Judge:

This case presents a substantive due process challenge to several provisions of a New Jersey licensing statute regulating the practice of midwifery. The plaintiffs/appellants are several aspiring midwives, a midwife not presently licensed by the State of New Jersey, and several couples who wish to employ a midwife to assist with the birth of their next child. We hold that the New Jersey statute passes constitutional muster.

I.

A person is "regarded as practicing midwifery" under New Jersey's statute if he or she "attends a woman in childbirth as a midwife, or advertises as such." ¹ N.J.Stat.Ann. Sec. 45:10-1. Persons wishing to practice midwifery in New Jersey first must obtain a midwifery license from the state board of medical examiners. N.J.Stat.Ann. Sec. 45:10-2. Candidates for a license must pass an examination designed "to test the scientific and practical fitness of candidates to practice midwifery," N.J.Stat.Ann. Sec. 45:10-5, ² and must complete an application evidencing, inter alia, that they are of good moral character, and that they have "received a certificate or diploma from a legally incorporated school of midwifery, or maternity hospital, in good standing ..., after at least eighteen hundred hours' instruction within a period of not less than nine months." N.J.Stat.Ann. Sec. 45:10-3. ³ Candidates also must get a physician registered in the State of New Jersey to indorse their application. Id.

Appellant Alice Sammon, though not licensed in New Jersey, has a nursing degree from a certified nursing school and substantial apprenticeship training as a midwife. She has assisted in several hundred births and is registered as a midwife with the North American Registry of Midwives. Appellants Michael and Stefania Santomenna, Tracy Leal and Tom Quinn, and Tony and Vicki DiIoia (the "parents") are couples who plan to expand their families and desire to employ midwives to assist them with home births. Appellants Vicki DiIoia, Leal, and Landi Simone (the "aspiring midwives") intend, if permitted, to pursue careers as midwives in New Jersey.

Appellants filed suit under 42 U.S.C. Sec. 1983 against the New Jersey Board of Medical Examiners and Governor Christine Todd Whitman, claiming that the licensing scheme violates their due process rights under the Fourteenth Amendment. They sought injunctive relief against enforcement of the statute. The district court granted the defendants' motion to dismiss and appellants filed this timely appeal.

II.

A.

The district court ruled that the aspiring midwives lacked standing to challenge the New Jersey statutory scheme because they had "made only wholly conclusory allegations that they aspire to become midwives," and had not alleged that they had "approached physicians and been denied sponsorship, or attempted to enroll in any one of thirty out of state mid-wife schools, or applied for a license to be a midwife, or sought out a registered maternity hospital." (Dist.Ct.Op. at 6.)

The Supreme Court has held that "when standing is challenged on the basis of the pleadings, [courts must] 'accept as true all material allegations of the complaint, and ... construe the complaint in favor of the complaining party.' " Pennell v. San Jose, 485 U.S. 1, 7, 108 S.Ct. 849, 855, 99 L.Ed.2d 1 (1988) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)); see generally Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Accordingly, for purposes of deciding the issue of standing at this stage of the case, we must accept as true the aspiring midwives' claims (1) that they sincerely desire to become midwives, (2) that the 1800 hours of study and the physician-indorsement requirements "inhibit" them from taking steps necessary to become midwives, and (3) that "but for" the New Jersey statutory scheme, they would be able to become midwives and practice their chosen profession.

To establish standing, the aspiring midwives must meet the following requirements:

First, [they] must have suffered "an injury in fact"--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical.' "

Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court."

Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136 (citations omitted); see also Erwin Chemerinsky, Federal Jurisdiction Sec. 2.3, at 51 (1989).

The second and third Lujan factors are clearly present here. As noted, the aspiring midwives allege that but for the 1800-hour study and the physician-indorsement requirements, they would become licensed midwives. Thus, the alleged injury--not being able to practice their chosen profession--is both fairly traceable to New Jersey's statutory scheme and likely to be redressed by a favorable decision ruling that scheme unconstitutional.

The allegations also suffice to establish an "injury in fact." First, the aspiring midwives' assertion of a right to practice their chosen profession is a legally cognizable one. See Hampton v. Mow Sun Wong, 426 U.S. 88, 102 n. 23, 96 S.Ct. 1895, 1905 n. 23, 48 L.Ed.2d 495 (1976). Second, their injuries are "concrete and particularized" because the statutory requirements, by making it more difficult for the aspiring midwives to practice their chosen profession, affect each aspiring midwife in a "personal and individual way." Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. at 2136 n. 1. Finally, the injuries are "actual or imminent" and not "conjectural" or "hypothetical" because the aspiring midwives allege present sincere desires to work as midwives and claim that the New Jersey statutory scheme has deterred them from taking any steps towards reaching their goals.

That the aspiring midwives may not presently have the training necessary to work as midwives does not defeat their standing to challenge the New Jersey scheme. We recognize that the existence of factual contingencies which stand between a litigant and her goal may at times defeat her standing to challenge a particular statutory barrier to reaching that same goal. See, e.g., Roe v. Wade, 410 U.S. 113, 127-28, 93 S.Ct. 705, 713-14, 35 L.Ed.2d 147 (1973) ("married couple" plaintiffs did not have standing to challenge Texas' abortion statute because the married woman was not pregnant and her "alleged injury" rested "on possible future contraceptive failure" that she intended to do her best to avoid); see also Warth v. Seldin, 422 U.S. 490, 502-08, 95 S.Ct. 2197, 2206-08, 45 L.Ed.2d 343 (1975) (low-income plaintiffs had no standing to challenge a zoning ordinance because their ability to move into the zoned area "depended on the efforts and willingness of third parties to build low- and moderate-cost housing"). The aspiring midwives' claims are not based upon uncertain events, however. While they do not presently have the training to function as midwives, the aspiring midwives allege both a present desire to become midwives and that the New Jersey statutory scheme--including the training requirement--is the only thing that prevents them from reaching that goal.

Nor is our analysis changed by the facts that the aspiring midwives have never applied for midwife licenses or asked physicians for indorsements. We recognize that a litigant's failure to apply for a license may at times render her challenge to a licensing scheme unripe for judicial review. See, e.g., Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 200-03, 103 S.Ct. 1713, 1720-22, 75 L.Ed.2d 752 (1983). In many cases, requiring litigants to actually apply for a license before challenging a licensing scheme " 'prevent[s] courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also ... protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.' " Id. at 200, 103 S.Ct. at 1720 (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)). In the case at bar, however, there is no indication that the aspiring midwives possibly could obtain a license or a physician's indorsement without first going through the 1800 hours of instruction. Requiring these women to apply for a license or to approach physicians asking for indorsements before going through the required training--as the district court appears to suggest--accordingly would serve no purpose. Litigants are not required to make such futile gestures to establish ripeness. Hailes v. United Air Lines, 464 F.2d 1006, 1008 (5th Cir.1972); Image Carrier Corp. v....