This is an action instituted by two women (their names as plaintiffs are pseudonyms) and two physicians licensed and practicing in this State. The physicians each specialize in obstetrics and gynecology. Plaintiffs, for themselves and all others similarly situate, seek a declaratory judgment that the policies of defendant hospitals in prohibiting their respective facilities to be used for the performance of first-trimester, elective abortions upon female plaintiffs violate their rights under the First, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States and Article 1 of the Constitution of the State of New Jersey.
The action initially included as defendants the Department of Institutions and Agencies of the State of New Jersey and certain officials in said Department, for the purpose of
compelling the Division of Medical Assistance, an agency thereof, to issue directives that the costs of medical services for such abortions be reimbursed by Medicaid. Following premulgation of regulations providing for Medicaid reimbursement for such procedures, a consent dismissal order was entered with respect to said Department of Institutions and Agencies and said officials.
Upon the filing of the complaint with affidavits and upon application to the court on representations that immediate and irreparable injury might occur to the female plaintiffs if the relief sought was not granted, the court directed that the Bridgeton and Newcomb Hospitals respectively permit their facilities to be used with respect to said plaintiffs for the purpose of the performance of such abortions.
Following an interlocutory appeal, the Appellate Division reversed the order of the lower court, stating in part:
We find no irreparable harm resulting to plaintiffs since there are other hospitals in the area that will perform elective abortions during the first trimester.
Ultimate issues of whether defendants-appellants must permit the performance of an elective abortion during the first trimester under the existing facts * * * are highly debatable and of great public importance and should await a full hearing and determination by the trial court.
Motions for summary judgment were denied and a full hearing was afforded to all parties.
In view of the unusual nature of this action and the importance of a full statement of the factual complex to all parties, a more detailed statement of facts is narrated than is actually necessary for the conclusions.
New Jersey's abortion law in effect since at least 1898 declares that any person who maliciously or without lawful justification and with intent to cause a miscarriage of a pregnant women participates in bringing about miscarriage is guilty of a high misdemeanor. N.J.S.A. 2A:87-1.
On January 22, 1973 the United States Supreme Court decided the companion cases of Roe v. Wade, 410 U.S. 113,
93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973).
In Roe v. Wade the Supreme Court held that the right to make the "abortion decision" was an aspect of "liberty" protected by the Due Process Clause of the Fourteenth Amendment and also, for that stage of pregnancy prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
In Doe v. Bolton the court held that the Georgia statute, which contravened the constitutional right of a pregnant woman to abortion during the first trimester of pregnancy, was invalid and any statutory provisions unduly restrictive of such female's right were likewise invalid.
As a result of these holdings, although New Jersey's abortion statute is still viable, it must now be construed in the light of the Roe v. Wade and Doe v. Bolton decisions. State v. Haren, 124 N.J. Super. 475 (Law Div. 1973).
Each of the three defendant hospitals has adopted policies against permitting the use of its respective facilities for other than therapeutic abortions. The objective sought by this action is the vitiation of the effect of these policies and to compel the hospitals to permit their respective facilities to be used for what are now legal, nontherapeutic procedures calculated to abort pregnancies during the first trimester of pregnancy.
One of the female plaintiffs consulted plaintiff Dr. Milner at his office in Bridgeton. She was pregnant and desired a first-trimester abortion. Her history was that she was 36 years of age, married, and had had eight pregnancies resulting in four living children, two miscarriages and two children that died soon after birth. She was suffering from fibroids of the uterus. Her husband was disabled and her principal income was from welfare assistance. An attempt was made by the doctor to have her admitted to Salem County Memorial Hospital for the purpose of therapeutic abortion. However, the Therapeutic Abortion-Sterilization Board of that
hospital rejected the application on the ground that there did not appear to be therapeutic reasons for the abortion. The fact that the fibroids did not warrant the abortion was not controverted. The hospital administrator informed Dr. Milner that the rules of the hospital did not permit elective abortions. After making many telephone calls, Dr. Milner communicated with a physician who performed the procedure free of charge at another hospital.
The other female plaintiff also visited Dr. Milner for the purpose of securing an abortion. She was 27 years old, married, had had five pregnancies with four living children and desired the abortion because she couldn't afford another child. At the time she consulted Dr. Milner she had been pregnant for ten weeks. Dr. Milner unsuccessfully attempted to have her admitted to the Bridgeton Hospital. He was informed by the administrator of that hospital that its rules did not permit such abortions. This plaintiff was then referred to a clinic in Philadelphia but failed to keep an appointment there due to her alleged inability to obtain transportation. Another attempt was made to have a second-trimester abortion performed in a Philadelphia institution, but she was unable to pay for her care. Consequently she was ultimately delivered of the child.
Two of the defendant hospitals are situate in Cumberland County and one is situate in Salem County. Bridgeton Hospital is about 47 miles from Atlantic City, 37 miles from Camden, 135 miles from New York City, 35 miles from Philadelphia and 32 miles from Wilmington, Delaware. Newcomb Hospital is about 30 miles from Atlantic City, 31 miles from Camden, 122 miles from New York City, 39 miles from Philadelphia and 48 miles from Wilmington, Delaware. Salem County Memorial Hospital is about 64 miles from Atlantic City, 31 miles from Camden, 130 miles from New York City, 39 miles from Philadelphia and 15 miles from Wilmington, Delaware.
Although as discussed later each hospital is the only facility of its kind in its primary service area, those desiring
such elective abortions may secure same in a number of other institutions -- either hospitals or abortion clinics -- in Philadelphia, New York City and also in and about Camden, Atlantic City and Wilmington, Delaware. The Underwood Hospital in Woodbury, Gloucester County, about 27 miles from Bridgeton and less than that from Vineland and Salem, also permits such procedures, as does a private hospital in Marlton, Camden County.
Each defendant hospital was formed and is operated for nonprofit purposes. Each is dedicated by its certificate of incorporation to provide care for the sick and injured. Newcomb Hospital and Salem County Memorial Hospital received substantial funds from Federal Government sources for capital uses, under the Hill-Burton Act.*fn* All three have received substantial funds from government sources for operating expenses. Each has been the beneficiary of large sums of money as the result of public support, partially resulting from public solicitation. Each enjoys federal income tax exemption, local property tax exemption and New Jersey sales tax exemption, as well as other exemptions. Each receives payments through Medicaid and Medicare.
Each hospital serves what is designated as its primary service area as well as a secondary service area. Most of those living in a primary service area will secure hospital service from the respective hospital when such services are required. Generally such hospitals also draw patients in common with other hospitals in the surrounding, secondary areas.
The hospitals are subject to regulation on the part of the State under the Health Care Facilities Planning Act of 1971, N.J.S.A. 26:2H-1 et seq. This enactment gave to the New Jersey State Department of Health central, comprehensive responsibility for the development and administration of the State's policy with respect to health planning, hospital and related health care services. All public and private institutions,
whether state, county, municipal, incorporated or not incorporated, serving principally as facilities for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition, were made subject to the provisions thereof.
The act delegated far more restrictive controls over private institutions furnishing health care than had existed formerly, all for the purpose of advancing quality patient care in said hospitals, but at the same time "to protect against unnecessary duplication of facilities and services and to moderate operating costs." (Statement attached to Senate Bill No. 2088, introduced February 11, 1971, enacted in the aforesaid N.J.S.A. 26:2H-1 et seq.)
Under the statute a Health Care Administration Board was created in the State Department of Health. N.J.S.A. 26:2H-4. New hospital facilities may not be constructed, present facilities may not be expanded, and no new health care services may be instituted except upon application for and receipt of a certificate of need under said act. N.J.S.A. 26:2H-7. Whether or not a certificate of need is granted depends upon a finding that the action proposed for which a certificate is required "is necessary to provide required health care in the area to be served, can be economically accomplished and maintained, and will contribute to the orderly development of adequate and effective health care services." The criteria for making such determinations are: (a) the availability of facilities or services which may serve as alternatives or substitutes; (b) the need for special equipment and services in the area; (c) the possible economies and improvement in services to be anticipated from the operation of joint, central services; (d) the adequacy of financial resources and sources of present and future revenues; (e) the availability of sufficient manpower in the several professional disciplines, and (f) such other factors as may be established by regulation. N.J.S.A. 26:2H-8.
As a result, the State has assumed an introspective supervision and control of hospitals and facilities that had never before existed.
Notwithstanding the provisions of the Health Care Facilities Planning Act, the hospitals still enjoy privileges consistent with private status, which include the election of boards of directors by members of the respective hospital associations, appointment of officers and medical staffs by the respective governing bodies, and general control of operation and policy, subject only to the requirements of the act.
Vacuum aspiration is the usual and generally accepted method for producing abortion during early pregnancy, i.e., before the end of the 13th week. A suction tube is introduced into the uterus for the purpose of removing the contents thereof. From the 13th to the 16th weeks of pregnancy physicians suggest that no abortions be performed. Between the 16th and 20th weeks the method commonly used is the injection of a strong saline solution into the uterus, which generally precipitates the miscarriage.
The earlier the procedure the less risk accompanies it. Complications increase gradually from about the 7th week to the 13th week. From approximately 5% to 6%, up to the seventh week, the rate of complication will increase to approximately 12% to 13% at the end of the 13th week. Starting with the 16th week it rises to about 25%.
Clinics charge about $150 to $175, including the usual medical service, for the procedure during the first trimester. Private hospitals charge about $200 to $250 for use of the facilities, exclusive of the physician's charge. Second-trimester charges in hospitals approximate $350 and up, depending on the number of hospital days required.
Where the hospitals possess the necessary equipment and facilities, they will permit generally all types of elective procedures other than abortions.
Plaintiff physicians assert that statistics demonstrate that of those seeking first-trimester abortions approximately 75%
are unmarried, 60% are white, 40% are nonwhite (mostly black). Over 50% are less than 24 years of age and only about 60% request the surgical procedure before they are less than ten weeks pregnant. About 20% request abortion between the 11th and 12th weeks, and 20% after the 12th week. Of all these about 40% submit Medicaid forms.
Low-income women, it is contended, are at a decided disadvantage as the result of compulsory referral by their physicians to physicians in other areas where there are available facilities. Hardship results to them because they cannot afford the added costs of travel; loss of wages or salary, if employed; expenses for baby sitters, and the requirements of some institutions that the costs of the procedure be deposited in advance. In addition to these disadvantages, they also suggest that the delay caused by necessary referrals and preparation sometimes goes beyond the first trimester so that an elective abortion may no longer be obtainable in this State. In such cases the alternatives are either to incur greater expense to have the procedure performed in a jurisdiction such as New York City, where elective abortions may be had after the first trimester, or to be delivered of the child at full term. It is also asserted that the inability to obtain the operation is a source of increased distress and mental pain and suffering for such women. However, about one week will elapse from the time patients visit plaintiff physicians to the performance of an abortion at a facility other than one of defendant hospitals. This includes time for referral, visit and preparation.
Although recognized that if possessed of the necessary apparatus a physician could perform the first-trimester procedure at his office, this is not desirable, for safety reasons, by reason of possible complications and the absence of ...