1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Sammon v NJ Bd Medical Exam" (1995). 1995 Decisions. Paper 254.

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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 hiringoffice 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.