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PENNSYLVANIA MED. SOCY. v. MARCONIS

November 25, 1987

Pennsylvania Medical Society and Pennsylvania Osteopathic Medical Association, Plaintiffs
v.
Joseph T. Marconis, M.D.; Lawrence D. Ellis, M.D.; Mark N. Richards, M.D.; Col. George Shevlin; Guy Kratzer, M.D.; Gary W. Lyons, M.D.; Johoshua Arie, M.D.; Jason Shu, M.D.; Shirley Fox, R.N.; Jeanne McKelvey, Esq.; Barbara Shore, Ph.D.; Individually and in their official capacities as members of the State Board of Medicine; and Lawrence S. Koplovitz, D.O.; Anthony A. Minissale, D.O.; Mark N. Richards, M.D.; Col. George Shevlin; John L. Johnston, D.O.; Ernestina T. Agresti, D.O.; Raymond G. Herr; Daniel J. West, Jr., Ph.D.; Individually and in their official capacities as members of the State Board of Osteopathic Medicine, Defendants



The opinion of the court was delivered by: RAMBO

 Sylvia H. Rambo, United States District Judge.

 Background

 Plaintiffs moved for a preliminary injunction seeking to enjoin enforcement of those portions of the challenged regulations which set durational limitations on the use of sympathomimetic amines and on the sections of the regulations which require waivers for the use of sympathomimetic amines. A hearing was held on November 3, 1987, deposition transcripts were filed, and the parties fully briefed the motion.

 On October 14, 1987 the Pennsylvania Medical Society filed suit against the Commonwealth's State Board of Medicine in the Commonwealth Court of Pennsylvania, challenging the same regulations challenged in federal court. As in the case before this court, POMA filed a practically identical complaint in state court, and the actions were consolidated. Plaintiffs challenged the regulations on purely state law grounds. A hearing in state court was held on a motion for a preliminary injunction, and on November 18, 1987 that motion was denied.

 Discussion

 The regulations at issue are an attempt by the State to reduce the incidence of amphetamine drug abuse throughout the Commonwealth. Defendants' Brief in Opposition at 9. These "sympathomimetic amines are a class of medications with certain common chemical and pharmacological characteristics. Some sympathomimetic amines are designated as 'Controlled Substances' under Schedule II-IV of the Controlled Substance, Drug, Device, and Cosmetic Act, 35 P.S. § 780-101 et seq." POMA's Complaint at paras. 14, 15. The regulations contain patient record access and reporting requirements, limitations on the prescription and dispensation of sympathomimetic amines for weight control purposes, and procedures to be followed to obtain a waiver from the Boards for prescribing or administering sympathomimetic amines beyond a forty-five day period in a twelve month period in certain circumstances. POMA's Complaint at Exhibit A; Board of Medicine's Complaint at Exhibit A.

 Plaintiffs challenge the waiver provisions alleging, inter alia, the regulations "impose unnecessary burdens on physicians, and will deter some patients from receiving and seeking appropriate medical treatment, all without commensurate benefits to the public." POMA's Complaint at para. 22. They claim these provisions are violative of the Constitution of the United States:

 
The regulations challenged herein violate the privacy right to independence in decision-making guaranteed under the Constitution of the United States in that the defendants, not licensed medical doctors chosen by a patient, will be making treatment decisions for that patient.
 
The regulations challenged herein violate the right of procedural due process under the United States Constitution insofar as they allow defendants to order the termination of ongoing, medically appropriate treatment without appropriate procedural safeguards, including but not limited to notice of the factual and legal bases for the proposed termination of treatment, an opportunity for a hearing including the rights to present testimony and cross-examine, and to receive a written decision following such hearing containing findings and the reasons therefor.

 Board of Medicine's Complaint at paras. 31, 32.

 Plaintiffs ask the court to declare a state statute unconstitutional. *fn1" Principles of comity and federalism counsel the court to consider abstention so that the Commonwealth will have the first opportunity to pass on its own law. E.g., Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); Harrison v. N.A.A.C.P., 360 U.S. 167, 3 L. Ed. 2d 1152, 79 S. Ct. 1025 (1959); Railroad Comm'n v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). The judicially created doctrine of abstention was born of

 
a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments. . . . * * * The concept . . . represent[s] . . . a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, ...

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