The opinion of the court was delivered by: NEWCOMER
This action was brought by the plaintiffs to challenge Crozer-Chester Medical Center's policy of refusing to perform sterilizations for adult, married women without their husbands' consent. Plaintiffs have alleged that this policy violates their constitutional rights of personal privacy, equal protection and due process under the Fourth, Fifth, Ninth, Thirteenth and Fourteenth Amendments to the Constitution of the United States.
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.
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
The plaintiffs contend that Crozer-Chester's policy of requiring spousal consent for sterilizations has deprived them of rights, privileges and immunities guaranteed by the Constitution. However, an essential element of an action under section 1983 is that the allegedly unconstitutional act be performed under color of state law. As we have noted previously, governmental action also is a prerequisite to claims based upon the Bill of Rights or the Fourteenth Amendment. The defendants have argued strenuously that the policy of requiring spousal consent for sterilizations is a purely private action outside the scope of section 1983 and Constitutional limitations. This is the central issue raised by the defendants' motion to dismiss.
There are numerous reported decisions dealing with the state action issue as applied to hospitals and similar institutions. However, before considering those decisions, we should review the leading decisions of the United States Supreme Court in the state action area. In Burton v. Wilmington Parking Authority, 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961), the Court concluded that discrimination practiced by a privately-owned restaurant located in a public parking facility was state action under the Fourteenth Amendment. The Court found that the State had "so far insinuated itself" into the operations of the restaurant that the State became a joint participant in the challenged activity. 365 U.S. at 725. This finding was based on a number of facts and circumstances, such as the existence of a lessor-lessee relationship between the Parking Authority and the restaurant, the public ownership of the land and building, the fact that 15% of the cost of the building was supplied by public funds, and the Parking Authority's retained responsibility for maintenance and repairs of the entire building.
Two more recent Supreme Court decisions have reaffirmed the holding in Burton, although in both cases the Court held that no state action was present. In Moose Lodge v. Irvis, 407 U.S. 163, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972), the Supreme Court held that the licensing and detailed regulation of the Moose Lodge by the Pennsylvania Liquor Control Board could not be said to in any way foster or encourage racial discrimination. Nor could it be said to make the State in any realistic sense a partner or even a joint venturer in the club's enterprise. 407 U.S. at 176-77. The Court distinguished Burton by noting that the facts revealed "nothing approaching the symbiotic relationship between lessor and lessee that was present in Burton." 407 U.S. at 175. Similarly, in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974), the Court found that there was no symbiotic relationship between the state and the defendant public utility, and that the State was not sufficiently connected to the particular activity challenged by the plaintiff to make that activity "state action" for purposes of the Fourteenth Amendment, 419 U.S. at 357-59.
An analysis of these three Supreme Court opinions leads to the conclusion that there are two different methods for satisfying the state action requirement. First, if the plaintiff establishes a nexus between the state and the particular activity being challenged, that activity will be considered state action. Second, if the plaintiff proves the existence of a symbiotic relationship between the State and the private party defendant, then any activity of that private party will be considered state action. See Rackin v. University of Pennsylvania, 386 F. Supp. 992, 1002-04 (E.D. Pa. 1974).
The plaintiffs in this case have not presented evidence or allegations that either the Commonwealth of Pennsylvania or the federal government have in any way supported Crozer-Chester's policy of requiring spousal consent for sterilizations. The evidence presented to this Court at a hearing for a temporary restraining order indicated that the hospital's policy was formulated by members of the Department of Obstetrics and Gynecology, the hospital administration, and a consulting attorney, without any government involvement. Moreover, the fact that Crozer-Chester is subject to significant state regulation does not demonstrate that the state was involved with the hospital's spousal consent policy, since plaintiffs' counsel have not pointed out any regulation or rule concerning sterilizations or spousal consent. Even tacit approval by the state of the hospital's policy would not establish a sufficient connection between the state and the policy to justify a finding of state action unless the initiative behind the spousal consent ...