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S.P.S. CONSULTANTS, INC. v. LEFKOWITZ

October 5, 1971

S.P.S. CONSULTANTS, INC., and all others similarly situated, Plaintiffs,
v.
Louis J. LEFKOWITZ, Attorney General of the State of New York, Frank S. Hogan, District Attorney of New York County, Defendants. Martin S. MITCHELL et al., Plaintiffs, v. Louis J. LEFKOWITZ, Attorney General of New York, et al., Defendants



The opinion of the court was delivered by: BONSAL

BONSAL, District Judge.

These are companion actions in which plaintiffs, S.P.S. Consultants, Inc. in 71 Civ. 2931 ("S.P.S.") and Martin S. Mitchell, Mitchell Referral Service, Inc. and Sandra King in 71 Civ. 2990 ("Mitchell") challenge the constitutionality of Article 44 of the New York Public Health Law, McKinney's Consol. Laws, c. 45, which became effective on July 1, 1971.

On July 8, 1971, plaintiffs' motion to convene a Three-Judge Court, pursuant to 28 U.S.C. §§ 2281 and 2284, was granted, and plaintiffs' application for a temporary restraining order enjoining enforcement of section 4401 of Article 44, which prohibits the for-profit "referral or recommendation of persons to a physician, hospital, health related facility, or dispensary for * * * medical care or treatment," was denied. (See memorandum decision filed July 8, 1971, 333 F. Supp. 1370.)

 On August 16, 1971, this court heard argument on plaintiffs' motion for a preliminary injunction enjoining the enforcement of section 4401 and the defendants' motion for judgment on the pleadings. The parties filed affidavits, but no testimony was taken.

 Plaintiffs S.P.S. and Mitchell are corporations organized for profit, having as their purpose the dissemination of information as to the availability of abortions in the State of New York. Their services include dissemination of information as to the availability of facilities, the making of travel arrangements for patients referred to them by out-of-state doctors, and arrangements to have the abortions performed by licensed physicians in medical facilities within this State. Plaintiff Mitchell is the president of Mitchell, and plaintiff Sandra King availed herself of the services of Mitchell in March of 1971. Both S.P.S. and Mitchell were organized after the enactment of the 1970 New York Abortion Law.

 Prior to July 1, 1971, S.P.S. charged a fee of $75 for its service of arranging travel and hotel accommodations and an appointment at an abortion facility for an out-of-state resident seeking an abortion. In addition, S.P.S. provided its clients with information concerning probable expenses and the availability of facilities. Mitchell offered essentially the same services as S.P.S.; however, its clients were assured a set price of $300 for the abortion. Mitchell's fee, which varied according to the type of abortion involved, was included in the set price of $300. Both S.P.S. and Mitchell advertised their services by direct mail, in newspapers and on television.

 Section 4400 of Article 44, entitled "Legislative findings and statement of policy," reads as follows:

 
"The security of the health and welfare of the residents of this state requires, that the utmost attention be given to assure that persons seeking medical care and treatment in this state receive adequate care rendered within the standards of ethics and public policy applicable to all practices of medicine. Medical referral services, organized as profit making enterprises within this state, have been found to be engaged in the practice of medicine, have been sharing fees received for referrals with doctors and hospitals to whom patients are referred, have been otherwise compensating doctors and hospitals for accepting patients referred to them, have been giving medical advice by telephone to persons seeking referrals and have been advertising their services, all in violation of the standards of ethics and public policy applicable to the practice of medicine and which would be violations of standards of professional conduct if the acts were performed by physicians. Such profit making referral services have consistently engaged in practices inimical to the public interest which would be prohibited to physicians and have engaged in relationships with physicians which are in violation of the laws and public policy of this state and which have permitted physicians to benefit indirectly from acts and practices which would be prohibited to them directly. It is hereby declared to be the public policy of this state that the public health, safety and welfare of the citizens of this state require that such profit making medical referral service organizations be declared to be invalid and unlawful in this state."

 Section 4401, the constitutionality of which is attacked by the plaintiffs, provides as follows:

 
"§ 4401. Medical referral service businesses prohibited. 1. No person, firm, partnership, association 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.
 
"2. No physician, hospital, health related facility or dispensary shall enter into a contract or other form of agreement to accept for medical care or treatment any person referred or recommended for such care or treatment by a medical referral service business located in or doing business in another state if the medical referral service business would be prohibited under this section if the business were located in or doing business in this state."

 Section 4402 provides that a violation of the statute shall constitute a misdemeanor punishable by imprisonment of not more than one year or a fine of not more than $5,000, or both, and authorizes the Attorney General to institute proceedings to enjoin any violation of the statute. Section 4403 exempts persons, agencies, associations, or corporations not organized for pecuniary profit or financial gain, and tax exempt charitable corporations, from the prohibition of the statute.

 Plaintiffs contend that section 4401 abridges their First Amendment rights to disseminate information concerning the availability of health care facilities and the public's right to receive such information. Plaintiffs also contend that section 4401 violates their Fourteenth Amendment rights by permitting non-profit agencies to perform services which it forbids profit agencies from performing.

 Section 4401 does not prohibit the plaintiffs from disseminating information for a fee concerning the availability of health care facilities. It merely prohibits them from referring or recommending persons to a physician, hospital, health related facility, or dispensary for any form of medical care or treatment. Accordingly, if the plaintiffs supply lists of physicians and facilities performing abortions, which lists are not so selective as to make actual recommendation or referral of a particular physician or facility a justifiable inference therefrom, their activities would not violate the statute. While the inability to make referrals to a particular physician or facility may affect the profitability of plaintiffs' businesses, it does not abridge their First Amendment rights. As the Court noted ...


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