The State Health Department has concluded that the building at which the three doctors involved in the case have been perf orming abortions constitutes a hospital facility under article 28 of the Public Health Law, and has asked them to apply for a license. They.refused and this lawsuit resulted. A4rial was held, the. trier of the facts agreed with the HealthDepartment, and a judgment was entered enjoining abortion activity at the building (which was commonly known as the Dobbs Ferry Medical Pavillion) until a license would be procured. The majority would now reverse the judgment pri*331marily on the ground that the statute (Public Health Law, § 2801) and the regulations (10 NYCRR 700.2) pursuant to which the Health Department acted are unconstitutional because of vagueness. I disagree and I vote to affirm.
I agree with my colleague, Mr. Justice Hopkins, who said in his dissenting memorandum in People v. Hatchamovitch (40 A D 2d 556, 557): “ As I read the statute, I do not find its provisions void for vagueness. First, the legislation defines a hospital as ‘ a facility or institution engaged principally in providing services by or under the supervision of a physician * * * for the * * * treatment of * * * physical condition including, but not limited to, a general hospital * * * treatment center # * .* maternity hospital * * * outpatient department, dispensary and a laboratory or central service facility serving one or more such institutions ’ (Public Health Law, § 2801, subd. 1). This broad definition is narrowed by the State Hospital Code (Public Health Law, § 2803), which includes as medical facilities both a hospital — said to mean an institution with beds for one or more in-patients, not related to the operator, primarily engaged in providing services under the supervision of a physician (10 NYCRR 700.2 [a] [5] [State Hospital Code]) — and an independent out-of-hospital health facility, meaning an institution with one or more health clinics, not part of an in-patient hospital facility, primarily engaged in providing services and facilities to out-of-hospital or ambulatory patients (under the supervision of a physician) (10 NYCRR 700.2 [a] [6]). It is the latter category under which, in my view, defendants’ operations fall.”
At bar, specifically, the Health Department found the doctors wére performing abortions at an “ independent out-of-hospital health facility ”. The doctors contend they are conducting what is referred to as a “ group practice ” and the abortions are being performed at their offices. As observed by Mr. Justice Hopkins in Hatchamovitch (supra, p. 559), “ As physicians they are more than laymen and presumably fully aware of the usages which are engrafted on. words of art employed in the practice of medicine. Clinic, hospital, and health facility cannot be words without special meaning to them as professional men.”
I have no difficulty in distinguishing between an “ independent out-of-hospital health facility ” and an office used by a doctor or a group of doctors. The key element is that the former, as its definition states, is an institution. When someone goes to a place for treatment rather than .to a specific doctor, we are dealing with an institution and not the traditional private practice. *332of medicine. An institutional operation is bound to involve a greater volume of medical business than the practice of an ordinary private practitioner; and, since the patient has no prior familiarity with the doctor or any ongoing relationship with him, the State has a special interest in seeing that acceptable facilities and care are provided.
The overwhelming evidence before us shows that the doctors were working at an institution. They performed about 10,000 abortions a year. Of the 3,250 fetal death certificates filed dur-^ ing the first four months of 1972, approximately 90% showed the “ patients ” to be from out of the State. When someone called the Pavillion to obtain information about an abortion, they were told it would be performed by one of the Pavillion’s doctors—no specific name was mentioned. The Pavillion made airplane schedules and limousine service available. The patients were encouraged to prepay their bill and to make their checks payable to “ cash”. The doctor who performed the abortion saw the patient for the first time only minutes before the surgery and the patient was told to consult her own doctor in case any complications subsequently arose. There is no doubt in my mind that most, if not all, of the women who went to the Dobbs Ferry Pavillion went to have an abortion, not to see a particular doctor (see State of New York v. Mitchell, 66 Misc 2d 514, 519-521).
The majority concludes that there is no rational basis upon which section 2801 of the Public Health Law can stand. In this I think it is disregarding the expertise of the administrative agency entrusted with interpreting that statute. The recent case of Matter of Howard v. Wyman (28 N Y 2d 434, 438) contains the following admonition by Chief Judge Fuld on this subject: “It is well settled that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld. * * * As this court wrote in the Mounting & Finishing Co. case (294 N. Y., at p. 108), ‘ statutory construction is the function of the courts ‘1 but where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court’s function is limited ” (Board v. Hearst Publications, 322 U. S. Ill, 131). The administrative determination is to be accepted by the courts “ if it has 1 warrant in the record ’ and a reasonable basis in law ” (same citation). “ The judicial function is exhausted when there is found to be a rational basis for *333the conclusions approved by the administrative body ” (Rochester Tel. Corp. v. U. S., 307 U. S. 125,146). ’ ”
I find there is a rational basis for the Health Department’s position in this case. As Mr. Justice Hopkins observed in People v. Hatchamovitch (40 A D 2d 556, 557, supra): “Birth and pregnancy have always been proper concerns of the State (e.g., Public Health Law, § 2500 [maternal health and maternal hospitals], § 2560 [practice of midwifery], § 2730 [birth defects]). The recent legalization of abortions (Penal Law, § 125.05) places a further responsibility on the Commissioner of Health which he must discharge to protect the community ”. To this end, the State Hospital Code states that “ an abortional act may be performed in an independent out-of-hospital health facility only up to and including the 12th week of pregnancy. Thereafter, it shall be performed on an inpatient basis only” (10 NYCRR 751.9'[b]). The State Medical Society’s guidelines caution “ physicians that an abortion performed after the twelfth week of gestation is fraught with tremendous danger. ” Also, the society has recommended that abortions be performed only in a State-certified hospital or in a suitably equipped and staffed facility administered by or affiliated with such a hospital. In New York City the Board of Health has outlawed the performance of abortions in doctors’ offices (see, generally, New York City Health Code, tit. Ill, art. 42). There is testimony in the record at bar from a Deputy Commissioner of the State Health Department that the department’s guidelines, which were developed concurrently with a committee of the State’s Medical Society, recommend that abortions be performed only in hospitals.
Based upon the foregoing, I think the license requirements which the Department of Health seeks to enforce are reasonable. If the defendants ’ facilities are as modern and safe as they claim, they should have no difficulty in complying therewith. If a license is withheld arbitrarily, judicial review is available.
I vote to affirm.
Rabin, P. J., Latham, Shapiro and Christ, JJ., concur in Per Curiam opinion; Munder, J., dissents and votes to affirm the judgment, with an opinion.
Judgment reversed, on the law and the facts, with one bill of costs jointly to the nonparty appellants against respondent, and complaint dismissed.