§§ 2800 et seq., 2801-a. DP Doctor had standing to assert rights of her patients in action raising issue of whether state statutory scheme regulat" />

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WESTCHESTER WOMEN'S HEALTH ORG., INC. v. WHALEN

June 21, 1979

WESTCHESTER WOMEN'S HEALTH ORGANIZATION, INC., NATIONAL WOMEN'S HEALTH ORGANIZATION, INC., and TONI G. NOVICK, M.D., Plaintiffs, against ROBERT P. WHALEN, M.D., et al., Defendants.


The opinion of the court was delivered by: WERKER

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. *fn1"

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. *fn2" "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. *fn3" 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 ...


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