At issue on this appeal is the validity of a 1971 village ordinance which provides that abortions be performed only in hospitals licensed and accredited by the State.
In the first-named suit, Charles Robin, a physician specializing in obstetrics and gynecology who has performed numerous "justifiable" abortions at his office in Hempstead, seeks a judgment declaring the ordinance unconstitutional and invalid. In response, the defendant village, urging that the ordinance is a lawful exercise of the police power, requests an injunction restraining the plaintiff from performing abortions except in hospitals which meet the requirements of the ordinance. In the second action, the village seeks an injunction restraining the defendant Bill Baird Center — a family planning and birth control center where Dr. Robin has an office — from carrying on such operations in its premises. It is conceded by all of the parties that the center "is a facility other than a hospital" and, accordingly, does not satisfy the requirements of the ordinance.
The Supreme Court, Nassau County, consolidating the two actions, declared the village ordinance valid and enjoined the plaintiff Dr. Robin and the defendant center from violating it. On appeal, the Appellate Division reversed, holding that "enactment of [the] ordinance was outside the scope of the powers of a village" (38 A.D.2d 758).
Regard for both the above-quoted declaration of policy and for the legislative scheme demonstrates the State's purpose and design to pre-empt the subject of abortion legislation and occupy the entire field so as to prohibit additional regulation by local authorities in the same area. (See, e.g., Good Humor Corp. v. City of New York, 290 N.Y. 312, 316-317; People v. Lewis, 295 N.Y. 42, 51; Wholesale Laundry Bd. of Trade v. City of New York, 17 A.D.2d 327, 330, affd. 12 N.Y.2d 998; Kim v. Town of Orangetown, 66 Misc.2d 364, 370-371.)
Such State policy being expressed, a village or other municipality lacks authority to deal with the matter "`unless it is
The village does, it is true, have the general power to "enact any ordinances, not inconsistent with existing law which shall be deemed expedient or desirable for the * * * health of its inhabitants" (Village Law, § 89, subd. 59) but such a general grant "is not a delegation to a municipal corporation of the entire police power of the state and is limited to matters of an inherently local nature." (6 McQuillin, Municipal Corporations [1969 rev. ed.], § 24.45, p. 568; see, also, Matter of Kress & Co. v. Department of Health, 283 N.Y. 55, 59, supra; Adler v. Deegan, 251 N.Y. 467, 489-491, per CARDOZO, Ch. J., concurring.) This court has expressly declared that local health regulations — relating, for instance, to the manufacture and sale of food — may be enacted by a municipality, in spite of general State regulation, only if there exists "a real distinction between the city and other parts of the State. They [local regulations] must be based upon special conditions existing in the city." (Matter of Kress & Co. v. Department of Health, 283 N.Y. 55, 59, supra.) It is hardly necessary to remark, however, that there are no "special conditions" concerning the performance of abortions in the Village of Hempstead, as opposed to the rest of the State, which warrant enactment of the local ordinance.
It is also worth noting that section 125.05 of the Penal Law was specifically amended to define a "justifiable abortional act"
We recognize, of course, that considerations of health and safety may well lead to the conclusion that abortions should be performed in hospitals. There is no doubt that the State could impose such a restriction. All that we are now deciding is that the Village of Hempstead lacked the power to enact the ordinance before us.
The order appealed from should be affirmed, with costs.