For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Pashman, Clifford and Schreiber and Judge Kolovsky. For affirmance -- Justice Sullivan. The opinion of the Court was delivered by Schreiber, J. Sullivan, J. (dissenting).
[71 NJ Page 481] The plaintiffs, Jane Doe, Mary Roe and their doctors, Dr. Edward S. Milner, Jr. and Dr. Calvin Hahn, instituted an action to compel the Bridgeton Hospital Association (Bridgeton), the Newcomb Hospital (Newcomb) and the Salem County Memorial Hospital (Salem)
to make their facilities available to the plaintiffs and their physicians, members of the hospital staffs, for elective abortion procedures during the first trimester of pregnancy.*fn1 Upon the conclusion of the trial, the court dismissed the complaint. 130 N.J. Super. 416 (Law Div. 1974). The plaintiffs appealed. While the matter was pending unheard in the Appellate Division, this Court, sua sponte, certified the cause. 69 N.J. 85 (1975). R. 2:12-1.
The plaintiffs proceeded on constitutional and non-constitutional grounds. Constitutionally, the plaintiffs alleged violations of their rights under the First, Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and under Article I of the New Jersey Constitution. They asserted that, because of the federal, state, county and municipal financial aid received by the hospitals, their refusals to permit elective abortions constituted state action. The non-constitutional rationale was that the hospitals, as quasi-public institutions, owed an obligation to the public, including the plaintiffs, to make their facilities available; that the defendants had violated that duty by establishing arbitrary and unreasonable rules prohibiting elective abortions; that these rules were reviewable by the Court, and should be declared null and void.
The defendants contended that they were private non-profit hospitals governed by their respective boards of trustees and that they had the absolute right to determine who should use their facilities and whether elective abortions should be permitted.
For the purposes of this opinion, a summary of the facts set forth by the trial court suffices.
Bridgeton is located in the City of Bridgeton, Cumberland County; Newcomb, in the City of Vineland, Cumberland County; and Salem, in the City of Salem, Salem County. Each is the only general hospital open to the public situated in its respective municipality, that being each hospital's primary service area. Elective abortions are permitted in hospitals or clinics located in Philadelphia, New York City, Wilmington, Atlantic City and Camden. Bridgeton is about 47 miles from Atlantic City, 37 from Camden, 35 from Philadelphia, 32 from Wilmington and 135 from New York City. Newcomb is 30 miles from Atlantic City, 31 from Camden, 122 from New York City, 48 from Wilmington, and 35 from Philadelphia. Salem is 64 miles from Atlantic City, 31 from Camden, 130 from New York City, 15 from Wilmington and 39 from Philadelphia.
All three hospitals have been incorporated as non-profit non-sectarian institutions for the purpose of making available to the public medical facilities where divers types of medical services may be performed. Each is governed by a board of trustees or directors who are elected by contributors to the hospitals. (Salem's and Newcomb's annual dues were $5 per annum and Bridgeton's were $15 per annum.) The respective boards in each institution are empowered to determine and decide policy matters. When these policies involve medical questions, the boards usually follow the recommendation of the medical staffs. Each of the boards had adopted a policy of permitting only therapeutic abortions. After the United States Supreme Court decisions in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), reh. den., 410 U.S. 959, 93 S. Ct. 1409, 1410, 35 L. Ed. 2d 694 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), reh. den., 410 U.S. 959, 93 S. Ct. 1409, 1410, 35 L. Ed. 2d 694 (1973), each board reconsidered its previous policy. Although the medical staffs at Bridgeton and Salem favored a change, the three boards
reaffirmed their previous policies prohibiting elective abortions.
The two female plaintiffs consulted the plaintiff Dr. Milner during the first trimester of their pregnancies. They desired abortions and Dr. Milner, who had staff privileges at both the Bridgeton and Salem hospitals, agreed to perform the operations. He attempted to make arrangements for the plaintiff Mary Roe, who lived in Salem, at the Salem hospital, but was denied use of the facilities. Dr. Milner attempted to arrange for Jane Doe's admission to the Bridgeton hospital, since she resided in Bridgeton, but that hospital also refused. Dr. Milner then referred her to the plaintiff Dr. Hahn, who was a member of the Newcomb hospital staff, but he was not permitted to use its facilities for an elective abortion.
The abortion procedure during the first trimester is relatively simple. A vacuum aspirator which operates on a suction principle is inserted into the uterus to remove its contents. It is possible to perform abortions in the doctor's office but since an anesthetic must be given, it is considered ...