Westchester Women's Health Organization v. Whalen

• Decision Date: 21 June 1979
• Docket Number: No. 78 Civ. 5082 (HFW).,78 Civ. 5082 (HFW).
• Citation: 475 F. Supp. 734
• Parties: WESTCHESTER WOMEN'S HEALTH ORGANIZATION, INC., National Women's Health Organization, Inc., and Toni G. Novick, M.D., Plaintiffs, v. Robert P. WHALEN, M. D., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

475 F. Supp. 734

WESTCHESTER WOMEN'S HEALTH ORGANIZATION, INC., National Women's Health Organization, Inc., and Toni G. Novick, M.D., Plaintiffs, v. Robert P. WHALEN, M. D., et al., Defendants.

No. 78 Civ. 5082 (HFW).

United States District Court, S. D. New York.

June 21, 1979.

Roy Lucas, P. C., Washington, D. C., Greenfield & Koppelman, New York City, for plaintiffs; Roy Lucas, Washington, D. C., and Robert Koppelman, New York City, of counsel.

Robert Abrams, Atty. Gen. of the State of New York, New York City, for defendants; Kathleen Gill Miller, Asst. Atty. Gen., New York City, of counsel.

OPINION

WERKER, District Judge.

This action for injunctive and declaratory relief raises the issue of whether a New York statutory scheme regulating hospitals and other health service facilities can be constitutionally applied to an abortion facility which administers first trimester abortions. This matter is presently before the Court on the parties' cross-motions for summary judgment.¹

BACKGROUND

A. The Statutory Scheme

Article 28 of the New York Public Health Law, N.Y.Pub. Health Law § 2800 et seq. (McKinney 1977 & Supp. 1978-1979), sets forth a comprehensive plan for the regulation of hospitals and other public and private health service facilities. Section 2801-a of the Public Health Law prohibits any "hospital" from being established without the written approval of the public health council.² "Hospital" is broadly defined to include any "facility or institution engaged principally in providing services by or under the supervision of a physician . . . for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition . . .." N.Y.Pub. Health Law § 2801(1) (McKinney Supp. 1978-1979).

Regulation 600.8 of the Department of Health regulations sets forth certain criteria to facilitate differentiating between the individual, private practice of medicine, which is not governed by article 28, and the operation of "a diagnostic or treatment center under article 28 of the Public Health Law." 10 N.Y.C.R.R. § 600.8. Regulation 600.8 was promulgated in response to People v. Dobbs Ferry Medical Pavillion, Inc., 33 N.Y.2d 584, 347 N.Y.S.2d 452, 301 N.E.2d 435 (1973) (mem.), wherein the New York Court of Appeals held that the New York statute and regulations then governing the licensing of enterprises engaged in institutional medical care and treatment were overly broad.

In addition to obtaining written approval from the public health council, a health facility which is found to be a "diagnostic or treatment center" within the meaning of 10 N.Y.C.R.R. § 600.8 must also comply with minimum operating and construction standards set forth in 10 N.Y.C.R.R. §§ 711.7, 750.1-751.16. These standards govern items ranging from laboratory requirements and nursing personnel supervision to the availability of public toilet facilities and the width of public corridors. In addition, certain standards are applicable only to facilities where "terminations of pregnancy are performed." 10 N.Y.C.R.R. §§ 711.7(f)(11), (k)(1)(i), (ii), (xii).

B. Facts

This constitutional challenge to article 28 and the regulations promulgated thereunder was commenced by the Westchester Women's Health Organization, Inc. ("WWHO"), its parent organization, the National Women's Health Organization, Inc. ("NWHO"), and Toni G. Novick, M.D., against the New York State Department of Health and two of its officials.³ Dr. Novick is a physician licensed in the State of New York who has been performing first trimester abortions at WWHO's office in White Plains, New York since July 1977. WWHO and NWHO furnish Dr. Novick with managerial and administrative support and provide the public with counselling and informational services.

In September 1978, the Department of Health served the plaintiffs with a statement of charges and a notice of hearing, accusing them of violating article 28 of the Public Health Law and regulations promulgated thereunder. The plaintiffs subsequently filed the instant action to seek injunctive and declaratory relief and moved for a preliminary injunction to enjoin the defendants from enforcing article 28. The motion was denied in my memorandum decision of January 30, 1979, on the ground that the plaintiffs had failed to show a threat of irreparable harm.

The Department of Health conducted a hearing in February 1979 to determine whether the plaintiffs were operating a diagnostic or treatment center within the meaning of article 28 and 10 N.Y.C.R.R. § 600.8. On April 4, 1979, in his report to the Department of Health, the hearing officer recommended that the plaintiffs be found to be operating a diagnostic and treatment center. The hearing officer concluded that the plaintiffs were not engaged in the private practice of medicine and recommended that the plaintiffs be directed to comply with the relevant sections of the Public Health Law and the regulations promulgated thereunder.

At this juncture, the parties are in agreement that no genuine issues of material fact exist to be tried. Accordingly, they have cross-moved for summary judgment. The plaintiffs maintain that article 28 cannot be constitutionally applied to an abortion facility which only administers first trimester abortions and that consequently the defendants' actions constitute a violation of the fourteenth amendment. In contending that summary judgment should be granted in their favor, the defendants argue that this Court should refrain from interfering with the pending state administrative proceeding under principles of comity and abstention, and further, that there is no constitutional right to operate a first trimester abortion facility free from the incidental impact of state health regulations applicable to health facilities in general. In addition, the defendants allege that WWHO and NWHO lack standing to raise claims based on the right to privacy of pregnant women.

DISCUSSION

A. Standing

The defendants' contention that WWHO and NWHO do not have standing to assert the privacy rights of pregnant women need not detain the Court, for it is clear that Dr. Novick has standing to litigate this lawsuit on her own behalf as well as on behalf of her patients.

There can be no doubt that Dr. Novick will suffer "concrete injury" from the application of the New York statutory scheme to the plaintiffs' abortion facility. Dr. Novick was named a respondent, along with WWHO and NWHO, in the Department of Health proceeding. An initial determination has been made that the facility is indeed a "diagnostic or treatment center." If this determination is upheld, and if it should be determined that violations of the regulations exist, then Dr. Novick may be subject to civil penalties. Additionally, Dr. Novick may be required to expend funds to remodel the White Plains office to bring it into compliance with the regulations, and if the facility should be ultimately closed down, which is a possibility under the statute, Dr. Novick would be deprived of certain income as well as the administrative and managerial support of WWHO and NWHO. Thus, it is clear Dr. Novick faces a "direct threat of personal detriment." Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

Dr. Novick's standing to assert the rights of her patients is established by Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). In that case, a plurality of the Supreme Court held that a physician has standing to assert the right of his or her patients to be free from governmental interference with the abortion decision. 428 U.S. at 113-18, 96 S.Ct. 2868. Accord, Friendship Medical Center, Ltd. v. Chicago Board of Health, 505 F.2d 1141, 1147-48 (7th Cir. 1974), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975); West Side Women's Services, Inc. v. City of Cleveland, 450 F.Supp. 796, 798 (N.D.Ohio), aff'd mem., 582 F.2d 1281 (6th Cir.), cert. denied, 439 U.S. 983, 99 S.Ct. 572, 58 L.Ed.2d 654 (1978); Wynn v. Scott, 449 F.Supp. 1302, 1309 (N.D.Ill.) (three-judge court), appeal dismissed on jurisdictional grounds, 439 U.S. 8, 99 S.Ct. 49, 58 L.Ed.2d 7 (1978). See also Craig v. Boren, 429 U.S. 190, 192-97, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (beer vendor has jus tertii standing to challenge state statute on equal protection grounds). Since the issues are sufficiently and adequately presented by Dr. Novick, the question of the standing of WWHO and NWHO need not be reached. Planned Parenthood v. Danforth, 428 U.S. 52, 62-63 & n. 2, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Doe v. Bolton, 410 U.S. 179, 189, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

B. Abstention

The defendants contend that the principles of federal nonintervention articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny⁴ preclude this Court from interfering with the pending state administrative proceeding.⁵ There is some question in my mind as to whether the Department of Health proceeding at issue is the type of state criminal, quasi-criminal or civil enforcement proceeding contemplated by the Younger abstention doctrine, for the Supreme Court has not extended Younger to all civil litigation. Trainor v. Hernandez, 431 U.S. at 445 n. 8, 97 S.Ct. 1911. Even assuming the Department of Health proceeding is the type of state proceeding that falls within the ambit of the Younger doctrine, I nevertheless conclude that I should not abstain from reaching the merits.

There are no issues of state law involved herein. While a state statutory scheme is being challenged, the sole claim raised by the plaintiffs is that article 28 of the New York Public Health Law cannot be applied to first trimester abortion facilities without violating federal rights arising under the U.S. Constitution. This claim is not yet before the state courts; there is no state judicial action pending. The state administrative proceeding is still in its initial stages and has not...