handicapped individual is defined in 29 U.S.C. § 706 as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." While the term "infant" in the regulation is not defined, at least some infants born with physical and mental defects may well fit within that broad definition.
Consequently whether the coverage of the regulation falls within or outside the authority of section 504 may well depend upon the manner in which section 504 is actually applied. Given the language of the statute and its similarity to other civil rights statutes which have been broadly read, it cannot be said that section 504 does not authorize some regulation of the provision of some types of medical care to handicapped newborns. At one extreme, it is reasonable to suggest that section 504 prohibits denial of the most basic services, such as access to medical care, hospital facilities or food, to a mildly handicapped child whose parents want him to benefit from those services. But defendants and amici in support of defendants read the regulation and thus the statute far more broadly. It has been suggested by amici that the rule requires doctors and parents to undertake heroic measures to preserve for as long as possible, despite expense and a prognosis of certain death within months, the life of an anacephalic infant lacking all or part of the brain and with no hope of ever achieving even the most rudimentary form of consciousness.
Many would argue that had Congress intended section 504 to reach so far into such a sensitive area of moral and ethical concerns it would have given some evidence of that intent. Hopefully this will be clarified by further congressional action. In any event, cases such as Southeastern Community College v. Davis, 442 U.S. 397, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979), and American Public Transit Association v. Lewis, 211 U.S. App. D.C. 42, 655 F.2d 1272 (D.C. Cir. 1981), suggest that section 504 was never intended by Congress to be applied blindly and without any consideration of the burdens and intrusions that might result. Yet the question of when, or whether, section 504 authorizes federal intervention in decisions regarding the treatment of handicapped newborns is a question which should await the actual application of the statute to a set of particular circumstances. The instant case involves no parent or child plaintiff and no application of the rule to a specific case. It therefore is not an appropriate vehicle to consider the ramifications and scope of section 504. Toilet Goods Association v. Gardner, 387 U.S. 158, 163-166, 18 L. Ed. 2d 697, 87 S. Ct. 1520 (1967).
Finally, plaintiffs and amici have advanced two general constitutional challenges to the statute. Much for the same reason that this Court has not determined the scope of section 504's authority, it declines to reach these constitutional issues.
It is argued that the rule is impermissibly vague and overbroad. Given that neither "customary care," "infant," nor "discrimination due to handicap" are defined, there is some merit to the view that a physician attending a severely defective newborn may well be unable to determine what type of conduct the rule purports to require or prohibit. However, a broad regulation may be given content through its proper application, Waters v. Peterson, 161 U.S. App. D.C. 265, 495 F.2d 91, 99-100 (D.C. Cir. 1973), and review on this basis should await the actual application of the regulation to particular conduct. United States v. National Dairy Products Corp., 372 U.S. 29, 31-33, 9 L. Ed. 2d 561, 83 S. Ct. 594 (1963).
Second, plaintiffs have suggested summarily that the regulation, by not supplying adequate procedural safeguards to any investigation resulting from a "hotline" complaint, is in conflict with an amorphous group of constitutional interests. These are described varingly throughout the papers as due process, right to privacy in the patient-physician relationship and the right to confidentiality of medical records. See Whalen v. Roe, 429 U.S. 589, 599-604, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977). The exact nature of the rights plaintiffs seek to assert are uncertain as are the procedural safeguards alleged to be lacking. Again, in the absence of actual application of the regulation and a concrete set of facts this Court declines to hold in the abstract that the regulation violates such constitutional rights on its face. The Court notes, however, that to the extent the regulation is read to eliminate the role of the infant's parents in choosing an appropriate course of medical treatment, its application may in some cases infringe upon the interests outlined in cases such as Carey v. Population Services International, 431 U.S. 678, 684-685, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977); Roe v. Wade, 410 U.S. 113, 152-153, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973); and Griswold v. Connecticut, 381 U.S. 479, 484, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965). However, no party is before the Court at present claiming such a constitutional interest and the issue cannot be joined in this case.
This regulation cannot be sustained. It is arbitrary and capricious. There may well be defects in medical procedures and hospital policies governing treatment of seriously disabled newborns in some hospitals. More fundamentally, the rising public debate over the role of physicians and family members in these difficult and sensitive situations where life may hang in the balance has raised issues which must eventually be faced at either the local or national level. The solution does not, however, lie in a hasty, ill-considered "hotline" informer rule. Government intervention into the difficult medical and human decisions that must be made in the delivery rooms and newborn intensive care units of our hospitals involves a profound change in the manner in which these decisions affecting the quality of life are made. Any intervention by an agency of the Federal Government should obviously reflect caution and sensitivity, given the present absence of a clear congressional directive. At the minimum, wide public comment prior to rulemaking is essential. Only by preserving this democratic process can good intentions be tempered by wisdom and experience.
An appropriate Order invalidating the interim final regulation is filed herewith.
ORDER AND DECLARATION
For reasons fully stated in the Court's Memorandum filed herewith, it is this 14 day of April, 1983,
ORDERED that defendant's motion to dismiss the complaint and amended complaint is denied; and it is further
DECLARED that defendant's March 7, 1983, interim final rule, 48 Fed. Reg. 9630, is arbitrary and capricious and promulgated in violation of the Administrative Procedure Act, and it is further
ORDERED that defendant shall promptly place a notice in the Federal Register advising that said interim final rule has been declared invalid and has no further force or effect, and it is further
ORDERED that applications for attorneys' fees and/or costs may be filed within 30 days of the time that this Order and Declaration becomes final.