                                                                                                                           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Precedential or Non-Precedential: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.
