The opinion
Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
9-15-1995
Sammon v NJ Bd Medical Exam
Precedential or Non-Precedential:
Docket 94-5495
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
N0. 94-5495
ALICE SAMMON; MICHAEL and STEFANIA SANTOMENNA; TRACY LEAL
and TOM QUINN, TONY and VICKI DIIOIA and LANDIE SIMONE,
Appellants
v.
NEW JERSEY BOARD OF MEDICAL EXAMINERS; STATE OF NEW JERSEY,
CHRISTINE TODD WHITMAN, GOVERNOR, STATE OF NEW JERSEY
(Caption amended per the Clerk's 9/26/94 order)
Appeal from the United States District Court
For the District of New Jersey
(D.C. Civil No. 94-cv-00958)
Argued February 17, 1995
BEFORE: STAPLETON and COWEN, Circuit Judges, and
HUYETT, District Judge*
(Opinion filed September 15, 1995)
Michael H. Sussman (Argued)
Law Offices of Michael H. Sussman
25 Main Street
Goshen, NY 10924
John P. Brennan, Jr.
912 Wall Road
Spring Lake Heights, NJ 07762
Attorneys for Appellants
* Honorable Daniel H. Huyett, 3rd, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
Deborah T. Poritz
Attorney General of New Jersey
Andrea M. Silkowitz
Assistant Attorney General
Sandra Y. Dick (Argued)
Senior Deputy Attorney General
Office of Attorney General of
New Jersey
124 Halsey Street
P.O. Box 45029
Newark, NJ 07101
Attorneys for Appellees
OPINION OF THE COURT
STAPLETON, Circuit Judge:
This case presents a substantive due process challenge
to several provisions of a New Jersey licensing statute
regulating the practice of midwifery. The plaintiffs/appellants
are several aspiring midwives, a midwife not presently licensed
by the State of New Jersey, and several couples who wish to
employ a midwife to assist with the birth of their next child. We
hold that the New Jersey statute passes constitutional muster.
I.
A person is "regarded as practicing midwifery" under
New Jersey's statute if he or she "attends a woman in childbirth
as a midwife, or advertises as such."0 N.J. Stat. Ann.
0
The definition section of the statute stipulates that it does
not apply to "gratuitous service in case of emergency" or to "the
service of any legally qualified physician or surgeon."
§ 45:10-1. Persons wishing to practice midwifery in New Jersey
first must obtain a midwifery license from the state board of
medical examiners. N.J. Stat. Ann. § 45:10-2. Candidates for a
license must pass an examination designed "to test the scientific
and practical fitness of candidates to practice midwifery," N.J.
Stat. Ann. § 45:10-5,0 and must complete an application
0
Section 45:10-5 provides:
The examination may be oral or written, or
both, and shall be in the English language
and shall be held on the following subjects:
a. Anatomy of the pelvis and female
generative organs.
b. Physiology of menstruation.
c. Diagnosis and management of pregnancy.
d. Diagnosis of foetal presentation and
position.
e. Mechanism and management of normal labor.
f. Management of the puerperium.
g. Injuries to the genital organs following
labor.
h. Sepsis and antisepsis in relation to
labor.
i. Special care of the bed and lying-room.
j. Hygiene of the mother and infant.
k. Asphyxiation, convulsions, malformation
and infectious diseases of the newborn.
l. Cause and effects of ophthalmia
neonatorum.
m. Abnormal condition requiring attendance
of a physician.
evidencing, inter alia, that they are of good moral character,
and that they have "received a certificate or diploma from a
legally incorporated school of midwifery, or maternity hospital,
in good standing . . ., after at least eighteen hundred hours'
instruction within a period of not less than nine months." N.J.
Stat. Ann. § 45:10-3.0 Candidates also must get a physician
registered in the State of New Jersey to indorse their
application. Id.
Appellant Alice Sammon, though not licensed in New
Jersey, has a nursing degree from a certified nursing school and
substantial apprenticeship training as a midwife. She has
assisted in several hundred births and is registered as a midwife
with the North American Registry of Midwives. Appellants Michael
and Stefania Santomenna, Tracy Leal and Tom Quinn, and Tony and
Vicki DiIoia (the "parents") are couples who plan to expand their
families and desire to employ midwives to assist them with home
births. Appellants Vicki DiIoia, Leal, and Landi Simone (the
"aspiring midwives") intend, if permitted, to pursue careers as
midwives in New Jersey.
The examination shall be sufficient to test
the scientific and practical fitness of
candidates to practice midwifery, and the
board may require examination on other
subjects relating to midwifery from time to
time.
0
The statute provides that in lieu of such a diploma, the
candidate may provide "a certificate or diploma from a foreign
institution of midwifery of equal requirements as determined by
the board, conferring the full right to practice midwifery in the
country in which it was issued." N.J. Stat. Ann. § 45:10-3.
Appellants filed suit under 42 U.S.C. § 1983 against
the New Jersey Board of Medical Examiners and Governor Christine
Todd Whitman, claiming that the licensing scheme violates their
due process rights under the Fourteenth Amendment. They sought
injunctive relief against enforcement of the statute. The
district court granted the defendants' motion to dismiss and
appellants filed this timely appeal.
II.
A.
The district court ruled that the aspiring midwives
lacked standing to challenge the New Jersey statutory scheme
because they had "made only wholly conclusory allegations that
they aspire to become midwives," and had not alleged that they
had "approached physicians and been denied sponsorship, or
attempted to enroll in any one of thirty out of state mid-wife
schools, or applied for a license to be a midwife, or sought out
a registered maternity hospital." (Dist. Ct. Op. at 6.)
The Supreme Court has held that "when standing is
challenged on the basis of the pleadings, [courts must] 'accept
as true all material allegations of the complaint, and . . .
construe the complaint in favor of the complaining party.'"
Pennell v. San Jose, 485 U.S. 1, 7 (1988) (quoting Warth v.
Seldin, 422 U.S. 490, 501 (1975)); see generally Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). Accordingly,
for purposes of deciding the issue of standing at this stage of
the case, we must accept as true the aspiring midwives' claims
(1) that they sincerely desire to become midwives, (2) that the
1800 hours of study and the physician-indorsement requirements
"inhibit" them from taking steps necessary to become midwives,
and (3) that "but for" the New Jersey statutory scheme, they
would be able to become midwives and practice their chosen
profession.
To establish standing, the aspiring midwives must meet
the following requirements:
First, [they] must have suffered "an injury
in fact" -- an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) "actual or imminent,
not 'conjectural' or 'hypothetical.'"
Second, there must be a causal connection
between the injury and the conduct complained
of -- the injury has to be "fairly . . .
trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of]
the independent action of some third party
not before the court."
Third, it must be "likely," as opposed to
merely "speculative," that the injury will be
"redressed by a favorable decision."
Lujan, 504 U.S. at 560-61 (citations omitted); see also Erwin
Chemerinsky, Federal Jurisdiction §2.3, at 51 (1989).
The second and third Lujan factors are clearly present
here. As noted, the aspiring midwives allege that but for the
1800-hour study and the physician-indorsement requirements, they
would become licensed midwives. Thus, the alleged injury -- not
being able to practice their chosen profession -- is both fairly
traceable to New Jersey's statutory scheme and likely to be
redressed by a favorable decision ruling that scheme
unconstitutional.
The allegations also suffice to establish an "injury in
fact." First, the aspiring midwives' assertion of a right to
practice their chosen profession is a legally cognizable one. See
Hampton v. Mow Sun Wong, 426 U.S. 88, 102 n.23 (1976). Second,
their injuries are "concrete and particularized" because the
statutory requirements, by making it more difficult for the
aspiring midwives to practice their chosen profession, affect
each aspiring midwife in a "personal and individual way." Lujan,
504 U.S. at 560 n.1. Finally, the injuries are "actual or
imminent" and not "conjectural" or "hypothetical" because the
aspiring midwives allege present sincere desires to work as
midwives and claim that the New Jersey statutory scheme has
deterred them from taking any steps towards reaching their goals.
That the aspiring midwives may not presently have the
training necessary to work as midwives does not defeat their
standing to challenge the New Jersey scheme. We recognize that
the existence of factual contingencies which stand between a
litigant and her goal may at times defeat her standing to
challenge a particular statutory barrier to reaching that same
goal. See, e.g., Roe v. Wade, 410 U.S. 113, 127-28 (1973)
("married couple" plaintiffs did not have standing to challenge
Texas' abortion statute because the married woman was not
pregnant and her "alleged injury" rested "on possible future
contraceptive failure" that she intended to do her best to
avoid); see also Warth v. Seldin, 422 U.S. 490, 502-08 (1975)
(low-income plaintiffs had no standing to challenge a zoning
ordinance because their ability to move into the zoned area
"depended on the efforts and willingness of third parties to
build low- and moderate-cost housing"). The aspiring midwives'
claims are not based upon uncertain events, however. While they
do not presently have the training to function as midwives, the
aspiring midwives allege both a present desire to become midwives
and that the New Jersey statutory scheme -- including the
training requirement -- is the only thing that prevents them from
reaching that goal.
Nor is our analysis changed by the facts that the
aspiring midwives have never applied for midwife licenses or
asked physicians for indorsements. We recognize that a
litigant's failure to apply for a license may at times render her
challenge to a licensing scheme unripe for judicial review. See,
e.g., Pacific Gas & Elec. Co. v. State Energy Resources
Conservation & Dev. Comm'n, 461 U.S. 190, 200-03 (1983). In many
cases, requiring litigants to actually apply for a license before
challenging a licensing scheme "'prevent[s] courts, through
avoidance of premature adjudication, from entangling themselves
in abstract disagreements over administrative policies, and also
. . . protect[s] the agencies from judicial interference until an
administrative decision has been formalized and its effects felt
in a concrete way by the challenging parties.'" Id. at 200
(quoting Abbott Lab. v. Gardner, 387 U.S. 136, 148-49 (1967)). In
the case at bar, however, there is no indication that the
aspiring midwives possibly could obtain a license or a
physician's indorsement without first going through the 1800
hours of instruction. Requiring these women to apply for a
license or to approach physicians asking for indorsements before
going through the required training -- as the district court
appears to suggest -- accordingly would serve no purpose.
Litigants are not required to make such futile gestures to
establish ripeness. Hailes v. United Air Lines, 464 F.2d 1006,
1008 (5th Cir. 1972); Image Carrier Corp. v. Beame, 567 F.2d
1197, 1201-02 (2d Cir. 1977), cert. denied, 440 U.S. 979 (1979);
see also International Bhd. of Teamsters v. United States, 431
U.S. 324, 365 (1977) ("If an employer should announce his policy
of discrimination by a sign reading 'Whites Only' on the hiring-
office door, his victims would not be limited to the few who
ignored the sign and subjected themselves to personal rebuffs.");
compare Newark Branch, NAACP v. Harrison, 907 F.2d 1408, 1415 (3d
Cir. 1990) (plaintiff organization's members have no standing to
challenge discriminatory employment practice because there was no
indication that any of the members was deterred by the practice
from applying for a job).0
0
The defendants argue that Sammon's claim is barred by New
Jersey's "entire controversy doctrine." Because the district
court concluded that the aspiring midwives had no standing, it
was required to address that argument before reaching the merits
of the plaintiffs' claim that New Jersey's licensing statute
violates the substantive due process rights of those who wish to
practice midwifery. The district court concluded that Sammon's
claim was barred under New Jersey's entire controversy doctrine
because she had failed to attack the constitutionality of the
statute in a previous prosecution for practicing midwifery in New
Jersey without a license. We do not reach this issue whether the
complete controversy doctrine applies here because Sammon's
complaint, even if consistent with the entire controversy
doctrine, does not state a claim under which relief can be
B.
The parents also have standing to assert their claims.
While none of the women are presently pregnant, they all have
borne children in the past, intend to have additional children,
and are determined to employ midwives to assist them with
birthing those additional children at home. In the past, the
parents all either have travelled out of state to obtain the
services of a midwife or have used the services of an unlicensed
midwife.
In sum, we conclude that each of the plaintiffs has
standing to challenge the constitutionality of the New Jersey
statutory scheme regulating the practice of midwifery and that
those claims are ripe for adjudication. Accordingly, we proceed
to the merits of the appellants' substantive due process
challenge.
granted and because the claim of the aspiring midwives would
require us, in any event, to address the merits of Sammon's
substantive due process claim.
III.
The first step in any substantive due process case is
to determine the standard of review. "The choice of a standard
of review . . . turns on whether a 'fundamental right' is
implicated." Planned Parenthood v. Casey, 947 F.2d 682, 688 (3d
Cir. 1991). In order to determine what interests of the
plaintiffs are at stake here and thus what the appropriate
standard of review is, we must look solely to the allegations of
the complaint and the provisions of the challenged statute.
Turning first to the statute, it is important to focus
on what it does and does not do. The statute regulates who may
engage in practicing midwifery in New Jersey. It does not
prohibit midwifery. Nor does it regulate where or in what manner
birthing may take place. It thus does not foreclose the parents
from engaging the services of a midwife or from electing birth at
home, natural child birth, or any particular procedure in the
course of delivery.0
It is similarly important to focus on what the
complaint does and does not allege. The complaint alleges that
the statute "unconstitutionally deprives plaintiff Sammon of her
ability to earn a living at her chosen profession," and the
aspiring midwives of "their ability to practice in their
respective field of interest." (App. at 25.) With respect to
0
The statute does require that midwives "secure the immediate
services of a reputable registered physician whenever any
abnormal signs or symptoms appear in either mother or infant."
N.J. Stat. Ann. § 45:10-8. Plaintiffs do not challenge this
portion of the statute.
the parents, the complaint alleges that the statute "unduly
restricts the right of the consumer plaintiffs to choose a
birthing style and a qualified attendant of their choice." (App.
at 26.)
The complaint does not allege that there are no
licensed midwives or a dearth of licensed midwives in New
Jersey.0 It does allege that the statute makes it "practically
impossible" for certain midwives -- "direct entry midwives" -- to
be "licensed and make themselves accessible to consumers like"
the parents. (App. at 26 (emphasis supplied).) While the
complaint thus refers to "direct entry midwives" and to "direct
entry midwifery," it gives limited content to these references.
We are told only that direct entry midwives are "a class of
providers historically and traditionally recognized in the State
of New Jersey," (app. at 24-25), that "[d]irect entry midwifery
has been primarily learned through apprenticeships served with
practicing midwives, supplemented by relevant book study," (app.
at 23-24), that it "is as safe, if not safer, than . . . births
attended by physicians in hospitals," (app. at 18), and that it
"is [not] identical in approach to the practice of a certified
nurse midwife,"0 id.
0
Plaintiffs' briefing acknowledges that there are certified
nurse midwives licensed to practice midwifery in New Jersey.
Certified nurse midwives are individuals who have satisfied the
requirement for being a licensed nurse and have had further
specialized training in an accredited program in midwifery.
0
See n.6, supra. Plaintiffs' Reply Brief indicates that they
will need discovery before they will be able to describe the
difference in approach between the practice of midwifery by
direct entry midwives and by certified nurse midwives.
Our independent research indicates that "direct entry
midwifery" does not have a universally understood meaning.0
Moreover, our research disclosed no source that used direct entry
midwifery to describe a particular manner of practicing
midwifery. If plaintiffs' use of the phrase is intended to refer
to a manner of practicing, however, New Jersey's statute does not
foreclose anyone from obtaining a license to practice, or from
practicing, direct entry midwifery so long as that individual
meets the qualification specified in the statute.
Based upon the complaint and the statute, it is thus
clear that the interests at stake here are the interest of Sammon
and the aspiring midwives in practicing midwifery and the
interest of the parents in selecting a midwife of their choice.
These are not the kind of interests that have been found to be
"fundamental" in the context of choosing the appropriate level of
review for substantive due process purposes. State restrictions
on the right to practice a profession receive rational basis
review rather than higher scrutiny.0 Williamson v. Lee Optical
0
Direct entry is frequently used to describe a midwife who has
received her training solely through an apprenticeship. It is
also used as a synonym for a "lay midwife," in the sense of a
midwife who is not a licensed nurse or other health professional.
Colorado, for example, licenses "direct-entry midwives." It
states that they are "also known as 'lay' midwives" and defines
"direct-entry midwifery" as the "advising, attending, or
assisting of a woman during pregnancy, labor and natural
childbirth at home" in accordance with the licensing statute --
i.e., by persons who are authorized under the statute and who do
not hold other professional licenses that authorize midwifery.
Colo. Rev. Stat. §§ 12-37-101-102.
0
We thus reject the plaintiffs' contention that fundamental
rights are at stake here and that the statute must, accordingly,
of Oklahoma, Inc., 348 U.S. 483 (1955); Schware v. Board of Bar
Examiners, 353 U.S. 232, 239 (1957). Similarly, state
restrictions on a patient's choice of particular health care
providers are subjected only to rational basis review.
Connecticut v. Menillo, 423 U.S. 9 (1975) (state may require that
abortions be performed only by licensed physicians, even in the
first trimester of pregnancy); Mitchell v. Clayton, 995 F.2d 772,
774 (7th Cir. 1993) (state regulation of acupuncture evaluated
under rational basis test); New York State Ophthalmological Soc'y
v. Bowen, 854 F.2d 1379 (D.C. Cir. 1988) (state regulation of
ophthalmology not entitled to strict scrutiny review); Potts v.
Illinois Dept. of Registration and Education, 538 N.E.2d 1140
(Ill. 1989) (state regulation affecting the practice of
naprapathy evaluated under rational basis standard); Leigh v.
Board of Registration in Nursing, 506 N.E.2d 91 (Mass. 1987)
(rejecting claim that regulation of midwifery should be reviewed
under higher strict scrutiny standard); Bowland v. Municipal
Court, 556 P.2d 1081 (Cal. 1976) (same).0
receive strict scrutiny. Where strict scrutiny is required, the
state must show that the statute serves a compelling state
interest and that the state's objective could not be achieved by
a measure less restrictive of the plaintiff's fundamental right.
Lutz v. City of York, 899 F.2d 255, 268-69 (3d Cir. 1990). Thus,
if statutes licensing health care professionals were subject to
this strict form of scrutiny, states would have to shoulder the
burden of demonstrating that no less restrictive set of
qualifications for a license could serve the state's interest in
protecting the health of its citizens.
0
In the absence of extraordinary circumstances, state
restrictions on a patient's choice of a particular treatment also
have been found to warrant only rational basis review. See,
e.g., Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980)
(laetrile); Rutherford v. United States, 616 F.2d 455 (10th Cir.)
Where rational basis review is appropriate, a statute
withstands a substantive due process challenge if the state
identifies a legitimate state interest that the legislature
rationally could conclude was served by the statute. As we
explained in Rogin v. Bensalem Township, 616 F.2d 680 (3d Cir.
1980), cert. denied, 450 U.S. 1029 (1981):
The test for determining whether a law
comports with substantive due process is
whether the law is rationally related to a
legitimate state interest. "[T]he law need
not be in every respect consistent with its
aims to be constitutional. It is enough that
there is an evil at hand for correction, and
that it might be thought that the particular
legislative measure was a rational way to
correct it."
616 F.2d at 689 (quoting Williamson v. Lee Optical of Oklahoma,
Inc., 348 U.S. 483, 487-88 (1955)); see also Midnight Sessions,
Ltd. v. City of Philadelphia, 945 F.2d 667, 682 (3d Cir. 1991),
cert. denied, 503 U.S. 984 (1992). Determining whether a
particular legislative scheme is rationally related to a
legitimate governmental interest is a question of law. Id.
We stress that a court engaging in rational basis
review is not entitled to second guess the legislature on the
factual assumptions or policy considerations underlying the
statute. If the legislature has assumed that people will react
to the statute in a given way or that it will serve the desired
(same), cert. denied, 449 U.S. 937 (1980); Mitchell v. Clayton,
995 F.2d 772 (7th Cir. 1993) (acupuncture). Because the
challenged statute does not regulate the manner in which a mother
gives birth, we have no occasion to determine the appropriate
standard of review for a statute that regulates the manner of
birthing.
goal, the court is not authorized to determine whether people
have reacted in the way predicted or whether the desired goal has
been served. The sole permitted inquiry is whether the
legislature rationally might have believed the predicted reaction
would occur or that the desired end would be served. When
legislation is being tested under rational basis review, "those
challenging the legislative judgment must convince the court that
the legislative facts on which the classification [of the
statute] is apparently based could not reasonably be conceived as
true by the governmental decisionmaker." Vance v. Bradley, 440
U.S. 93, 111 (1979); see also Pace Resources, Inc. v. Shrewsbury
Township, 808 F.2d 1023, 1034-35 (3d Cir.), cert. denied, 482
U.S. 906 (1987). Thus, New Jersey's classification of what it
takes to provide assurance of acceptable quality services from a
midwife must be upheld unless they could not reasonably be
conceived as serving that purpose.
IV.
Appellees offer two state interests to justify the New
Jersey regulatory scheme: the interest in protecting the health
and welfare of the mother and the interest in protecting the
health and welfare of the child. These are legitimate state
interests. See, e.g., Roe v. Wade, 410 U.S. 113, 163-64 (1973)
(recognizing the state's interest in both the health of the
mother and the viable fetus).
The regulatory scheme is also rationally related to
these state interests. Each of the complained of requirements --
(1) that applicants have at least 1800 hours of instruction, (2)
that this instruction comes from a school of midwifery or a
maternity hospital rather than an apprenticeship, N.J. Stat. Ann.
§ 45:10-3, and (3) that the application be indorsed by a
registered physician, id. § 45:10-3 -- "might be thought" to
further the state's interest in assuring that would-be midwives
are qualified to perform their jobs. Assuring that midwives are
qualified, in turn, is rationally related to the state's valid
interest in the health and safety of both mother and child. See
Dent v. West Virginia, 129 U.S. 114 (1889) (upholding doctors'
licensing requirements because states have a legitimate interest
in regulating the medical profession); Williamson v. Lee Optical
of Oklahoma, Inc., 348 U.S. 483 (1955) (state may forbid
opticians from fitting or duplicating lenses without a
prescription from an ophthalmologist or optometrist).
The appellants maintain that the 1800 hours of
instruction requirement is not "rationally-related" to New
Jersey's legitimate goal of assuring that midwives are qualified
to perform their jobs. While we do not question plaintiffs'
sincerity when they voice this opinion, it is sufficient to
conclude that this is a matter about which reasonable minds can
differ. As the district court noted "1800 hours, or forty-five
weeks of full time training, is not an irrational length of time,
considering the serious nature of the work performed by
midwives." (Dist. Ct. Op. at 13.) The mere fact that some
students might perform as competent midwives without going
through the full 1800 hours of training does not make the
requirement "irrational." The New Jersey legislature may well
have decided that the 1800-hour training requirement will assure
that midwives who go through 1800 hours' instruction are
competent often enough to justify the burden to students who are
competent at some point before 1800 hours of study. We cannot
say that the requirement is irrational given New Jersey's
interests in both the technical competence of the entire
population of midwives and the health of the entire population of
midwife consumers. While different training requirements might
also further New Jersey's valid goals, "it is for the
legislature, not the courts, to balance the advantages and
disadvantages of the . . . requirement." Williamson, 348 U.S. at
487.
A similar analysis reveals the rationality of the other
statutory requirements. The requirement that would-be midwives
receive their training through instruction at schools of
midwifery or maternity hospitals rather than through the
apprenticeship training also reflects a legislative judgment
about which reasonable minds can differ. We simply cannot say it
is irrational to believe that midwives trained in schools of
midwifery or at maternity hospitals on the whole are better able
to protect the health of New Jersey mothers and children.
Plaintiffs profess concern about the physician
indorsement requirement because it "imposes a significant barrier
to entry upon persons seeking to practice midwifery." This is
true, they allege, "since direct entry midwives are broadly
perceived . . . as potentially competing with obstetricians" and
physicians have a conflict of interest when asked to vouch for
the qualifications of an aspiring direct entry midwife. (App. at
24.) While the complaint does not identify any otherwise
qualified candidate who has allegedly asked and been refused
indorsement, plaintiffs ask for the opportunity to prove that
this "significant barrier" exists even where an applicant is
otherwise qualified.
It is, of course, rational to believe that an
obstetrician asked to indorse the qualifications of a midwife
candidate will not be a wholly objective evaluator of a
candidate's qualifications. One can also make a substantial
policy argument that the benefit to be derived from a physician
indorsement requirement is outweighed by the burden it places on
candidates. It is not irrational, however, (1) to find value in
soliciting the views of a medically trained individual who has
had some personal contact with the candidate and has checked into
his or her credentials, or (2) to conclude that there are
sufficient members of the medical profession willing to perform
this public service in good faith to make such a requirement
workable.0
V.
The root of this controversy is that plaintiffs believe
apprenticeship training is as valuable as more formal training
and that an examination could be devised that would assure
adequate quality control. They may be right. However, the
elected representatives of the people of New Jersey who voted for
the statute took a contrary view. While there are disputes of
legislative fact involved in this disagreement, those disputes
are not legally relevant under substantive due process
jurisprudence.
The concern of the parents is that the statute makes it
"practically impossible . . . to attain the substantial benefits
-- in terms of access, cost and safety -- which can be made
available through the use of direct entry midwives" and that as a
result their "significant efforts" to identify direct entry
midwives able and willing to assist them in home birthing in New
Jersey have been unsuccessful. As we have pointed out, however,
the parents have no constitutional right to their choice of a
0
The plaintiffs also claim that the midwife examination has not
been given for many years. They do not claim that anyone has
asked and been denied the opportunity to sit for the examination,
however.
health care provider who does not meet quality control standards
that a legislator might reasonably conceive to be desirable.0
VI.
This controversy is one this court is not authorized to
resolve and the plaintiffs must take their evidence and advocacy
to the halls of the New Jersey's legislature. The judgment of
the district court will be affirmed.
0
The complaint does not allege that the parents have made
futile efforts to secure a licensed midwife to assist in home
delivery. Appellants' brief suggests, however, that at least
some licensed midwives prefer not to assist in home deliveries.
Assuming this to be true, it does not provide a basis for
attacking a statute which not only does not prohibit home
birthing but also reflects no preference for hospital deliveries.