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July 10, 1985

THE PILGRIM MEDICAL GROUP, a New Jersey Corporation, Plaintiff,
NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS and IRWIN KIMMELMAN, Attorney General of the State of New Jersey, Defendants

The opinion of the court was delivered by: SAROKIN


 At issue in this case is a state regulation which prohibits certain abortions in clinics when the same abortions are permitted in hospitals. While recognizing the need to regulate abortions in order to safeguard the health of the patient, the courts must be alert to prevent encroachments upon the constitutional rights of those seeking and entitled to abortions. Requiring that certain abortions be performed only in hospitals increases the costs of the procedure considerably and may thus dissuade or deprive some women otherwise entitled from obtaining such service. Therefore, only if the regulations and restrictions comport with accepted medical practice may they be sustained. While the safety and health of the patient are paramount, and the state has a legitimate interest in their protection, the conditions imposed must be such that they do not thwart the availability of low cost abortions unless mandated by accepted and recognized medical standards. Any distinction between abortions which may be performed in hospitals but not in non-hospital facilities must meet this test. To permit otherwise would result in a violation of the right to abortion now clearly guaranteed by decisions of the United States Supreme Court.

 Plaintiff Pilgrim Medical Group, which operates an abortion clinic located in Montclair, New Jersey, brings this five-count, fifty-four paragraph Complaint challenging a New Jersey state regulation governing the performance of abortions in non-hospital settings. In particular, plaintiff contends that such regulation violates state and federal law by not allowing such abortions at eighteen weeks gestation, or twenty weeks from a patient's last menstrual period ("LMP"). It seeks injunctive relief against the enforcement of such regulation, and against a pattern of harassment allegedly perpetrated against it by defendant. Before the court is plaintiff's application for a preliminary injunction, as well as defendant's motion to dismiss the complaint on abstention grounds.


 The historical background of the regulation here at issue is presented in defendant's brief and the appendix thereto and is not disputed by plaintiff. After notice and public comment, on June 23, 1978, the defendant New Jersey State Board of Medical Examiners adopted N.J.A.C. 13:35-7.2, later denominated N.J.A.C. 13:35-4.2. This regulation provided that dilatation and evacuation ("D&E"), abortions could be performed in either hospitals or other licensed health care facilities within sixteen weeks LMP, or fourteen weeks gestation. *fn1" Beyond these time periods, or utilizing other procedures, abortions were required to be done only in licensed hospitals. This regulation was upheld as against constitutional challenge in the state courts. See Livingston v. New Jersey State Board of Medical Examiners, 168 N.J. Super. 259, 402 A.2d 967 (App. Div.), certif. den., 81 N.J. 406, 408 A.2d 800 (1979). However, by notice published April 4, 1983, defendant proposed repeal of N.J.A.C. 13:35-4.2; a new regulation was proposed, and ultimately adopted re-wording the old regulation and eliminating the requirement that abortion procedures be performed on an in-patient basis. See 15 N.J.R. 1255 (8/1/83) (Defendant's Exh. E.).

 On June 15, 1983, the Supreme Court of the United States announced its decisions in City of Akron, v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 76 L. Ed. 2d 687, 103 S. Ct. 2481 (1983); Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 76 L. Ed. 2d 733, 103 S. Ct. 2517; and Simopoulos v. Virginia, 462 U.S. 506, 76 L. Ed. 2d 755, 103 S. Ct. 2532 (1983). In part pertinent to this case, these decisions stand for the proposition that a state may not unreasonably burden a women's right to seek a second trimester abortion by requiring all such abortions to be performed in a hospital setting, when to do so is not mandated by acceptable medical practice. Akron, 462 U.S. at 433-34. Hence, the Court invalidated an Akron ordinance and a Missouri statute requiring that all second trimester abortions be performed in a hospital. Akron, 462 U.S. at 434-39; Ashcroft, 462 U.S. 476 at 481-82, 76 L. Ed. 2d 733, 103 S. Ct. 2517. It concluded "that 'present medical knowledge,' Roe [ v. Wade, 410 U.S. 113, 163, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1983)], convincingly undercuts [the] justification for requiring that all second-trimester abortions be performed in a hospital." Akron, 462 U.S. at 437 (emphasis in original) (footnote omitted). The Court implied that it would be unreasonable, and therefore unconstitutional, to require that second-trimester abortions prior to eighteen weeks of pregnancy be performed in a hospital. Id. at 437, citing American College of Obstetricians and Gynecologists, Standards for Obstetric-Gynecological Services 54 (5th ed. 1982). *fn2"

 In the wake of these rulings, the Medical Director of Metropolitan Medical Associates requested the State Board of Medical Examiners to re-examine its rule. A formal petition to that effect was filed on December 5, 1983; citing four studies, it argued that a D&E abortion ought to be allowed to be performed in a non-hospital setting up to at least eighteen weeks LMP. Indeed, it apparently suggested that such abortions could take place up to twenty-three weeks LMP. On December 14, 1983, a committee was appointed to study the matter. Defendants Exh. F. Notice of the proposed modification of the rule was published in the New Jersey Register on February 6, 1984. 16 N.J.R. 262, 108 A.2d 430. In the meantime, by memorandum dated January 24, 1984, the Committee appointed by the Board concluded that N.J.A.C. 13:35-4.2 ought to be changed. It wrote:

It is the opinion of the Committee that the New Jersey rule concerning termination of pregnancy should be modified. The modification should bring the rule into agreement with the standards used in the manual from the American College of Obstetrics and Gynecology. That manual states "In a hospital based or in a free standing surgical facility or in an outpatient clinic meeting the criteria for a free standing surgical facility, abortions should be limited generally to 18 weeks from the last menstrual period."

 Defendant's Exh. G. However, the committee rejected the suggestion that D&E abortions be allowed outside of hospitals beyond eighteen weeks LMP; it thus concluded that the rule ought not allow abortion clinics to perform abortions at eighteen weeks gestation. The defendant Board approved this rule and, on August 6, 1984, published the proposed rule in the New Jersey Register, inviting "in writing data, views or arguments relevant to the" rule to be submitted before September 5, 1984. 16 N.J.R. 2064 (Aug. 6, 1984). According to defendant, the proposed rule,

. . . was also circulated to three major newspapers, the two State Medical Societies, University of Medicine and Dentistry of New Jersey, the State Department of Health, the New Jersey Hospital Association, the petitioners, and other individuals who had notified the Board of their interests. Considerable public comment was received, but no comment at all was received from plaintiff.

 Defendant's Brief at 7. In particular, the Board received thirty-two comments on the rule, twenty-six opposed and six in favor. "Those opposed, including the New Jersey Catholic Conference, another Catholic organization, and private individuals, referred uniformly to their sincerely held convictions that terminations of pregnancy are wrong per se, and objected to any measures which would lessen the burden on persons elected [sic] to terminate pregnancies. No reasons of a medical nature affecting the safety of the patient were advanced to support that opposition." 16 N.J.R. 2823 (Oct. 15, 1984). Two clinics, Planned Parenthood of America and of New Jersey, the Medical Society of New Jersey and the State Department of Health supported the rule. Ibid. See also Defendant's Exh. H.

 The rule amendment was adopted at the September 12, 1984 Board meeting, id., and filed September 29, 1984. It became effective October 15, 1984. 16 N.J.R. 2823. As adopted, the rule reads:

13:35-4.2 Termination of Pregnancy
(b) Beyond the first trimester and within a period of gestation not exceeding 18 weeks from the first day of the last menstrual period or 16 weeks' gestational size as determined by a physician, termination of pregnancy using the dilatation and evacuation procedure shall be performed either in a licensed hospital or a licensed health care facility, and if any other procedure is used the termination of pregnancy shall be performed in a licensed hospital.
(c) Any licensed health care facility performing procedures for termination of pregnancy after the 14th week from the first day of the last menstrual period or 12 weeks' gestational size must have a Medical Director and a Credentials Committee. Said Committee shall grant to operating physicians practice privileges relating to complexity of the procedure and commensurate with an assessment of the training, experience and skills of each physician for the health, safety and welfare of the public. A list of the privileges of each physician shall contain the effective date of each privilege conferred, shall be reviewed at least biennially, and shall be preserved in the files of the facility.
(d) Termination of pregnancy by any procedure on patients with a gestation exceeding 18 weeks from the first day of the last menstrual period or 16 weeks' gestational size as determined by a physician, shall be performed only in a licensed hospital.
(e) These rules are intended to regulate the quality of medical care offered by licensed physicians for the protection of the public, and are not intended to affect rules of the Department ...

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