A temporary injunction has been granted against defendants preventing them from conducting an abortion referral agency and from collecting fees in connection therewith. A temporary receiver has been appointed. The conceded purpose is to prevent the defendant from continuing its business, and this has effectually been done without any trial. It is almost inconceivable that such drastic action could be had and countenanced where determination rests solely upon inferences drawn from facts. The only possible explanation is that when abortion at the pleasure of the woman involved was legalized, thereby abolishing a deep rooted public antipathy, it was not contemplated that the local response to the lifting of the ban would be anything like as great as it proved to be, or that women throughout the nation would seek to take advantage of our laws and our facilities for this purpose. The volume appalled the public mind, and any service or facility which made the practice more available became an obvious target. When the service reached sizable proportions the reaction became hysterical, which hysteria is typified by the excerpt reported below from Special Term’s opinion, and the continued iteration of the size and financial success of defendant’s operation as proof that such operation is illegal.
While every imaginable make weight argument is advanced to support the determination, the grounds of decision below are the claim that the defendant has been practicing medicine; that it is engaged in fee splitting; and that its operation is against public policy.
Taking these in order, there is absolutely no proof that the defendant is practicing or ever has practiced medicine. Practicing medicine is defined in the Education Law (§ 6501, subd. 4) as diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition. The defendant has not been shown to do any of these. As a result of advertising, defendant receives a very large number of telephone calls from women all over the country who are interested in having an abortion performed. After ascertaining that the *148caller desires an abortion, she is advised as to how this may be done — through her own physician making arrangements with a local surgeon, through recommendation of medical societies, or the like. If the caller desires the services of defendant, some facts as to the pregnancy are elicited. From these the defendant, through its counselor, makes an estimate of the type of operation that will be required and the cost of the physician’s and hospital services required for such an operation, and adds to this the amount of its fee. It quotes this fee to the caller and, if it is acceptable, the caller is directed to transmit the same forthwith. Arrangements are then made for the caller to enter a licensed hospital, where she is examined by a physician. After the latter has made his examination he determines the type and feasibility of the operation. The patient then has the option of consenting to or refusing to undergo the type of operation which the doctor determines should be performed. If she consents and the operation and care involve a greater expense than the sum she has paid, she must pay the additional sum. If less is involved, she gets a refund. If the patient, after examination, refuses to go further because of additional expense or for any other reason, an effort is made to find her another hospital or doctor suitable to her. There is absolutely no proof that anything further is done. The defendant makes no diagnosis, does not determine what operation is to be performed, does not perform it, and has nothing to do with the way it is performed or the patient is treated thereafter. No decided case has ever held that what the defendant does here would be practicing medicine.
The next charge is fee splitting. Preliminarily it should be noted that the only statutory interdiction against fee splitting is a prohibition against doctors soliciting or profiting by a portion of the fee charged by another doctor' a hospital, laboratory service or the like (Education Law, § 6514, subd. 2, par. [f]). The evil designed to be obviated is the recommendation by the doctor to one supplying the additional service so that the doctor will profit from an unnecessary service. Assuming that the evil is equally present if the recommendation is made by a layman and should be prohibited even in the absence of statutory prohibition, the record is barren of any proof that the defendant ever participated in any such act. There is not even a suggestion that any doctor or any hospital ever rebated any part of his fee or its charges to defendant or offered defendant an inducement of any kind to send patients to it. The issue is completely glossed over by reference to the flat fee charged, with the biased conclusion that this must invoke a rebate or else defendant’s receipts would not be so large.
*149With regard to public policy the situation is somewhat different. While the grounds for decision above discussed rest on no proven facts and only on conclusory distortions of facts, the issue of public policy does have an arguable basis. While this showing is considerably short of the clear legal right necessary to sustain an injunction, at least an issue is presented. In the first place, it must be determined what the public policy is that it is claimed is being violated. The Attorney-General claims it is a general policy against referrals for professional services. In support of this the Attorney-General cites three cases. In Hannon v. Siegal-Cooper Co. (167 N. Y. 244) it was held that where a corporation holds itself out as practicing dentistry it is liable for the malpractice of the dentist even though its acts were ultra vires. People v. Woodbury Dermatological Inst. (192 N. Y. 454) held that a statute making it a misdemeanor for any person not a doctor to advertise to practice medicine applied to a corporation as well as an individual. Matter of Co-op. Law Co. (198 N. Y. 479) holds that a corporation may not engage in the practice of law and its incorporation for that purpose is not authorized. To argue that these citations bespeak a public policy against professional referrals is nonsense in the primary meaning of that word. As is resort to the ringing words of Special Term’s opinion that “ The law which sought to emancipate women from servitude as unwilling breeders, did not intend to deliver them as helpless victims of commercial operators for the exploitation of their misery. ’ ’ Doubtless it did not. And the inaccuracy is that it has not. Defendant does not recruit women for abortions. It caters to their desire to have the abortion performed. We may not like the prospect of the vast numbers of women currently shirking the burdens of motherhood but there is nothing in the law that requires the availability of the service to be made secret or difficult to obtain. The man who shows a pregnant woman the way to a hospital for purposes of an abortion commits no crime. Lambs do not customarily seek out the butcher.
If there ever was a public policy against professional referrals it must have ceased to exist. The example of legal services points clearly to this. The familiar decision that labor unions may provide such services for its members (Railroad Trainmen v. Virginia Bar, 377 U. S. 1) and the proliferation of corporations which provide such services for the indigent (see N.A.A.C.P. v. Button, 371 U. S. 415) with the blessing of the State government show the policy to be the exact contrary.
*150While there is no public policy against referrals as such, there may well be when the referral procedure attains such dimensions that it enables the referrer to dictate to the practitioners and institutions to which it makes those referrals. When domination of professional activity is attained, public policy is contravened (People v. Allied Med. Clearing House, 55 Misc 2d 489, affd. 29 A D 2d 919). That dominance could be reached by controlling or substantially affecting the number and kind of patients admitted to a hospital. Whether the defendant is in that position with regard to any hospital or doctor is a factual question which would require a trial.
The order granting the injunction should be reversed and the receivership vacated.
Markewich, J. P., Nunez and Tilzer, JJ., concur in Per Curiam opinion; Steuer, J., dissents in an opinion.
Order, Supreme Court, New York County, entered on May 20, 1971, affirmed. Respondent shall recover of appellants $30 costs and disbursements of this appeal.