On appeal from a Rule Making Proceeding of the Board of Medical Examiners.
Lora, Michels and Larner. The opinion of the court was delivered by Lora, P.J.A.D.
Robert M. Livingston, a licensed obstetrician-gynecologist, and Metropolitan Medical Associates, Inc., (MMA) an outpatient clinic directed by him and now licensed to perform abortions in this State, challenge the validity of the recently enacted "Termination of Pregnancy Rule," N.J.A.C. 13:35-7.2, on procedural and federal constitutional grounds. The rule, which purports to regulate the performance of second trimester abortions, was promulgated by respondent New Jersey State Board of Medical Examiners (Board) after public hearing and independent submission of medical documentation, expert reports and statistics.
The operative terms of the rule*fn1 may be summarized as
follows: Beyond the first trimester and "within a period of gestation not exceeding 16 menstrual weeks and/or 14 gestational weeks' size,"*fn2 an abortion by the "dilatation and evacuation" method may be performed either in a licensed hospital or a "licensed health care facility" on an outpatient basis. Abortions to be performed beyond that cut-off date, or by any other medical procedure, must be performed in a hospital on an inpatient basis only.
Appellants contend that N.J.A.C. 13:35-7.2 is invalid on procedural grounds because it was not "finally adopted" by the Board, and is unconstitutional as an infringement upon a woman's federal constitutional right to seek an elective
abortion. They assert that in reviewing the rule in controversy we as an appellate court must apply a "strict scrutiny" test rather than a "rational relation" test.
Addressing first the attack on procedural invalidity, we find this claim to be without merit. It appears from the minutes of the Board's regular meeting on May 10, 1978 that a proposed form of the rule was adopted by the Board after ratification of certain amendments and "minor changes." The amended rule was then forwarded to the Office of the Attorney General for a final review, as noted in the minutes:
Following approval of the amendments the Board, upon motion made and duly seconded authorized the Office of the Attorney General to file the amended rule with the Division of Administrative Procedure or re-publish the rule if the Office of the Attorney General determines re-publication would be necessary.
The Attorney General thereafter suggested several changes in language and sentence structure, as well as the deletion of a "reporting" requirement contained in paragraph (d).*fn3 In all other respects, however, the substantive provisions affecting the performance of second trimester abortions remained intact. At its June 21, 1978 meeting, the Board expressly adopted and "ratified" these recommended changes as their own, and authorized "publication" of the rule.
Based on the record before us, we cannot accept the argument that the Attorney General usurped the Board's legislatively-prescribed function to make rules governing the practice of ...