James Loucks, and Dr. Marshall Klaven have filed a motion to dismiss the complaint for lack of subject matter jurisdiction. Plaintiffs have alleged jurisdiction under 28 U.S.C. § 1343 for claims arising under the Civil Rights Acts, 42 U.S.C. §§ 1981 and 1983, and under 28 U.S.C. § 1331, for claims arising under the Constitution where the amount in controversy exceeds ten thousand dollars ($10,000). Since we find that none of the asserted jurisdictional statutes properly applies in this case, we will grant the defendants' motion to dismiss.
We can easily dispose of plaintiffs' contention that jurisdiction can be premised on the basis of a cause of action under 42 U.S.C. § 1981.
Section 1981 pertains exclusively to discrimination on the basis of race or alienage. Rackin v. University of Pennsylvania, 386 F. Supp. 992 (E.D. Pa. 1974); League of Academic Women v. Regents of the University of California, 343 F. Supp. 636 (N.D. Cal. 1972). Section 1981 has been extended to claims of racial discrimination brought on behalf of whites as well as blacks. See Spiess v. C. Itoh & Co., 408 F. Supp. 916, 44 U.S. L.W. 2379 (S.D. Texas, 1976); Central Presbyterian Church v. Black Liberation Front, 303 F. Supp. 894 (E.D. Mo. 1969). The plaintiffs have also cited Parmer v. National Cash Register Co., 346 F. Supp. 1043 (S.D. Ohio 1972), where the court refused to dismiss sex discrimination claims brought under section 1981. This case apparently is wrongly decided, and the court offers no satisfactory reasons for its ruling. We decline to follow Parmer, and reiterate our holding that section 1981 is limited to claims based on race or alienage. Since the plaintiffs here make no claims of constitutional violations based on race or alienage, their complaint does not state a cause of action under section 1981.
Plaintiffs also contend that jurisdiction can be based on 28 U.S.C. § 1331, providing federal jurisdiction over cases arising under the Constitution, laws, or treaties of the United States, where the amount in controversy exceeds $10,000. In opposing jurisdiction under section 1331, the defendants have argued that the amount in controversy requirement is not met in this case. To dismiss a complaint for failure to satisfy the jurisdictional amount, a court must be convinced to a legal certainty that the plaintiffs' claim is really for less than the jurisdictional amount. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 82 L. Ed. 845, 58 S. Ct. 586 (1938). The plaintiffs here claim that the defendants unconstitutionally refuse to perform sterilizations without spousal consent, and we cannot say to a legal certainty that these claims do not satisfy the jurisdictional amount requirement.
Nevertheless, section 1331 does not provide jurisdiction in this case. Claims brought under the Bill of Rights or the Fourteenth Amendment require a showing of government involvement in the challenged activity. These constitutional provisions are limitations on government activity, not means of regulating the behavior of private individuals. See Greenya v. George Washington University, 167 U.S. App. D.C. 379, 512 F.2d 556, 559 (D.C. Cir.), cert. denied, 423 U.S. 995, 96 S. Ct. 422, 46 L. Ed. 2d 369. (1975); Blouin v. Loyola University, 506 F.2d 20 (5th Cir. 1975); Driscoll v. International Union of Operating Engineers, Local 139, 484 F.2d 682, 689-91 (7th Cir. 1973), cert. denied, 415 U.S. 960, 39 L. Ed. 2d 575, 94 S. Ct. 1490. We will discuss the state action question in the remainder of this opinion. Suffice it to say at this point that our conclusion is that the spousal consent policy of Crozer-Chester Medical Center is not sufficiently imbued with governmental activity to bring into play the Bill of Rights or the Fourteenth Amendment.
Thus, the only possible basis for section 1331 jurisdiction is the plaintiffs' claim based on the Thirteenth Amendment. The Thirteenth Amendment not only prohibits governmental action supporting slavery or involuntary servitude, it operates as an absolute prohibition of slavery or involuntary servitude in the United States. Jones v. Mayer, 392 U.S. 409, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968). The plaintiffs contend that the hospital's policy subjects a wife to involuntary servitude by subordinating her to the control of her husband and compelling her to bear his children. This argument is without merit. A hospital's policy of refusing to perform sterilizations without spousal consent does not create the type of compulsion that is prohibited by the Thirteenth Amendment, nor does it constitute a badge and incident of slavery. A woman is free to go to another hospital to obtain a sterilization with or without her husband's consent. Moreover, the hospital's policy is not related in any way to discrimination against an oppressed racial group. The plaintiffs have cited no cases to support their argument, and we hold that their complaint does not state a cause of action under the Thirteenth Amendment. Therefore, this court does not have jurisdiction under 28 U.S.C. § 1331.
The plaintiffs' most strongly asserted argument for jurisdiction is that jurisdiction can be based on 28 U.S.C. § 1343 because their complaint states a cause of action under 42 U.S.C. § 1983. That section provides as follows:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983