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Abortion (Turnock V. Ragsdale) (Illinois Case)
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286185847
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Abortion (Turnock V. Ragsdale) (Illinois Case)
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These records pertain to the Bush Administration's policies on abortion.
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Records of the White House Office of Counsel to the President (George H. W. Bush Administration)
Lee S. Liberman General Subject Files
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Abortion (Turnock V. Ragsdale) (Illinois Case)
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Illinais Case
Document Originally
Attached to
Following Page
No. 88-790
NOV 10 1968
: Jh,
CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
K
BERNARD J. TURNOCK, M.D., M.P.H., Director of
the Illinois Department of Public Health, et al.,
Appellants,
V.
RICHARD M. RAGSDALE, M.D., et al.,
Appellees.
On Appeal From The United States
Court Of Appeals For The Seventh Circuit
JURISDICTIONAL STATEMENT
NEIL F. HARTIGAN
Attorney General, State of Illinois
ROBERT J. RUIZ
Solicitor General, State of Illinois
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 917-3000
Attorneys for Appellants
MICHAEL J. HAYES* *
KATHLEEN KREISEL FLAHAVEN
ROGER P. FLAHAVEN
GLADYS STEVENS
Assistant Attorneys General
100 West Randolph Street, 13th Floor
Chicago, Illinois 60601
(312) 917-3654
Of Counsel
* Counsel of Record
Printed by Authority of the State of Illinois (P.O. 34272-60-11-10-88)
i
QUESTIONS PRESENTED
1. Whether Illinois can constitutionally license and regu-
late outpatient surgical facilities in which pregnancy termi-
nations are performed to the same extent it licenses and
regulates outpatient surgical facilities in which pregnan-
cy terminations are not performed.
2. Whether a case or controversy existed with respect
to the challenged statutes and regulations which were not
being enforced by the State of Illinois prior to the filing
of the complaint.
3. Whether statutes and regulations establishing stan-
dards for the construction, maintenance and operation of
outpatient surgical facilities are constitutional as applied
to outpatient surgical facilities in which pregnancy termi-
nations are performed.
4. Whether the federal courts can refuse to give effect
to severability requirements, thereby invalidating stat-
utory and regulatory provisions which are constitutional.
ii
iii
PARTIES TO THE PROCEEDINGS
TABLE OF CONTENTS
PAGE
The defendants in the district court were Bernard J.
Turnock, M.D., M.P.H., Director of the Illinois Depart-
QUESTIONS PRESENTED
i
ment of Public Health; Neil F. Hartigan, Attorney Gen-
PARTIES TO THE PROCEEDINGS
ii
eral of Illinois; Gary L. Clayton, the Director of the
Illinois Department of Registration and Education; and
TABLE OF CONTENTS
iii
Richard M. Daley, State's Attorney of Cook County. Tur-
TABLE OF AUTHORITIES
vi
nock, Hartigan and Clayton were the appellants in the
court of appeals. Daley did not file a notice of appeal.
OPINIONS BELOW
1
JURISDICTION
1
In addition, appellant Stephen F. Selcke, Director of the
Illinois Department of Professional Regulation, is the suc-
CONSTITUTIONAL, STATUTORY AND
cessor in public office to Gary L. Clayton, Director of the
REGULATORY PROVISIONS INVOLVED
2
Illinois Department of Professional Regulation.
STATEMENT OF THE CASE
4
The plaintiffs in the district court and appellees in the
court of appeals were Richard M. Ragsdale, M.D., Mar-
The State Statutes
5
garet Moe, Northern Illinois Women's Center, Sarah Roe
The Evidence Presented
6
and Jane Doe.
Abortion Procedures
8
Enforcement Policies
9
The ASTC Regulations
11
Building Design and Construction Require-
13
ments
The Constitutional Challenge
14
THE QUESTIONS PRESENTED ARE SUB-
STANTIAL
21
A. THE COURT ERRONEOUSLY ASSUMED
JURISDICTION OVER CERTAIN CHAL-
LENGED PROVISIONS WHICH WERE
NOT BEING ENFORCED
21
V
iv
F- Class Certification and Preliminary Injunction
B. THE MAJORITY OPINION ERRONEOUS-
Order of the United States District Court for
LY FOUND THAT THE CHALLENGED
STATUTES AND REGULATIONS VIO-
the Northern District of Illinois, Eastern Divi-
LATE THE CONSTITUTIONAL RIGHT TO
sion, December 11, 1985
109
PRIVACY
24
G-Memorandum Opinion and Order of the United
C. THE MAJORITY OPINION CONFLICTS
States District Court for the Northern District
WITH DECISIONS OF THIS COURT RE-
of Illinois, Eastern Division, November 27,
GARDING SEVERANCE OF PURPORTED
1985
112
LY UNCONSTITUTIONAL PROVISIONS
28
H-Notice of Appeal, November 7, 1988
146
CONCLUSION
30
I- Ambulatory Surgical Treatment Center Act,
111½ III. Rev. Stat. 11 157-8.1, et seq.
149
APPENDIX
J- Health Facilities Planning Act, 111½ III. Rev.
(Separate Volume)
Stat. 11 1151, et seq.
166
APP.
K-Medical Practice Act, 111 III. Rev. Stat. 1 4400-
PAGE
22
193
A-Slip Opinion of the United States Court of
L-77 Illinois Administrative Code, Chapter 1,
Appeals for the Seventh Circuit, March 10,
§ 205, Subchapter b
203
1988
1
B-Judgment of the United States Court of Ap-
peals for the Seventh Circuit, March 10, 1988
102
C-Order of the United States Court of Appeals
for the Seventh Circuit Amending the Slip
Opinion, April 13, 1988
103
D-Amended Order of the United States Court of
Appeals for the Seventh Circuit Denying the
Petition for Rehearing and Suggestion for Re-
hearing En Banc, August 16, 1988
105
E-Order of the United States Court of Appeals
for the Seventh Circuit Denying the Petition
for Rehearing and Suggestion for Rehearing
En Bano, August 12, 1988
107
vi
vii
TABLE OF AUTHORITIES
Minneapolis Star & Tribune Co. v. Minn. Comm'n
of Revenue, 460 U.S. 575 (1983)
26
Planned Parenthood Ass'n v. Ashcroft, 462 U.S.
Cases
PAGE(S)
476 (1983)
10, 27
Abortion Coalition of Mich., Inc. v. Mich. Dep't
Poe v. Ullman, 367 U.S. 497 (1961)
23
of Public Health, 426 F.Supp. 471 (E.D. Mich.
Regan v. Time, Inc., 468 U.S. 641 (1984)
29
1977)
26
Roe v. Wade, 410 U.S. 113 (1973)
15, 18, 19, 24
Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986)
26
Simopoulos v. Virginia, 462 U.S. 506 (1983)
10
Baird v. Department of Public Health, 599 F.2d
1098 (1st Cir. 1979)
25
Thornburgh v. American College of Obstetricians,
476 U.S. 747 (1986)
19
Buckley v. Valeo, 424 U.S. 1 (1976)
29
Village of Oak Lawn v. Marcowitz, 86 Ill.2d 406
Champlin Refining Co. v. Corporation Commis-
(1981)
9, 10, 28
sion, 286 U.S. 210 (1932)
29
Watkins v. Blinzinger, 789 F.2d 474 (7th Cir. 1986)
23
Charles v. Carey, 579 F.Supp. 464 (N.D. III. 1983)
10
Westchester Women's Health Org. v. Whalen, 475
C.I.O. v. McAdory, 325 U.S. 472 (1945)
23
F.Supp. 734 (S.D.N.Y. 1979)
25, 26
City of Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416 (1983)
10, 15, 24
Constitutional Provisions
City of Renton v. Playtime Theatres, Inc., 475 U.S.
U.S. Const. Amend. I
2, 5
41 (1986)
26
U.S. Const. Amend. IV
3,5
Connecticut v. Menillo, 423 U.S. 9 (1975)
24
U.S. Const. Amend. V
3, 5
El Paso & Northeastern R. Co. v. Gutierrez, 215
U.S. 87 (1909)
U.S. Const. Amend. IX
3, 5
29
Green v. Mansour, 474 U.S. 64 (1985)
23
U.S. Const. Amend. XI
3, 23
Hodgson v. Lawson, 542 F.2d 1350 (8th Cir. 1976)
25
U.S. Const. Amend. XIV, Section 1
3, 4, 5
International Harvester Co. v. Deere & Co., 623
F.2d 1207 (7th Cir. 1980)
23
J.N.S., Inc. v. State of Ind., 712 F.2d 303 (7th Cir.
1983)
23
viii
Statutes
28 U.S.C. Section 1343
1
28 U.S.C. Section 2201
1
28 U.S.C. Section 2202
1
IN THE
42 U.S.C. Section 1983
1
Ambulatory Surgical Treatment Center Act,
Supreme Court of the United States
III. Rev. Stat. ch. 111½, pars. 157-8.1 et seq.
:
OCTOBER TERM, 1988
passim
Health Facilities Planning Act,
III. Rev. Stat. ch. 111½, pars. 1151 et seq. passim
BERNARD J. TURNOCK, M.D., M.P.H., Director of
Medical Practice Act,
the Illinois Department of Public Health, et al.,
III. Rev. Stat. ch. 111, par. 4400-22
passim
Appellants,
......
V.
Regulations
RICHARD M. RAGSDALE, M.D., et al.,
Ambulatory Surgical Treatment Center Licensing
Appellees.
Requirements, 77 III. Adm. Code, Ch. 1, Sec-
tion 205, Subchapter 6
passim
On Appeal From The United States
Court Of Appeals For The Seventh Circuit
JURISDICTIONAL STATEMENT
-1-
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Seventh Circuit entered March 10, 1988 is reported
at 841 F.2d 1358 (7th Cir. 1988) and is reproduced at Ap-
pendix A. On August 12, 1988 the defendants' petition
for rehearing and suggestion for rehearing en banc was
denied. (Appendix D, E). The memorandum opinion of the
United States District Court for the Northern District of
Illinois rendered November 27, 1985 is reported at 625
F.Supp. 1212 (N.D. III. 1985) and is reproduced at Ap-
pendix G.
The judgment order of the United States District Court
entered December 11, 1985 is not reported, but is repro-
duced at Appendix F.
JURISDICTION
This action, brought under 28 U.S.C. Sections 2201 and
2202 and 42 U.S.C. Section 1983 challenges the constitu-
tionality of portions of the Illinois Medical Practice Act,
Ambulatory Surgical Treatment Center Act, and Health
Facilities Planning Act. Invoking the jurisdiction of the
District Court under 28 U.S.C. Section 1343 plaintiffs filed
a class action seeking declaratory and injunctive relief.
Subsequent to an evidentiary hearing, the District Court
entered on November 27, 1985 and December 11, 1985 a
preliminary injunction in favor of plaintiffs and enjoined
enforcement of the Acts and rules promulgated thereunder
to the extent any person or facility offers or performs,
or desires to offer or perform first and/or early second
-2-
-3-
trimester abortions or other abortion-related gynecological
U.S. Const. Amend. IV:
procedures.
The right of the people to secure in their persons,
On appeal, the United States Court of Appeals for the
houses, papers, and effects, against unreasonable
Seventh Circuit vacated as moot one portion of the Dis-
searches and seizures, shall not be violated, and no
trict Court's decision, held unconstitutional the other chal-
Warrants shall issue, but upon probable cause, sup-
lenged provisions, and affirmed the remainder of the deci-
ported by Oath or affirmation, and particularly de-
scribing the place to be searched, and the person or
sion. Its judgment was entered on March 10, 1988.
things to be seized.
On August 12, 1988 a majority of the members of the
U.S. Const. Amend. V:
original panel voted to deny the defendants' petition for
No person shall be held to answer for a capital, or
rehearing, and the suggestion for rehearing en banc failed
otherwise infamous crime, unless on a presentment
by an equally divided court. Judges Wood, Posner, Coffey,
or indictment of a Grand Jury, except in cases aris-
Manion, and Kanne voted to grant rehearing en banc. (Ap-
ing in the land or naval forces, or in the Militia, when
pendix D, E).
in actual service in time of War or public danger; nor
shall any person be subject for the same offence to
Defendants Turnock, Hartigan and Selcke filed their
be twice put in jeopardy of life or limb; nor shall be
Notice of Appeal in the Court of Appeals on November
compelled in any criminal case to be a witness against
7, 1988. (Appendix H). Jurisdiction of the Supreme Court
himself, nor be deprived of life, liberty, or property,
of the United States to review this judgment by appeal
without due process of law; nor shall private property
is conferred by 28 U.S.C. Section 1254(2).
be taken for public use, without just compensation.
U.S. Const. Amend. IX:
The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage
CONSTITUTIONAL, STATUTORY AND
others retained by the people.
REGULATORY PROVISIONS INVOLVED
U.S. Const. Amend. XI:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, com-
Constitutional Provisions
menced or prosecuted against one of the United
U.S. Const. Amend. I:
States by Citizens of another State, or by Citizens
Congress shall make no law respecting an establish-
or Subjects of any Foreign State.
ment of religion, or prohibiting the free exercise
U.S. Const. Amend. XIV, Section 1:
thereof; or abridging the freedom of speech, or of the
All persons born or naturalized in the United States,
press; or the right of the people peaceably to assem-
and subject to the jurisdiction thereof, are citizens
ble, and to petition the Government for a redress of
of the United States and of the State wherein they
grievances.
reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any
-4-
-5-
person of life, liberty, or property, without due process
the performance of first and second trimester abortions.
of law; nor deny to any person within its jurisdic-
Specifically, plaintiffs alleged that the challenged statutes
tion the equal protection of the laws.
and regulations were violative of rights secured by the
First, Fourth, Fifth, Ninth and Fourteenth Amendments
State Statutes
to the United States Constitution. Plaintiffs contended
Ambulatory Surgical Treatment Center Act,
that the "scheme" as applied singles out for discrimina-
III. Rev. Stat. ch. 111½, pars. 157-8.1 et seq.
tory treatment facilities in which abortions are performed
(Reprinted at Appendix I)
and substantially inhibits a woman from exercising her
Health Facilities Planning Act,
right to choose to have an abortion under medically safe
III. Rev. Stat. ch. 111½, pars. 1151 et seq.
and reasonably inexpensive conditions. Plaintiffs further
(Reprinted at Appendix J)
averred that the challenged "scheme" impermissibly pre-
Medical Practice Act,
vented physicians from implementing a woman's decision
III. Rev. Stat. ch. 111, par. 4400-22
to choose abortion in that the "scheme" mandated that
(Reprinted at Appendix K)
physicians and facilities comply with allegedly irrational
and arbitrary requirements. (Compl., pars. 1-4).
Regulations
Ambulatory Surgical Treatment Center
On September 20, 1985 plaintiff Richard M. Ragsdale,
Licensing Requirements, 77 III. Adm. Code, Ch. 1,
M.D. filed a motion for preliminary injunction asking the
Section 205, Subchapter b
district court to enjoin defendants from enforcing the chal-
(Reprinted at Appendix L)
lenged statutes and regulations. Plaintiff Ragsdale claimed
that unless the statutes and regulations were enjoined he
would be unable to perform abortion services after De-
STATEMENT OF THE CASE
cember 31, 1985.
The State Statutes
Plaintiff Ragsdale is a medical doctor licensed in Illinois,
The Ambulatory Surgical Treatment Center Act [herein-
who performs abortions as part of his medical practice.
after ASTC Act] became law in 1973. (Appendix I). The
Plaintiff Northern Illinois Women's Center is an Illinois
stated purpose of the ASTC Act is to provide for the pro-
corporation which provides abortion services to women
tection of the public health through the establishment and
in Rockford, Illinois. Plaintiff Margaret Moe is a regis-
enforcement of standards for the construction and opera-
tered nurse and the sole owner of a medical facility in
tion of ASTCs. ASTCs by definition are facilities which
Cook County, Illinois. Plaintiffs Sarah Roe and Jane Doe
are primarily devoted to the performance of surgical pro-
are female citizens of child-bearing age who had abortions
cedures.¹
in the past and may seek abortions in the future.
1 In addition to ASTCs, the Illinois Department of Public Health
Plaintiffs claimed that the challenged statutes form a
is responsible for licensing and surveying numerous other facilities
tripartite regulatory scheme which impermissibly restricts
(Footnote continued on following page)
-6-
-7-
The Illinois Health Facilities Planning Act [HFP Act]
ASTCs, 22 indicated that some pregnancy terminations
became law in 1974. (Appendix J). The purpose of the
HFP Act is to attempt to obtain a comprehensive health
would be performed.
care delivery system involving all types of health care
For the 12 years prior to trial Dr. Ragsdale was the
facilities, services and equipment. The HFP Act also rep-
primary abortion provider in northwestern Illinois. Dr.
resents an attempt to restrain the rising costs of health
Ragsdale is well known as a provider of abortion services
care by preventing unnecessary construction and duplica-
in the Rockford area. In 1973 Dr. Ragsdale opened the
tion of unneeded health care facilities. (App. 166). Types
plaintiff Northern Illinois Women's Center. The Center
of health care facilities included within the HFP Act's pro-
primarily provides first and early second trimester abor-
visions include those licensed pursuant to the Health Main-
tion services. Dr. Ragsdale performs approximately 3500
tenance Organization Act, the ASTC Act, the Nursing
abortions per year at his facility. In the 12 years prior
Home Care Reform Act of 1979, the Hospital Licensing
to trial, Dr. Ragsdale had performed in excess of 42,000
Act, and kidney disease treatment centers. (App. 167).
abortions.
The Medical Practice Act [MPA] provides the licensure
At the time of trial, Dr. Ragsdale's facility had been
requirements of physicians in Illinois and prohibits the
licensed as an ASTC in Illinois for 12 years. The facility
practice of medicine by any person not holding a valid
contained variations from the ASTC regulations. Any such
license. III. Rev. Stat. ch. 111, par. 4401 et seq. (1983).
variances had not substantially affected renewal of Dr.
Now, par. 4400-1 et seq. of the Medical Practice Act of
Ragsdale's license for those 12 years. Dr. Ragsdale was
1987. (Appendix K).
then informed by his landlord that his lease would not
be renewed. The nonrenewal of the lease was a result
The Evidence Presented
of the landlord's decision to expand and renovate its build-
ing and desire to have as tenants doctors who admitted
At the time of trial, there were 42 licensed ASTCs in
patients to Rockford Memorial Hospital. Dr. Ragsdale
Illinois. The types of surgical procedures performed in li-
therefore planned to move his facility. The Illinois Depart-
censed ASTCs include plastic surgery, removal of cysts
ment of Public Health preliminarily approved his plans
and tumors, pregnancy terminations, tubal ligations, hernia
for relocation. In addition, Dr. Ragsdale submitted an ap-
repairs and rhinoplasty repairs of the nose. Some surgical
plication for a certificate of need.
procedures performed in ASTCs, including abortions, are
done 80 under a general anesthesia. Of the 42 licensed
On March 14, 1985 Comprehensive Health Planning of
Northern Illinois (CHPNI) held a public meeting regard-
ing the proposed relocation. CHPNI is a federally funded
1 continued
organization which is a separate entity from the HFP
which provide health or medical services. These facilities include
Board. It is responsible for completing an independent re-
blood banks, clinical laboratories, alcohol treatment centers, hos-
view of a proposed project.
pitals, hospices, and nursing homes. III. Rev. Stat. ch. 111½, pars.
601-101 et seq.; 621-101 et seq.; 2301 et seq.; 142 et seq.; 6101 et
Dr. Ragsdale attended the CHPNI meeting. There were
seq.; and 4151-101 et seq.
in Dr. Ragsdale's opinion some "rational" discussions at
-8-
-9-
the meeting, and some statements supporting the need
Abortions, more than any other types of procedures, re-
issue. There were, in addition, more statements that there
quire much experience and practice. It is not a procedure
was no need for the facility. The meeting then degener-
which can be done well after a few hundred or even a
ated into a shouting match over abortion.
few thousand procedures.
Dr. Ragsdale was subsequently informed by CHPNI
There are several factors which affect the safety of first
that his proposal met the review requirements, including
trimester and early second trimester abortion procedures.
the need requirement. However, the lease which Dr. Rags-
One factor is the skill, experience and professional integri-
dale had procured was withdrawn by the lessor.
ty of the physician performing the abortion. Other factors
include the duration of the pregnancy; choice of abortion
In order to aid his testimony at trial, Dr. Ragsdale de-
technique; the existence of sterile conditions; the availabil-
termined what it would cost on a rough basis and in broad
ity of qualified staff and appropriate equipment; the avail-
terms to comply with the ASTC Act and regulations at
ability of emergency facilities; and the type of anesthesia
his new facility. Dr. Ragsdale first estimated the cost of
which is used.
relocation of his practice as a result of the loss of his
lease, and without complying with the ASTC Act and
Enforcement Policies
regulations. Dr. Ragsdale concluded that the cost would
be an additional $22.45 per patient per year.
In 1981, the Supreme Court of Illinois rendered its deci-
sion in Village of Oak Lawn v. Marcowitz, 86 Ill.2d 406
Dr. Ragsdale also prepared an estimate which repre-
(1981). In Marcowitz the court considered a village ordi-
sented his guess as to what it would cost in addition to
nance which had adopted the definition of an ASTC that
the $22.45 in order to bring his new facility into "reason-
was found in the State ASTC Act. The Supreme Court
able compliance" with the ASTC regulations. Dr. Ragsdale
of Illinois held that the ordinance was unconstitutional to
estimated that the cost would be an additional $22.21 per
the extent that it defined an ASTC to be any facility in
patient per year.
which abortions are performed, irrespective of whether
devoted primarily to that purpose. Marcowitz, 86 III.2d
Abortion Procedures
at 420. The court then severed that portion of the defini-
It is uncontroverted that abortions are surgical pro-
tion of an ASTC from the remainder of the ordinance.
cedures. According to the plaintiffs' expert witnesses,
Four days after Marcowitz was decided, the Illinois De-
there are few surgical procedures given so little atten-
partment of Public Health, pursuant to a written policy,
tion and so underrated in its potential hazard as abor-
ceased to enforce the identical abortion specific portion
tion. It is also agreed that all physicians licensed under
of the definition of an ASTC found in the State statute.
the MPA do not have the qualifications, training and ex-
Since 1981, therefore, licensure and enforcement proceed-
perience to perform safe first and early second trimester
ings were applicable only to those facilities primarily de-
abortions.
voted to the performance of surgical procedures.
Plaintiffs' expert maintained that medical education in
this country has paid little attention to abortion services.
-10-
-11-
In 1982, United States District Judge Charles P. Kocoras
193) was not being enforced by the Department to restrict
enjoined the Illinois Department of Public Health from
the performance of all abortions to licensed facilities.
enforcing Section 4 of the Illinois Abortion Law of 1975
and "any related regulation." Section 4 was a second tri-
The evidence submitted regarding the State's enforce-
mester hospitalization requirement. The Department inter-
ment policies in light of various decisions was not contro-
preted this ruling as also enjoining the enforcement of
verted.
ASTC Regulation Section 205.740 which prohibited the
performance of second trimester abortions in ASTCs.
The ASTC Regulations
(App. 222).
There are a total of 59 ASTC Regulations (excluding
In 1983, this Court decided the cases of City of Akron
subsections). Of that total very few are abortion specific.
v. Akron Center For Reproductive Health, Inc., 462 U.S.
Of the abortion specific regulations, as previously noted,
416 (1983); Planned Parenthood Ass'n v. Ashcroft, 462
two were not being enforced prior to the filing of plain-
U.S. 476 (1983); and Simopoulos v. Virginia, 462 U.S. 506
tiffs' complaint.
(1983). The decision in Akron reinforced the earlier or-
Plaintiffs' experts testified generally that the ASTC
der, and the Department's policy of not enforcing Section
regulations were not medically necessary for the perform-
205.740 of the Regulations therefore continued.
ance of a safe first or early second trimester abortion.
In December of 1982 or January of 1983 Dr. Ragsdale
Certain components of the regulations, however, were ac-
was informed that Section 205.740 of the ASTC Regula-
knowledged to be consistent with safe and acceptable stan-
tions was no longer being enforced. As a result, Dr. Rags-
dards of medical care. Moreover, some regulations were
dale began to perform second trimester abortions at his
described as belaboring the obvious, the kind of thing any
facility.
competent practitioner would do, and superfluous.
In 1983, in Charles v. Carey, 579 F.Supp. 464 (N.D. III.
For example, Section 205.240 of the regulations provides
1983), Section 10 of the Illinois Abortion Law of 1975 (the
that the ASTC is to formulate a written policies and pro-
reporting requirement) was permanently enjoined. As a
cedures manual. (App. 213). Dr. Ragsdale described this
result Section 205.760 (App. 223), an abortion specific
requirement as standard medical and administrative prac-
reporting requirement of the ASTC Regulations was no
tice.
longer enforced. Dr. Ragsdale was informed that this sec-
Likewise, Section 205.230(a) of the regulations provides
tion was no longer being enforced.
that the management of a licensed ASTC is to appoint
The Illinois Department of Registration and Education
a qualified consulting committee. (App. 211). Dr. Ragsdale
(now Department of Professional Regulation) has absolute
testified that this regulation is "belaboring the obvious."
prosecutorial discretion in the initiation of disciplinary
Similarly, the plaintiffs' expert testified that either the
actions under the Medical Practice Act. Because of the
medical director or principal physician of an abortion facil-
Marcowitz decision and other decisions concerning the
ity should have staff privileges at the nearest hospital,
abortion issue, the challenged portion of the MPA (App.
or there should be a hospital transfer agreement. Section
-12-
-13-
205.540(c) of the regulations provides that there should
certain surgical procedures. (App. 216-17). Section 205.730(a)
be written documentation of either a transfer agreement,
provides that prior to obstetrical procedures blood Rh fac-
a statement that the medical director has admitting privi-
tor is to be determined and that prior to performing an
leges, or that each staff physician, podiatrist or dentist
abortion procedure the diagnosis of pregnancy is to be
has admitting privileges. (App. 218).
established. (App. 221).
Subpart G of the regulations sets forth additional require-
It is similarly agreed that after every abortion, removed
ments for facilities in which obstetrical/gynecological pro-
tissue should be examined. One of the purposes of the
cedures are performed. (App. 220-23). This section applies
pathology report is to confirm pregnancies in early stages.
to abortions as well as other gynecological and obstetric
Another purpose is to ensure that fetal parts are present
procedures. Plaintiffs' expert testified that there are
and to be able to alert patients to the possibility of an
aspects of Subpart G which are consistent with good stan-
ectopic pregnancy. Section 205.530(c) of the ASTC regula-
dards of medical practice.
tions merely provides that all tissues removed during
The American College of Obstetricians and Gynecologists'
surgery are to be examined by a consulting pathologist.
Standards for Obstetrie-Gynecologic Services, Sixth Edi-
(App. 217).
tion [ACOG standards], provide that ambulatory care facil-
ities for abortion services should meet the same standards
Building Design and Construction Requirements
of care as for other surgical procedures. Section 205.710
Subparts (I) and (J) of the ASTC regulations set forth
of the ASTC regulations contains an essentially identical
various building design, construction standards, and physi-
provision. (App. 220). The parties' expert witnesses agreed
cal and mechanical requirements. (App. 225-44). Plaintiffs'
with this provision.
expert, who did not consider himself a building design,
Likewise, plaintiffs' expert testified that counseling is
construction, or mechanical expert testified that the pro-
an indispensable part of a thorough preoperative evalua-
visions of Subparts (I) and (J) are not medically necessary
tion and preparation of a patient for an abortion pro-
for the operation of a facility in which first and early sec-
cedure, and that counseling should include a discussion
ond trimester abortions are to be performed. The defen-
of the alternatives for dealing with pregnancy. Section
dants introduced evidence demonstrating that many of
205.730(b) of the regulations provides that counseling is to
these regulations reflect common, accepted and standard
be provided prior to obstetrical/gynecological procedures
practices.
following diagnosis of pregnancy. (App. 221).
For example, Section 205.1510 of the regulations pro-
It is agreed that routine laboratory work for abortion
vides that after building heating, ventilating and air condi-
procedures should include a urine screening exam for preg-
tioning systems are installed they shall be tested and
nancy, a hematocrit or hemoglobin, an Rh screening test,
balanced to ensure that they are in proper working con-
dip stick urinalysis and for black patients a sickle cell test.
dition. (App. 240). The regulation also provides that upon
Section 205.520(b) of the regulations simply provides that
completion of the facility, the owner of the ASTC is to
a hemoglobin or hematocrit is to be performed prior to
be provided with operating and maintenance instructions.
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Section 205.1520 provides, among other things, for insula-
Next, the district court determined that the threatened
tion in the facility and in certain situations for a flame
harm to plaintiffs outweighed any possible harm to defen-
spread rating in accordance with the National Fire Pro-
dants. (App. 134).
tection Association. (App. 240-41). These requirements
Third, the district court considered the merits of plain-
were described as standard for health facilities.
tiffs' claims. It utilized the trimester standard established
Similarly, various regulations dealing with hot water
in Roe v. Wade, 410 U.S. 113 (1973), as interpreted in City
systems, ventilation systems, and plumbing fixtures were
of Akron v. Akron Center for Reproductive Health, 426
demonstrated to be standard requirements.
U.S. 416 (1983) and other cases, to provide the legal frame-
work for the constitutional evaluation of the challenged
statutes and regulations. (App. 134-35).
The Constitutional Challenge
The district court noted that State regulations having
The trial conducted by the district court was held on
no significant impact on a woman's exercise of her abor-
November 18-22 and 26, 1985. On November 27, 1985 and
tion right during the first trimester may be permissible
December 11, 1985 the district court entered orders grant-
where justified by important State health objectives. It
ing Dr. Ragsdale's motion for preliminary injunction.
held, however, that Roe does not stand for the proposi-
In the November 27, 1985 Order, the district court found
tion that general medical regulations which apply to the
that plaintiffs had prevailed on all four traditional factors
performance of first and early second trimester abortions
the courts must consider in ruling on a motion for prelim-
are per se constitutional. (App. 136). Thus, the district
inary injunction. (App. 129). First, the district court de-
court concluded that even general regulations which bur-
cided that plaintiffs would suffer irreparable harm with-
den a woman's right to choose to terminate her pregnancy
out an injunction and that no adequate remedy at law
during the first trimester would have to meet the com-
existed. Specifically, it found that the challenged statutes
pelling governmental interest requirement. In addition, the
and regulations have the effect of raising the cost and
district court decided that a regulation which burdens a
limiting the availability of abortions. (App. 129). In addi-
woman's right to choose to terminate her pregnancy dur-
tion, the district court found that the challenged provi-
ing the early second trimester must be reasonably related
sions (1) force complying facilities to raise their fees,
to the preservation and protection of maternal health.
possibly beyond the economic means of some women; (2)
(App. 137).
discourage other non-complying facilities from offering
Applying these standards to this case, the district court
abortion services; and (3) make it difficult, if not impossi-
found that plaintiffs had demonstrated that the statutory
ble, for current abortion facilities to move or new abor-
and regulatory scheme places a burden on a woman's
tion facilities to be constructed. (App. 130). Further, the
right to choose to terminate her pregnancy during the
district court rejected defendants' argument that plain-
first and early second trimester. Specifically, it found that
tiffs could not be irreparably harmed by those statutes
the challenged provisions (1) increase the cost and de-
and regulations which are not being enforced. (App. 133).
crease the availability of abortions and (2) may delay the
effectuation of a woman's decision to abort. (App. 137).
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Further, the district court found that defendants had
In addition, the district court specified that in deciding
failed to produce any evidence of a compelling or even
whether a health care facility was devoted primarily to
rational basis for the challenged statutes and regulations.
the performance of surgical procedures, and therefore re-
It noted that defendants had shown that certain regula-
quired to be licensed under the ASTC Act, the Illinois
tions are consistent with accepted medical practice, but
Department of Public Health is not prohibited from count-
that such showing is not equivalent to a demonstration
ing the number of abortion procedures performed in the
that the challenged provisions are medically necessary.
facility. The Department cannot, however, enforce the
Thus, the district court found a reasonable likelihood that
regulations as to the abortion procedures performed-but
plaintiffs will succeed on the merits. (App. 137-38).
can enforce the regulations as to other procedures per-
Lastly, the district court determined that the public in-
formed at the facility.
terest would be served by the issuance of the preliminary
Defendants appealed from the district court's orders to
injunction. (App. 139).
the United States Court of Appeals for the Seventh Cir-
The defendants were preliminarily enjoined and restrained
cuit. On March 10, 1988 that court rendered its decision
from enforcing the challenged provision of the Medical
in this matter. (App. 1). The majority opinion affirmed,
Practice Act (MPA); the Ambulatory Surgical Treatment
with one exception, the district court's entry of a pre-
Center Act (ASTC) and the rules and regulations promul-
liminary injunction. The exception is the challenge to one
gated thereunder; and the Health Facilities Planning Act
ASTC regulation-a second trimester hospitalization re-
(HFP): to the extent any person or facility offers or per-
quirement-which the majority held was not being en-
forms, or desires to offer or perform first and/or early
forced, was moot, and should have been dismissed. Judge
second trimester abortions or other abortion-related gyne-
Coffey submitted a lengthy dissent from the majority
cological procedures. (App. 110-11).
opinion. (App. 34-80).
The district court also certified the following classes:
The majority opinion first considered whether certain
(a) a plaintiff class of physicians and surgeons who per-
of plaintiffs' challenges have been mooted by the State's
form or desire to perform abortions in Illinois; (b) a plain-
policy of nonenforcement. It noted that the voluntary ces-
tiff class of all Illinois women of child-bearing age who
sation of putatively illegal conduct ordinarily will not moot
desire or may desire an abortion sometime in the future;
a controversy and prevent its adjudication by a federal
and (c) a defendant class of all State's Attorneys in Illi-
court. (App. 10-11). Further, the majority stated that such
cessation does render a controversy moot when there is
nois. (App. 110).
no reasonable expectation that the putatively illegal con-
On December 11, 1985 the district court orally clarified
duct will be repeated and that there are no remaining
portions of its ruling. The district court specified that the
effects of the alleged violation. (App. 11).
Illinois Department of Public Health is not enjoined from
Applying these principles to this case, the majority
regulating ASTCs in which abortions are performed or
desired to be performed to the extent that such ASTCs
found the challenge to the second trimester hospitaliza-
are performing surgical procedures other than abortions.
tion requirement is moot because enforcement ceased in
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1983. (App. 11-13). It held, however, that the challenge
voted to surgery, those regulations should be reviewed
to the reporting requirement of the ASTC Act and regula-
under a different standard than if they had singled out
tions is not moot because the State did not produce pre-
abortions. (App. 21). In addition, it decided that the dis-
existing documentation of the nonenforcement policy.
trict court's findings that the challenged provisions sub-
(App. 13). Finally, it held that the challenge to the appli-
stantially burden the effectuation of the abortion decision
cation of the ASTC Act and regulations to first trimester
were not clearly erroneous. (App. 22).
abortions is not moot. It noted that those requirements
The first facet of the challenged statutes and regula-
were no longer applied to the occasional abortion provider,
tions which the majority considered was the requirement
but that such requirements were applied to doctors who
that facilities performing abortions be licensed. (App. 23).
exclusively perform first trimester abortions. Further, the
It held that under Roe the State may not require separate
majority stated that the evidence on this point-testimony
licensure of facilities primarily devoted to performing abor-
from the legal counsel for the state agency charged with
tions during the first trimester. (App. 24). Once the licens-
enforcement authority that the challenged provision of the
ing requirement falls, the majority reasoned that the re-
MPA was not being enforced-was too ambiguous. (App.
maining requirements fall with it. (App. 25).
13-14).
Nevertheless, the majority considered and ruled upon
In considering the merits of the case, the majority opin-
the constitutionality of three abortion-specific regulations.
ion, like the district court, relied upon the "trimester"
First, it construed section 205.730(a)(2) (App. 221) to un-
approach of Roe v. Wade, 410 U.S. 113 (1973). (App. 15).
constitutionally require the physician who is to perform
It analyzed various decisions of this Court and stated that
the abortion to also perform a pregnancy test, even if
where first trimester abortions are involved, not only
such test had previously been done by another physi-
must the impact of the challenged regulations be insignifi-
cian. (App. 27). Second, the majority held that section
cant in terms of the woman's exercise of her right, but
205.730(b)(3) (App. 221-22) invalidly requires counseling to
also the regulation must be justified by important state
include a discussion of alternatives, citing Thornburgh v.
health objectives. (App. 17).
American College of Obstetricians, 476 U.S. 747 (1986).
The majority found that statement consistent with exist-
(App. 27). Third, it construed section 205.730(b)(2)(D) (App.
ing Seventh Circuit precedent which holds that once such
221) to unconstitutonally preclude the performing physi-
regulations are shown to have more than a de minimus
cian from providing the counseling. (App. 28-29).
impact on the abortion decision, the government must
The generally applicable regulations regarding physical
show a compelling basis for the law, i.e., that the burden
plant, equipment, and staffing were also struck down by
is not undue or unjustifiable. (App. 17). Thus, the major-
the majority. It concluded that those provisions impose
ity opinion concluded that the district court's application
a substantial burden and are not justified by health ob-
of a "medical necessity" standard was consonant with the
jectives. (App. 29-31).
legal framework applicable to this case. (App. 18). Fur-
In addition, the majority found the "certificate of need"
ther, the majority rejected defendants' argument that be-
proceeding of the Health Facilities Planning Act unconsti-
cause the regulations apply to all facilities primarily de-
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tutional. It held the State's interest in preventing wasteful
THE QUESTIONS PRESENTED
duplication of resources to be insufficient in this context.
ARE SUBSTANTIAL
(App. 31-32).
Finally, the majority rejected defendants' request to
sever those provisions which were held unconstitutional.
This appeal is of exceptional importance because the ma-
It reasoned that severance was not appropriate because
jority opinion, under the guise of protecting a woman's
the licensure provision had been invalidated. (App. 32).
constitutional right to privacy, has exempted outpatient
Further, it found that the challenged provisions were "so
surgical facilities in which abortions are performed from
riddled with exceptions resulting from judicial decisions
general licensure and regulatory provisions. In SO doing,
and nonenforcement policies as to be unintelligible." Un-
the majority emasculates the duty and authority of the
der those circumstances, the majority found that it could
State of Illinois to protect the health, safety, and welfare
not untangle the constitutional from the unconstitutional
of its citizens by licensing and regulating outpatient surgi-
provisions. (App. 32-33).
cal facilities in which first or early second trimester abor-
The dissenting opinion finds that the States are author-
tions are performed in the same manner that other surgi-
ized under Roe to apply the same licensing standards to
cal facilities are regulated.
abortion facilities as those applied to facilities perform-
Further, the majority opinion is in conflict with deci-
ing similar surgical procedures. (App. 35). Under that stan-
sions of this Court with respect to the jurisdictional issues
dard, the dissent would enjoin and sever the challenged
presented in this case. The opinion is also in conflict with
portion of the Medical Practice Act and the abortion spe-
decisions of this Court and other courts of appeals with
cific language of par. 157-8.3(A) of the ASTC Act. (App.
respect to the authority of the State to license and regu-
38). It argues that the States are free to regulate ambu-
late outpatient surgical facilities in which abortions are
latory surgical treatment centers, including those perform-
performed. Finally, the refusal of the majority opinion to
ing abortions, as long as the abortions are not singled out
sever any purportedly unconstitutional provisions is in con-
from other, similar surgical procedures, subject to the ra-
fliet with decisions of this Court.
tional basis test governing social and economic legislation.
Under the rational basis test, moreover, the dissent finds
A.
the ASTC Act and IHFP Act constitutional. (App. 64).
THE COURT ERRONEOUSLY ASSUMED JURISDIC-
In evaluating the abortion-specific statutes and regulations
TION OVER CERTAIN CHALLENGED PROVISIONS
under the strict scrutiny test, the dissent would uphold
WHICH WERE NOT BEING ENFORCED.
all provisions but one [section 205.730(b)(2)(D)]. (App. 73).
At trial, the defendants introduced evidence that due
The dissent finds that the challenged provisions neither
to various court decisions which pre-date the complaint
burden the abortion decision or its effectuation and are
in this matter, certain challenged provisions were not be-
justified by important health objectives. (App. 80).
ing enforced by the State. Those provisions are: the abor-
tion specific language of par. 157-8.3 of the ASTC Act
(App. 149-50); Section 205.740 (App. 222) (prohibition of
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-23-
second trimester abortions in ASTCs) and 205.760 (App.
whether a justiciable controversy exists. International
223) (abortion specific reporting requirement) of the ASTC
Harvester Co. v. Deere & Co., 623 F.2d 1207, 1210 (7th
Regulations; and par. 4400-22 of the MPA. (App. 193). This
Cir. 1980). Even where fundamental rights are allegedly
evidence was not contradicted.
involved, "a litigant must establish a more immediate
threat than simply a general policy of enforcing laws."
Nonetheless, the majority held with respect to the re-
J.N.S., Inc. v. State of Ind., 712 F.2d 303, 305 (7th Cir.
porting requirement of Section 205.760 that the State's
1983) (lack of justiciable controversy found in challenge
position of nonenforcement is "asserted only in this litiga-
by seller of sexually explicit materials to state civil RICO
tion." This conclusion is clearly erroneous. The evidence
statutes). Thus, the courts should not pass on the constitu-
reveals that this provision has not been enforced since
tionality of challenged provisions which are not being en-
1983. With respect to the challenged provision of the
forced. Poe v. Ullman, 367 U.S. 497, 507 (1961) (lack of
MPA, the majority held that the evidence of nonenforce-
justiciable controversy found in challenge to prohibition
ment is "equivocal." This conclusion is also erroneous.
against provision of contraceptive advice and use of
Legal counsel to the Department of Registration and Edu-
contraceptive devices); C.I.O. v. McAdory, 325 U.S. 472,
cation (now Department of Professional Regulation) testi-
475 (1945) (lack of justiciable controversy found in light
fied that based upon various decisions in the abortion
of agreement not to enforce challenged state law).
area, this section was not being enforced. The plaintiffs
did not introduce any evidence to the contrary.
The majority's assumption of jurisdiction over the unen-
forced provisions in this case is not only in conflict with
The defendants argued below that in light of the policies
the foregoing decisions regarding justiciability standards,
of nonenforcement which were articulated by the regula-
but also with certain decisions governing the jurisdictional
tory agencies and entered into evidence, plaintiffs had not
bar created by the Eleventh Amendment. That amendment
presented a justiciable controversy as to certain chal-
limits the power of federal courts to grant relief in cases
lenged provisions. However, the majority opinion utilized
where there are no ongoing violations of federal law.
a mootness analysis with respect to those nonenforced pro-
Green v. Mansour, 474 U.S. 64, 71 (1985). That limita-
visions. The majority concluded that plaintiffs' challenge
tion is applicable even in those instances where mootness
to the second trimester hospitalization requirement (ASTC
is at issue. Watkins v. Blinzinger, 789 F.2d 474, 484 (7th
Regulation Section 205.740) (App. 222) was moot. The chal-
Cir. 1986). Thus, even if an underlying claim is not moot,
lenges to the other unenforced provisions, however, were
the Eleventh Amendment bars further proceedings in fed-
not found to be moot.
eral court where there is no continuing conduct the State
Preliminarily, however, a mootness analysis is not appro-
must change to comply with federal law. Id. According-
priate in this context. Mootness issues arise when a chal-
ly, the majority's assumption of jurisdiction over unen-
lenged policy changes after the commencement of litiga-
forced provisions is in conflict with decisions governing
tion. Here, the enforcement policies are based on court
justiciability standards and with decisions dealing with
decisions and determinations which pre-date this lawsuit.
Eleventh Amendment standards because there is no on-
going violation of federal law.
It is axiomatic that the court must look to the state
of affairs as of the filing of the complaint in determining
-24-
-25-
B.
performed under conditions that insure maximum safety."
THE MAJORITY OPINION ERRONEOUSLY FOUND
(App. 149).
THAT THE CHALLENGED STATUTES AND REGULA-
TONS VIOLATE THE CONSTITUTIONAL RIGHT TO
Thus, two other courts of appeals have upheld licensing
PRIVACY.
standards of outpatient surgical facilities in which preg-
nancy terminations are performed. Baird v. Department
The majority opinion affirmed the district court's exemp-
of Public Health, 599 F.2d 1098, 1102 (1st Cir. 1979)
tion of abortion procedures from the licensure and regu-
("There is room under Roe for states to apply the same
latory provisions which generally apply to outpatient
licensing standards to abortion facilities as they apply to
surgical facilities. In addition, the majority held that "the
like facilities performing medically analogous procedures.");
State may not require separate licensure of facilities pri-
Hodgson v. Lawson, 542 F.2d 1350, 1358 (8th Cir. 1976)
marily devoted to performing abortions." The majority
("A state can impose the same regulations on a clinic, spe-
opinion is in conflict with decisions of this Court and other
cifically built to perform abortions during the first tri-
courts of appeals as to the authority of the State to li-
mester, that are imposed on other clinics that perform
cense and regulate outpatient surgical facilities in which
surgical procedures requiring approximately the same
pregnancy terminations are performed. The State has the
degree of skill and care as the performance of first tri-
duty and authority to license and regulate such facilities
mester abortions.").
in the same manner as facilities in which other outpatient
surgical procedures are performed.
In this case, the HFP Act and the ASTC Act, as en-
forced, are abortion-neutral and are applicable to all li-
This Court has consistently held, even with respect to
censed ASTCs, irrespective of the types of surgical pro-
first trimester abortions, that the State has an interest
cedures performed. These statutes were clearly enacted
in making sure that certain factual assumptions made in
to further the State's interests in regulating the ever in-
Roe v. Wade, 410 U.S. 113 (1973) continue to exist. As
creasing number of outpatient surgical facilities. The State
explained in City of Akron v. Akron Center for Reproduc-
has responsibilities to its citizens to insure that medical
tive Health, Inc., 462 U.S. 416, 430 n.12 (1983):
procedures performed at these facilities are performed un-
Of course, the State retains an interest in ensuring
der circumstances enhancing their safety. Further, the
the validity of Roe's factual assumption that "the
State can legitimately seek to establish a comprehensive
first trimester abortion [is] as safe for the woman as
and less costly health care delivery system. Those re-
normal childbirth at term," an assumption that "holds
true only if the abortion is performed by medically
sponsibilities do not cease when an abortion is the surgical
competent personnel under conditions insuring maxi-
procedure which is to be performed.
mum safety for the woman." Connecticut v. Menillo,
In addition, the majority rejected the argument that
423 U.S. 9, 11, 46 L.Ed.2d 152, 96 S.Ct. 170 (1975)
abortion-neutral regulations should be scrutinized under
(per curiam).
a different standard than abortion-specific regulations. De-
The ASTC Act seeks to effectuate that interest by "assur-
fendants maintain that such argument is clearly supported
ing that all medical procedures, including abortions, are
by the two previously cited opinions from the First and
Eighth Circuit Courts of Appeals. Accord, Westchester
-26-
-27-
Women's Health Org. v. Whalen, 475 F.Supp. 734 (S.D.
N.Y. 1979) (requirements governing "diagnostic and treat-
ity opinion states that Dr. Ragsdale's estimated com-
ment centers" applicable to facilities performing first tri-
pliance with the regulations would entail a per patient
mester abortions); Abortion Coalition of Mich. Inc. v.
cost of between $25 and $40 (App. 22), the actual testi-
Mich. Dep't of Public Health, 426 F.Supp. 471 (E.D. Mich.
mony was that reasonable compliance would only result
1977) (requirements for "free standing surgical outpatient
in an estimated $25.21 per patient fee increase. That in-
facilities" applicable to facilities performing first trimester
crease would be reduced to $10.90 after two years and
abortions).
$3.40 after five years due to the retirement of certain
debts. This increase is de minimis and did not sustain
The argument that abortion-neutral regulations should
plaintiffs' burden of proof even under the standards found
be scrutinized under a less exacting standard than abor-
applicable by the majority. (App. 23).
tion-specific regulations is also supported by decisions of
this Court in other contexts. City of Renton v. Playtime
For example, in Planned Parenthood Ass'n v. Ashcroft,
Theatres, Inc., 475 U.S. 41, 46-47 (1986) (standards under
462 U.S. 476 (1983), this Court considered the impact on
First Amendment for "content-based" and "content-neu-
the woman's exercise of her right to decide whether to
tral" zoning regulations); Minneapolis Star & Tribune Co.
have an abortion caused by the cost of a State required
v. Minn. Comm'n of Revenue, 460 U.S. 575, 582-83 (1983)
pathology report. This Court held that the estimated cost
(standards under First Amendment for general and special
of $19.40 per patient did not "significantly burden a preg-
taxes as applied to the press). Accord, Arcara v. Cloud
nant woman's abortion decision." Id. at 490.
Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 3177 (1986)
Similarly, in the instant matter, plaintiffs' cost estimates
(First Amendment is not implicated by the enforcement
did not establish a "sufficiently substantial" interference
of a public health regulation of general application against
with a pregnancy termination decision. Thus, the lower
the physical premises in which sexually explicit books and
courts erred in applying a strict scrutiny standard to the
magazines are sold). Thus, defendants maintain that the
challenged provisions, and in determining that those pro-
lower courts applied an erroneous legal standard to the
visions were invalid under that standard.
abortion-neutral provisions.
Even if the strict scrutiny test was correctly determined
to apply, the majority erred in determining that plain-
tiffs had established a sufficiently substantial interference
with the abortion decision. The majority opinion misappre-
hended the testimony regarding the purported cost of
2 continued
compliance with the State regulations.2 While the major-
cost estimates, without objection. (App. 22). As correctly stated
in the dissenting opinion, "the defendants objected throughout the
2 The majority opinion also incorrectly found that Dr. Ragsdale
hearing as to the relevancy and admissibility of Ragsdale's alleged
was permitted to testify as to the substance of his handwritten
cost sheets" (App. 67). At the outset, defendants objected to any
(Footnote continued on following page)
use of those documents. Further objections were raised when
plaintiffs moved for their admission into evidence.
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-29-
C.
As this Court has noted, a court should refrain from
THE MAJORITY OPINION CONFLICTS WITH DECI-
invalidating more of a statute than is necessary. Regan
SIONS OF THIS COURT REGARDING SEVERANCE OF
v. Time, Inc., 468 U.S. 641, 652 (1984). It is, moreover,
PURPORTEDLY UNCONSTITUTIONAL PROVISIONS.
the duty of the court to "maintain the act in SO far as
Assuming, arguendo, that the lower courts appropriately
it is valid." Id. at 652, quoting El Paso & Northeastern
assumed jurisdiction over the challenged provisions which
R. Co. v. Gutierrez, 215 U.S. 87, 96 (1909). Likewise, this
are not being enforced, those courts should have severed
Court has held that "fu]nless it is evident that the Legis-
any purportedly unconstitutional statutes or regulations.
lature would not have enacted those provisions which are
For instance, the abortion-specific language of par. 157-8.3
within its power, independently of that which is not, the
of the ASTC Act has not been enforced since 1981 due
invalid part may be dropped if what is left is fully oper-
to the decision of the Illinois Supreme Court in Village
ative as a law." Buckley v. Valeo, 424 U.S. 1, 108-09
of Oak Lawn v. Marcowitz, 86 III.2d 406 (1981). In that
(1976), quoting Champlin Refining Co. v. Corporation
case, the court struck down a portion of a local ordinance
Commission, 286 U.S. 210, 234 (1932).
that incorporated the ASTC Act definition of an ASTC.
Given the ASTC Act's declared purpose of assuring that
The disputed portion covered "any facility where a medi-
all medical procedures, including abortion be performed
cal or surgical procedure is performed for the termina-
under circumstances insuring maximum safety, the Su-
tion of pregnancy, regardless of whether the facility is
preme Court of Illinois' holding on severability in Marco-
primarily devoted to that purpose." Id. at 420. The court
witz, and the State's policy of nonenforcement, there is
severed that portion, but found the remaining portion of
no doubt that the abortion-specific language of the ASTC
the ordinance to be "complete in itself and susceptible
Act should have been severed if declared unconstitutional.
to independent enforcement." Id. at 421.
Likewise, any purportedly unconstitutional provisions of
In the instant appeal, the majority opinion rejected the
the HFP Act and the ASTC regulations should have been
argument that any purportedly unconstitutional provision
severed. By failing to appropriately address the severabil-
be severed. It characterized the regulatory scheme as be-
ity issue, the majority opinion has improperly frustrated
ing "so riddled with exceptions resulting from judicial
the intent of the elected representatives of the people
decisions and nonenforcement policies as to be unintelligi-
of the State of Illinois. Regan v. Time, Inc., 468 U.S. at
653.
ble." (App. 33).
Defendants submit that a court should focus upon the
provisions independently and on their own merit. Other-
wise, litigants will be encouraged to base their litigation
strategy upon the sheer number or volume of statutes and
regulations to be attacked on constitutional grounds. The
more broad based the attack, the greater the purported
burden on constitutional guarantees.
No. 88-790
FILED
In The
JAN 13 1900
Supreme Court of the United
Statement JOSEPH F. SPANKS
October Term, 1988
BERNARD J. TURNOCK, M.D., M.P.H.,
Director of the Illinois Department
of Public Health, et al.,
Appellants,
v.
RICHARD M. RAGSDALE, M.D., et al.,
Appellees.
On Appeal From the United States
Court of Appeals For the Seventh Circuit
MOTION TO DISMISS OR AFFIRM
ALAN S. GILBERT
COLLEEN K. CONNELL
LORIE A. CHAITEN
(Counsel of Record)
SONNENSCHEIN CARLIN NATH
ROGER BALDWIN FOUNDATION
& ROSENTHAL
OF ACLU OF ILLINOIS
8000 Sears Tower
Suite 1600
233 S. Wacker Drive
20 E. Jackson Blvd.
Chicago, IL 60606
Chicago, IL 60604
(312) 876-8000
(312) 427-7330
Pandick Tochnologies, Inc., Chicago
(312) 236-0200
QUESTION PRESENTED
Whether the Court of Appeals correctly affirmed a
preliminary injunction, based on factual findings entered
after an expedited hearing, prohibiting the enforcement
against plaintiffs of three Illinois statutes intended to restrict
the performance of early abortions to "the functional
equivalent of small hospitals," and which the Court of
Appeals found burdened the abortion right without any
"medical justification whatsoever"?
ii
iii
PARTIES TO THE PROCEEDINGS
TABLE OF CONTENTS
Page
(See Jurisdictional Statement)"
QUESTION PRESENTED
i
PARTIES TO THE PROCEEDINGS
ii
TABLE OF CONTENTS
iii
TABLE OF AUTHORITIES
V
OPINIONS BELOW
1
CONSTITUTIONAL, STATUTORY AND
REGULATORY PROVISIONS INVOLVED
1
STATEMENT OF THE CASE
2
REASONS FOR DISMISSING THE APPEAL
OR IN THE ALTERNATIVE AFFIRMING
THE JUDGMENT BELOW
5
1. THIS COURT LACKS MANDATORY
JURISDICTION AND SHOULD NOT
EXERCISE ITS DISCRETIONARY
JURISDICTION TO REVIEW THIS
AFFIRMANCE OF A PRELIMINARY
INJUNCTION ORDER WITHOUT A FULL
AND FINAL RESOLUTION OF ALL
FEDERAL ISSUES BY THE LOWER
Pursuant to Rule 28.1 of the Supreme Court Rules. plaintiffs state
FEDERAL COURTS
5
that the Northern Illinois Women's Center is a medical corporation
wholly owned by Richard Ragsdale, M.D., and has no parent, no
subsidiaries and no affiliate corporations.
iv
>
II. NO ISSUES OF EXCEPTIONAL
TABLE OF AUTHORITIES
IMPORTANCE ARE PRESENTED FOR
REVIEW
8
Cases:
Pages
Abortion Coalition of Michigan, Inc. V. Michigan
A. The Court Of Appeals' Decision Replicates
Dep't of Public Health, 426 F. Supp. 471 (E.D.
Recent Decisions Of This Court And Is In
Mich. 1977)
10
Accord With Decisions Of Other Courts Of
Appeals That Have Enjoined Regulatory
Alabama State Federation of Labor V. McAdory,
Schemes That Burden The Abortion Right.
8
325 U.S. 450 (1945)
19
B. The Court Of Appeals Correctly Applied
Legal Standards Established By This Court
Baird v. Department of Public Health, 599 F.2d
For Review Of Provisions Affecting The
1098 (1st Cir. 1979)
11
Fundamental Right Of Abortion During The
Early Stages Of Pregnancy
11
Birth Control Centers, Inc. V. Reizen, 508
F. Supp. 1366 (E.D. Mich. 1981), aff d in part,
C. The Decision Below Is Consistent With
vacated in part, 743 F.2d 352 (6th Cir. 1984)
10
This Court's Decisions In The Areas Of
Justiciable Controversies And Severability.
18
Birth Control Centers, Inc. V. Reizen, 743 F.2d
352 (6th Cir. 1984)
9, 10
1. In Light Of Defendants' Continuing
Policy Of Enforcement, The Court Of
Buckley V. Valeo, 424 U.S. I (1976) (per
Appeals Appropriately Affirmed The
curiam)
21
Preliminary Injunction
18
Champlin Refining Co. V. Corporation
2. The Court Of Appeals Properly
Commission, 286 U.S. 210 (1932)
21
Enjoined The Entire Regulatory Scheme
As It Applies To Early Abortion
Charles V. Daley, 749 F.2d 452 (7th Cir. 1984),
Services
20
appeal dism'd sub nom., Diamond V. Charles,
19
476 U.S. 54 (1986)
CONCLUSION
22
C.I.O. V. McAdory, 325 U.S. 472 (1945)
19
vi
vii
City of Akron V. Akron Center for Reproductive
Indiana Hospital Licensing Council V. Women's
Health, Inc., 462 U.S. 416 (1983)
8, 10, 11,
Pavilion, 420 N.E.2d 1301 (Ind. App. 1981)
9
12, 17
J.N.S. V. State of Indiana, 712 F.2d 303 (7th
City of Los Angeles V. Lyons. 461 U.S. 95
Cir. 1983)
19
(1983).
19
Mahoning Women's Center V. Hunter, 610 F.2d
City of Mesquite V. Aladdin's Castle, Inc., 455
456 (6th Cir. 1979), vacated on other grounds,
U.S. 283 (1982).
19
447 U.S. 918 (1980) (mem.)
9, 21
Connecticut V. Menillo, 423 U.S. 9 (1975) (per
Minneapolis Star & Tribune Co. V. Minn.
curiam)
11
Comm'r of Revenue, 460 U.S. 575 (1983)
17
Doe V. Bolton, 410 U.S. 179 (1973)
4
Planned Parenthood of Central Missouri V.
Danforth, 428 U.S. 52 (1976)
11, 14
Ex Parte Young, 209 U.S. 123 (1908)
20
Poe V. Ullman, 367 U.S. 497 (1961)
19
Fox Valley Reproductive Health Care Center,
Inc. V. Arft, 446 F. Supp. 1072 (E.D. Wis.
Ragsdale V. Turnock, 625 F. Supp. 1212 (N.D.
1978)
9
III. 1985), aff d in part, vacated in part, 841 F.2d
1358 (1988).
10
Friendship Medical Center, Ltd. V. Chicago Bd.
of Health, 505 F.2d 1141 (7th Cir. 1974), cert.
Ragsdale V. Turnock, 841 F.2d 1358 (7th Cir.
denied, 420 U.S. 997 (1975)
9
1988)
passim
Green V. Mansour, 474 U.S. 64 (1985)
20
Regan V. Time, Inc. 468 U.S. 641 (1984)
21
Hodgson V. Lawson, 542 F.2d 1350 (8th Cir.
Roe V. Wade, 410 U.S. 113 (1973)
10, 11,
1976) (per curiam)
10, 11
12, 17
Hodgson V. Lawson, No. 4-74-155 (D. Minn.,
Simopoulos V. Virginia, 462 U.S. 506 (1983)
10
March 7, 1977)
11
viii
ix
Socialist Labor Party V. Gilligan, 406 U.S. 583
(1972).
STATUTES
7
Thornburgh V. American College of Obstetricians
28 U.S.C. Section 1254(2)
5, 6, 18
& Gynecologists, 476 U.S. 747 (1986)
5, 7, 8,
Ambulatory Surgical Treatment Center Act, III.
12, 13,
Rev. Stat. ch. 111 1/2, par. 157-8.1 et seq.
16
(1983).
passim
United States V. Carolene Products Co., 304
U.S. 144 (1938)
Medical Practice Act, III. Rev. Stat. ch. 111 par.
6
4433 (1983).
passim
Watkins V. Blinzinger, 789 F.2d 474 (7th Cir.
1986), cert. denied, - U.S. - 107 S. Ct.
Health Facilities Planning Act, III. Rev. Stat. ch.
1976 (1987).
111 1/2, par. 1151 et seq. (1983)
passim
20
Westchester Women's Health Organization, Inc.
REGULATIONS
V. Whalen, 475 F. Supp. 734 (S.D.N.Y. 1979).
11
Ambulatory Surgical Treatment Center Licensing
Requirements, 77 III. Adm. Code, Chapter 1,
Wisconsin V. Yoder, 406 U.S. 205 (1972)
6, 17
Subchapter b, Part 205.
passim
CONSTITUTIONAL PROVISIONS
U.S. Const. Amend. I
passim
U.S. Const. Amend. IV
passim
U.S. Const. Amend. V
passim
U.S. Const. Amend. IX.
passim
U.S. Const. Amend. XI.
passim
U.S. Const. Amend. XIV, Section 1
passim
OPINIONS BELOW
(See Jurisdictional Statement)
CONSTITUTIONAL STATUTORY AND
REGULATORY PROVISIONS INVOLVED
(See Jurisdictional Statement)
MOTION TO DISMISS OR AFFIRM
The United States Court of Appeals for the Seventh
Circuit affirmed a preliminary injunction prohibiting the
enforcement against plaintiffs of Illinois laws that operate
together to require that all first and early second trimester
abortions be performed in specially licensed facilities that are
'the functional equivalent of small hospitals.'" App. 19
(citation omitted). The Court of Appeals based its decision
on District Court factual findings that the challenged statutes
burdened the abortion right without any "medical
justification whatsoever." App. 29.
The interlocutory decision below is not a final order
subject to review under this Court's mandatory appeal
jurisdiction. Review under a writ of certiorari also is
inappropriate. The Court of Appeals' decision adheres
closely to, and to a great extent replicates, prior Supreme
Court decisions. Defendants offer no reason to disturb this
precedent. Nor do defendants present any conflict or
important federal question that warrants the Court's
consideration at this interlocutory juncture.
2
3
STATEMENT OF THE CASE
The ASTC Act does not single out any type of surgical
procedure, other than abortion, for special regulation. While
As the courts below found, the challenged statutes are
defendants posit benevolent "general" health regulations,
directed at providers of abortion services and are, in large
applied even-handedly to all health care providers (Juris. St.
part, intended to restrict abortion services. App. 21. As
24-25), such a regulatory scheme simply is not at issue here.
drafted, the Ambulatory Surgical Treatment Center Act
("ASTC Act") requires special licensure of all ASTCs.
The trial court below concluded, as a matter of fact, and
which, by definition, include "any place or
building
the Court of Appeals affirmed as not clearly erroneous, that
devoted primarily to the performance of surgical
the tripartite regulatory scheme burdened, without medical
procedures" and "any facility in which a medical or surgical
justification, the rights of women to choose to have first and
procedure is utilized to terminate a pregnancy, irrespective of
early second trimester abortions. The challenged statutes
whether the facility is devoted primarily to this
drive up the cost of each abortion procedure; substantially
purpose III. Rev. Stat. ch. 111 1/2, § 157-8.3(A)
impede women who seek access to abortion services; and
(emphasis added)¹.
prevent potential health care providers from offering
abortions because the cost of compliance is "prohibitive."
App. 22-23, 31. Defendants failed 10 supply any evidence
that the statutory provisions either enhanced the safety of
I The ASTC Act provides that failure to obtain an ASTC license
early abortion procedures or protected the pregnant woman's
constitutes a business offense punishable by a fine of $10,000 per day.
health. App. 29-30. Indeed, rather than "protect[ing] public
Id. at § 157-8.12. Section 16-1 of the Medical Practice Act ("MPA"),
health" (Juris. St. 5), the challenged scheme actually proved
III. Rev. Stat. ch. 111, § 4433(1), provides the second link of the
to be harmful, from a medical standpoint, for some women
scheme and grants employees of the Illinois Department of Registration
seeking abortions. App. 27-28.
and Education ("DRE") "absolute prosecutorial discretion" (Defendant's
Jurisdictional Statement at 10) to revoke or suspend the license of any
physician who performs even one first trimester abortion outside of a
Thus, the Court of Appeals affirmed the District Court's
hospital or licensed ASTC. The Health Facilities Planning Act
preliminary injunction, applying established Supreme Court
("HFPA"), III. Rev. Stat. ch. 111 1/2, § 1151 et. seq., provides the
precedent, which directs that when a state statute, whether
final link and requires ASTCs, like hospitals, to submit to the lengthy
abortion-neutral or abortion-specific, burdens the exercise of
public hearings and potential public veto of the certificate of need
a woman's decision to have an abortion, that statute can
("CON") process prior to constructing, renovating, or relocating their
withstand constitutional scrutiny only if it is justified by a
facilities.
compelling governmental interest and is carefully crafted to
References to defendants' Jurisdictional Statement appear as "Juris. SL"
advance that interest. In addition, the Court of Appeals
References to the Court of Appeals' opinion and other documents from
indicated that this scheme lacked even a reasonable basis.
defendants' Appendix 10 Jurisdictional Statement appear as "App."
App. 24.
References to the trial transcript appear as "Tr." or "Dep."
4
5
Defendants' contention that the decision below "has
exempted outpatient surgical facilities in which abortions are
REASONS FOR DISMISSING THE APPEAL
performed from general licensure and regulatory provisions"
OR IN THE ALTERNATIVE AFFIRMING
(Juris. St. 21) is belied by the express terms of the
THE JUDGMENT BELOW.
injunction issued. Contrary to defendants' claim that the
decision below "emasculates" the State's general authority to
1. THIS COURT LACKS MANDATORY
regulate physicians or outpatient medical facilities (Juris. St.
JURISDICTION AND SHOULD NOT
21), the injunction left the defendants free to apply their
EXERCISE ITS DISCRETIONARY
regulatory scheme to non-abortion medical procedures, even
JURISDICTION TO REVIEW THIS
when abortion and non-abortion procedures are performed in
AFFIRMANCE OF A PRELIMINARY
the same facility. App. 110-11. The State also remains free
INJUNCTION ORDER WITHOUT A
to enforce against physicians who perform abortions the
FULL AND FINAL RESOLUTION OF
professional censure and licensing provisions of the MPA,
ALL FEDERAL ISSUES BY THE LOWER
for with the exception of Section 16-1, which requires
FEDERAL COURTS.
abortions to be performed in ASTCs, the MPA was not
challenged. Compare Doe V. Bolton, 410 U.S. 179, 200
In their attempt to attract this Court's attention under its
(1973). Further, even facilities exclusively devoted to
waning mandatory jurisdiction, defendants overlook a
abortion practice remain subject to general state and local
fundamental prerequisite to the exercise of such jurisdiction.
safety regulations such as fire and building codes.
Under 28 U.S.C. § 1254(2), Supreme Court jurisdiction
exists only to review a final judgment by the court of appeals
Thus the courts below preliminarily enjoined the
declaring a state statute invalid as repugnant to the
challenged statutory scheme, but did so only insofar as
Constitution. Thornburgh V. American College of
necessary to protect the constitutional rights of women
Obstetricians & Gynecologists, 476 U.S. 747, 754-755
seeking first and early second trimester abortion procedures.
(1986).
In this case, the District Court held its hearing on an
expedited basis in response to plaintiffs' plea that
preliminary injunctive relief issue before the threatened
termination of Dr. Ragsdale's medical practice when his
lease expired on December 31, 1985. (Juris St. 5); App.
118. As defendants themselves acknowledge, the injunction
the Court of Appeals affirmed was preliminary in nature.
(Juris. St. 1, 14, 16.) This interlocutory judgment is not a
final judgment within "the ordinary meaning of that term."
Thornburgh, 476 U.S. at 754 (dismissing state appeal of
6
7
preliminary injunction of abortion law). Thus, defendants'
stage. Review by this Court now would be limited to the
attempt to invoke this Court's mandatory jurisdiction is
question of whether the preliminary injunction constituted an
premature.
abuse of the District Court's discretion and whether the
District Court's factual findings, subject to change based on
The concerns about premature review which underlie the
future factual development, were clearly erroneous.²
finality requirement of § 1254(2) further caution against the
grant of a writ of certiorari to review this preliminary
"Problems of prematurity and abstractness may well
injunction. Although plaintiffs filed suit on behalf of a class
present 'insuperable obstacles' to the exercise of the Court's
of physicians and a class of Illinois women, the preliminary
jurisdiction. Socialist Labor Party V. Gilligan. 406
injunction hearing focused primarily on Dr. Ragsdale's need
U.S. 583, 588 (1972) (citation omitted). Thus, in the past.
for immediate relief. (Tr. 20.) The District Court made clear
even where jurisdiction technically existed, this Court has
that, given the emergency nature of Dr. Ragsdale's case, it
declined to exercise it "unless the case 'tenders the
was conducting only a "preliminary injunction hearing and
underlying constitutional issues in clean-cut and concrete
not a final injunction [hearing]." (Tr. 622.) The Court, as
form." Id. (citation omitted).
well as the parties, anticipated that a more complete
evidentiary record would be made at a future permanent
injunction hearing. (See Tr. 20, 531, 622.)
Nowhere is the need for such factual development more
important than in the adjudication of fundamental rights,
such as the right to privacy. See United States V. Carolene
Products Co., 304 U.S. 144, 152 n.4 (1938); see generally
Wisconsin V. Yoder, 406 U.S. 205, 209-213 (1972).
Further fact-finding may have a profound impact upon the
rulings made by the lower federal courts on the
constitutionality of the Illinois statutes and thereby sharpen
the presentation of the ultimate issues should the case come
before this Court at some future date.
2 In Thornburgh, which held that mandatory jurisdiction exists only
to review final judgments, this Court exercised its certioran jurisdiction
In addition, as shown below, the Court of Appeals'
to review the preliminary injunction imposed by the Court of Appeals
after the trial court had denied injunctive relief. Thornburgh. 476 U.S.
decision follows closely the directives of this Court with
at 755. There, the District Court had analyzed a facial challenge to an
regard to regulation of early abortion services. As a result,
abortion statute based on a supulated record. Id. By way of contrast,
defendants cannot support their contention that this case
the District Count here made preliminary findings on a contested facual
presents issues important enough to warrant review at this
record in an as-applied challenge.
8
9
II. NO ISSUES OF EXCEPTIONAL
most courts that have examined comprehensive regulatory
IMPORTANCE ARE PRESENTED FOR
REVIEW.
schemes, either specifically directed at abortion services in
the early stages of pregnancy or general in nature but having
an impact on the abortion right, have found that such
A. The Court Of Appeals' Decision
regulations unconstitutionally interfere with a woman's
Replicates Recent Decisions Of This
fundamental right to make and effectuate the decision to
Court And Is In Accord With
terminate a pregnancy. See, e.g., Birth Control Centers,
Decisions Of Other Courts of Appeals
Inc. V. Reizen, 743 F.2d 352, 364-65 (6th Cir. 1984)
That Have Enjoined Regulatory
(staffing, structural and equipment requirements, similar to
Schemes That Burden The Abortion
those challenged here, declared unconstitutional because
Right.
compliance would be difficult and would increase the cost of
each individual abortion); Mahoning Women's Center V.
The case at bar is not of exceptional importance meriting
Hunter 610 F.2d 456, 458-60 (6th Cir. 1979). vacated on
review because the decision below merely replicates this
Court's decisions in City of Akron V. Akron Center For
other grounds, 447 U.S. 918 (1980) (mem.) (city ordinance
that required first trimester abortions to be performed in
Reproductive Health, Inc., 462 U.S. 416 (1983), and
clinics nearly identical to hospital surgical wards found
Thornburgh, 476 U.S. 747. Contrary to the inference left
unconstitutional); Friendship Medical Center, Ltd. V.
by defendants (Juris St. 24), this Court did not uphold a
Chicago Bd. of Health, 505 F.2d 1141, 1144-45 (7th Cir.
comprehensive licensing and regulatory scheme in Akron.
Instead, in Akron, and again in Thornburgh, this Court held
1974), cert. denied, 420 U.S. 997 (1975) (regulatory
scheme imposed upon first trimester abortion providers,
that health and safety regulations that burden the abortion
remarkably similar to the tripartite scheme the State defends
right without medical justification are unconstitutional. See
here, found unconstitutional). See also Fox Valley
Akron, 462 U.S. 416 (health regulations restricting second
Reproductive Health Care Center, Inc. V. Arft, 446
trimester abortions to hospital are unconstitutional);
F. Supp. 1072, 1074-75 (E.D. Wis. 1978) (general clinic
Thornburgh, 476 U.S. at 763, 765-66 (counseling
licensing provisions preliminarily enjoined as applied to first
regulations which limit physician's professional discretion
trimester abortion provider because of "burdensome
requirements). are unconstitutional, as are abortion-specific reporting
interference"); Indiana Hospital Licensing Council V.
Women's Pavilion, 420 N.E.2d 1301 (Ind. App. 1981)
Other courts of appeals, in cases defendants do not cite,
have displayed little difficulty in applying this Court's
precedents to enjoin similar state attempts to burden
providers of first and early second trimester abortions
through purported health and safety regulations. Indeed,
10
11
(licensing scheme found impermissibly to burden right to
of a woman to choose to have an abortion. Hodgson v.
first trimester abortion).³
Lawson, No. 4-74-155 (D. Minn., March 7, 1977).
Defendants overlook this unequivocal support for the
B. The Court Of Appeals Correctly
Court of Appeals' decision and rely instead on cases that
Applied Legal Standards Established
have been superseded by more recent authoritative decisions.
By This Court For Review Of
Defendants' reliance on Abortion Coalition of Michigan, Inc.
Provisions Affecting The
V. Michigan Dep't of Public Health, 426 F. Supp. 471
Fundamental Right Of Abortion
(E.D. Mich. 1977) (Juris. St. 26), is particularly
During The Early Stages of
inappropriate because the regulations at issue were struck
Pregnancy.
down later in Reizen, 743 F.2d 352, a post-Akron
decision.4 Hodgson V. Lawson, 542 F.2d 1350 (8th Cir.
State regulation of abortion during the first and early
1976) (per curiam) (Juris. St. 25), is similarly inapposite.
second trimesters of pregnancy is constitutionally
In Hodgson, the court stated its approval of a requirement,
permissible only if: 1) such regulation does not in any way
clearly invalid after this Court's 1983 decision in Akron, that
burden the abortion decision or its effectuation, see Planned
all second trimester abortions be performed in hospitals.
Parenthood of Central Missouri V. Danforth, 428 U.S. 52
542 F.2d at 1354. Moreover, on remand for an evidentiary
(1976); or 2) the regulation is integral to the procedure, as
hearing, the three-judge District Court held unconstitutional
contemplated by the Roe decision. See Connecticut V.
the regulations, like those at issue here, found to impose
Menillo, 423 U.S. 9 (1975) (per curiam) (Court upheld
significant and unjustified burdens on the fundamental right
statute requiring that abortions be performed by licensed
5 Westchester Women's Health Organization V. Whalen, 475
3
Simopoulos V. Virginia, 462 U.S. 506 (1983). is not to the
F. Supp. 734 (S.D.N.Y. 1979), also cited by defendants (Juris. St. 26),
contrary. In Simopoulos, this Court upheld only state regulation of a
is of doubtful validity, having approved a second trimester
late second trimester abortion performed at 22 weeks of pregnancy. 462
hospitalization requirement. The Wesichester court, unlike this Court
U.S. at 508, 510 n.2. At this advanced stage of pregnancy, a state's
in Akron. failed to consider an increase in cost as an unconstitutional
interest in the health of the woman becomes compelling. Roe V. Wade,
burden to the effectuation of the abortion decision. The First Circuit's
410 U.S. 113, 163 (1973); see also App. 19 n.8.
decision in Baird V. Department of Public Health, 599 F.2d 1098 (1st
Cir. 1979). upon which defendants also rely (Juris. St. 25), suffers
4
See Reizen, 508 F. Supp. 1366, 1369 n.1 (E.D. Mich. 1981), aff d
from the same flaw as the Eighth Circuit's decision in Hodgson. That
in part, rev'd in part, 743 F.2d 352 (6th Cir. 1984) (stating that the
case, which upheld a regulatory scheme, was decided on a stipulated
challenged provisions are identical to those in Abortion Coalition): see
record with no evidence of the impact on a fundamental right or of the
also Ragsdale V. Turnock, 625 F. Supp. 1212, 1229 n.22 (1985): App.
safety of the abortion procedure as compared to other surgical
144-45 (same).
procedures. Compare App. 21.
12
13
physicians because Roe contemplated that physician would
be integral part of abortion process). Thus, during the early
Each of the three physicians who testified as an expert
stages of pregnancy, a "woman must be permitted, in
witness at trial, including the defendants' expert, testified
consultation with her physician, to decide to have an
emphatically that first and early second trimester abortions
abortion and to effectuate that decision 'free of interference
are among the safest of outpatient procedures. Contrary to
by the State." Akron 462 U.S. at 429-30, (quoting Roe,
the defendants' implications (Juris. St. 8-9), these
410 U.S. at 163).
physicians testified that the State had no legitimate medical
reason to single out abortion providers for the imposition of
Where, as here, the evidence demonstrates that a
an additional layer of regulation. (Barton, Dep. 95-96, 174,
regulatory scheme significantly burdens first and early
Tr. 466, 475; Ragsdale, Tr. 66-68, 80; Hern, Tr. 238-42,
second trimester abortions, the State must show, by strict
274, 279.) See also App. 30.7
factual proof, that such regulation is necessary to the safe
performance of the abortion procedure. See Thornburgh,
The factual findings further demonstrate that the
476 U.S. at 759.6 As this Court repeatedly has warned,
regulatory provisions imposed under the ASTC Act,
"[t]he States are not free, under the guise of protecting
particularly the costly physical plant requirements, "do not
maternal health," to create obstacles that burden a woman's
have 'any medical justification." App. 29 (citations to the
effectuation of her decision to have an abortion. Id. at 759.
record omitted). Indeed some of the provisions were shown
The Court of Appeals' decision adheres to this well-settled
to be "medically poor." App. 29. Thus, as the courts below
principle, which defendants show no reason to disturb.
found, this scheme imposes requirements that force first
trimester abortion providers to incur the great costs of
As discussed above, the abortion-directed regulatory
building "small hospitals," yet fails to further the safety of
scheme here significantly burdens the ability of a woman to
the procedure. App. 29.
effectuate her choice to have an abortion. In addition,
defendants failed to offer any justification to support the
burdensome scheme.
7 Nonetheless, defendants continue to defend the statutory scheme,
6
Medical technology now has made early second trimester abortions,
especially the ASTC Act, with its abortion-specific subparts, as
as well as first trimester abortions, extremely safe. Akron, 462 U.S. at
medically necessary. Among the provisions lauded by defendants (Juris.
429 n.11, see also App. 16, 20 n.8. Thus, the Court has struck down
St. 12) is a counseling requirement nearly identical to that struck in
purported health regulations burdening early second trimester procedures
Thornburgh. The ASTC regulations demand that each woman, even if
in the same manner as il has struck regulations burdening first trimester
faced with a life-threatening pregnancy. be advised of the alternatives to
procedures. This Court has recognized that States may have a
abortion, although that information might well, as found by the Court
compelling interest in applying narrowly tailored regulations only in
of Appeals, "be cruel as well as destructive of the physician-patient
the later stages of pregnancy. Akron, 462 U.S. at 427.
relationship." App. 27-28, (quoting Thornburgh, 476 U.S. at 763).
14
15
Defendants' presentation of this complex regulatory
scheme obscures all but its most innocent provisions.
judgment" for each individual woman. App. 27.8 Further,
(Juris. St. 11-14.) Defendants disregard all of the essential
the cost of compliance with these onerous requirements was
requirements for licensing that impose significant burdens.
found to be prohibitive to potential abortion providers, as
See Ambulatory Surgical Treatment Center Licensing
well as to women seeking early abortions. App. 22-23.9
Requirements, 77 III. Adm. Code, Chapter 1, Subchapter b,
Part 205. For example, a facility must have, among other
Defendants' assertion of a general regulatory objective
things: (a) a procedure room that is the same size as that
that "all medical procedures, including abortions, [be]
recommended for a tertiary care hospital, Section
performed under conditions that insure maximum safety'''
205.1360(b); App. 232; (b) a "control station" located to
(Juris. St. 24-25 (citation omitted]) will not support this
allow visual surveillance of traffic entering the operating
burdensome regulatory scheme. As the Court of Appeals
suite, Section 205.1370(a); App. 233; and (c) an elaborate
found, the ASTC Act "was enacted primarily with abortion
air-conditioning, heating and ventilation system to provide
specified filter efficiencies and airflow relationships between
rooms that would be found in a sophisticated operating room
8
The American College of Obstetricians & Gynecologists' Standards
suite in a complete care hospital. Section 205.1540; App.
for Obstetric-Gynecological Services, Sixth Edition, explicitly approves
242-43; see also App. 5. By the admission of the State's
the performance of first and early second trimester abortions in a
physician's office, the specifications of which are left to the doctor's
own witnesses, these and other burdensome requirements
professional discretion. (ACOG Standards 60, 64 [6th Ed. 1985].)
were designed to accommodate major surgical procedures,
Defendants seriously misconstrue these standards with their claim that
not minor procedures such as early abortions. (Linder, Dep.
ACOG recommends uniformly applying the hospital-like standards
48; Ramsay, Tr. 764.)
established in the ASTC Act to first and early second trimester abortion
procedures. (Juris. St. 12.)
Although a few regulations are, as defendants suggest,
9
Defendants' contention that "reasonable compliance" with the
consistent with medical standards for abortion providers, the
regulatory scheme would increase the cost of each abortion by only a
cumulative effect of the ASTC Act, which defendants
moderate amount (Juris. St. 27) disregards the District Court's factual
ignore, is to regulate every minute facet of a first or early
finding, affirmed by the Court of Appeals, that compliance would
second trimester procedure. App 23-25. As a result,
increase the cost per procedure by almost 100 percent more than
physicians are locked into a statutory "straitjacket," see
defendants' claimed amount Id. Defendants do not define "reasonable
Danforth, 428 U.S. 52, 67 n.8, which denies them the
compliance" nor does the statute specify a consistent standard of required
compliance. Indeed, the evidence introduced at trial shows that
professional flexibility needed to make the "best medical
defendants demand inconsistent levels of compliance. For example,
prior to termination of Dr. Ragsdale's lease, his facility had been
licensed as "substantially complying;'" however, "officials charged
with enforcing the regulations told Dr. Ragsdale that they would require
`considerably more substantial compliance" when he moved to a new
facility. App 9-10.
16
17
clinics in mind. App. 21. In Thornburgh, the Court
abortion-neutral or abortion-specific, found to impose
sent a strong message to states, such as Illinois, with a
restrictions on first and early second trimester procedures
history of anti-abortion legislation, that it will not tolerate
must be strictly reviewed and enjoined unless justified by a
government interference with a woman's decision to have an
compelling governmental interest. Akron, 462 U.S. at 420-
abortion, or her physician's medical discretion in
21 n.l. Accordingly, in Akron, this Court expressly
effectuating that decision, under the guise of regulating
declined the City of Akron's invitation to apply the rational
general health and welfare. Thornburgh, 477 U.S. at 759.
basis analysis to abortion regulations. 11
Further, defendants' own contention that they no longer
Given the substantial burdens resulting from the scheme,
apply these purported health regulations to all who provide
and the absence of any compelling justification, the Court of
early abortion services (see Juris. St. 9) undercuts their
Appeals appropriately affirmed the preliminary injunction
claimed concern for safety. As the Court of Appeals noted,
ordered by the District Court. Not only is a rational basis
"[t]he State's attempt to regulate experienced, and therefore
standard "wholly incompatible with the existence of the
safer, physicians, more heavily than the occasional abortion
fundamental right recognized in Roe V. Wade," Akron, 462
provider thus appears
to lack even a reasonable basis."
U.S. 420-21 1. but the Court of Appeals indicated that this
App. 24. 10
burdensome scheme lacked even a reasonable basis. App.
24.
In light of the lower courts' findings that the challenged
scheme was directed at abortions, defendants cannot obtain
review by arguing that the challenged scheme is
11 The Supreme Court cases defendants cite (Juris. St. 26) do not
"abortion-neutral" and therefore subject only to a rational
support their argument that a rational basis standard is appropriate. In
basis standard of review. (Juris. St. 25.) Moreover,
none of those cases did the Court apply a rational basis standard.
defendants' proposed rational basis analysis, which they
Indeed, in Minneapolis Star & Tribune Co. V. Minn. Comm'r of
claim is "supported by decisions of this Court in other
Revenue, 460 U.S. 575 (1983), this Court strictly scrutinized a special
contexts" (Juris. St. 26), has been expressly rejected by the
tax on newspapers, even though there was no evidence of legislative
Court in the abortion context. State regulations, whether
intent to restrict newspapers. Nonetheless, the Court struck down the
tax which, like the challenged scheme here, was found to impose a
financial burden on the exercise of a fundamental right and which did
not serve any compelling governmental interest.
10 Likewise, the attempt to justify the CON portion of the scheme as
a cost-containment measure (Juris. St. 6) cannot provide a compelling
None of defendants' cases refutes the well-established principle that
interest because "the State has discontinued use of [the CON] method,
when a general regulatory provision is applied in a manner that burdens
[and] the State has never made such payments for abortions." App. 31.
a fundamental right, it is unconstitutional. Compare Wisconsin V.
Further, "[w]here the exercise of constitutional rights is concerned, the
Yoder, 406 U.S. at 220 (neutral compulsory education law applied to
government may play no role in determining whether outlets for their
members of Amish religion unconstitutionally burdened their right to
exercise are "needed." App. 31.
the free exercise of religion).
18
19
In light of the threat of continued enforcement, the Court
C. The Decision Below Is Consistent
of Appeals properly rejected defendants' claim that their
With This Court's Decisions In The
alleged nonenforcement somehow rendered the controversy
Areas Of Justiciable Controversies
moot or nonjusticiable. App. 13-14. Regardless of the label
And Severability.
(Juris. St. 21-23), this Court has made clear, in cases relied
upon by the Court of Appeals, App. 11, but disregarded by
1. In Light Of Defendants'
defendants, that voluntary cessation of illegal conduct does
Continuing
Policy
Of
not deprive a lower federal court of jurisdiction to affirm a
Enforcement, The Court Of
preliminary injunction unless the wrongful conduct could not
Appeals Appropriately Affirmed
reasonably be expected to recur, City of Mesquite V.
The Preliminary Injunction.
Aladdin's Castle, Inc., 455 U.S. 283, 289 n. 10 (1982). and
all harm caused by the illegal conduct has been "irrevocably
Defendants' claim that the ruling below conflicts with
eradicated." City of Los Angeles V. Lyons, 461 U.S. 95,
Supreme Court decisions concerning justiciable
101 (1983) (citation omitted). Defendants could not meet
controversies (Juris. St. 21-23) does not present an issue
this standard here. Particularly considering Illinois' history
within the ambit of 28 U.S.C. § 1254(2); the Court of
of enacting restrictive abortion legislation and reenacting
Appeals' ruling that the case was not moot does not
such legislation after it previously has been stricken, see
constitute a declaration that a state statute is invalid "as
Charles V. Daley, 749 F.2d 452, 458 (7th Cir. 1984), appeal
repugnant to the Constitution, treaties or laws of the United
dism'd sub nom., Diamond V. Charles, 476 U.S. 54
States 28 U.S.C. § 1254(2). Further, defendants
(1986), physicians "should not have to risk loss of their
present no conflict that would warrant the exercise of
professional licenses to explore the contours of the asserted
certiorari jurisdiction.
non-enforcement position." App. 14. Contrast Poe V.
Ullman, 367 U.S. 497 (1961) (cited at Juris. St. 23) (no
Without an injunction, Dr. Ragsdale would have been
justiciable controversy because statute essentially not
forced to close his practice, and plaintiff Margaret Moe
enforced in 82 years). 12
would not have been able to offer abortion services to her
patients. App. at 22. Defendants' employees are given
"absolute prosecutorial discretion" as to when and how to
12 Defendants inappropriately rely on J.N.S. V. State of Indiana, 712
enforce statutory provisions (Juris. St. 10). Testimony by
F.2d 303 (7th Cir. 1983). and C.I.O. V. McAdory, 325 U.S. 472
defendants' own enforcement personnel revealed that
(1945). to argue that no justiciable controversy existed before the Count
defendants have no consistent policy as to nonenforcement,
of Appeals. In those cases, a constitutional violation would have
occurred only had the challenged statutes been given a particular
nor have they publicized in any consistent fashion their
construction, and the courts in both cases found no threat of such a
alleged nonenforcement policy. App. 10, 14.
construction. See also Alabama State Federation of Labor V. McAdory.
325 U.S. 450 (1945), relied on in C.I.O., 325 U.S. 472. By contrast,
(Footnote continued on the following page)
20
21
procedures. Compare Regan v. Time, Inc., 468 U.S. 641,
Defendants' alternative argument, that the Eleventh
652 (1984). This narrow injunction, limiting application of
Amendment barred the entry of portions of the preliminary
the law as opposed to striking it entirely, is consistent with
injunction, mischaracterizes this Court's decision in Green
the Illinois General Assembly's expressed intention in the
V. Mansour, 474 U.S. 64 (1985), and the Court of Appeals'
ASTC Act. See III. Rev. Stat. ch. 111 1/2, § 157-8.15;
decision in Watkins V. Blinzinger, 789 F.2d 474 (7th Cir.
App. 165 (to the extent that the Act is held unconstitutional
1986), cert. denied, U.S. , 107 S. Ct. 1976 (1987).
as applied to particular person(s). court appropriately can
In those cases, the Eleventh Amendment was a barrier to
sever by allowing the statute to remain enforceable as to all
further federal litigation because a ruling by the federal court
others).
effectively would have resulted in financial consequences for
the State because of past violations of federal law. No such
The Court of Appeals correctly refused defendants'
risks exists here, where plaintiffs have not sought damages
invitation to rewrite the challenged legislation. App. 32-33.
or economic relief from the State. Further, when the
It held that the licensing provision, "an integral part' of the
purpose of the federal court remedy is to require the state
scheme as a whole," was itself unconstitutional as it applied
officer to conform future conduct to the dictates of federal
to plaintiffs. App. 32, see also App. 23-24. Without the
law, it has long been established that the Eleventh
licensing requirement, the remaining provisions, many of
Amendment erects no barrier to suit. Ex Parte Young, 209
which themselves were unconstitutionally burdensome,
U.S. 123 (1908).
would not be applicable. Thus, the Court of Appeals held
that it could not "untangle the constitutional from the
2. The Court Of Appeals Properly
unconstitutional provisions App. 33 (quoting
Enjoined The Entire Regulatory
Mahoning, 610 F.2d at 460), without impermissibly
Scheme As It Applies To Early
usurping the Illinois General Assembly's legislative
Abortion Services.
function. App. 33.
Cognizant of the policies underlying the severability
This is consistent with defendants' own cases. Severing
doctrine, both the District Court and the Court of Appeals
specific provisions is not appropriate "if what is left is [not]
tailored the injunction to apply only to the extent required to
fully operative as a law,'' or if ""it is evident that the
protect plaintiffs' constitutional rights, thereby leaving the
Legislature would not have enacted those provisions which
State free to apply the regulatory scheme to all non-abortion
are within its power, independently of that which is not.'"
Buckley V. Valeo, 424 U.S. 1, 108-09 (1976) (per curiam)
(Continued)
(quoting Champlin Refining Co. V. Corporation
in the present case, the State defends unconstitutional laws by claiming
Commission, 286 U.S. 210, 234 [1932]); see also Juris.
they will not enforce the express terms of the statutes as they were
St. 29. Here, neither condition is met.
enacted by the Legislature.
22
CONCLUSION
For all of the foregoing reasons, this appeal should be
dismissed, or in the alternative, the judgment below should
be affirmed.
Respectfully submitted,
ALAN S. GILBERT
COLLEEN K. CONNELL
LORIE A. CHAITEN
(COUNSEL OF RECORD)
SONNENSCHEIN CARLIN
ROGER BALDWIN
NATH & ROSENTHAL
FOUNDATION OF
8000 Sears Tower
AMERICAN CIVIL
Chicago, Illinois 60606
LIBERTIES UNION OF
(312) 876-8000
ILLINOIS
20 E. Jackson Boulevard
Suite 1600
Chicago, Illinois 60604
(312) 427-7330
Dated: January 14, 1989
No. 88- 790
IN THE
Supreme Court of the United tates
OCTOBER TERM, 1988
BERNARD J. TURNOCK, M.D., M.P.II., Director of
the Illinois Department of Public Health, et al.,
Appellants,
RICHARD M. RAGSDALE, M.D., et al.,
Appellees.
On Appeal From The United States
Court Of Appeals For The Seventh Circuit
APPELLANTS' REPLY TO MOTION
TO DISMISS OR AFFIRM
NEIL F. HARTIGAN
Attorney General, State of Ulinois
ROBERT J. RUIZ
Solicitor General, State of Illinois
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 917 3000
Attorneys for Appellants
MICHAEL J. HAYES*
KATHLEEN KREISEL FLAHAVEN
ROGER P. FLAHAVEN
Grapys STEVENS
Assistant Attorneys General
100 West Randolph Street, Buth Floor
Chicago, Illinois 60601
(312) 917 3654
of Counsel
* Counsel of Revord
Printed by Antionity of the State of Dhing d'o 316.00 " 12,80
i
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS
i
TABLE OF AUTHORITIES
ii
THIS COURT HAS APPELLATE JURISDIC-
TION TO REVIEW THE JUIGMENT OF
THE COURT OF APPEALS PURSUANT TO
28 U.S.C. SECTION 1254(2)
1
THE QUESTIONS PRESENTED ARE SUB-
STANTIAL
4
A. THE COURT OF APPEALS ERRONEOUS-
LY FOUND THAT THE CHALLENGED
STATUTES AND REGULATIONS ARE
UNCONSTITUTIONAL
4
B. THE MAJORITY OPINION CONFLICTS
WITH DECISIONS OF THIS AND OTHER
COURTS REGARDING SEVERANCE OF
PURPORTEDLY UNCONSTITUTIONAL
PROVISIONS
8
C. THE COURT OF APPEALS ERRONEOUS
I.Y ASSUMED JURISDICTION OVER UN.
ENFORCED PROVISIONS
9
CONCLUSION
10
ii
iii
TABLE OF AUTHORITIES
Statutes
28 U.S.C. Section 1254(2)
1, 2, 3, 4
Cases
PAGE(S)
Ambulatory Surgical Treatment Center Act,
III. Rev. Stat. ch. 111½, pars. 157-8.1 et seq.
Baird v. Department of Public Health, 599 F.241
passim
1098 (1st Cir. 1979)
6
Health Facilities Planning Act,
Birth Control Centers, Inc. v. Reizen, 743 F.2d 352
111. Rev. Stat. ch. 111½, pars. 1151 et seq. .. passim
(6th Cir. 1984)
5, 7, 8
Medical Practice Act,
City of Akron V. Akron Center for Reproductive
III. Rev. Stat. ch. 111, par. 4400-22
......
passim
Health, Inc., 462 U.S. 416 (1983)
5, 6
Ex Parte Young, 209 U.S. 123 (1908)
10
Regulations
Fox Valley Reproductive Health Care Center, Inc.
Ambulatory Surgical Treatment Center Licensing
v. Arft, 446 F.Supp. 1072 (E.D. Wis. 1978)
6
Requirements, 77 III. Adm. Code, Ch. 1, Sec-
Friendship Medical Center, Ltd. v. Chicago Board
tion 205, Subchapter 6
passim
of Health, 505 F.2d 1141 (7th Cir. 1974), cert.
denied, 420 U.S. 997 (1975)
6
Hodgson v. Lawson, 542 F.2d 1350 (8th Cir. 1976)
6
Mahoning Women's Center v. Hunter, 610 F.2d
456 (6th Cir. 1979), vacated on other grounds,
mem., 447 U.S. 918 (1980)
5
Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S. 747 (1986)
3, 5
Constitutional Provisions
U.S. Const. Amend. XI
9, 10
No. 88-790
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
BERNARD J. TURNOCK, M.D., M.P.H., Director of
the Illinois Department of Public Health, et al.,
Appellants,
V.
RICHARD M. RAGSDALE, M.D., et al.,
Appellees.
On Appeal From The United States
Court Of Appeals For The Seventh Circuit
APPELLANTS' REPLY TO MOTION
TO DISMISS OR AFFIRM
THIS COURT HAS APPELLATE JURISDICTION
TO REVIEW THE JUDGMENT OF
THE COURT OF APPEALS PURSUANT TO
28 U.S.C. SECTION 1254(2)
In their Jurisdictional Statement (pp. I-2), defendants
demonstrated that this Court has appellate jurisdiction to
review the final judgment entered by the Court of Ap-
peals. That judgment held unconstitutional the challenged
-2-
-3-
provisions of the Illinois Medical Practice Act (MPA), the
MR. GILBERT: One other matter, and this doesn't
Illinois Ambulatory Surgical Treatment Center Act (ASTC)
relate directly to this order, and that is, just in terms
and related regulations, and the Illinois Health Facilities
of the future course of this proceeding, given the
Planning Act (HFPA) to the extent any person or facil-
scope of the evidentiary hearing and the briefing that
has gone on and the scope of your Honor's order,
ity offers or performs, or desires to offer or perform first
it seems to us that there probably isn't a need to
and early second trimester abortions or abortion-related
have another trial in this matter and that we have
gynecological procedures.
pretty much aired the issues here and relatively com-
pletely and, to that end, we have made a suggestion
The plaintiffs attempt to argue that this matter is not
to the state, a request, that we would be willing to
subject to review under 28 U.S.C. Section 1254(2). In SO
turn this into a final injunction order pursuant to
arguing, the plaintiffs incorrectly focus upon the district
Rule 65, which allows a proceeding for preliminary
court preliminary injunction order, rather than the deci-
injunction to be a proceeding for a final and perma-
sion of the Court of Appeals. (Pls.' Motion, pp. 5-7). In
nent injunction as well. (Tr. 861-62).
addition to affirming the preliminary injunction, the Court
In the same vein, the district court judge and plaintiffs'
of Appeals invalidated the licensure requirement and
counsel stated as follows:
struck the other challenged provisions as applied to first
THE COURT:
.
I can't really think of anything
and early second trimester abortions.
more that either side would put in that would really
In discussing the severability issues presented by the
make all that much difference in the Seventh Circuit's
case, moreover, the plaintiffs acknowledge that the Court
decision in the case. It is really-the guts of the argu-
ment on both sides are in and the evidence is in. It
of Appeals has held that the Illinois general "licensing
is really a question of interpreting the Supreme Court
provision
was itself unconstitutional as it applied to
decisions and maybe drawing a few reasonable infer-
plaintiffs." (Pls.' Motion, p. 21; App. 25). Similarly, the
ences. But there really isn't all that much in the way
Court of Appeals need not have considered the severabil-
of factual disputes, it is really more a question of in-
ity issues unless the statutes and regulations had been
terpretation of the existing laws. (Tr. 864-65).
held unconstitutional. In light of the holding by the Court
MR. GILBERT: Yes. Right. That's how we see it.
of Appeals, this Court has appellate jurisdiction under 28
(Tr. 865).
U.S.C. Section 1254(2).
In Thornburgh v. American College of Obstetricians and
In addition, the plaintiffs misstate that they and the dis-
Gynecologists, 476 U.S. 747 (1986), this Court concluded
trict court contemplated further evidentiary hearings after
that it had no appellate jurisdiction under Section 1254(2).
the preliminary injunction trial. (Pls.' Motion, P. 6). That
476 U.S. at 755. This Court reached that conclusion be-
statement is contradicted by the comments of plaintiffs'
cause the Third Circuit had not held the entire Act un-
counsel and the district court judge subsequent to the is-
constitutional, had invalidated only some provisions, and
suance of the preliminary injunction decision. At that time,
had remanded the case for further development of the
plaintiffs' counsel volunteered the following statements:
facts. 476 U.S. at 754-55.
-4-
-5-
In this case, however, the Seventh Circuit did hold the
The plaintiffs suggest that this case is unimportant and
challenged acts unconstitutional, thereby invalidating all
attempt to argue that the decision of the Court of Ap-
of the regulatory provisions as applied to first and early
peals "replicates" this Court's decisions in City of Akron
second trimester abortions. The Seventh Circuit did not
U. Akron Center for Reproductive Health, Inc., 462 U.S.
remand for further development of the facts. Clearly, the
416 (1983) and Thornburgh 11. American Coflege of Ob-
Seventh Circuit judgment is final and this Court has ap-
stetricians and Gynecologists, 476 U.S. 747 (1986). (Pls.'
pellate jurisdiction under 28 U.S.C. Section 1254(2).
Motion, P. 8). That argument is incorrect.
At issue in this case is the State's authority to license
and regulate outpatient surgical facilities in which abor-
THE QUESTIONS PRESENTED
tions are performed to the same extent it licenses and
ARE SUBSTANTIAL
regulates outpatient surgical facilities in which other
surgical procedures are performed. Neither Akron nor
Thornburgh involved such generally applicable statutes
and regulations. Both of those cases addressed challenges
A.
to abortion-specific statutes.
THE COURT OF APPEALS ERRONEOUSLY FOUND
THAT THE CHALLENGED STATUTES AND REGULA-
In fact, none of the cases relied upon by the plaintiffs
TIONS ARE UNCONSTITUTIONAL
support the Court of Appeals' decision to exempt out-
In enacting the ASTC Act, Illinois recognized the in-
patient surgical facilities in which abortions are performed
from a general licensure provision. For example, plain-
creasing trend toward the development of free-standing
tiffs cite Birth Control Centers, Inc. v. Reizen, 743 F.2d
or outpatient surgical facilities. Abortions are performed
352 (6th Cir. 1984). In that case, however, the Sixth Cir-
in 22 of the 42 outpatient surgical facilities which are
cuit did not invalidate on privacy grounds the State's au-
licensed in Illinois. The decision of the Court of Appeals
has exempted those 22 surgical facilities from licensure
thority to license outpatient surgical facilities in which
abortions are performed. In fact, the licensure question
and regulation to the extent they perform first and early
second trimester abortions.
was not perceived to involve privacy rights and was dealt
with as an equal protection issue. More importantly, the
This exemption has undermined Illinois' duty and au-
court upheld the requirement as reasonable. 743 F.2d at
thority to protect patients who are undergoing abortions
358-59.
at such facilities in the same manner that the state can
Plaintiffs also rely upon Mahoning Women's Center D.
protect patients who are undergoing other surgical pro-
Hunter, 610 F.2d 456 (6th Cir. 1979), vacated on other
cedures. This exemption is inconsistent with decisions of
grounds, mem., 447 U.S. 918 (1980). In that case, the
other circuits and, contrary to the plaintiffs' suggestions,
Sixth Circuit invalidated in its entirety an ordinance which
is not supported by decisions of this Court.
singled out for extensive regulation only medical clinics
-6-
-7-
performing abortions. Similarly, plaintiffs cite the decisions
in this case. In the Jurisdictional Statement, defendants
in Friendship Medical Center, Ltd. v. Chicago Board of
demonstrated the legitimate and substantial purposes of
Health, 505 F.2d 1141 (7th Cir. 1974), cert. denied, 420
the challenged statutes (Juris. St., PP. 5-6 and 25) and
U.S. 997 (1975) and Fox Valley Reproductive Health Care
regulations (Juris. St., PP. 11-14).
Center, Inc. v. Arft, 446 F.Supp. 1072 (E.D. Wis. 1978).
In addition, the plaintiffs suggest that it is not reason-
Again, these cases dealt with abortion-specific ordinances,
able for the State to regulate surgical facilities in which
rather than generally applicable licensure provisions. Thus,
abortions are performed more heavily than doctor's offices
these cases do not support the decision of the Seventh
in which abortions are performed. (Pls.' Motion, P. 16).
Circuit to exempt from general licensure provisions out-
The Sixth Circuit dealt with a similar argument in Birth
patient surgical facilities in which first and early second
Control Centers, Inc. P. Reizen, 743 F.2d 352 (6th Cir.
trimester abortions are performed.
1984). The court recognized that in private offices the
Contrary to plaintiffs' assertion, City of Akron v. Akron
physician generally has direct control over staff and of
Center for Reproductive Health, Inc., 462 U.S. 416, 420
fice functions, while in outpatient surgical facilities non-
n.1 does not hold that abortion-neutral statutes and regu-
physicians may have control over personnel, equipment
lations "must be strictly reviewed and enjoined unless
and the design of the facility. The Sixth Circuit concluded,
justified by a compelling government interest." (Pls.' Mo-
therefore, that it was not unreasonable for Michigan to
tion, pp. 16-17). Akron involved a challenge to an ordi-
decide to regulate free-standing surgical facilities includ-
nance enacted "to regulate the performance of abortions"
ing abortion clinics while not regulating physicians' offices.
(id. at 419), rather than abortion-neutral provisions. Defen-
743 F.2d at 358-59. The statutes and regulations which
dants maintain that the rational basis test should have
were invalidated in this case reflect a similar reasonable
been applied to the abortion-neutral provisions at issue
decision by the State of Illinois.
in this case. (Juris. St., pp. 25-26).
The State has the duty and the power to protect the
Plaintiffs' attempts to distinguish Baird v. Department
health, safety and welfare of its citizens by licensing and
of Public Health, 599 F.2d 1098 (1st Cir. 1979) and Hodg-
regulating outpatient surgical facilities. The State's im-
son v. Lawson, 542 F.2d 1350 (8th Cir. 1976) also miss
portant interests in assuring that certain minimal stan-
the mark. Those cases uphold licensing standards of out-
dards be complied with at such facilities do not cease to
patient surgical facilities in which pregnancy terminations
exist when abortions are performed at such facilities.' In
are performed. Thus, those decisions conflict with the rul-
ing of the Seventh Circuit in this case which held that
1 The American College of Obstetricians and Gynecologists' Stan-
licensing of such facilities constitutes an unconstitutional
dards for Obstetric-Gynecologie Services, Sixth Edition [ACOG
invasion of privacy.
Standards provides that "|A|mbulatory care facilities for abortion
services should meet the same standards of care as for other sur-
Plaintiffs state that defendants failed to offer any justifi-
gical procedures." (ACOG Standards 62). The Standards further
cation to support the challenged statutes and regulations.
provide that "Ambulatory surgical facilities that are freestanding
or hospital-based should maintain the same surgical, anesthetic,
(Pls.' Motion, p. 12). That statement ignores the record
and personnel standards that hospitals do." (ACOG Standards 61).
-8-
-9-
fact, the plaintiffs' trial experts testified that medical
were individually analyzed. The same procedure should
education in this country has paid little attention to abor-
have been utilized by the Seventh Circuit in this case.
tion services and that there are few surgical procedures
given SO little attention and SO underrated in its poten-
C.
tial hazard as abortion.
THE COURT OF APPEALS ERRONEOUSLY ASSUMED
JURISDICTION OVER UNENFORCED PROVISIONS.
B.
In the Jurisdictional Statement, defendants demonstrated
THE MAJORITY OPINION CONFLICTS WITH DECI-
that the Seventh Circuit's assumption of jurisdiction over
SIONS OF THIS AND OTHER COURTS REGARDING
unenforced provisions conflicts with decisions of this Court
SEVERANCE OF PURPORTEDLY UNCONSTITUTIONAL
and Courts of Appeals regarding justiciability standards
PROVISIONS.
as well as with decisions addressing the jurisdictional bar
In the Jurisdictional Statement, defendants demonstrated
created by the Eleventh Amendment. Claris. St., PP. 21-
that the majority opinion of the Seventh Circuit erred in
23). The plaintiffs, however, attempt to posit the case as
rejecting the argument that any purportedly unconstitu-
one involving mootness issues. (Pls.' Motion, P. 19).
tional provisions be severed. (Juris. St., pp. 28-29). Plain-
The uncontradicted evidence of record established that
tiffs ignore the thrust of defendants' argument. (Pls.' Mo-
due to various court decisions, well prior to the com-
tion, pp. 20-21). In this case, the lower courts and plain-
mencement of this action, the State ceased to enforce cer-
tiffs argue that the appropriate analysis entails the estima-
tion of the cost of compliance with all of the challenged
tain challenged provisions: the abortion-specifie language
regulations. (App. 22). This aggregated sum supposedly
of par. 157-8.3 of the ASTC Act (App. 149-50); Sections
substantiates the "impact on the abortion decision." Id.
205.740 (App. 222) (prohibition of second trimester abor-
The nature and degree of the alleged burden on consti-
tions in ASTCs) and 205.760 (App. 223) (abortion-specific
tutional rights should not depend upon the number or
reporting requirement) of the ASTC Regulations; and par.
volume of statutes and regulations which are challenged.
4400-22 of the MPA. (App. 193).
Rather, those statutes and regulations should be seruti-
While the plaintiffs now suggest that there is a "threat
nized independently and on their own merit.
of continued enforcement" of those provisions, they do not
Birth Control Center, Inc. v. Reizen, 743 F.2d 352 (6th
specify what future conduct State officials must change
to conform to the dictates of federal law. (Pls.' Motion,
Cir. 1984) offers further support for the defendants' argu-
ment that the Seventh Circuit improperly invalidated all
PP. 18-20). Even the Seventh Circuit noted that State of
of the challenged provisions. In Reizen, the Sixth Circuit
ficials cannot be required to remove or amend regulations
upheld the licensure requirement, upheld certain regula-
which are not being enforced. (App. 13).
tions and struck other regulations. That court did not re-
Defendants maintain that no justiciable controversy
fuse to sever those provisions which it found unconstitu-
existed at the time of the filing of this case with respect
tional. Rather, the challenged statutes and regulations
to those challenged provisions which were no longer being
-10-
enforced. Further, the exception to the Eleventh Amend-
ment's jurisdictional bar relied upon by the plaintiffs (Pls.'
Motion, p. 20) is inapplicable to the challenge to the un-
enforced provisions. Absent some ongoing violation of
federal law, Ex Parte Young, 209 U.S. 123 (1908) does
not apply and the jurisdictional barrier created by the
Eleventh Amendment remains intact.
CONCLUSION
For these reasons, this Court should deny plaintiffs'
Motion to Dismiss or Affirm and should note probable
jurisdiction of this appeal.
Respectfully submitted,
NEIL F. HARTIGAN
Attorney General, State of Illinois
ROBERT J. RUIZ
Solicitor General, State of Illinois
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 917-3000
Attorneys for Appellants
MICHAEL J. HAYES *
KATHLEEN KREISEL FLAHAVEN
ROCER P. FLAHAVEN
GLADYS STEVENS
Assistant Attorneys General
100 West Randolph Street, 13th Floor
Chicago, Illinois 60601
(312) 917-3654
Of Counsel
* Counsel of Record
January 27, 1989
8 85.7 90
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
BERNARD J. TURNOCK, M.D., M.P.H., Director of
the Illinois Department of Public Health, et al.,
Appellants,
V.
RICHARD M. RAGSDALE, M.D., et al.,
Appellees.
On Appeal From The United States
Court Of Appeals For The Seventh Circuit
APPENDIX TO JURISDICTIONAL STATEMENT
NEIL F. HARTIGAN
Attorney General, State of Illinois
ROBERT J. RUIZ
Solicitor General, State of Illinois
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 917-3000
Attorneys for Appellants
MICHAEL J. HAYES*
KATHLEEN KREISEL FLAHAVEN
ROGER P. FLAHAVEN
GLADYS STEVENS
Assistant Attorneys General
100 West Randolph Street, 13th Floor
Chicago, Illinois 60601
(312) 917-3654
Of Counsel
* Counsel of Record
Printed by Authority of the State of Illinois (P.O. 34259-60-11-10-88)
i
INDEX TO APPENDIX
PAGE
A-Slip Opinion of the United States Court of
Appeals for the Seventh Circuit, March 10,
1988
1
B- Judgment of the United States Court of Ap-
peals for the Seventh Circuit, March 10, 1988
102
C- Order of the United States Court of Appeals
for the Seventh Circuit Amending the Slip
Opinion, April 13, 1988
103
D- Amended Order of the United States Court of
Appeals for the Seventh Circuit Denying the
Petition for Rehearing and Suggestion for Re-
hearing En Banc, August 16, 1988
105
E- Order of the United States Court of Appeals
for the Seventh Circuit Denying the Petition
for Rehearing and Suggestion for Rehearing
En Banc, August 12, 1988
107
F- Class Certification and Preliminary Injunction
Order of the United States District Court for
the Northern District of Illinois, Eastern Divi-
sion, December 11, 1985
109
G- Memorandum Opinion and Order of the United
States District Court for the Northern District
of Illinois, Easte, Division, November 27,
1985
112
H-Notice of Appeal, November 7, 1988
146
ii
I- Ambulatory Surgical Treatment Center Act,
111½ III. Rev. Stat. " 157-8.1, et seq.
149
J- Health Facilities Planning Act, 111½ III. Rev.
Stat. 11 1151, et seq.
166
IN THE
K- Medical Practice Act, 111 III. Rev. Stat. 1 4400-
22
193
Supreme Court of the United States
L- 77 Illinois Administrative Code, Chapter 1,
§ 205, Subchapter b
203
OCTOBER TERM, 1988
BERNARD J. TURNOCK, M.D., M.P.H., Director of
the Illinois Department of Public Health, et al.,
Appellants,
V.
RICHARD M. RAGSDALE, M.D., et al.,
Appellees.
On Appeal From The United States
Court Of Appeals For The Seventh Circuit
APPENDIX TO JURISDICTIONAL STATEMENT
App. 1
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 85-3242
RICHARD M. RAGSDALE, et al.,
Plaintiffs-Appellees,
v.
BERNARD J. TURNOCK, Director of the Illinois
Department of Public Health, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 85-C-6011-John A. Nordberg, Judge.
ARGUED OCTOBER 22, 1986-DECIDED MARCH 10, 1988
Before BAUER, Chief Judge, COFFEY, Circuit Judge,
and ESCHBACH, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge. Plaintiffs consist of
a class of all duly licensed physicians and surgeons per-
forming or who desire to perform pregnancy terminations
in Illinois and a class of all women in the State of Illinois
of child-bearing age who desire or may desire an abortion
at sometime in the future. Defendants are a class of the
State's Attorneys of all of the counties of the State of
Illinois,¹ the Director of the Illinois Department of Public
I Class certification as to both the defendant and plaintiff classes
was challenged below. The district court granted certification. 625
F. Supp. at 1219-24. That ruling is not challenged on appeal.
App. 3
App. 2
bulatory Surgical Treatment Center Act, 111½ Ill. Rev.
Health, the Illinois Attorney General, and the Director
Stat. 11 157-8.1, et seq. (the "ASTCA" or the "Act"), pro-
of the Illinois Department of Registration and Education.
vides for the licensure of all ASTCs, which it defines as
Plaintiffs sued under 42 U.S.C. § 1983 and 28 U.S.C.
"any
place
devoted primarily to
the per-
§§ 2201-02, seeking declaratory and injunctive relief to the
formance of surgical procedures or any facility in which
effect that three Illinois statutes and the regulations there-
a medical or surgical procedure is utilized to terminate
under violate the constitutional right to privacy, specifical-
a pregnancy, irrespective of whether the facility is de-
ly to abortion, as established in Roe v. Wade, 410 U.S.
voted primarily to this purpose
111½ Ill. Rev. Stat.
113, 93 S. Ct. 705 (1973), and subsequent Supreme Court
9 157-8.3(A). In addition, plaintiffs have challenged those
cases. This case comes to us on appeal from the district
sections of the Health Facilities Providers Act, 111½ III.
court's grant of plaintiffs' motion for a preliminary injune-
Rev. Stat. 11 1151, et seq. ("HFPA"), which require any-
tion. 625 F. Supp. 1212 (N.D. Ill. 1985). Because we be-
one seeking to open an ASTC to obtain a certificate of
lieve certain of the claims are moot, we vacate in part.
need for the facility from the Department of Public Health
In most respects, however, we affirm the preliminary in-
after a public hearing and 120-day review period. See
junction.
111½ Ill. Rev. Stat. 11 1155-1160.³
I
2 continued
(b) [a licensed hospital];
A. Statutory and Regulatory Provisions
(c) an ambulatory surgical treatment center or hospi-
The statutory and regulatory scheme is somewhat com-
talization or care facility maintained by the State or any
plex. Therefore, we set it out in some detail. Section 16(1)
agency thereof
of the Medical Practice Act ("the MPA"), 111 Ill. Rev.
(d) ambulatory surgical treatment centers, hospitaliza-
Stat. 9 4433(1), allows for revocation or suspension of the
tion or care facilities maintained by the Federal Govern-
license of any physician who performs an "elective abor-
ment, or
tion" in any place other than a licensed Ambulatory Sur-
(e) ambulatory surgical treatment centers, hospitaliza-
gical Treatment Center ("ASTC"), a hospital, or a facil-
tion or care facilities maintained by any university or col-
lege established under the laws of this State and supported
ity run by the state or federal governments.2 The Am-
principally by public funds raised by taxation.
3 Section 1158 of the Health Facilities Planning Act reads, in per-
2 Section 16(1) of the Medical Practice Act reads, in pertinent
tinent part:
part:
When an application for a permit is initially reviewed by
The Department may revoke, suspend, place on probationary
a recognized areawide health planning organization or [the
status, or take any other disciplinary action as the Depart-
Department of Public Health]
[they] shall afford an op-
ment may deem proper with regard to the license
of any
portunity for a public hearing within a reasonable time after
person
in this state to practice medicine
receipt of the complete application.
Such hearing shall be
upon any
of the following grounds:
conducted in the area or community where the proposed proj-
ect is to occur, and shall be for the purpose of allowing the
(1) Performance of an elective abortion in any place
applicant and any interested person to present public testi-
other than:
mony concerning the approval, denial, renewal or revocation
(a) a facility licensed pursuant to the "Ambulatory Sur-
of the permit.
The State Board shall promulgate reason-
gical Treatment Center Act"
able rules and regulations governing the procedure and con-
(Footnote continued on following page)
duct of such hearings.
App. 4
App. 5
The bulk of plaintiffs' specific challenges, however, are
tion 157-8.12. Section 157-8.12 provides for a fine of
directed at the ASTCA and the regulations promulgated
$10,000 per day for operating a facility without a license
thereunder, and their application, via the MPA, to phy-
or otherwise violating the Act. Section 157-8.13 makes the
sicians desiring to perform first and early second trimester
operation of a facility in violation of the Act or regula-
abortions. Accordingly, we set forth the ASTCA and its
tions a public nuisance subject to injunction.
accompanying regulations in some detail.⁴
Section 157-8.15 provides, in broad terms, for severabil-
The Act itself is largely procedural in operation and
ity of the provisions of the Act.
grants the Department of Public Health the authority to
promulgate specific regulations governing ASTCs. 111½
The general regulations under the ASTCA, found in
Ill. Rev. Stat. 1 157-8.10. However, certain specific provi-
Title 77 of the Illinois Administrative Code, are detailed
sions of the statute also prescribe requirements for ASTCs.
and govern many aspects of an ASTC.
Section 6.1 of the ASTCA requires any corporation oper-
For example, there are quite specific physical plant reg.
ating an ASTC devoted primarily to providing facilities
ulations which require: (1) a minimum size of 250 sq. ft.
for abortion to have on its board of directors a physician
or at least one procedure room (any additional ones must
who is licensed to practice medicine in all of its branches
be no smaller than 120 sq. ft.) and a minimum of 80 sq.
and is actively engaged in the practice of medicine at the
ft. for examinations rooms; (2) that an ASTC be "iden-
ASTC. Sections 157-8.5 and 8.6 generally provide for li-
tifiably separate from other medical facilities and func-
censing with an initial fee of $500 and an annual renewal
tions"; (3) that a "control station" be located to allow
fee of $300. Additionally, those sections require that a
visual surveillance of traffic entering the operating suite;
licensed facility be under the supervision of one or more
(4) that facilities including a lounge, lockers, separate toilets,
physicians and that at least one physician have admitting
and a space for changing clothes be provided for male and
and surgical privileges at an Illinois hospital. Sections
female personnel; (5) a separate janitorial closet for the
157-8.7a and 8.7b require statements regarding the owner-
surgical suite; (6) a "diagnostic facility" if pre-admission
ship of and financial condition of the facility. Section
evaluation tests are to be performed; and (7) minimum
157-8.8 requires Department approval of construction of,
corridor (5' or 8' depending on whether stretchers are to
alterations of, or additions to a facility. Section 157-8.9
be used) and door (3' or 3'8") widths. § 205.1310-1390.
provides for quarterly inspections of facilities and provides
Also, an elaborate air-conditioning, heating, and ventila-
for confidentiality of information received by the Depart-
tion system to provide for specific filter efficiencies and
ment.
airflow relationships between rooms is required. § 205.1540
and Table A.
The remedial sections of the Act provide an array of
enforcement mechanisms. Section 157-8.9a provides that
The licensure regulation provides for a detailed appli-
a facility may be closed by administrative order if its con-
cation including identification of the owners and operators
tinued operation constitutes an imminent and serious men-
of the facility, its location, a description and architectural
ace to the health or safety of the patients or if the
plans, documentation of compliance with building and safe-
operator thereof has been convicted of a violation of sec-
ty codes, a description of the services to be performed,
and a list of all personnel and their qualifications. A new
application is required for a change in ownership, loca-
4 Selected regulations that are discussed in detail in our analysis
tion of the facility, remodeling, or addition of services or
infra in the text are set forth in an Appendix to this opinion.
programs. Notice to the Department must be given of any
App. 6
App. 7
change in the administrative staff, medical director, staff
be maintained with the patient's clinical records. $ 205.520.
physicians, supervising nurse, addition or deletion of sur-
All removed tissues are to be examined by a consulting
gical procedures, or change in any shareholder interest
pathologist. $ 205.530.
of five percent or more. § 205.120.
Post-operative care regulations provide that any patient
Other general requirements include an organizational plan
who has had general anesthesia, local anesthesia with seda-
which is available for public information, a policies and
tion, or pregnancy termination is required to be observed
procedures manual, and written personnel policies including
for a period of time sufficient to detect any immediate
job descriptions. § 205.310. All facilities are required to
post-operative complications, and that no patient be re-
have the following personnel present during the operative
quired to leave in less than one hour. $ 205.540. Addi-
and post-operative period for all patients: a physician, a
tionally, written documentation is required of a transfer
registered professional nurse with post-graduate educa-
agreement with a licensed hospital within fifteen minutes
tion or experience in surgical nursing, and a person cer-
of the facility, or that the medical director of the ASTC
tified in "Basic Life Support" by the American Heart
(or each staff physician of the ASTC) has admitting priv-
Association. Sections 205.320-40. Additionally, each facil-
ileges at such a hospital. § 205.540.
ity must have either a certified medical technician or a
Detailed clinical records are also required to be main-
written agreement with a licensed laboratory to perform
tained. § 205.610. Additionally, facilities are required to
required laboratory procedures. § 205.350. A consulting
make annual statistical reports that include the number
committee must be established to develop standards of
and type of procedures performed, the number and type
professional work and a physician must serve as the med-
of complications reported, the number of patients requir-
ical director of the facility. § 250.230.
ing transfer to a hospital due to complications, the number
With regard to equipment, all facilities are required to
of patients returning for follow-up, and the number of
have monitoring equipment, suction apparatus, oxygen,
deaths.
and cardiac pulmonary resuscitation equipment. § 205.410.
The regulations also have an abortion-specific subpart
Additional written procedures are required to govern care,
which requires: (1) at least one registered professional
use, sterilization, storage and disposal of all materials, and
nurse with post-graduate education or experience in ob-
to govern storage and use of all medications. Id. Addi-
stetrical or gynecological nursing, section 205.720; (2) test-
tional written procedures are required for garbage and
ing and reporting of the results to the patient of blood
refuse removal, insect and rodent control, and mainte-
Rh factor and diagnosis of pregnancy, section 205.730(a);
nance of heating, ventilation and utility service. § 205.420.
and (3) counseling by someone specifically trained to give
Patient care regulations include a requirement of a writ-
it and who has no financial interest in the patient's deci-
ten "emergency" procedure in case of fire, explosion, or
sion, which counseling must include a discussion of alter-
"other non-patient medical emergency," and preparation
natives, description of the procedure to be performed, and
to manage the emergencies normally associated with the
an explanation of risks and possible complications, section
surgical procedures performed. § 205.510. A "complete
205.730(b). Contraceptive information may be provided
physical" is required and specified tests are required to
post-operatively, and shall be provided if desired by the
be performed by a qualified laboratory technician for any
patient. Id. Counseling must take place in a room separate
procedures performed under general anesthesia, local an-
from the procedure room, and a record of the counseling
esthesia with sedation, or any pregnancy termination. A
given is to be included in the patient's clinical record. Id.
signed, written informed consent for any procedure is to
App. 8
App. 9
The subpart contains its own reporting requirement which
Ct. 2532 (1983). An internal memorandum of the Depart-
requires monthly reporting of each procedure "on forms
ment of Public Health following the decisions in those
provided by [the Department]." Additionally, the regula-
cases opined that they confirmed the unconstitutionality
tions prohibit an ASTC from performing abortions on pa-
of the second trimester hospitalization requirement in the
tients with a gestational age exceeding twelve weeks.
Illinois statutes and regulations. See Deft. Ex. 4. Repre-
§ 205.740.
sentatives of the defendants testified at trial that the re-
quirement is not currently being enforced for this reason.
B. Enforcement Policies
Defendants also contend that section 10 of the Illinois
Not all of the provisions of challenged statutes and reg-
Abortion Law of 1975, an abortion-specific reporting re-
ulations are being enforced. Since 1981, the Act and regu-
quirement, was enjoined by Judge Kocoras in Charles v.
lations have been applied only to facilities which are pri-
Carey, 579 F. Supp. 464 (N.D. Ill. 1983), aff'd in part,
marily devoted to the performance of surgical procedures
rev'd in part on other grounds Charles v. Daley, 749 F.2d
(including abortions). This enforcement policy was adopted
452 (7th Cir. 1984) (Charles II), appeal dismissed sub
in response to Village of Oak Lawn v. Marcowitz, 86 III.
nom. Diamond v. Charles, 106 S. Ct. 1697 (1986), and that
2d 406, 427 N.E.2d 36 (1981), which refused to enforce,
the abortion-specific reporting requirement in the ASTC
in a criminal proceeding, that portion of a local ordinance
regulations has not been enforced since that time.
which incorporated the ASTCA definition of an ASTC
These non-enforcement policies are not publicly stated,
which covered "any facility where a medical or surgical
but persons who inquire of the various enforcement agen-
procedure is performed for the termination of pregnancy,
cies are informed of them.
regardless of whether the facility is primarily devoted to
that purpose." The defendants also contend that the MPA's
C. Individual Plaintiff Dr. Ragsdale
revocation or suspension sanction for performing abortions
outside an ASTC is similarly not being enforced, but the
The individual plaintiff physician was required to relo-
evidence on this point is equivocal.
cate his practice, the Northern Illinois Women's Center
("the NIWC"), which is the only facility of its kind (that
The defendants also contend that the prohibition on per-
is, a non-hospital clinic) offering abortion services in a
formance of second trimester abortions in ASTCs is not
large area of northwestern Illinois because his landlord
being enforced because it was considered enjoined by the
refused to renew his lease. The facility which he had been
order in Paula Poe v. IDPH, No. 78-C-4126 (N.D. III.
operating was not in full compliance with the ASTCA reg-
1982). In that case, enforcement of section 4 of the Illinois
ulations, but was nonetheless licensed as "substantially
Abortion Law of 1975, 38 Ill. Rev. Stat. § 81-24, which
complying" with them. When he sought another location,
required all second trimester abortions to be performed
he had to go through the certificate-of-need proceedings.
in a hospital, along with "any related regulation" was en-
The required public hearing on the application degenerated
joined pending decision of three Supreme Court cases in-
into a shouting match between "pro-choice" and "pro-life"
volving a second trimester hospitalization requirement.
members of the public, after which the doctor's prospec-
Akron v. Akron Center for Reproductive Health, Inc., 462
tive landlord withdrew his lease commitment. In addition,
U.S. 416, 103 S. Ct. 2481 (1983); Planned Parenthood As-
officials charged with enforcing the regulations told him
sociation, Inc. v. Ashcroft, 462 U.S. 476, 103 S. Ct. 2517
that they would require "considerably more substantial
(1983); and Simopoulos v. Virginia, 462 U.S. 506, 103 S.
compliance" than had been the case with his prior facili-
App. 10
App. 11
ty, particularly with respect to the architectural require-
moot a controversy and prevent its adjudication by a fed-
ments. The cost of either building a facility or renovating
eral court. City of Mesquite v. Aladdin's Castle, Inc., 455
one to comply with the regulations was estimated by the
U.S. 283, 289 & n.10, 102 S. Ct. 1070, 1074 & 10 (1982);
plaintiff at between $25.21 and $47.66 per patient. Because
County of Los Angeles v. Davis, 440 U.S. 625, 631, 99
of his inability to find a location that can be renovated
S. Ct. 1379, 1383 (1979); United States v. W.T. Grant Co.,
to comply with the ASTCA, particularly the structural
345 U.S. 629, 632-33, 73 S. Ct. 894, 897 (1953); see also
and physical plant requirements of the regulations, at a
Charles v. Daley, 749 F.2d 452, 456-58 (7th Cir. 1984)
reasonable cost, Dr. Ragsdale will close the NIWC unless
(Charles II), appeal dismissed sub nom., Diamond v.
the statute is enjoined.
Charles, 106 S. Ct. 1697 (1986). However, such cessation
does render a controversy moot where there is no reason-
D. Individual Plaintiff Margaret Moe
able expectation that the putatively illegal conduct will
Margaret Moe is a registered nurse who currently op-
be repeated, and there are no remaining effects of the
erates two medical facilities in the State of Illinois. The
alleged violation. Davis, 440 U.S. at 631, 99 S. Ct. at 1383;
facilities offer family planning education and medical care
W.T. Grant, 345 U.S. at 633, 73 S. Ct. at 897. Defendants
that includes the prescription of contraceptives, prenatal
bear a heavy burden of persuading the court that a con-
care, and delivery assistance for pregnant women. Her
troversy is moot. United States v. Phosphate Export As-
clinics receive approximately sixty requests for abortions
sociation, Inc., 393 U.S. 199, 203, 89 S. Ct. 361, 364 (1968);
each week. She would like to offer abortion services at
W.T. Grant, 345 U.S. at 633, 73 S. Ct. at 897; Charles
her clinics, and she has on staff physicians who are com-
II, 749 F.2d at 457; Sanchez v. Edgar, 710 F.2d 1292,
1294-95 (7th Cir. 1983).
petently trained and willing to perform such abortions.
However, her facilities do not comply with the structural
We note additionally that cessation of the allegedly il-
requirements of the Act and regulations and cannot be
legal conduct by government officials has been treated
renovated to so comply without prohibitive cost. Accord-
with more solicitude by the courts than similar action by
ingly, she does not offer such services.
private parties. According to one commentator, such self-
correction provides a secure foundation for a dismissal
II
based on mootness so long as it appears genuine. See 13A
Wright, Miller & Kane Federal Practice and Procedure
We first consider whether certain of plaintiffs' challenges
§ 3533.7, at 353 (2d ed. 1984).
have been mooted by the State's non-publicized policy of
non-enforcement.5 It is well established that voluntary
A.
cessation of putatively illegal conduct ordinarily will not
We believe that application of these general principles
to the present circumstances mandates a conclusion that
5 We note that the defendants did not argue that portions of the
plaintiffs' challenge to the second trimester hospitaliza-
case were moot until their reply brief, arguing in their initial brief
tion requirement is moot. As we have noted above, the
only that the non-enforcement policy meant that the plaintiffs were
defendants have conceded, at least since 1983, that this
not being irreparably harmed by the statutory scheme. Nonethe-
less, as we are under a duty to determine our own jurisdiction,
requirement is unconstitutional under governing Supreme
we must consider the question of mootness even if no party prop-
Court decisions and is therefore not enforced. Plaintiffs
erly raises it.
have not attempted to counter the defendants' showing
App. 13
App. 12
on this point, nor do we believe they could. The individual
We believe that the defendants' now public policy of
plaintiff Dr. Ragsdale testified that he was informed by
non-enforcement of the hospitalization requirement, par-
a State inspector that the hospitalization requirement was
ticularly in view of the reasons therefor (i.e., that enforce-
not being enforced and that after that time he began per-
ment is barred by clear Supreme Court precedent), moots
forming early second trimester abortions at his facility.
any challenge to that requirement. While we share plain-
tiffs' concern that the State has not acted to remove or
Analogous assurances of discontinuance of the challenged
amend the statute and regulations, we know of no author-
conduct have been held to render challenges moot in other
ity by which we can require it to do so. The most we
cases. For example, in McRary v. Polythress, 638 F.2d
could do, and all plaintiffs request of us, is to enjoin their
1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325
enforcement. Federal courts do not, as a rule, enjoin con-
(1981), election officials conceded that they had erred by
duct which has been discontinued with no real prospect
attempting to compel a political candidate to file certain
that it will be repeated. Accordingly, the challenge to the
financial disclosure reports and wrote the candidate aban-
second trimester hospitalization requirement should have
doning their request for such reports. This, according to
been dismissed. Therefore we vacate the portion of the
the court, mooted the challenge to the officials' action
injunction that pertains to it.
because "Appellant 'has presented no evidence creating
a reasonable expectation that the [Commission] will repeat
B.
its purportedly unauthorized actions in subsequent elec-
tions. Appellant's conclusory assertions that the actions Id.
However, we do not believe that the challenge to the
are capable of repetition are not sufficient.
reporting requirement of the ASTCA and regulations is
at 1310 & n.1 (quoting Illinois State Board of Elections
moot. Although defendants testified that this requirement
v. Socialist Workers Party, 440 U.S. 173, 187, 99 S. Ct.
is no longer being enforced in light of Charles v. Carey,
983, 992 (1979). In Northern Virginia Women's Medical
579 F. Supp. 464 (N.D. III. 1983), we have reviewed that
Center v. Balch, 617 F.2d 1045 (4th Cir. 1980), an even
decision and cannot find anything in it which remotely
more questionable assurance of discontinuance was held
supports the conclusion that the requirement under chal-
to moot the controversy. There, a local prosecuting at-
lenge here was enjoined. The only reporting requirement
torney's policy of not enforcing a state trespass statute
addressed by that decision was section 11(d) of the Illinois
against anti-abortion protestors who unlawfully entered
Abortion Act, which required the reporting to the Depart-
and blocked access to an abortion clinic was challenged
ment of the name of any patient diagnosed as having com-
as a denial of Equal Protection. The court held that the
plications from abortion. The more general requirements
prosecutor's assertion at oral argument that the non-
here are quite different. Unlike its representations of non-
enforcement policy had been abandoned, coupled with the
enforcement of the other sections, the State produced no
fact that prosecutions had in fact occurred during the
pre-existing documentation of the policy. We share the
pendency of the litigation, rendered the challenge moot.
district court's concern that the State's position on this
According to the court, "[s]ince the good faith of this
provision is asserted only in this litigation.
representation is not questioned, we conclude that the
controversy between the Center and the commonwealth
C.
attorney is now moot and that it is not likely to be re-
vived." Id. at 1049.
The challenge to the application of the ASTCA and reg-
ulations to first trimester abortions is similarly not moot.
App. 14
App. 15
While the requirement is apparently no longer applied to
right to privacy (and to abortion) as established in Roe
the "occasional" abortion provider, the State continues to
v. Wade, 410 U.S. 113, 93 S. Ct. 710 (1973), and its prog-
maintain that it is free to apply the ASTCA to abortion
eny. In Roe, the Court first set out the now familiar "tri-
providers whose practice is "primarily devoted to" per-
mester" approach:
forming surgery, even if that "surgery" consists exclusive-
(a) For the stage prior to approximately the end
ly of first trimester abortions. This is in fact the situation
of the first trimester, the abortion decision and its
facing at least one of the named plaintiffs, Dr. Ragsdale.
effectuation must be left to the medical judgment of
Additionally, the evidence regarding the suspension/ rev-
the pregnant woman's attending physician.
ocation sanction in the MPA was, as we have noted, am-
(b) For the stage subsequent to approximately the
biguous. A representative of the Department merely tes-
end of the first trimester, the State, in promoting
tified that any complaint regarding this provision would
its interest in the health of the mother, may, if it
be "examined by the General Counsel's office for a deter-
chooses, regulate the abortion procedure in ways that
mination of whether there would be any enforcement ac-
are reasonably related to maternal health.
tion taken pursuant to that section." He additionally tes-
tified that "to the best of [his] knowledge" the Depart-
(c) For the stage subsequent to viability, the State
ment would not enforce the section. While we admit that
in promoting its interest in the potentiality of human
it would be anomalous for the Department to take the
life may, if it chooses, regulate, and even proscribe
position that "occasional" abortion providers need not be
abortion except where it is necessary, in appropriate
licensed but that performance of such abortions could sub-
medical judgment, for the preservation of the life or
ject the physicians to revocation of their licenses to prac-
health of the mother.
tice medicine, the Department's position is sufficiently
410 U.S. at 164-65, 93 S. Ct. at 732.
murky and the sanctions sufficiently severe, that we be-
lieve a live controvery exists regarding this requirement.
In elaborating on this approach, the Court noted that
Doctors should not have to risk loss of their professional
the State's interest in the health of the mother becomes
licenses to explore the contours of the asserted non-
compelling:
enforcement position.
6 continued
III
court. Although no doubt its task was made more difficult by the
On the merits,6 we must consider whether the require-
lack of assistance from the parties, the district court undertook
ments of the statutory and regulatory scheme violate the
a thorough examination of those traditional factors, i.e., the lack
of an adequate remedy at law, irreparable harm, balance of harms,
likelihood of success on the merits, and the public interest. We
6 On appeal, various of the defendants and amici contend that
confine our discussion to the likelihood of success on the merits,
the district court did not properly weigh various of the factors
that is, the governing legal standards and their relationship to the
which are normally considered in issuing a preliminary injunction.
facts found below for two related reasons. First, the balancing of
We note that the presentation of the case below focused almost
the other factors is typically reviewed on an "abuse of discretion
exclusively on the constitutionality vel non of the statutory scheme
standard" and we see no abuse, and second, we find insufficient
or its component parts. None of the parties argued the traditional
merit to any of the defendants' or the amicus' belated assertions
factors governing the granting of preliminary relief to the district
that this or that factor was given insufficient weight to add to
(Footnote continued on following page)
this already lengthy opinion.
App. 16
App. 17
in the light of present medical knowledge, at ap-
if the abortion is performed by medically competent per-
proximately the end of the first trimester. This is so
because of the now-established medical fact, ... that
sonnel under conditions insuring the maximum safety of
the woman.' Akron v. Akron Center for Reproductive
until the end of the first trimester mortality in abor-
Health, Inc., 462 U.S. 416, 430 n.12, 103 S. Ct. 2481, 2492
tion may be less than mortality in normal childbirth.
n.12 (quoting Menillo, 423 U.S. at 11, 96 S. Ct. at 171).
It follows that, from and after this point, a State may
regulate the abortion procedure to the extent that
Likewise, the Court upheld a state-required pathology
the regulation reasonably relates to the preservation
examination which required tissues removed by abortion,
and protection of maternal health. Examples of per-
like all other removed tissues, to be examined by a pa-
missible state regulation in this area are requirements
thologist. Planned Parenthood Association, Inc. v. Ash-
as to the qualifications of the person who is to per-
croft, 462 U.S. 476, 103 S. Ct. 2517 (1983). This was be-
form the abortion; as to the licensure of that person;
cause such an examination was considered "absolutely
as to the facility in which the procedure is to be per-
necessary" from a medical standpoint and " 'abnormalities
formed, that is, whether it must be a hospital or may
in the tissue may warn of serious, possibly fatal disor-
be a clinic or some other place of less-than-hospital
ders." Id. at 487-89, 103 S. Ct. at 2523-24. According to
status; as to the licensing of the facility; and the like.
the Court, certain regulations of even first trimester abor-
tions that 'have no significant impact on the woman's
This means, on the other hand, that, for the period
exercise of her right [to have an abortion] may be per-
of pregnancy prior to this "compelling" point, the at-
missible where justified by important state health objec-
tending physician, in consultation with his patient, is
tives.' Id. at 489-90, 103 S. Ct. at 2524 (quoting Akron,
free to determine, without regulation by the State,
462 U.S. at 430, 103 S. Ct. at 2492-93 (alterations by the
that, in his medical judgment, the patient's pregnancy
Court)).
should be terminated. If that decision is reached, the
judgment may be effectuated by an abortion free of
The quoted language clearly indicates that, where first
interference by the State.
trimester abortions are involved, not only must the im-
pact of the challenged regulation be insignificant in terms
Id. at 163, 93 S. Ct. at 731-32.
of the woman's exercise of her right, but also that the
Since Roe, the Court, along with the lower federal
regulation must be "justified by important state health
courts, has on numerous occasions clarified the constitu-
objectives." This is consistent with our own case law to
tional standards which apply to regulations aimed at both
the effect that once such regulations are shown to have
first and second trimester abortions. Few restrictions on
more than a de minimus impact on the abortion decision,
first trimester abortions have been upheld. For example,
the government must show a compelling basis for the law,
the Court upheld a requirement that all abortions be per-
i.e., that the burden is not undue or unjustifiable. Charles
formed by a licensed physician. Connecticut v. Menillo,
v. Carey, 627 F.2d 772, 777 (7th Cir. 1980) (Charles I),
423 U.S. 9, 96 S. Ct. 170 (1975) (per curiam). This require-
on remand, 579 F. Supp. 464 (N.D. Ill. 1983).7
ment, apart from being endorsed in dictum in Roe, was
upheld because "the State retains an interest in ensur-
7 Appellants make much of the fact that the district court con-
ing the validity of Roe's factual assumption that 'the first
nected the two parts of the Charles I dictum with "and" rather
trimester abortion [is] as safe for a woman as normal
than "that is," claiming that the district court thus applied an im-
childbirth at term,' an assumption that 'holds true only
proper standard. See 625 F.2d at 1230. This claim is meritless.
(Footnote continued on following page)
App. 18
App. 19
Appellants contend that the district court's application
be "the functional equivalent of small hospitals," 625 F.
of a "medical necessity" standard was error. We disagree.
Supp. at 1216, and that these requirements "may be medi-
First, we believe that a "medical necessity" standard, at
cally detrimental." Id. at 1230 n.23.
least as the term was used in the testimony below, is en-
tirely consonant with the standards to be applied to reg-
We note as well that the question whether some or all
ulations regarding first trimester abortions. See Akron,
of the requirements of the statute and regulations could
462 U.S. at 430, 103 S. Ct. at 2492-93 (such restrictions
be constitutionally applied to early second trimester abor-
must be "justified by important state health objectives");
tions is a more nettlesome one, but it is a question which
Ashcroft, 462 U.S. at 487, 103 S. Ct. at 2523 (pathology
we need not decide.8 The statute and regulations do not
examination requirement upheld because "absolutely nec-
essary" from a medical standpoint). Additionally, it is clear
8 A number of the regulations involved may well pass muster
from a review of the transcript that when the experts
under the less stringent standard of review applied to state regula-
below testified that a requirement was not "medically nec-
tion of second trimester abortions. That standard allows the state
essary," they meant by that term that it had no real rela-
to regulate second trimester abortions to the extent that the reg-
ulation "reasonably relates to the preservation and protection of
tionship to safety or health. See, e.g., R. Vol. I at 112
maternal health," but it may not "adopt abortion regulations that
(testimony of Dr. Ragsdale) (certain provisions not medi-
depart from accepted medical practice." Akron, 462 U.S. at 430-31,
cally necessary because without "any real relationship to
103 S. Ct. at 2493. The experts who testified at hearing described
the particular circumstances" of physician performing
many of the requirements as "consistent with accepted medical
abortions). According to the testimony, the minimum size
practice." While it is true, as the district court found, that "[t]his
requirements for examination rooms, procedure rooms,
is not equivalent to a showing of medical necessity," such a show-
ing is not required for regulations which apply only to the second
recovery rooms, corridors and doors, for example, not only
trimester.
were not "medically necessary," but do not enhance the
We note that the Supreme Court stated in Roe that the state's
safety of the abortion procedure "in any way" or did not
interest in maternal health during the second trimester extends
have "any medical justification." R. Vol. I at 263-72 (tes-
to "the facility in which the procedure is to be performed, that
timony of Dr. Hern); see also R. Vol. I at 154 (testimony
is, whether it must be a hospital or may be a clinic of some other
of Dr. Ragsdale) (large procedure room "not only medical-
place of less-than-hospital status; as to the licensing facility; and
ly unnecessary but medically poor"). The district court
the like." 410 U.S. at 163, 93 S. Ct. at 732. Further, in Simopoulos
found, with full support from the record, that the physical
v. Virginia, 462 U.S. 506, 103 S. Ct. 2532 (1983), the Court re-
jected an attack on a criminal conviction, upholding against a
plant requirements of the regulations required ASTCs to
charge of facial invalidity a statute requiring all second trimester
abortions to be performed in a "hospital," where that term was
defined to include facilities which were not full-fledged acute care
7 continued
hospitals. Thus, it appears that at least some licensing of facilities
Charles I in fact reiterated the standard enunciated by the Su-
performing second trimester abortions would be permissible. How-
preme Court, that the state must justify its regulation with a com-
ever, we caution that the Court in Simopoulos specifically noted
pelling interest and show that the regulation is narrowly drawn
that "[w]e need not consider whether Virginia's regulations are
to express only that interest. See 627 F.2d at 776-78. Scrutiny of
constitutional in every particular.
Appellant has not attacked
such laws always involves two questions: (1) how important the
them as being insufficiently related to the State's interest in pro-
asserted state interest is, and (2) how well the regulation is drawn
tecting health." Id. at 513, 103 S. Ct. at 2539. Also, Simopoulos,
to achieve only that interest. Charles I did not intend to suggest
unlike the present case, involved a late second trimester abortion
that the second inquiry was unnecessary, and appellants' reliance
performed using the saline instillation method.
on it for that purpose is misplaced.
(Footnote continued on following page)
App. 20
App. 21
distinguish between the two. Indeed, as written, due to
American College of Obstetricians, 106 S. Ct. 2169, 2181
the (now unenforced) second trimester hospitalization re-
(1986).
quirement, they originally applied only to first trimester
abortions. Accordingly, as we have in other cases, we ap-
Defendants suggest that, because the regulations apply
ply the legal standards applicable to restrictions on first
to all facilities primarily devoted to surgery, we must
trimester abortions. See Charles I, 627 F.2d at 782;
review them under a different standard than if they had
Friendship Medical Center, Ltd. v. Chicago Board of
singled out abortions. We disagree. Defendants have cited
Health, 505 F.2d 1141, 1149 (7th Cir. 1974), cert. denied,
us to no cases, and we have found none, which would jus-
420 U.S. 955, 95 S. Ct. 1438 (1975). We are simply not
tify such a distinction. In fact, Friendship suggests, albeit
at liberty to insert the words "except with regard to first
in dictum, exactly the opposite. 505 F.2d at 1153-54; see
trimester abortions" into either the statute or the regula-
also Birth Control Centers, Inc. v. Reizen, 743 F.2d 352,
tions. To do SO would result in a scheme with little re-
361-62 (6th Cir. 1984) (applying strict scrutiny notwith-
semblance to that enacted by the Illinois legislature or
standing general applicability of regulations).
the Department of Public Health. See Thornburgh v.
We adhere to the statement in Friendship for several
reasons. First, we cannot ignore the fact that the ASTCA
8 continued
was enacted primarily with abortion clinics in mind and
Much of the testimony below was to the effect that the require-
only applied to outpatient surgical clinics generally in an
ments of the regulations bore little relationship to safe performance
effort to save the statute from unconstitutionality. See Pf.
of early second trimester abortions as well as first trimester abor-
Ex. 22-24 (minutes of ASTC Licensing Board meetings).
tions. This should come as little surprise, since the medical pro-
Secondly, the State cannot, merely by applying the ex-
cedures utilized are quite similar if not identical. We remind the
pedient and conclusory label "surgery" to a medical pro-
State of the Supreme Court's admonition in Akron that:
cedure, apply requirements which would be necessary to
[I]f it appears that during a substantial portion of the second
major surgical procedures in the abortion context where
trimester the State's regulation "depart(s] from accepted
medical practice," supra, at 2493, the regulation may not be
they would be wholly inappropriate. It is as much a vice
upheld simply because it may be reasonable for the remain-
to treat abortion similarly to dissimilar procedures as it
ing portion of the trimester. Rather, the State is obligated to
is to treat it differently from analogous procedures. In
make a reasonable effort to limit the effect of its regulations
either case, imposition of burdensome requirements which
to the period in the trimester during which its health interest
are completely unnecessary to the performance of safe
will be furthered.
abortions is attempted. A prime example of this problem
462 U.S. at 434, 103 S. Ct. at 2495.
is the fact that many of the physical plant requirements
Thus, while the trimester approach remains the applicable legal
of the regulations are designed with procedures to be per-
framework for weighing the competing interests involved in the
formed under general anesthesia in mind, although the
abortion decision, it does not necessarily follow that all state
testimony in this case clearly established that first and
regulations of abortion which are keyed to it are reasonable. In-
stead, the state should endeavor to draw its regulations designed
early second trimester abortions of the type at issue here
to further maternal health in medically relevant terms (for exam-
are not usually performed using such anesthesia and that,
ple, certain of the requirements of the statute involved here may
in fact, the use of a general anesthetic increases the risk
well make sense for late second trimester abortions which are per-
of death and major complications from such procedures.
formed under a general anesthetic, but not for simple "dilation
and evaculation" abortions performed early in the second tri-
With the standards enunciated above in mind, we now
mester).
turn to evaluation of the constitutionality of the challenged
statutes and regulations.
App. 22
App. 23
IV
that this is not a great deal more than the cost of the
A.
pathology examination upheld in Asheroft, they seem to
have missed the import of that case. The Court did not
The State initially contends that the plaintiffs have not
hold that the impact was SO small that the state was not
met their threshold burden of showing an impact on the
required to justify it at all. It merely held that, during
abortion decision. We must reject this contention. The
even the first trimester, requirements having an insignifi-
district court found that the regulations at issue do sub-
cant impact on the abortion decision were constitutional
stantially burden the effectuation of the decision to have
"where justified by important State health objectives."
an abortion. Specifically, the lower court found that the
Thus, the regulations at issue here, which have a greater
regulations raised the cost of abortions, by $25-$40 for
financial impact than that in Ashcroft, must be justified
abortions performed at Dr. Ragsdale's clinic, and, more
by at least similar state interests.
importantly, that they would limit the availability of abor-
tions in that, unless the regulations were enjoined, the
Additionally, although the financial per-patient cost of
clinic would close for lack of a suitable location that could
compliance might not seem overwhelming, it is not the
only burden which must be considered. The lack of avail-
be renovated to comply with them.9 Additionally, the dis-
trict court found that the regulations prevented individual
ability of abortions caused by the up-front cost and dif-
plaintiff Moe from offering abortion services at her clinic
ficulty of obtaining a complying facility is at least as real
because the cost of compliance was prohibitive. We can-
and possibly more burdensome to women seeking abor-
not say these findings are clearly erroneous.
tions. Furthermore, there was testimony of the psycho-
logical burdens which would result from having to undergo
Dr. Ragsdale testified that he estimated compliance with
an abortion in a hospital-like facility when the more psy-
the regulations would entail a per-patient cost of between
chologically comforting setting of a doctor's office would
$25 and $40. 10 While the defendants point out, correctly,
serve just as well from a medical standpoint. We cannot
say that these burdens are "de minimus." Cf. Charles
The Americans United for Life Legal Defense Fund, as amicus
I, 627 F.2d at 777 ("direct interference" is shown where
curiae, contends that, because individual plaintiff Dr. Ragsdale
impact is not de minimus or where regulation imposes
would have had to relocate his clinic regardless of the regulations
restrictions "that did not already exist"). Therefore, they
(due to an ostensibly unrelated business decision of his landlord),
must be justified by important state health objectives.
plaintiffs have presented no direct injury flowing from the chal-
lenged government conduct. However, this argument misses the
critical point that the regulations make difficult, if not impossible,
B.
the relocation of an existing abortion practice or the commence-
ment of a new one. As such, we have little doubt that plaintiffs
The first facet of the scheme we consider is the require-
have established a sufficient injury both to satisfy Article III and
ment that facilities performing first trimester abortions
to warrant the grant of injunctive relief.
be licensed at all. While this may not seem a particularly
10 Defendants place considerable emphasis on the allegedly erro-
onerous requirement, we note Supreme Court precedent
neous admission of Dr. Ragsdale's handwritten cost estimates. We
suggests only that a licensing requirement may be per-
need not decide whether these constituted inadmissible hearsay,
missible in the second trimester. The Court stated in Roe
however, because Dr. Ragsdale testified at length, and without
that the state's interest in maternal health during the sec-
objection, to the substance of the estimates. Therefore, the ad-
mission of the written estimates themselves, if error, was surely
ond trimester extends to "the facility in which the pro-
harmless.
cedure is to be performed, that is, whether it must be
App. 24
App. 25
a hospital or may be a clinic of some other place of less-
We realize that the Sixth Circuit upheld a similar gen-
than-hospital status; as to the licensing of the facility; and
eral licensing requirement in Reizen. However, in doing
the like. 410 U.S. at 163, 93 S. Ct. at 732. By contrast,
so, the court did not address a challenge based on the
the Court stated that during the first trimester "the at-
constitutional right to abortion, but rather an Equal Pro-
tending physician, in consultation with his patient, is free
tection challenge based upon the physician's right to prac-
to determine, without regulation by the State, that, in
tice. Accordingly, the court applied a highly deferential
his medical judgment, the patient's pregnancy should be
"rational basis" standard of review. 743 F.2d at 358-59.
terminated. If that decision is reached, the judgment may
As we have already held, such a standard of review is
be effectutated by an abortion free from interference by
not appropriate in this case. Additionally, none of the
the State." Id. (emphasis added).
evidence of the type mentioned above was apparently
While we realize that the last quoted statement has
present in Reizen. There, the district court found that a
been qualified by the Court in subsequent decisions (that
private physician was more likely to have direct control
is, where the "interference" does not have a significant
over staff and procedures, but that the absence of this
impact and furthers important state health concerns), we
control might characterize a "elinic." Such findings are
nonetheless believe it retains force here. Thus, we are
absent in this case.
persuaded in this case that the State may not require
Purely as a matter of the plain language of the statutory
separate licensure of facilities primarily devoted to per-
and regulatory scheme, once the licensing requirement
forming abortions.
falls, the remainder of the requirements fall with it (or,
A primary factor which persuades us is that the State
more properly, are inapplicable). The specific substantive
has in no way shown that performance of first trimester
requirements are not (leaving aside the unenforced re-
abortions in physicians' offices rather than heavily regu-
quirement that all abortions must be performed in an
lated ASTCs in any way undermines the safety of the
ASTC) applicable to abortions, per se, but rather to
operation. We further note that Akron itself seems to re-
ASTCs. In the alternative, however, we analyze those spe-
ject such an argument. 462 U.S. at 429 n.11. The State
cific substantive aspects of the regulations focused on at
in fact basically concedes that it cannot prevent doctors
trial which render the scheme unconstitutional as a whole. 11
from performing at least some abortions in their offices.
To the extent that there is any basis for distinguishing
11 We do not decide whether particular provisions of the regula-
tions not specifically mentioned in the text would, standing alone,
between a doctor who occasionally performs an abortion
pass constitutional muster. In particular, the pathology examina-
in his office and one whose practice is primarily devoted
tion required by the general regulations seems nearly identical to
to such procedures, the regulations appear to run contrary
that upheld in Ashcroft. Also the reporting requirement does not
to sound health policy. All of the expert testimony in the
appear particularly onerous, nor does it appear calculated to raise
record is in agreement that the physician who performs
the fear of harassment by physicians and patients by raising the
spectre of public disclosure. Section 205.760 of the regulations
many abortions in general will have more expertise and
merely requires a report of each procedure performed in an ASTC
therefore a better safety record. The State's attempt to
within ten days, and that such reports be made in such a manner
regulate experienced, and therefore safer, physicians, more
and at such time so as not to avoid accurate reporting of com-
heavily than the occasional abortion provider thus appears,
plications. If complications become known to the ASTC, it is re-
as the district court noted, to lack even a reasonable basis.
quired to submit a supplemental report. Section 205.620, a non-
abortion-specific reporting requirement, merely requires reporting
(Footnote continued on following page)
App. 26
App. 27
C.
Court precedent or our own cases. In particular, we note
The abortion-specific subpart of the regulations is of par-
that section 205.730(a)(2) apparently requires the physi-
ticular concern. Many of the requirements set forth in that
cian who is to perform the abortion to also perform a
subpart seem clearly contrary to either prior Supreme
pregnancy test on the patient regardless of whether such
testing had previously been done by another physician.
We previously invalidated a similar "same doctor" require-
11 continued
ment in an Illinois statute. See Charles I, 627 F.2d at 784,
of the number and type of procedures performed, the number and
type of complications reported, the number of patients requiring
786. The requirement in the instant regulation is, if any-
transfer to hospitals, the number of patients returning for follow-
thing, more burdensome and less justified than the one
up, and the number of deaths. These requirements appear to be
we invalidated there, which required only that the per-
consistent with Planned Parenthood Association, Inc. v. Danforth,
forming physician provide the patient with "a true copy"
428 U.S. 52, 79-81, 96 S. Ct. 2831, 2846-47 (1976). The requirements
of her pregnancy test, rather than to possibly conduct a
are considerably less stringent than those previously enjoined. In
second test. For the same reasons as in Charles I, the
particular, the name of the patient is in no way required to be
provision in this case is invalid.
disclosed to the State.
Additionally, a number of the other general requirements seem
The counseling requirements too suffer from constitu-
as though they would place no real burden at all on the abortion
tional defects. Section 205.730(b)(3) attempts to prescribe
right. Requirements which may fall in this category might include
the precise content of such counseling in mandatory terms
the general provisions relating to personnel and administrative pro-
applicable to all cases. The regulation states that counsel-
cedures governing ASTCs, such as those calling for a written pol-
icies and procedures manual, consulting committee, organization
ing "shall include a discussion of alternatives, description
plan, personnel policies, and maintenance of a sanitary facility.
of the procedure to be performed, explanation of the risks
Similarly, the operative care and post-operative care regulations
and possible complications." We believe that this provi-
may be in accord with accepted medical practice. Dr. Ragsdale
sion, particularly the requirement of a "discussion of Item
objected to many of these requirements as "stating the obvious."
natives" is unconstitutional under the Supreme Court's
However, so far as we are aware, there is no constitutional bar
recent decision in Thornburgh v. American College of
to "stating the obvious" even where abortion procedures are con-
Obstetricians, 106 S. Ct. 2169 (1986). The requirement
cerned.
"that a specific body of information be given in all cases,
Fewer of the abortion-specific regulations, as is evident from our
irrespective of the particular needs of the patient, intrudes
discussion in the text, fall in this category. However, there was
testimony below that the counselor qualification requirements of
upon the discretion of the pregnant woman's physician
section 205.730(b)(2) were consistent with accepted medical prac-
and thereby imposes the "undesired and uncomfortable
tice. Additionally, subsection (1) of the same regulation merely re-
straitjacket' which the Court has rejected. Id. at 2179
quires, in general terms, that some counseling be given prior to
(quoting Planned Parenthood Association, Inc. v. Dan-
the performance of an abortion (and that it occur in a room sepa-
forth, 428 U.S. 52, 67 n.8, 96 S. Ct. 2831, 2840 n.8). The
rate from the procedure room). As noted in the text infra, other
informational requirements of the regulation are certain-
aspects of the counseling requirements suffer from constitutional
defects. Also, section 205.710 merely provides that "Abortions shall
ly not as intrusive or as specific as those previously
be provided to the public with the same standards of safety effec-
stricken by the Court, but they are just as inflexible. Dr.
tiveness, and regard for patients rights as any other health service."
Ragsdale testified below that some of the information, par-
Of course, we need not and do not decide the ultimate constitu-
ticularly the "discussion of alternatives" might not be ap-
tionality of any of the requirements mentioned above.
propriate for some patients. We agree that "for a patient
with a life-threatening pregnancy, the 'information' in its
App. 28
App. 29
very rendition may be cruel as well as destructive of the
physician-patient relationship." Thornburgh, 106 S. Ct. at
Court: medical or surgical procedure. According to the
2180. We bear in mind that, during the second trimester
at least, "the validity of an informed consent requirement
If a physician is licensed by the State, he is recog-
rests on the State's interest in protecting the health
nized by the State as capable of exercising acceptable
of the pregnant woman." Id. at 2179 (quoting Akron, 462
clinical judgment. If he fails in this, professional cen-
U.S. at 443, 103 S. Ct. at 2499). Viewed in this light, the
sure and deprivation of his license are available rem-
provision at issue here may, like that in Thornburgh, "re-
edies. Required acquiescence by co-practitioners has
quire[ ] the dissemination of information that is not rele-
no rational connection with a patient's needs and un-
vant to such consent, and thus, it advances no legitimate
duly infringes on the physician's right to practice.
state interest." Id. at 2180.
Id. at 199, 93 S. Ct. at 751.
Another aspect of the counseling requirements is trou-
We believe those principles are equally applicable here.
bling. Section 205.730(b)(2)(D) requires that "counselors
Accordingly, we hold that the requirement that counsel-
shall have no financial interest in the patient's decision."
ing be conducted by one who has no "financial interest"
We find it impossible to read this provision in such a way
in the patient's decision is unconstitutional.
that it does not, at least in some cases, preclude the per-
forming physician from providing the counseling. This, we
D.
believe, is fundamentally at odds with the emphasis placed
on the patient-physician relationship by Roe and its prog-
Of the requirements applicable to ASTCs generally, the
eny. The woman desiring an abortion, according to those
physical plant equipment and staffing requirements, in
cases, is to reach that decision in consultation with "her
particular, seem totally unjustified from a medical stand-
responsible physician." Roe, 410 U.S. at 153, 93 S. Ct.
point. The testimony regarding many of the physical plant
at 727; cf. Akron, 462 U.S. at 449, 103 S. Ct. at 2502
requirements makes clear that they have "no medical jus-
(striking down a requirement that the attending physician,
tification whatsoever" when applied to first and early sec-
rather than other professionals, must provide the requisite
ond trimester abortions of the type involved in this case.
counseling). The state cannot preclude that dialogue, or
According to the testimony, the minimum size require-
demand that others be a party to it merely because the
ments for examination rooms, procedure rooms, recovery
physician has a "financial interest" in the woman's deci-
rooms, and corridors and doors not only are not "medical-
sion. In all other areas of medicine, the state relies on
ly necessary," but do not enhance the safety of the abor-
the physician's professional and ethical obligations to pre-
tion procedure "in any way" and do not have "any medi-
vent his "financial interest" from clouding his perspec-
cal justification." R. Vol. I at 263-72 (testimony of Dr.
tive to the detriment of his patient. It may not do other-
Hern); see also R. Vol. I. at 154 (testimony of Dr.
wise merely because an abortion decision is involved. See
Ragsdale) (large procedure room "not only medically un-
Doe v. Bolton, 410 U.S. 179, 197-200, 93 S. Ct. 739, 750-51
necessary but medically poor"). We agree that the re-
(1973). In Doe, the Court struck down requirements that
quirements that ASTCs performing first and early second
an abortion be approved by a hospital abortion committee
trimester abortion(s) be "the functional equivalent of small
and by two other physicians independent of the woman's
hospitals" are not sufficiently justified by "important state
own consulting physician because, inter alia, the state re-
health objectives" to be sustained.
quired such additional approval for "no other voluntary
App. 30
App. 31
Additionally, the ventilation requirements of the regula-
physician operating a facility to determine what is medical-
tions, which require specific air pressure relationships be-
ly required. Linder Dept. at 42.
tween rooms and specific air change ratios are unrelated
The structural, equipment, and staffing requirements of
to the safety of first and early second trimester abortions.
the regulations are quite similar to those invalidated in
The purpose of such requirements is to prevent infection
Reizen. See 743 F.2d at 364-65. They also bear a remark-
from airborne bacteria. All of the medical experts, includ-
able resemblance to the abortion-specific scheme we inval-
ing defendants', testified that airborne bacteria simply is
idated in Friendship. While the evidence in Reizen indi-
not relevant to the procedures involved in this case, be-
cated a per-patient cost increase considerably greater than
cause the procedures do not involve an incision. The sole
that in this case (Friendship did not consider particular-
testimony to the effect that such requirements might be
ized cost estimates), the regulations there, as here, would
advisable came from the State's architectural expert, who
have required considerable up-front expenditures. Also,
apparently believed that an incision was required. It can
as we have noted above, per-patient financial cost is not
scarcely be doubted that such a witness lacks any exper-
the only relevant burden. We have little trouble conclud-
tise to enable him to form an opinion regarding the medi-
ing that these requirements, which impose a substantial
cal justification for a particular requirement.¹²
burden and are not justified by health objectives, are
More importantly, perhaps, the defendants failed to ad-
unconstitutional.
duce any evidence at all of a medical justification for the
physical plant requirements. Although the defendants pro-
E.
test on appeal that plaintiffs' experts who testified as to
the lack of medical justification were not building and con-
We also believe that the "certificate of need" proceeding
struction experts, the relevant test is whether the stan-
requirement of the Health Facilities Planning Act is un-
dards are "justified by important state health objectives."
constitutional. The only interest which the State has ar-
It seems clear to us that medical experts can offer tes-
ticulated is the desire to keep costs down under the "cost-
timony relevant to that standard, and it is questionable
plus" disbursement method which was at one time used
whether those without a health care background can. As
by the State in making certain health care payments for
we have noted above, only defendants' architectural ex-
its residents. Apart from the fact that this interest no
pert testified as to the need for the ventilation re-
longer exists because the State has discontinued use of
quirements. This witness similarly testified regarding
this method, the State has never made such payments for
room sizes, although he stated that the requirements were
abortions. Furthermore, the interest cannot be said to be
drafted with procedures involving general anesthesia in
compelling in any event. While a state may have some
mind. At one point, he testified that he relies on the
interest in preventing wasteful duplication of resources,
the interest must give way where the exercise of consti-
tutional rights is concerned. Certainly it would be uncon-
12 Defendants' medical expert, Dr. Barton, lacked significant ex-
stitutional for a state to require that anyone desiring to
perience performing first trimester abortions. Those which he did
publish a newspaper demonstrate "need" for the publica-
perform were generally performed under a general anesthetic in
tion, though it can scarcely be gainsaid that at least some
a hospital setting. Due to his lack of experience relevant to the
few involve wasteful duplication. Where the exercise of
procedures at issue in this case, the district court properly ac-
constitutional rights is concerned, the government may
corded his testimony little weight. Defendants similarly do not rely
play no role in determining whether outlets for their ex-
on it heavily in this court.
ercise are "needed."
App. 32
App. 33
The unconstitutionality of the "certificate of need" pro-
already so riddled with exceptions resulting from judicial
ceedings as applied to ASTCs that wish to perform abor-
decisions and non-enforcement policies as to be unintelligi-
tions is exacerbated by the failure of the State to prevent
ble. In such circumstances, we simply "cannot untangle
the process from becoming essentially a public veto of the
the constitutional from the unconstitutional provisions.
ASTCs' existence. As we noted above, the proceedings
Mahoning Women's Center v. Hunter, 610 F.2d 456,
attended by the individual plaintiff physician was allowed
460 (6th Cir. 1979), vacated on other grounds, 447 U.S.
to degenerate into a shouting match between abortion foes
918, 100 S. Ct. 3006 (1980).
and advocates of free choice. The State's unwillingness
As originally written, the statute and regulations rep-
or inability to confine the proceedings to its even arguably
resented at least a coherent, if unconstitutional, whole
legitimate goals bolsters our conclusion that this require-
which regulated all aspects of abortion practice in Illinois.
ment cannot stand because it is not justified by any legit-
However, as a result of various judicial decisions, and the
imate State interest.
defendants' change of enforcement policies in response to
them, the scheme has long since lost that coherence. The
V
statute and regulations as written bear very little resem-
While, as we have noted above, there may well be
blance to the way they are currently enforced. As is clear
facets of the statute and regulations which would indi-
from portions of our opinion, we have at times encoun-
vidually pass constitutional muster, supra nn. 8 & 11, we
tered considerable difficulty discerning just what the law
are constrained to affirm the district court's injunction of
in Illinois is. Yet, the State expects physicians, on pain
the scheme as a whole. Defendants, citing Zbaraz v. Har-
of professional censure (possibly including loss of their
itgan, 763 F.2d 1532, 1545 (7th Cir. 1985), appeal pending,
licenses) and a $10,000 a day fine, to divine the contours
No. 85-673 and Charles I, 627 F.2d at 779, urge that we
of the rules under which they must operate.
specifically analyze each provision and sever those portions
Under these circumstances, we fully agree with the
which are unconstitutional. However, in neither Zbaraz
Sixth Circuit's decision in Mahoning Women's Center.
nor Charles I were we confronted with a comprehensive
There, in invalidating, in its entirety, a local ordinance
scheme which either applied or not depending on whether
that required "the functional equivalent of a hospital" for
a licensing requirement could stand. In Zbaraz, we noted
first trimester abortions, the court held "[i]n this situa-
that severability applies only to "any provisions which can
tion, we do not believe a useful purpose would be served
be given effect without the invalid provisions," and that
by attempting to rewrite the minor provisions of the or-
"severance is improper if the unconstitutional provision
dinance in order to make them constitutional." 610 F.2d
is 'an integral part of the statutory enactment viewed in
at 461. We could not agree more.
its entirety.' 763 F.2d at 1545 (quoting Scheinberg v.
Accordingly with the exception of the portion of the in-
Smith, 659 F.2d 476, 481 (5th Cir. 1981)). Here, where
junction regarding the second trimester hospitalization re-
we are dealing with a licensing scheme and the provision
quirement, which is VACATED As MOOT, the preliminary
for separate licensure is itself invalid, not only can none
injunction is
of the other provisions "be given effect without the in-
valid provisions," but the licensing provision is certainly
AFFIRMED.
"an integral part" of the scheme as a whole. Additional-
ly, in neither Zbaraz nor Charles I was the scheme
App. 34
App. 35
COFFEY, Circuit Judge, dissenting. A decade and one-
half ago the Supreme Court announced "that the right of
progeny that the individual states have the authority to en-
personal privacy includes the abortion decision, but that
sure that all surgical procedures, including first-trimester
this right is not unqualified and must be considered against
abortions, are performed "under conditions insuring max-
important state interests in regulation." Roe v. Wade, 410
imum safety for the woman." Connecticut v. Menillo, 423
U.S. 113, 154, 93 S.Ct. 705, 727 (1973). Today, under the
U.S. 9, 11, 96 S.Ct. 170, 171 (1975) (per curiam). Certainly
guise of protecting the woman's constitutional privacy rights,
states have the power and authority, if not the duty, to
the majority holds that the State of Illinois' health ser-
apply the same licensing standards to abortion facilities
vices statutory scheme, enacted in an attempt to regulate
as those applied to facilities performing similar surgical
the ever-escalating costs of medical care without sacrific-
procedures.2 I know of no law to the contrary.
ing its citizens' health and safety, is unconstitutional. Spe-
Moreover, the majority decision ignores the legislative
cifically, now some 14 years after its enactment, the ma-
intent and the historical context of the enactment of the
jority declares the Ambulatory Surgical Treatment Center
challenged provisions: section 16(1) of the Medical Prac-
Act, 111½ Ill. Rev. Stat. 11 157-8.1 et seq. (the "ASTCA" or
tice Act (the "MPA"), 111 III. Rev. Stat. 4433(1); the Am-
the "ASTC Act") and the regulations promulgated there-
bulatory Surgical Treatment Center Act, 111½ III. Rev. Stat.
under unconstitutional, holding that the State may not re-
11 157-8.1, et seq., and the regulations promulgated
quire licensure of facilities devoted primarily to performing
thereunder; and the Illinois Health Facilities Planning Act,
semi-complicated (minor) surgery, including first-trimester
111½ III. Rev. Stat. 19 1151, et seq., particularly 19 1155-1160.
abortions. As an alternative approach, the majority chooses
Research reveals that the Illinois legislature enacted $ 16(1)
and carves out a select few ASTC regulations among var-
of the MPA³ intending to limit the performance of abor-
ious others, discusses their validity, and then proceeds to
tions only to licensed ambulatory surgical treatment
invalidate those regulatory sections of the ASTC Act that
centers, hospitals, or similar facilities and expressed such
apply to first-trimester abortion facilities in Illinois, stating
intention by requiring licensure of "any facility in which
that it was unable to sever those provisions of the Act
a medical or surgical procedure is utilized to terminate
it deemed unconstitutional from those that were constitu-
a pregnancy, irrespective of whether the facility is de-
tional. Thus, the majority strikes down the ASTCA and
voted primarily to this purpose," (definitions section-
baldly asserts that "the [statutory] scheme has long since
lost
coherence." Unfortunately, it is the majority's
decision, rather than the Illinois legislative scheme, that
lacks coherence.¹ I am convinced that under Roe and its
1 The majority's precise holding is confusing. On the one hand,
2 As demonstrated, infra, the most significant undisputed fact in
the majority affirms the district court's preliminary injunction
the record is that an abortion, regardless of the trimester in which
which only enjoined Illinois from regulating ASTCs to the extent
it is performed, is considered a surgical procedure, albeit a minor
those facilities were performing abortions. On the other hand, the
surgical procedure, accompanied all too frequently by concomitant
majority apparently strikes down not only § 16(1) of the MPA,
medical, physical, and psychological complications.
but the ASTCA and the IHFPA as well, stating it could not "un-
3 As noted by the majority, § 16(1) of the MPA "allows for revo-
tangle the constitutional from the unconstitutional," and further
cation or suspension of the license of any physician who performs
asserts that specific substantive aspects of the statutes and regula-
an 'elective abortion' in any place other than a licensed Am-
tions are unconstitutional and "render the scheme unconstitutional
bulatory Surgical Treatment Center (ASTC), a hospital, or a facili-
as a whole."
ty run by the state or federal governments." (Emphasis added.)
App. 36
App. 37
ASTCA, 9 157-8.3(A)).4 However, the legislature's primary
the statutes and regulations] in order to make them con-
purpose for enacting the Ambulatory Surgical Treatment
stitutional. In so holding, the majority improperly sub-
Center Act was to regulate and prescribe safeguards for
stitutes its judgment for that of the legislature which
the rapidly developing trend of cost-effective ambulatory
enacted the statute because of its concern for the safety
surgical medical services. The majority unfortunately dis-
of its citizens. In the end, the majority decision severely
regards this primary purpose which provided the impetus
limits (or casts aside) the state's ability to implement cost-
for the enactment of the ASTCA and through mere specu-
effective schemes and regulate rapidly developing and
lation holds that the ASTCA is solely an abortion stat-
modern methods of providing medical services simply
ute. Further, in its determination to do away with the
because abortion (surgical) procedures may be involved.
duly enacted legislation, the majority completely disre-
The majority's misdirected holding ultimately protects
gards the statute's severability clauses as if they didn't
only the financial interests of abortion providers, like Dr.
exist, stating it could not "untangle the constitutional from
Ragsdale, rather than following the Supreme Court's lim-
the unconstitutional" and thus refuses to give effect to
ited mandate in Roe aimed at protecting the patient's
the challenged acts.⁵ Rather than recognize and effectu-
privacy rights. If we allow the majority's "reasoning" to
ate the true intent and legitimate purpose of the acts and
stand, surgeons, as well as other ASTC operators whose
enjoin only those provisions which might impinge on a
facilities are devoted primarily to the performance of abor-
woman's limited right to terminate her pregnancy (§ 16(1)
tions, will be allowed to operate without regulation while
of the MPA, its companion clause in 9 157-8.3(A) and
those ASTCs primarily performing other types of minor
§ 205.730(b)(2)(D) of the ASTCA regulations), the majori-
surgical procedures will remain regulated (assuming the
ty, in over-expansive language, declares, " '[W]e do not
majority's decision merely affirms the district court's
believe a useful purpose would be served by attempting
preliminary injunction). Thus having treated facilities
to rewrite minor provisions of the ordinance [in this case
devoted primarily to abortions differently from those fa-
cilities primarily devoted to other surgical procedures, the
majority carves out an "abortionist exception" to the gen-
4 1 157-8.3 provides:
eral rule that states can reasonably regulate how medical
"(A) 'Ambulatory surgical treatment center' means any in-
services are provided to its citizens. Ultimately, the ma-
stitution, place or building devoted primarily to the mainte-
jority in effect creates a legal vehicle for the non-abor-
nance and operation of facilities for the performance of surgical
tionists primarily performing other surgical procedures to
procedures or any facility in which a medical or surgical pro-
cedure is utilized to terminate a pregnancy, irrespective of
challenge the ASTCA on equal protection grounds; for
whether the facility is devoted primarily to this purpose. Such
what rational basis exists for regulating ambulatory surgi-
facility shall not provide beds or other accommodations for the
cal centers differently than those facilities, like Ragsdale's
overnight stay of patients. Individual patients shall be dis-
abortion enterprise, devoted primarily to the termination
charged in an ambulatory condition without danger to the con-
of pregnancies?
tinued well being of the patients or shall be transferred to
a hospital."
The task of a reviewing court, contrary to the majori-
(Emphasis added to highlight the clause included in the ASTCA
ty's reasoning, is, "of course,
to resolve the issue
restricting the availability of an abortion.)
by constitutional measurement, free of emotion and pre-
dilection." Roe v. Wade, 410 U.S. at 116, 93 S.Ct. at 709.
5 The severability clauses of the MPA, ASTCA, and the IHFPA
are found respectively at 111 III. Rev. Stat. 4458, 111½ III. Rev.
Consistent with this Supreme Court directive, our deci-
Stat. 9 157-8.15, and 111½ III. Rev. Stat. 1 1166.
sion must neither reflect pro choice nor anti-abortion sen-
App. 38
App. 39
timent. The Illinois legislation at issue, specifically the
sion nor its effectuation, and are justified with important
ASTCA, is fundamentally different from other Illinois
health objectives in mind.
abortion-related legislation and merits thorough, reflective,
When the alleged "tripartite" legislative scheme is thus
and separate consideration. I would enjoin § 16(1) of the
analyzed, neither a woman's right to terminate her preg-
MPA and sever and further enjoin its companion clause
nancy, nor the state's right to rationally regulate modern
in 157-8.3(A) of the ASTCA requiring licensure of "any
medical services for the protection of its citizens is ad-
facility in which a medical or surgical procedure is utilized
versely affected. Thus, I would reverse the district court's
to terminate a pregnancy, irrespective of whether the fa-
order enjoining Illinois' health services laws, except to the
cility is devoted primarily to this purpose" because these
extent it enjoined § 16(1) of the Medical Practice Act, its
provisions prevent a physician from performing a first-
companion clause in 9 157-8.3(A) of the ASTCA, and
trimester abortion in his or her office. Under Roe and
§ 205.730(b)(2)(D) of the ASTCA regulations.
its progeny this prohibition may very well be considered
unconstitutional. I am convinced that the states, including
I
Illinois, are free to regulate ambulatory surgical treatment
centers, including those performing abortions, as long as
The majority decision properly notes that the "statutory
abortions are not singled out from other, similar surgical
and regulatory scheme is somewhat complex," but then
procedures, subject only to the well-known rational basis
proceeds to further confuse the challenged acts and their
test governing social and economic legislation. Under the
interrelationships, completely disregarding the legislature's
rational basis test the ASTCA and IHFPA are constitu-
intent regarding the various acts. The record of the legis-
tional. Consistent with this analysis, I further evaluate
lative history reveals that § 16(1) of the MPA, 111 III. Rev.
the remaining abortion-specific statute sections and regu-
Stat. § 4433(1), and the Ambulatory Surgical Treatment
lations⁶ promulgated thereunder under the strict scrutiny
Center Act (ASTCA), 111½ III. Rev. Stat. 157-8.1, et seq.,
test articulated in Roe and its progeny⁷ and would hold
were initially companion bills to the initial comprehensive
all but one of these constitutional because these statutory
Illinois Abortion Act (IAA), 38 Ill. Rev. Stat. 81-11, et seq.⁸
sections and regulations neither burden the abortion deci-
The IAA, § 16(1) of the MPA, and the ASTCA, were
Senate bills (S.B.) 1049, 1050, and 1051, respectively. The
legislative history further reveals that S.B. 1049 and S.B.
6 For example, 9 157-8.6-1 of the ASTCA requires that any cor-
poration operating an ASTC "devoted primarily to providing facil-
8 The initial Illinois Abortion Law, 11 81-11, et seq., became ef-
ities for abortion" must have a licensed physician who is "actively
fective July 19, 1973, but was subsequently repealed by the Abor-
engaged in the practice of medicine at the Center, on the board
tion Law of 1975, effective October 30, 1979. The Abortion Law
of directors as a condition of licensure." Additionally, subpart G
of 1975 has been challenged on more than one occasion. See, e.g.,
of Title 77 of the Illinois Administrative Code contains abortion-
Charles v. Carey, 579 F.Supp. 464 (N.D. III. 1983), aff'd in part,
specific regulations. The validity of all but one of these provisions
rev'd in part on other grounds, Charles v. Daley, 749 F.2d 452
is demonstrated, infra.
(7th Cir. 1984), appeal dismissed sub nom. Diamond v. Charles,
7 I concur with the majority that the challenge to the second-
106 S.Ct. 1697 (1986). The initial IAA had a completely different
trimester hospitalization requirement is moot. It appears that the
purpose than the ASTCA and IHFPA. However, the majority con-
majority effortlessly utilized and applied the severability clause of
fuses the purposes of the IAA from that of the ASTCA and
the Act to the second-trimester hospital requirement, but lost this
IHFPA, and in doing SO clouds its ability to analyze the challenged
analytical ability with respect to the other challenged provisions.
statutes and regulations.
App. 40
App. 41
1050 were integrally related; their purpose was to regulate
vices. The minutes of the March 7, 1974, Ambulatory Sur-
abortions in Illinois in light of, and in an attempt to com-
gical Treatment Center Licensing Board meeting provide
ply with, the Supreme Court's then-recent Roe and Doe
relevant historical facts relating to the enactment of the
decisions. As noted by the majority, § 16(1) of the MPA
ASTCA:*
provided for the "revocation or suspension of the license
"In July 1971
a member of the hospital licens-
of any physician who performs 'elective abortions' in any
ing board, was appointed chairman of a committee
place other than a licensed Ambulatory Surgical Treat-
appointed to formulate regulations for those facilities
ment Center (ASTC), a hospital, or a facility run by the
that were presently unlicensable. Consideration was
state or federal governments." Apparently, members of
given to a large number of classifications and actually
the Illinois legislature were concerned that the State
there were 32 types of health facilities listed.
would eventually be responsible for the cost of abortions
On July 12, 1972, the final draft (after four drafts)
performed on indigents in hospitals, so to reduce the
of proposed standards were submitted to the Hospital
State's anticipated abortion costs, less-expensive ASTC
Licensing Board.
[O]n August 16 [a member of
facilities were included in the list of approved locations
the Board] sent these proposed regulations forward
for the performance of pregnancy termination procedures.
[to the legislation liaison].
About August 1972
At the same time the legislature was debating the regula-
[the Board] began to get involved more with the
tion of abortions, ASTCs were just coming into existence
and thus not regulated. Thus, S.B. 1051, an independent
health regulatory bill creating and regulating ASTCs, was
made a companion bill to the abortion bills.
9 The majority improperly relies on the ASTC Licensing Board
minutes for the legislative intent of the act. The March 7, 1974,
Contrary to the majority's assertions, the ASTCA, un-
minutes conclude that "the legislation was written specifically for
like the IAA and § 16(1) of the MPA, was not primarily
regulation of the performance of abortions." On this basis, the ma-
enacted for the purpose of regulating abortions. The rec-
jority states, "First, we cannot ignore the fact that the ASTCA
ord and legislative history reveal that the ASTC Act
was enacted primarily with abortion clinics in mind and only ap-
became law in Illinois in 1973 with the express policy of
plied to outpatient surgical clinics generally in an effort to save
the statute from unconstitutionality." Initially I point out that the
insuring maximum safety in all medical procedures, pro-
district court specifically and properly rejected the plaintiff's re-
viding:
quest to admit the minutes of the licensing board meeting as proof
"for the better protection of the public health through
of the legislature's intent. Tr. at 616. The district court's eviden-
the development, establishment, and enforcement of
tiary ruling was proper because "a court should adhere to the
enacting legislature's purposes," Posner, The Federal Courts, p.
standards (1) for the care of individuals in ambulatory
279 (1985), rather than post-enactment statements regarding legis-
surgical treatment centers, and (2) for the construc-
lative intent, particularly when those statements are not even
tion, maintenance and operation of ambulatory surgi-
made by the legislators involved. The district court received the
cal treatment centers, which, in light of advancing
licensing board minutes only for the limited purpose of establishing
knowledge, will promote safe and adequate treatment
the Board's state of mind regarding its enforcement procedures.
of such individuals in ambulatory surgical treatment
However, the historical facts regarding the development of the
ASTC legislation and regulations are reliable, material, and rele-
centers."
vant to understanding the historical context in which the ASTCA
III. Rev. Stat. ch. 111½, 1 157-8.2. Further, the ASTCA
was enacted. Thus, I make limited reference to the minutes of
was intended to regulate the cost-effective and rapidly
the Board meeting only to draw attention to the historical facts
contained therein.
developing ambulatory outpatient surgical medical ser-
App. 42
App. 43
question of abortions which became the primary tar-
total national health expenditure, may be reduced
get for discussion."
directly and dramatically, at least on a short-term
The significance of these Board minutes lies in the fact
basis. By focusing on reducing inpatient surgery (ac-
that as early as 1971 a state agency began preparing the
counting for 60 percent of all hospital expenditures
proposed regulations in response to the changing needs
and about 25 percent of total health care expendi-
and practices of medical services. Cost-effective "[f]ree-
tures), ambulatory surgery may further reduce costs."
standing ambulatory surgical centers (FASCs) are indepen-
T. O'Donovan, Ambulatory Surgical Centers, Development
dent entities which first opened in 1970.
[T]hese
and Management, p. 143 (1976). Further, by 1984 the
facilities were conceived to fill a gap between the doc-
ASTC trend was well established:
tor's office and the hospital for minor surgical procedures
not requiring overnight hospitalization." Note, Freestand-
"The success of the Phoenix center precipitated rapid
ing Emergency Centers: Regulation and Reimbursement,
growth of a new type of facility for the delivery of
11 Am. J. L. & Med. 105, 118 (1985). 10 "The first success-
ambulatory surgery, the freestanding, independent,
ful freestanding ambulatory surgery center (FASC), [well
ambulatory surgery center. Since that time, the Sur-
known as Surgicenter], was opened in February 1970 in
gicenter has become a model for an increasing num-
Phoenix, Arizona." D. Ermann and J. Gabel, The Chang-
ber of both independent and hospital-sponsored free-
ing Face of American Health Care, Multi-Hospital
standing ambulatory surgery programs.
System, Emergency Centers, and Surgery Centers, 23
According to the Freestanding Ambulatory Surgical
Medical Care 401, 406 (May 1985). As early as 1976 one
Association (FASA), there are approximately 125 in-
commentator observed:
dependent freestanding ambulatory surgery centers,
"From a societal point of view, perhaps the greatest
86 of which are members of FASA. According to
impetus behind the ambulatory surgery concept is its
FASA, which has been keeping statistics on its mem-
potential for reducing the cost of services. This poten-
bers since 1974, the membership performed 94,499
tial applies to both freestanding and hospital-based
ambulatory surgery procedures in 1981, an increase
facilities, the two major prototypes for ambulatory
of 6 percent over the number performed in 1980. This
surgery. By eliminating overnight hospital stays, ex-
figure can be compared to 3.2 million ambulatory
penditures for hospital services for inpatient health
surgical procedures performed by hospitals offering
care, which now account for about 40 percent of our
ambulatory surgery in 1980."
L. Burns, Ambulatory Surgery, Developing and Manag-
ing Successful Programs, pp. 11-12 (1984). Lastly, I ob-
10 Much has been written regarding trends in ambulatory medical
serve that freestanding ambulatory surgical centers are
services, including ambulatory surgical treatment centers. See gen-
properly subject to licensure and regulation (as are the
erally T. O'Donovan, Ambulatory Surgical Centers, Development
vast majority of medical facilities performing surgeries)
and Management (1976); L. Burns, Ambulatory Surgery, Develop-
throughout the country, and not only in Illinois. One
ing and Managing Successful Programs (1984); M. Roemer, Am-
bulatory Health Services in America (1981); D. Ermann and J.
writer pointed out that:
Gabel, The Changing Face of American Health Care, 23 Medical
"a FASC must obtain a state CON [Certificate of
Care 401 (May 1985); Pavarini, Setting Up and Operating Am-
Need] in order to build the facility. In some states
bulatory Care Centers in a Competitive Environment, 29 St. Louis
U. L. J. 747 (1985).
FASCs must also seek accreditation. In Illinois,
FASCs are licensed and regulated by the State De-
App. 44
App. 45
partment of Public Health. In Minnesota, surgical
a license, some of these things are left open as to
centers are covered by licensing rules. They must be
regulations. The Department would like to take a
staffed and equipped to handle surgical procedures,
hand in that. This is something doctors have been
anesthesia, and post-surgical care."
urging us to do for a couple of years now, and am-
Note, Freestanding Emergency Centers, Regulation and
bulatory surgical treatment centers are
in effect
Reimbursement, 11 Am. J. L. & Med. 105, 118 (1985).
out west. The idea is that they can be a great sav-
ing to a patient. One of the big costs in a hospital,
Obviously the Illinois Legislature was not privy to all
if you remember it's kind of like a hotel which has
this information regarding ambulatory surgical treatment
special services and if you don't need that overnight
centers in 1973, at the time it enacted the ASTCA. How-
stay, you can save a great deal of money. So there's
ever, as I stated, the record and legislative history reveal
a great savings possible for the patient who needs
that the legislature was well aware of the new and fast
this kind of one-day surgical treatment. It does in-
developing medical trend in outpatient ambulatory care
clude abortion, and everything would be rather close-
and specifically sought to regulate it. During the Senate
ly regulated and inspected."
debates, state Senator Wooten summarized S.B. 1051 as
follows:
(Emphasis added). Another state senator further pointed
out that:
"This is another one of those bills that cuts across
lines in all kinds of ways. The Illinois State Medical
"This bill is a good bill It's not related in any way
Society asked that it be presented in a series with
to abortions. It's sponsored by the Medical Associa-
the two previous bills [S.B. 1049 and S.B. 1050], one
tion. There's nothing wrong with ambulatory medical
services."
changing the law relating to abortion, the other chang-
ing the Medical Practices Act. While this has a rela-
Thus, contrary to the majority's mere speculative asser-
tionship to abortion, it actually goes much beyond
tions, the legislative history clearly and unequivocally sup-
that. It [S.B. 1051] provides for the establishment and
ports the proposition that the ASTCA was not enacted
licensing of facilities which can perform minor sur-
primarily to regulate abortions, but rather for the regula-
gery. This would be things like tonsilectomy, hernias,
tion of all semi-complicated (minor) surgical procedures
abortions would be included, facial surgery, plastic
performed in the rapidly developing ambulatory surgical
surgery and so on. In other words procedures which
treatment centers. Finally, I observe that just prior to
would not require an overnight stay. And indeed
the ASTCA's enactment, Senator Wooten specifically
these ambulatory surgical treatment centers are for-
stated: "The main thrust of [S.B. 1051] is to try to save
bidden to keep patients overnight. However, those
some money by getting minor surgical treatment out of
of you who have kept close to medical practices know
the hospital where it is hideously expensive and into a
that untoward things can occur at any time, and so
clinic." (Emphasis added).
provision is made in here that doctors who function
The record and the legislative history further reveal
in such a center must also be licensed to practice
that the Illinois Health Facilities Planning Act (IHFPA)
in a hospital nearby so that if any complications oc-
was enacted one year after the enactment of § 16(1) of
cur they can quickly move the patient to that place.
the MPA and the ASTCA and was clearly not part of
Now, I handed out an outline to explain to you how
a "tripartite" legislative scheme to limit the availability
these things would work, definitions, they must get
of abortions. The legislative history of the IHFPA reveals
App. 46
App. 47
that it neither mentions abortions, nor referred to them,
legislative scheme presently at issue, selectively carving
nor was it enacted for purposes of regulating abortions.
out the regulatory motive of the ASTCA to support its
The IHFPA was intended to address the problem of ex-
abortion theory of enactment. Thus, the majority states:
pensive, overexpanded and underpopulated medical facil-
"As originally written, the statute [I assume the ASTCA]
ities and underutilized medical equipment in the State of
and regulations represented at least a coherent, if uncon-
Illinois. In the words of a legislator, the IHFPA was to
stitutional, whole which regulated all aspects of abortion
"provide a means for proper planning with local in-
practice in Illinois." Having ignored or at least overlooked
put and decision making to cut down on empty hos-
the State's legitimate intent to regulate the new and rapid-
pital facilities, nursing home facilities, sheltered care
ly developing trend of ambulatory surgical medical ser-
facilities and
ambulatory surgical facilities."
vices, the majority treats the ASTCA and the regulations
(Emphasis added).
promulgated thereunder as "minor" abortion provisions.
Further, the majority rejects the basic principle of severa-
Thus, the legislative history of the acts supports the
bility when interpreting the construction of a duly adopted
valid premise that the legislature intended to regulate
legislative enactment which should give effect to the
abortions when it enacted the Illinois Abortion Act. It
State's legitimate purposes; and thus fails to apply the
also appears that section 16(1) of the MPA and its com-
correct legal standard to the different acts and regulations
panion clause in 157-8.3(A) of the ASTC were probably
and affirms the preliminary injunction. Thus, the majority
enacted to prevent abortions from being performed in a
limits and fails to effectuate the legitimate legislative pur-
physician's office. On the contrary, there is no proof in
poses behind the ASTCA. As a noted commentator has
this record that either the ASTCA or the IHFPA were
observed, limiting the scope of a legislature's intent con-
enacted primarily to regulate abortions; rather, these laws
stitutes undesirable judicial activism as much as a deci-
were adopted to regulate the delivery of medical services
sion construing a statute beyond its intended scope. See
to its citizens and to attempt to prevent and control the
Posner, Statutory Interpretation, in the Classroom and
further unnecessary overexpansion of Illinois' medical fa-
in the Courtroom, 50 U. Chi. L. Rev. 800, 822 (1983). The
cilities. That the ASTCA was initially a companion bill
majority's failure to give full effect to the real and legiti-
to the abortion bills is more of a historical coincidence
mate legislative intent to regulate ASTCs is the basis of
relished by political opportunists who, in this case, ap-
my dissent.
parently fully utilized it to their advantage. As the min-
Recently, this court observed:
utes of the licensing board reflect, for whatever their
worth: "Without the public interest in abortions, we would
"In Immigration and Naturalization Service v.
not have any of the present legislation." That is to say
Chadha, 462 U.S. 19, 103 S.Ct. 2764, 77 L.Ed.2d 317
that the state legislators and other interested parties who
(1983), the Supreme Court stated that unconstitution-
were primarily interested in regulating ambulatory medi-
al provisions in a statute shall be severed if it ap-
cal services would not have been able to enact the legisla-
pears that the legislature would have enacted consti-
tion without the statewide and even nationwide interest
tutional provisions of the statute independently of
in the abortion question at the time.
those provisions. 103 S.Ct. at 2774 (citing Buckley
v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46
The majority, acting and reasoning as if living in a social
L.Ed.2d 659 (1976))."
and economic vacuum (overlooking the developing nation-
wide trend of ASTCs), ignores the dual purpose of the
App. 48
App. 49
Zbaraz v. Hartigan, 763 F.2d 1532, 1545 (7th Cir. 1985),
'Ambulatory Surgical Treatment Center' means
aff'd, 108 S.Ct. 479 (1987). The Illinois laws in question
any facility in which a medical or surgical procedure
all have their own severability provisions; thus, it is clear
is utilized to terminate a pregnancy, irrespective of
that the Illinois legislature intended that the constitutional
whether the facility is devoted primarily to this pur-
provisions of the acts should be given effect even if other
pose
provisions were held unconstitutional. Accordingly, I ana-
Significantly, the defendant-appellant, the State of Illinois,
lyze the challenged statutes and regulations recognizing
asserts that it no longer enforces § 16(1) of the MPA. Ad-
that "severance is improper [only] if the unconstitutional
ditionally, the majority observes that Illinois alleges that
provision is 'an integral part of the statutory enactment
viewed in its entirety.' Id. (quoting Scheinberg v. Smith,
the clause in 9 157-8.3(A) above is no longer being en-
forced, noting that:
659 F.2d 476, 481 (5th Cir. 1981)). On the other hand, the
challenged provisions which burden a woman's right to
"Since 1981, the [ASTC] act and regulations have
privacy may be severed as long as the severed provisions
been applied only to facilities which are primarily
do not affect "the essential purposes of the act." Id.
devoted to the performance of surgical procedures
(including abortions). This enforcement policy was
adopted in response to Village of Oak Lawn v. Mar-
II
cowitz, 86 Ill.2d 406, 427 N.E.2d 36 (1981), which
The abortionist, Dr. Richard M. Ragsdale, plaintiff-appel-
refused to enforce, in a criminal proceeding, that por-
lee, testified at the preliminary injunction hearing that the
tion of the local ordinance which incorporated the
alleged "[f]irst and major burden [affecting a woman's right
ASTCA definition of an ASTC which covered 'any
to terminate her pregnancy] is simply the requirement for
facility where a medical or surgical procedure is per-
an independent licensure as an abortion provider." This
formed for the termination of pregnancy, regardless
licensing requirement, applicable to any physician who
of whether the facility is primarily devoted to that
wishes to perform an abortion outside of a hospital, an
purpose.'
ASTC, or other regulated facility, regardless of the gesta-
tional period of the embryo or fetus, was created when
The majority holds, and I agree, that Illinois' alleged non-
the legislature enacted § 16(1) of the MPA and its com-
enforcement policy does not render the issues moot.
panion clause in the ASTC definitions section. As previ-
Although several justices have persuasively argued that
ously noted by the majority, "[s]ection 16(1) of the Medical
Roe v. Wade and its progeny articulate an "unworkable
Practice Act
allows for revocation or suspension of
scheme for constitutionalizing the regulation of abortion,"
the license of any physician who performs an 'elective
Thornburgh v. American College of Obstetricians, 476 U.S.
abortion' in any place other than a licensed Ambulatory
747, 814, 106 S.Ct. 2169, 2207 (1986) (Justice O'Connor, dis-
Surgical Treatment Center
a hospital, or a facility
senting), or represent a "venture
fundamentally
mis-
run by the state or federal governments." The following
guided since its inception," Id. at 786, 106 S.Ct. at 2192
clause in 9 157-8.3(A) of the ASTCA is the companion
(Justice White, dissenting), this court should be bound by
clause to § 16(1) of the MPA, and brought all surgeons
Roe and its progeny. The Supreme Court's recent Thorn-
who wished to perform abortions under the ASTCA li-
burgh decision "reaffirm[ed] the principles laid down in Roe
censing and regulatory scheme:
and Akron." Id. at 759, 106 S.Ct. at 2178. Thus, we
analyze the abortion licensing requirement created when
the Illinois legislature enacted § 16(1) of the MPA and its
companion provision contained in the ASTC definition of
App. 50
App. 51
ambulatory surgical treatment center, 1 157-8.3(A), under
of pregnancy.
Until that time, a pregnant woman
the standards articulated in Roe and its progeny.
must be permitted, in consultation with her physi-
cian, to decide to have an abortion and to effectuate
"In Roe v. Wade, the Court held that the 'right of
that decision 'free of interference by the State.'
privacy,
founded in the the Fourteenth Amend-
ment's concept of personal liberty and restrictions
This does not mean that a State never may enact
upon
state
action,
...
is broad enough to encompass
a regulation touching on the woman's abortion right
a woman's decision whether or not to terminate her
during the first weeks of pregnancy. Certain regula-
pregnancy.'
tions that have no significant impact on the woman's
exercise of her right may be permissible where jus-
The Court also has recognized, because abortion is
tified by important state health objectives.
a medical procedure, that the full vindication of the
From approximately the end of the first trimester
woman's fundamental right necessarily requires that
of pregnancy, the State 'may regulate the abortion
her physician be given 'the room he needs to make
procedure to the extent that the regulation reason-
his best medical judgment.'
ably relates to the preservation and protection of
maternal health.'
At the same time, the Court in Roe acknowledged
The State's discretion to reg-
ulate on this basis does not, however, permit it to
that the woman's fundamental right 'is not unquali-
adopt abortion regulations that depart from accepted
fied and must be considered against important state
medical practice. [The Court has] rejected a State's
interests in abortion.' But restrictive state reg-
attempt to ban a particular second trimester abor-
ulation of the right to choose abortion, as with other
tion procedure, where the ban would have increased
fundamental rights subject to searching judicial ex-
the cost and limited the availability of abortions
amination, must be supported by a compelling state
without promoting important health benefits.
...
If
interest.
[The Supreme Court] recognized two
a State requires licensing or undertakes to regulate
such interests that may justify state regulation of
the performance of abortions during this period, the
abortions.
health standards adopted must be 'legitimately re-
First, a state has an 'important and legitimate in-
lated to the objective the state seeks to accomplish.''
terest in protecting the potentiality of human life.'
City of Akron v. Akron Center for Reproductive Health,
Although this interest exists 'throughout the
462 U.S. 416, 426-431, 103 S.Ct. 2481, 2490-93 (1983) (cita-
course of the woman's pregnancy,' it becomes
tions omitted) (emphasis added).
compelling only at viability, the point at which the
fetus 'has the capability of meaningful life outside the
Initially one observes that the abortion licensing require-
mother's womb.'
ment as it exists pursuant to § 16(1) of the MPA and the
ASTCA definition, fails to distinguish between first and
Second, because a State has a legitimate concern
second trimester abortions; thus, it prohibits the perfor-
with the health of women who undergo abortions, 'a
mance of first-trimester abortions in physicians' offices.
State may properly assert important interests in safe-
The record reveals that a woman's qualified right under
guarding health [and] in maintaining medical stan-
Roe to terminate her pregnancy is very probably imper-
dards.'
[The Court further] held in Roe, however,
missibly burdened because surgeons who would otherwise
that this health interest does not become compelling
perform first-trimester abortions out of their offices are
until 'approximately the end of the first trimester'
App. 52
App. 53
precluded from doing SO. Dr. Ragsdale, an abortionist and
rates of abortions performed in hospitals. Based on the
a board-certified obstetrician and gynecologist, testified
medical experts' testimony, it appears probable that first-
that outpatient abortions, whether performed in a physi-
trimester abortions could be safely performed in the sur-
cian's office or a clinic, were as safe as an abortion per-
geon's office. Thus, it appears that § 16(1) and its com-
formed in a hospital setting.
panion clause in 1 157-8.3(A) of the ASTCA would limit
Plaintiffs additionally called another alleged abortion ex-
the availability of abortions by precluding the performance
pert, Dr. Warren Martin Hern, a doctor and general prac-
of abortions in a physician/surgeon's office.
titioner without board certification in the specialty of ob-
In Akron the Supreme Court noted that where the
stetrics and gynecology. Hern testified that first-trimester
abortion law "increased the cost and limited the availabil-
abortions, performed six to eight weeks from the last
ity of abortions," such a law would probably interfere with
menstrual period are "probably the safest surgical pro-
the woman's decision to have an abortion as well as its ef-
cedure being performed in the United States in this cate-
fectuation. Akron, 103 S.Ct. at 2492-93. Further, although
gory of procedures.' Dr. Hern further testified that the
dictum, the Supreme Court noted "that the medical evi-
safest surgical method of first-trimester abortion was the
dence suggests that until approximately the end of the
"vacuum aspiration" method. This procedure is basically
first trimester, the state's interest in maternal health would
"a suction removal of the uterine contents."
not be served by regulations that restrict the manner in
The State of Illinois' expert, Dr. John J. Barton, a board-
which abortions are performed by a licensed physician."
certified specialist in the fields of obstetrics and gynecol-
Id. at 2492 n.11. The Court further observed that "un-
ogy, also testified that first-trimester abortions performed
complicated abortions generally may be performed in a
in outpatient facilities (such as physicians' offices or ASTCs)
physician's office or an outpatient clinic up to 14 weeks
present no greater risk than the risks and complication
from the first day of the last menstrual period." Id.
(American College of Obstetricians and Gynecologists
(ACOG), Standards for Obstetric-Gynecologic Services 54
11 Dr. Hern defined "in this category of procedures" as "pro-
(5th ed. 1982)). In light of the Supreme Court's caveat
cedures that involve invasion of a body cavity or a major organ
in Akron noting the probability that physicians can per-
of some kind."
form first-trimester abortions in their offices; given the
12 Dr. Hern noted that the fatality rate for abortion was about
defendant's policy of nonenforcement regarding § 16(1)
five per one million, whereas, the case fatality rate for term de-
of the MPA and its companion clause in the ASTC,
livery was about 11 per 100,000 live births, which meant that the
9 157-8.3(A), requiring the licensure of any facility per-
risk of term birth is approximately 25 times greater in terms of
forming even one abortion; and after evaluating the evi-
risk of death than abortion. Dr. Hern compared the abortion sur-
dence presented during the preliminary injunction hearing
gery risk factors to the risk factors of other types of outpatient
surgery. He testified that "some estimates
indicate
tonsillec-
which established that first-trimester abortions performed
tomies are at least twice as dangerous as abortions." Similarly,
in a controlled outpatient setting, including a physician's
Hern stated only that he consulted a colleague who informed him
office, probably were as safe as abortions performed in
that laparoscopic surgery resulted in a death rate of two per
hospitals, I would selectively enjoin the enforcement of
100,000. Hern testified: "Laparoscopic surgery involves the intro-
§ 16(1) of the MPA and its companion clause in the ASTCA
duction of a laparoscope into the abdominal cavity. A laparoscope is
definition without destroying the entire act because it is
a tube, a metal tube, that is hollow and is something that permits
the physician to look through it into the cavity and is introduced
more likely than not that the plaintiffs would prevail on
through the umbilicus, with or without operating instruments."
the merits in light of present Supreme Court precedent.
App. 54
App. 55
In so holding, I agree with the Illinois Supreme Court
e.g., Village of Oak Lawn v. Marcowitz, 427 N.E.2d at
decision in Village of Oak Lawn v. Marcowitz, 86 Ill. 2d
42.14 So construed, the ASTCA fully effectuates the legis-
406, 427 N.E.2d 36 (1981), which also held that the ASTCA
lature's primary purpose for its enactment, i.e., to reg-
definition was constitutionally invalid as incorporated in
ulate the rapidly developing trend of cost-effective am-
a local ordinance which "closely resemble[d] the state
bulatory surgical medical units. Thus, the State of Illinois
[ASTC] act and implementing regulations adopted by the
remains free to license any facility pursuant to the "abor-
Department of Health." Id. at 38. The local ASTC ordi-
tion neutral" ASTCA "devoted primarily to the mainte-
nance also required an "initial license fee of $5,000, plus
nance and operation of facilities for performance of sur-
annual renewal fees of $2,000." Id. at 39. In Marcowitz
gical procedures," including an abortion facility, like Dr.
the Illinois court, foreshadowing the caveat in Akron,
Ragsdale's, devoted primarily to the performance of abor-
stated:
tions. 15 As with other social and economic legislation, the
"Given the substantial licensing fee required and the
test traditionally applied is whether or not the law has
detailed regulation involved, it seems inevitable that
a "rational relation" to a valid state objective. See Wil-
medical practitioners who might otherwise perform
liamson v. Lee Optical Company, 348 U.S. 483, 491, 75
abortions for their regular patients, but whose facil-
S.Ct. 461, 466 (1955). Thus, I would apply the "rational
ities were not primarily devoted to surgery, would
relation" test to the now "abortion neutral" ASTCA.
choose not to qualify under the ordinance. The right
The majority, however, disagrees and would apply the
of a woman considering a first-trimester abortion to
strict scrutiny test relying on mere dictum in Friendship
seek the advice and services of her obstetrician, gyne-
Medical Center Ltd. v. Chicago Board of Health, 505 F.2d
cologist, or other physician in whom she has trust
1141 (7th Cir. 1974), cert. denied, 420 U.S. 997 (1975).
and confidence may not be so drastically curbed."
There the court observed:
Id. at 42.
"Furthermore, any proposed regulation, even if ap-
Further, both § 16(1) of the MPA and the impermissible
plied universally to all similar medical procedures,
definition clause in the ASTCA,13 can easily be severed
from their respective acts without affecting the legisla-
14 As I discuss, infra, the abortion-specific 9 157-8.6-1, as well
ture's "essential purposes" for the acts' enactments. See
as the abortion-specific regulations, are also severable; however,
Zbaraz, 763 F.2d at 1545. The MPA is virtually unaffected
all but one of these provisions survive the strict standard articu-
and capable of being enforced independently of § 16(1) and
lated in Roe.
as such will continue to be used inter alia to revoke or
15 The majority baldly asserts that Dr. Ragsdale's practice con-
suspend a malfeasant physician's license. Similarly, the
sists exclusively of first-trimester abortions even though the record
ASTCA becomes "abortion neutral" once the invalid
reveals that Ragsdale performed some 40,000 abortions between
clause is removed from the definition of an ASTC. See,
1973 and 1985. Up until the Illinois court's 1982 decision in Poe
v. Illinois Department of Public Health, No. 78-C-4126 (N.D. III.
1982), which found the second-trimester hospital requirement un-
13 The unconstitutional clause of 1 157-8.3(A) of the ASTCA to
constitutional, Ragsdale limited his practice to the performance of
first-trimester abortions. However, Ragsdale testified that subse-
be severed reads as follows:
quent to Poe, he began performing second-trimester abortions. This
"or any facility in which a medical or surgical procedure is
obviously makes economic sense since the physician had the avail-
utilized to terminate a pregnancy, irrespective of whether the
able licensed ASTC and would only lose income by refusing to
facility is devoted primarily to this purpose."
perform second-trimester abortions.
App. 56
App. 57
because of the fundamental right of a woman to pro-
onstrated in part I, the legislative history establishes the
cure an abortion during the first trimester, would
contrary; the primary purpose of the ASTCA was to reg-
have to meet a compelling governmental interest re-
ulate the new cost-effective ASTCs in which semi-compli-
quirement. Thus, any general health regulations
cated (minor) surgery was performed. In effect the ma-
which would apply to first-trimester abortions would
jority puts the cart before the horse because it rests its
have to be limited so as to give effect to the fun-
analysis of the ASTCA on the quagmire of legal dictum
damental rights as established by Roe and Doe; that
set forth in Friendship which ultimately clouds and con-
is, not be burdensome on a woman's right to decide
fuses its analysis of the ASTCA.
to abort a pregnancy. By this we mean that in all
The majority further states:
probability nothing broader than general requirements
as to the maintaining of sanitary facilities and general
"Secondly, the state cannot, merely by applying the
requirements as to meeting minimal building code
expedient and conclusory label 'surgery' to a medical
standards would be permissible."
procedure, apply requirements which would be neces-
Id. at 1153-54.
sary to major surgical procedures in the abortion con-
text where they would be wholly inappropriate. It
Initially, I point out that Judge Fairchild, concurring,
is as much a vice to treat abortion similarly to dis-
rejected the Friendship majority's dictum, stating:
similar procedures as it is to treat it differently from
"Nevertheless, regulation of the safety of all these
analogous procedures."
procedures, incidentally including first-trimester abor-
The majority's conclusory statement is incredible in light
tions, through imposition of generally applicable reg-
of the record. First of all, the plaintiff's own medical ex-
ulations, would seem to be a valid exercise of the
perts testified that an abortion was a surgical procedure
state's interest in protecting health and need only
(regardless of the type of abortion method used). On direct
satisfy the traditional [rational basis] test of judicial
examination Ragsdale stated that an abortion "is a minor
scrutiny imposed in this area."
surgical procedure." Tr. at 420. Dr. Hern also testified
Id. at 1155 (Fairchild, J., concurring). Because Friend-
that an early abortion-one performed six to eight weeks
ship's dictum to the contrary "was not refined by the fires
from the last menstrual period-"is the safest surgical
of adversary presentation," it "was not a fully measured
procedure being performed." Tr. at 241 and 260. Likewise,
judicial pronouncement," and thus "not authoritative."
it was Dr. Barton's expert opinion that an abortion con-
United States v. Crawley, 837 F.2d 291, (7th Cir.
stituted an operation, Tr. at 452, and abortions "are clas-
1988). This caveat is particularly applicable here where
sified as minor surgical procedures." Tr. at 467. Dr. Hern
we are construing a legislative act regulating a broad field
further stated that an abortion is a surgical procedure
of medical services, including minor surgical procedures.
categorized as a procedure "that involve[s] invasion of a
body cavity or a major organ of some kind." Tr. at 241.
The majority gives two reasons, unsupported by this
In reaching its conclusion that the state applied the "ex-
record, for relying on the Friendship dictum: "First, we
pedient and conclusory label 'surgery'' to an abortion,
cannot ignore the fact that the ASTCA was enacted pri-
the majority once again disregards the record and strays
marily with abortion clinics in mind and only applied to
far afield from its area of legal competence and makes
outpatient surgical clinics generally in an effort to save
medical judgments and pronouncements that are more
the statute from unconstitutionality." However, as I dem-
properly reserved to those expertly trained in the medical
App. 58
App. 59
scientific fields such as physicians, surgeons, nurses,
cedures, it would not be impermissible to make them
medical technicians, etc.
specifically applicable to abortion clinics."
Further, I observe that the courts have consistently
Id. at 1358.
alluded to abortions as a surgical procedure. In Roe, for
Moreover, in Baird v. Department of Public Health, 599
example, Justice Stewart noted that the "protection of
F.2d 1098 (1st Cir. 1979), the court upheld a state licen-
the health and safety of a woman" was a legitimate ob-
sure statute applicable to any clinic providing medical,
jective, amply sufficient "to permit a state to regulate
surgical, dental, restorative, or mental hygiene services,
abortions as it does other surgical procedures." Roe v.
including facilities offering only first-trimester abortion
Wade, 410 U.S. at 170, 93 S.Ct. at 735 (Justice Stewart, con-
services. The First Circuit held: "There is room under
curring). Still more recently, in Akron the Supreme Court
Roe for states to apply the same licensing standards to
observed that the district court had found that "an abor-
abortion facilities as they apply to like facilities perform-
tion generally is considered a 'minor surgical procedure."
ing medically analogous procedures." Id. at 1102 (empha-
Akron, 462 U.S. at 444, 103 S.Ct. at 2500 n.35. Thus, the
sis added). See also Westchester Women's Health Organi-
evidence establishes that an abortion is a surgical procedure,
zation v. Whelan, 475 F.Supp. 734, 739-40 (S.D.N.Y. 1979);
albeit a semi-complicated (minor) surgical procedure. Sig-
Abortion Coalition v. Michigan Department of Public
nificantly, the ASTCA was intended to regulate all minor
Health, 426 F.Supp. 471, 477 (E.D. Mich. 1977); Hallmark
surgical procedures, including all types of abortive proced-
Clinic v. North Carolina Department of Human Re-
ures performed in an ASTC; this the majority fails to recog-
sources, 380 F.Supp. 1153, 1157 (E.D.N.C. 1974), aff'd on
nize. There is no reason to apply strict scrutiny in this
other grounds, 519 F.2d 1315 (4th Cir. 1975). Thus, Illinois'
situation. There is no language in the Supreme Court's de-
laws licensing and regulating ASTCs are proper.
cisions upholding the majority's speculative and implicit
theory that the Court intended to strike down social and
The law is very clear that a state has right to enact
economic legislation such as the ASTCA in the name of Roe
legislation for the protection of its citizens. See Quilici
or a woman's limited right to terminate her pregnancy.
v. Village of Morton Grove, 695 F.2d 261, 274 (7th Cir.
1982) (Coffey, J., dissenting), cert. denied, 464 U.S. 863
Further, in Hodgson v. Lawson, 542 F.2d 1350 (8th Cir.
(1983). The Supreme Court specifically stated:
1976) (per curiam), the court addressed the issue of
whether a state could subject the abortion decision, even
"It is elemental that a state has broad power to es.
during the first trimester, to regulations promulgated by
tablish and enforce standards of conduct within its
the state board of health, including licensing requirements.
borders relative to the health of everyone there. It
is a vital part of a state's police power. The state's
The Eighth Circuit concluded:
discretion in that field extends naturally to the reg-
"A state can impose the same regulations on a clinic,
ulation of all professions concerned with health.'
specifically built to perform abortions during the first
trimester, that are imposed on other clinics that per-
Barsky v. Board of Regents, 347 U.S. 442, 449, 74 S.Ct.
form surgical procedures requiring approximately the
650, 654 (1954). Thus, I am persuaded by the logic of
same degree of skill and care as the performance of
Judge Fairchild's concurrence in Friendship, rather than
first-trimester abortions. As long as the regulations
by the unsupported and speculative conclusions of the ma-
applying to abortion clinics are the same as those ap-
jority, as well as the reasoning of the First and Eighth
plied to other clinics performing similar surgical pro-
Circuits, that under Roe and its progeny a state has not
only the power and authority, but also the duty, to reg-
App. 60
App. 61
ulate all medical facilities, particularly any facility where
removed, the potential for future difficulties in bearing
any surgical procedures are performed (including first-
children, and also the possibility of sexual sterility. It
trimester abortions) as a valid exercise of its interest in
defies reason to allow the state to license an ASTC per-
protecting the health and welfare of its citizens while en-
forming hernia surgery, cataract removals, and repairs of
suring that the facilities will provide "conditions insur-
a torn or detached retina, but not permit the state to
ing maximum safety for the woman" who has decided to
license ASTCs primarily performing abortions when there
terminate her pregnancy. Connecticut v. Menillo, 423 U.S.
are many similar risks involved in the myriad types of
at 11, 96 S.Ct. at 171.
abortive procedures.
The ASTCA and the regulations promulgated there-
Lastly, the majority asserts that it is irrational for the
under were intended to do just that, to protect the safe-
state to regulate the full-time provider of abortions (those
ty of its citizens, and is reason sufficient enough to sus-
primarily performing abortions) more heavily than the oc-
tain the validity of the statute. As in many other surgical
casional provider. While it may be true that the full-time
procedures, there are a variety of similar medical and
abortionist may consider himself or herself "more skilled"
physical risks involved in having an abortion. Depending
and SO theoretically need less regulation, the majority
upon a particular woman's characteristics and develop-
overlooks that a state with limited resources may rational-
ment, medical and psychological problems may very well
ly choose to direct its energies to improving the lot of
arise during the abortion procedure that only an experi-
the greatest number. For example, if the state, after the
enced, well-trained, board-certified obstetrician and gyne-
proper enactment of legislation, chooses to regulate ASTCs
cologist is capable of recognizing and effectively treating
and reduce the risk of minor surgery (as well as its cost)
in a properly designed, constructed, equipped, maintained,
for 100,000 of its citizens, and more instrusive regulation
managed and medically approved facility. Depending upon
of occasional providers would help only 2,000, the state
the gestational duration of the embryo or fetus, such com-
may very properly deal with the 100,000 first. Further,
plications include, but are not limited to, trauma, perma-
the cost of regulation per patient will be lower if the state
nent damage to vital organs, dysfunction of the cardiovas-
concentrates its attention on high-volume businesses; sure-
cular or respiratory system requiring cardio-pulmonary
ly this constitutes a rational relation to a permissible end.
resuscitation, internal bleeding or hemorrhaging of the
The majority's treatment of the ASTCA and the IHFPA
uterine wall, cervical lacerations, uterine perforation, em-
under the strict scrutiny test is just another way the ma-
bolism of the blood vessels, allergic reaction to medica-
jority circumvents and fails to effectuate the purpose of
tion or anesthesia, if administered, and even the perma-
the ASTCA, i.e., to regulate changes in the provision of
nent impairment of reproductive organs. Other medical
medical services. Essentially, the majority substitutes its
factors that must be considered in making an informed
judgment for that of the legislature; this is truly unfor-
abortion decision include the type of abortion to be per-
tunate in this case since courts should defer above all to
formed (dilation and curettage, dilation and vacuum as-
a legislature's judgments on social and economic matters.
piration, dilation and evacuation, hysterotomy, or hyster-
See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153
ectomy), the woman's medical history, her reaction to
(1970). Lawyers who are now judges are neither trained
previous surgical procedures, her tolerance to certain
nor experienced in the medical disciplines possibly related
medications, the chance that she is an RH-negative fe-
to abortion procedures, e.g., obstetrics, gynecology, psy-
male, the likelihood of contracting a uterine infection, the
chiatry, pathology, general surgery, or emergency medi-
chance that the placenta and fetus will not be completely
cine. Nor are judges versed in the nuances of the prac-
App. 62
App. 63
tices and techniques of the medical profession and thus
sibility of [guaranteeing its citizens adequate, cost-
are ill-equipped to substitute their views regarding what
effective but safe, medical services.]"
is medically adequate, proper, or antiseptic. "As recent-
Id. at 487, 90 S.Ct. at 1162-63 (citations omitted) (emphasis
ly stated by the Supreme Court, 'there certainly is no
added). See also In re U.S. ex rel. Missouri State High
reason to think judges are better qualified than appropri-
School, etc., 682 F.2d 147 (8th Cir. 1982) ("Once a rational
ate professionals in making such decisions.' St. Mary of
relationship exists, and it exists here, judicial scrutiny
Nazareth v. Dep't of Health & Human Services, 698 F.2d
must cease. Whether the rule is wise or creates undue
1337, 1346 (7th Cir. 1983) (quoting Youngberg v. Romeo,
individual hardship are policy decisions better left to legis-
457 U.S. 307, 323, 102 S.Ct. 2452, 2462 (1982)). However,
lative and administrative bodies").
this majority decision is replete with such medical asser-
tions. For example, the majority states, "The testimony
Lastly, because the courts "have returned to the orig-
regarding many of the physical plant requirements make
inal constitutional proposition that courts do not substitute
clear that they have 'no medical justification whatsoever'
their social and economic beliefs for the judgment of legis-
when applied to first and early second trimester abortions
lative bodies," Ferguson v. Skrupa, 372 U.S. 276, 730,
of the type involved in this case." However, the ASTCA
83 S.Ct. 1028, 1031 (1963), the "abortion neutral" ASTCA
was intended to regulate all minor surgical procedures,
is entitled to presumptive validity. It is a well-recognized
and the legislature is free to enact reasonable legislation.
principle that
Under these circumstances, and in light of the real risks
"The question, whether a law be void for its repug-
that accompany minor surgical procedures, including abor-
nancy to the constitution, is, at all times, a question
tions, it is dangerous for the majority to substitute its
of much delicacy, which ought seldom, if ever, to be
judgment as to what constitutes necessary and/or appro-
decided in the affirmative, in a doubtful case. The
priate ASTC regulations. Although in Dandridge the Su-
court, when impelled by duty to render such a judg-
preme Court was concerned with welfare assistance pro-
ment, would be unworthy of its station, could it be
grams, the following admonition is as applicable today as
unmindful of the solemn obligations which that sta-
it was then:
tion imposes. But it is not on slight implication and
"We do not decide today that the [Illinois] regula-
vague conjecture, that the legislature is to be pro-
tion is wise, that it best fulfills the relevant social
nounced to have transcended its powers, and its acts
and economic objectives that [Illinois] might ideally
to be considered as void. The opposition between the
espouse, or that a more [reasonable] system could not
constitution and the law should be such that the
be devised. Conflicting claims of morality and intel-
judge feels a clear and strong conviction of their in-
ligence are raised by opponents and proponents of
compatibility with each other."
almost every measure, certainly including the one
Fletcher v. Peck, 10 U.S. (6 Cranch) 85, 128 (1810) (em-
before us. But the intractable economic, social and
phasis added). 'Every possible presumption
is
in
...
even philosophical problems presented by fregulating
favor of the validity of a statute, and this continues until
medical services] are not the business of this [c]ourt.
the contrary is shown beyond a rational doubt.' Powell
The Constitution may impose certain procedural safe-
v. Pennsylvania, 127 U.S. 678, 684 (1887) (quoting In re
guards upon [the regulatory] system
But the
Sinking Fund Cases, 99 U.S. 700, 718 (1879)). See also
Constitution does not empower this [c]ourt to second-
Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 1445-
guess state officials charged with the difficult respon-
46 (1976) (Justice Rehnquist, now Chief Justice, stated that
App. 64
App. 65
state decisions regarding social legislation are "entitled
to the same sort of presumption of legislative validity as
III
are state choices designed to promote other aims within
However, even if Roe and its progeny were to apply
the cognizance of the State's police power."). As the Su-
to the ASTCA and IHFPA as asserted by the majority,
preme Court recently observed in Pension Benefit Guar-
the Act would still be constitutionally valid. The holding
anty Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 104
of Roe and its progeny
S.Ct. 2709, 2717 (1984):
"does not mean that a state never may enact a reg-
"It is by now well established that legislative Acts
ulation touching on the woman's abortion right during
adjusting the burdens and benefits of economic life
the first weeks of pregnancy. Certain regulations that
come to the Court with a presumption of constitu-
have no significant impact on the woman's exercise
tionality, and that the burden is on one complaining
of her right may be permissible where justified by
of a due process violation to establish that the leg-
important state objectives."
islature has acted in an arbitrary and irrational way.
See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct.
Akron, 462 U.S. at 430, 103 S.Ct. at 2492. The plaintiffs
asserted that the ASTCA and IHFPA substantially bur-
1028, 10 L.Ed.2d 93 (1963); Williamson v. Lee Op-
dened the woman's right to terminate her pregnancy in
tical Co., 348 U.S. 483, 487-488, 75 S.Ct. 461, 464,
three ways: (1) by limiting the availability of abortions;
99 L.Ed. 563 (1955).'
(2) by increasing the cost of an abortion; and (3) by re-
(quoting Usery v. Turner Elkhorn Mining Co., 428 U.S.
quiring the provider to fulfill the certificate of need re-
1, 15, 96 S.Ct. 2882, 2892 (1976)). See also Rhinebarger
quirements subjecting the abortionist to a "public veto
v. Orr, No. 87-1738, slip op. at 3 (7th Cir. February 4,
of his [abortion] services." As I previously noted, $ 16(1)
1988) (Chief Judge Bauer observed: "It is well established
of the MPA and its companion clause in 9 157-8.3(A) of
that congressional legislation 'adjusting the burdens and
the ASTCA could very well be considered unconstitutional
benefits of economic life' are presumed constitutional and
and therefore should be enjoined. Thus, the licensure of
that 'the burden is on one complaining of a due process
facilities allegedly devoted primarily to the performance
violation to establish that the legislature has acted in an
of abortions does not limit the availability of abortions
arbitrary and irrational way.' "). Here, the plaintiffs-appel-
since many other surgeons, if they SO choose, could per-
lees have not demonstrated that the Illinois legislature
form first-trimester abortions in their offices.¹⁶ Thus, the
acted in an arbitrary or irrational way when enacting the
ASTCA cannot be said to limit the availability of abor-
ASTCA and the IHFPA. Thus, within the parameters of
tions. Further, the possibility that Ragsdale's clinic might
Roe, I am convinced that the state is free to regulate
possibly close does not significantly, if at all, affect the
abortions to the same extent it regulates similar surgical
availability of abortions. The plaintiffs stated that "there
procedures. I fail to understand how the majority holds
are approximately 65,860 abortions performed in Illinois
otherwise since the Supreme Court has never held that
annually." Ragsdale v. Turnock, 625 F.Supp. 1212, 1219
Roe holds to the contrary. Thus, I would reverse the
district court's order preliminarily enjoining the ASTCA
and the IHFPA.
16 In Akron the Supreme Court reaffirmed its trimester approach.
Thus, I am convinced that the state could constitutionally require
that all second-trimester abortions be performed in an ASTC. Even
the plaintiffs' experts testified that the risks of an abortion rise
substantially in the second trimester.
App. 66
App. 67
(N.D. III. 1985). Of these, Ragsdale performs some 3,400
The district court found the second burden on a woman's
to 3,500 annually, or some 5 percent. Additionally, there
right to terminate her pregnancy created by the ASTCA
are some 42 to 44 ASTCs in Illinois and "approximately
licensing requirement was that the licensing requirement
half of these provide abortions services." Id. However,
raised the cost of an abortion "by $25 to $40 for abor-
the district court found that Ragsdale was the only avail-
tions performed at Ragsdale's clinic." The defendants
able abortionist in his area. The record reveals that Rags-
argue that the district court erroneously relied on hear-
dale initially testified that he was the "only provider" of
say for the basis of its factual findings regarding the in-
abortions in his area. Subsequently, he qualified his testi-
creased cost. I couldn't agree more since the defendants
mony, stating he was "primarily, and, in many ways, the
objected throughout the hearing to the relevancy and ad-
only abortion provider" in the area. However, Ragsdale
missibility of Ragsdale's alleged cost sheets. The alleged
concluded, stating: "To the best of my knowledge, no one
cost sheets consisted of Ragsdale's musings after allegedly
else intends" to perform abortions in the area. These
discussing tentative plans to move his facility with con-
statements, contrary to the district court's finding that
tractors and other vendors. Ragsdale, a physician and sur-
Ragsdale was the "only" abortion provider, do not estab-
geon, is no more an expert in cost accounting, contracting,
lish that abortions would be unavailable in the area if
architecture, etc., than the respective experts in these
Ragsdale had to close his facility (because he failed to
areas are knowledgeable about the problems and practice
lease or purchase a new facility). Inferring from the high
of surgery and/or medicine. Thus, just as the majority re-
volume of abortions performed at Ragsdale's clinic, it is
jected the defendant's architectural expert's testimony
apparent that the efficiency of the clinic had reached that
regarding the medical "need for the ventilation require-
of an "economy of scale," making it uneconomical for
ments," so too should the majority, on proper balance,
other physicians to enter the abortion market in the area.
reject Ragsdale's compliance cost estimates.
However, assuming arguendo, that abortionists receive
On the other hand, assuming arguendo, that Ragsdale's
anywhere from $250 to $400 per abortion,¹⁷ it is unlikely
cost-related testimony was properly received in evidence,
that another operator (like Ragsdale) would not perform
I am convinced that the important state health objective
abortions in the area in the event Ragsdale's business
of insuring safe, yet cost-effective, medical service by re-
closed. The physician-surgeon entrepreneur could not ig-
quiring minimum engineering and construction standards
nore Ragsdale's apparent potential annual gross income
justified the de minimis financial impact that compliance
from abortions alone, approximately $875,000 ($250 per
with the regulations places on the cost of an abortion. The
abortion X 3500 abortions per year). The district court's
majority inaccurately asserts that "Dr. Ragsdale testified
finding that the closing of Ragsdale's clinic would make
that he estimated compliance with the regulations would
abortions unavailable is mere speculation and clearly erro-
entail a per-patient cost of between $25 and $40." The
neous.
record reveals that Dr. Ragsdale testified that he esti-
mated the added costs of complying with the regulations
over and above the costs required simply to relocate his
17 Plaintiff's counsel stated during closing argument before the
current practice in such a manner as he deemed appro-
district court that the fee charged in a hospital for an abortion
priate for his needs, as $25.21 per patient. (Ragsdale Tr.
was $1,000 and that the hospital fee was 2.5 to 4 times greater
400-01). This added cost of $25.21 certainly cannot be con-
than the cost of an abortion performed in an outpatient facility
(including a physician's office). Thus, according to plaintiff's counsel,
sidered as significantly more than the $19.40 (less than
an outpatient abortion costs $250 to $400.
a $5 difference) increase per abortion for tissue examina-
App. 68
App. 69
tion upheld by the Supreme Court in Ashcroft because
This brings us to the third burden allegedly impinging
"in light of the substantial benefits that a pathologist's
upon a woman's qualified right to terminate her pregnan-
examination can have, this small cost is clearly justified."
cy, i.e., Certificate of Need (CON) for Ragsdale's ASTC
462 U.S. at 490, 103 S.Ct. at 2524. Moreover, it should
and the related public hearing required pursuant to the
be pointed out that the increased cost testified to herein,
IHFPA. 18 The majority unbelievably holds the certificate
unlike the one in Ashcroft, would at best only be tempo-
of need requirement unconstitutional for the reason, inter
rary and not one that would remain ad infinitum. Dr. Rags-
alia, that the public hearing accompanying a certificate
dale admitted that "much of the debt would be retired after
of need created a public veto of a woman's qualified right
two to five years." Thus, after two years the fee increase
to an abortion. The record establishes unequivocally that
would be reduced to $10.90 per patient, and after five years
Ragsdale's landlord, a hospital, wished to terminate its
to a mere $3.40 per patient. I am convinced that the mini-
lease with Ragsdale because Ragsdale failed to refer pa-
mum engineering and construction design requirements al-
tients to the hospital. Ragsdale applied to the State of
legedly at issue, which ensure only that all surgical pro-
Illinois, pursuant to the ASTCA and IHFPA, for a license
cedures performed in ASTCs, including first-trimester
abortions, are performed in clean, sanitary, and safe struc-
tures are a substantial benefit to the health and safety
18 Pursuant to 11 1155-1160 of the IHFPA, and as noted by the
of patients, and the miniscule financial impact referred to
majority, "anyone seeking to open an ASTC [must] obtain a cer-
is clearly de minimis and justified.
tificate of need for the facility from the Department of Public
Health after a public hearing and a 120-day review period." A
One last observation respecting the cost of an abortion.
CON is granted if the State Board finds
After searching the record, I found no evidence establish-
"(1) that the applicant is fit, willing, and able to provide a
ing the cost of an abortion performed in a doctor's of-
proper standard of health care service for the community with
fice. However, the plaintiff's counsel during closing argu-
particular regard to the qualification, background and character
ment before the district court stated that the costs of an
of the applicant, (2) that economic feasibility is demonstrated
abortion performed in a hospital ($1,000) was 2.5 to 4
in terms of effect on the existing and projected operating
budget of the applicant and of the health care facility; in terms
times as costly as that of one performed in a surgeon's
of the applicant's ability to establish and operate such facility
office or in an outpatient clinic. These figures reflect that
in accordance with licensure regulations promulgated under
outpatient abortion costs, including those performed in a
pertinent state laws; and in terms of the projected impact on
physician's office, range from $250 to $400 each. Thus, the
the total health care expenditures in the facility and communi-
$250 cost of an abortion performed in Ragsdale's ASTC,
ty, (3) that safeguards are provided which assure that the
establishment, construction or modification of the health care
even if operating in full compliance with the Act, may
facility is consistent with the public interest, and (4) that the
in fact represent the low end of the abortion market price.
proposed establishment, construction or modification is con-
This proposition supports my earlier observation that
sistent with the orderly and economic development of such
Ragsdale's clinic, because of its efficiency, dominated the
facilities and is in accord with standards, criteria, or plans
local market. Further, assuming that Ragsdale's increased
of need adopted and approved pursuant to the provisions of
cost per abortion was $25.21, the percentage increase is
Section 12 of this Act for such facilities for comprehensive
in the range of 6 to 10 percent, certainly de minimis. It
health care in the community, area, or State served by such
facilities."
is not as if the price of an abortion went from $250 to
111½ III. Rev. Stat. 1 1156 (emphasis added). In this manner the
$500, a significant burden.
state has attempted to reduce skyrocketing health care costs by
limiting the expansion of unnecessary medical facilities.
App. 70
App. 71
for his new facility. After a full investigation and subsequent
requires the management or owner of an ASTC to formu-
to holding public hearings, the state agency found that there
late written policies and a procedures manual. Dr. Rags-
was in fact a need for Ragsdale's medical services. At
dale described this requirement as standard medical and
the public hearing a number of citizens protested against
administrative practice. Other administrative and organiza-
abortions stating their pro-life positions. It stretches the
tional regulations, such as those requiring written safety
imagination that one would write that the exercise of
plans (§ 205.510), appointment of a qualified consulting
one's First Amendment rights to object to an issue be
committee and medical director (§ 205.230), and written
treated somehow as creating a burden on a woman's right
personnel policies (§ 205.310), as well as those requiring
to an abortion. The majority, however, asserts that "the
sanitary conditions (§ 205.420) and proper disposal of all
state's unwillingness or inability to confine the proceedings
materials from the abortion procedure and maintenance
[the public hearings on Ragsdale's CON for his ASTC]
of the equipment in good working order (§ 205.410) are
to its even arguably legitimate goals bolster our conclusion
merely enunciations of universally recognized standard
[that the CON] requirement cannot stand." This statement
practice for performing surgical procedures in an outpa-
flies in the face of the fact that the state after due and
tient facility. As Dr. Ragsdale conceded on direct examina-
considerate deliberations absent emotion or hysteria ob-
tion, most of the regulations of this type simply "stated
jectively analyzed and in fact found that need existed for
the obvious" and in no way impinged upon a woman's
Ragsdale's medical services. Although I have previously
decision, much less her right, to an abortion. Moreover,
expressed that an individual, including an abortionist,
the building design and construction requirements contained
should be free from picketing in front of his private home,
in the ASTC regulations reflect proper engineering design
see Schultz v. Frisby, 807 F.2d 1339, 1355 (7th Cir. 1986)
and practice from a medical service point of view and ac-
(Coffey, J., dissenting), reh'g granted and decision vacated,
cepted minimum standards for medical facilities. Examples
818 F.2d 1284 (7th Cir. 1987), aff'd by equally divided vote
include requirements for testing and balancing heating,
619 F. Supp. 792, 822 F.2d 642 (7th Cir. 1987), cert.
ventilation, and air conditioning systems to ensure that
granted, 1988 U.S. L.W. 2211 (January 11, 1988), public
they are in proper working condition (§ 205.1510), insula-
hearings are a different matter. Public hearings are an
tion in appropriate locations (§ 205.1520), and a minimum
open forum where all citizens should have the right to
ceiling height of eight feet with appropriate exceptions
be heard in an organized manner in our democratic form
for certain rooms, such as storage rooms (§ 205.1400). I
of government. That some open forums or demonstrations
believe that the state has more than just a compelling
sometimes "degenerate into a shouting match" is nothing
interest, and in fact has an overriding interest, in ensur-
new to our right of free speech, much less to our national
ing that any and all ASTCs performing any surgical pro-
system of justice and ordered liberty. I fail to comprehend
cedures, including first-trimester abortions, are designed
the majority's contrary view.
and constructed to meet basic engineering standards for
Further, the record in this case establishes that the
medical facilities in order that all fairly sophisticated
ASTCA regulations in question place no burden whatso-
medical procedures are conducted "under conditions en-
ever on a woman's decision to terminate her pregnancy
suring the maximum safety" of the patient. Connecticut
in the first trimester because they reflect nothing but the
v. Menillo, 423 U.S. at 11, 96 S.Ct. at 171.
common, accepted, and approved standards of medical
Dr. Hern, the plaintiff's alleged expert witness at trial,
practice and procedure as testified to by the medical ex-
testified that "90 to 95 percent
of all first-trimester
perts. For example, § 205.240 of the ASTC regulations
procedures in this country
are performed by vacuum
App. 73
aspiration technique of some kind," and are "the safest
even under Roe and its progeny the ASTCA and
surgical procedure[s] now performed." The record also
thus. IHFPA must be held constitutional.
established that other abortion procedures, such as the
saline, urea, and installation techniques (involving insert
Finally, turning to those abortion-specific ASTCA regu-
ing a needle into the amniotic cavity, withdrawing fluid.
lations: I would hold that all but one of these abortion-
and installing a saline solution within the amniotic cavity)
specific regulations survive Roe's scrutiny. Initially, I
were also being performed in ASTCs. These abortion pro
would hold that 9 157-8.6-119 properly requires a physi-
cedures have a higher complication and fatality rate than
clan actively engaged in practice at an ASTC be on the
Inward of directors of any ASTC "devoted primarily to pro-
other abortion procedures, such as the vacuum aspiration
and dilation and evacuation methods. Since more compli
viding facilities for abortions" as a condition of licensure.
Since the Supreme Court's decision in Connecticut v.
cated and involved abortion procedures which require
Menillo, it has been clear that states can require that only
close supervision, control and regulation are also per.
formed in ASTCs, I am persuaded that the state can.
physicians perform abortions. Illinois' additional require-
ment that a practicing physician/surgeon be on the board
should, and must regulate its ASTCs in order that it
of an ASTC primarily involved in providing abortion ser-
might protect its citizens from possible serious medical
vices simply guarantees that a physician be involved in
problems which could very easily arise. The State of Illi-
the business decisions of the board of directors (exclusive
nois, through its legislators, has the authority, if it so
of the patient-doctor abortion decision) and thus ensure
determines, to require a higher standard for the opera
safe medical procedures and practices. Further, Dr. Rags-
tion of these clinics, including attending and supervising
date testified that 9 157-8.6-1 did not burden the woman's
personnel, building specifications and design, as well as
nght to an abortion. Additionally, Margaret Moe, who
maintenance, in order that it might protect its citizens.
desired to offer abortions out of her clinic, is now free
just as the State of Wisconsin has the authority to re
in light of the probable unconstitutionality of § 16(1) of
quire higher standards for its prisons and the State of
the MPA and its companion clause in the ASTC defini-
Georgia to protect its inmates if it so wishes. Cf. Wis.
twn) to do so as long as the clinic is not devoted primarily
Administrative Code §§ HHS 302, et seq. with Georgia
to surgical procedures. If Moe chooses to incorporate her
Code Annotated § 42-5-50, et seq. Similarly, the State of
chnic as an ASTC, she, without any trouble, will be able
Illinois can pass legislation mandating more all-inclusive
to retain a surgeon performing abortions at her clinic to
immunization requirements for school-age children than
serve on her ASTC board of directors. This requirement
those required by the State of Missouri. Cf. Illinois Re
neither limits the availability nor increases the cost of an
vised Statute Chapter 111.5, 22.11 and Illinois Adminis
trative Code Tit. 77, § 696.10 with Missouri Revised Stat
ute § 167.181.
10 Paragraph 157-8.6-1 provides:
The Illinois legislature has determined that the ASTCA
"Abortions-Licensed physicians
portant social and economic laws for the betterment and the
and the IHFPA, by their very enactment, are very im
1 6.1 Notwithstanding any other provision of this Act, any
corporation operating an Ambulatory Surgical Treatment Center
protection of its citizens. Neither the ASTCA nor a
devoted a primarily to providing facilities for abortion must have
IHFPA burden a woman's qualified right to terminate im-
physician, who is licensed to practice medicine in all of its
and both Acts further serve the state's
branches at and is actively engaged in the practice of medicine
sure of the Center."
the Center, on the board of directors as a condition to licen-
pregnancy, portant interest in the health and welfare of its citizens.
App. 74
App. 75
abortion performed at an ASTC and in fact serves the
"Recordkeeping and reporting requirements that are
important state interest in protecting the health of its
reasonably directed to the preservation of maternal
citizens. Thus, 9 157-8.6-1 is constitutional.
health and that properly respect a patient's confiden-
Further, the record reveals that those regulations ad-
tiality and privacy are permissible.
Recordkeep-
dressing operative care do not burden a woman's right
ing of this kind, if not abused or overdone, can be
to an abortion. Section 205.530(c) of the ASTC regulations
useful to the state's interest in protecting the health
requires that all tissues removed during surgery be ex-
of its female citizens, and may be a resource that is
amined by a qualified consulting pathologist. The Supreme
relevant to decisions involving medical experience and
Court upheld an almost identical regulation in Ashcroft.
judgment
As so regarded, we see no legally sig-
The Court held that a Missouri regulation requiring all
nificant impact or consequence on the abortion deci-
tissues surgically removed (including tissue removed dur-
sion."
ing first-trimester abortions) be examined by a pathologist
Id. at 80-81, 96 S.Ct. at 2846 (footnote omitted). Further,
"reasonably related to generally accepted medical standards
Dr. Hern, one of the plaintiffs' alleged experts, testified
and 'further[s] important health-related state concerns.'
specifically that the reporting of statistics "is essential to
462 U.S. at 487, 103 S.Ct. at 2523 (quoting City of Akron,
public health evaluation." Thus, the reporting requirements
462 U.S. at 430). The Court stated: "As a rule, it is ac-
at issue are consistent with the Court's holding in Dan-
cepted medical practice to submit all tissue to the exam-
forth and are constitutional.
ination of a pathologist. This is particularly important
Other abortion-specific regulations require a determina-
following abortion, because questions remain as to the long-
tion of blood RH factor prior to performance of an ob-
range complications and their effect on subsequent preg-
stetrical procedure, including an abortion (§ 205.730(a)(1))
nancies." 462 U.S. at 487-88, 103 S.Ct. at 2523 (emphasis
and hemoglobin and hematocrit and urine analysis ex-
in original). Further, the information and knowledge gained
aminations before performing an abortion, as well as pro-
from the aggregated pathological testing and reports will
cedures performed with general anesthesia or local anes-
aid other women in the future. The requirement for a patho-
thesia with sedation (§ 205.520(b)). At trial, Dr. Ragsdale
logical report on any abnormalities in the tissue in ques-
admitted that he had no disagreement with the need to
tion is proper and constitutional in light of Ashcroft.
perform appropriate laboratory tests. Thus, these provi-
Section 205.760 of the ASTC regulations requires a re-
sions in no way impinge upon a woman's decision to have
port, on forms provided by the Department of Public
an abortion because they merely state the standard med-
Health, of each abortion procedure performed in an ASTC
ical tests necessary to perform a safe abortion. In this
within ten days following the month in which the abor-
respect, they are no more offensive or intrusive on a
tion was performed. If the doctor who performed the
woman's right to an abortion than $ 205.710 which states:
abortion later discovers a complication, such as hemor-
"Abortions shall be provided to the public with the same
rhaging, then he or she is required to file a supplemen-
tal report. 20 In Planned Parenthood v. Danforth, 428 U.S.
52, 96 S.Ct. at 2831 (1975), the Supreme Court stated:
20 continued
partment of Public Health. This data is to include the number and
type of procedures performed and complications reported, the
20 In a companion regulation which is not abortion specific, § 205.620
number of patients requiring transfer to a hospital due to com-
requires each ASTC to submit annual statistical data to the De-
plications, the number of patients returning for followup contact,
(Footnote continued on following page)
and the number of deaths.
App. 76
App. 77
standards of safety, effectiveness, and regard for pa-
"The
decision
to
abort
is an important, and often stressful
tients['] rights as any other health service." As Dr. Rags-
one, and it is desirable and imperative that it be made
dale's counsel concededly stated at trial, "Obviously, Dr.
with full knowledge of its nature and consequences." Dan-
Ragsdale agrees with that statement. We agree with that,
forth, 428 U.S. at 67, 96 S.Ct. at 2840. See also City of
and I suspect everyone in this room agrees with that
Akron, 462 U.S. at 442-43, 103 S.Ct. at 2499.22 This is
statement."
Finally, I do not agree with the majority's conclusion
21 continued
that the counseling requirements of § 205.730(b) run afoul
A Yes.
of the Supreme Court's ruling in Thornburgh v. American
Q
well, why do you provide [counseling], Dr. Hern?
College of Obstetricians, 476 U.S. 747, 106 S.Ct. 2169 (1986).
A Well, I believe that it is important for each patient to
In Thornburgh the Court found unconstitutional provisions
have not only a good understanding of the procedure that
of the state statute that required a woman to be informed
she is going to be having and how she got pregnant [?!]
of fetal characteristics, the availability of financial assist-
and what the methods are for her, I mean, for her to be
ance, detrimental physical and psychological effects, and
permitted or to permit her to avoid unwanted pregnan-
all particular medical risks. Id. at 759-765, 106 S.Ct. at
cies in the future.
2178-81. But the Court held that this detailed information
Q Well, do you say the same things to every patient, Dr.
exceeded the state's interest in describing the general sub-
Hern? Do you give the same counseling?
ject matter relevant to informed consent because it "is not
A In general, yes. Although it really depends upon the in-
medical information that is always relevant to the woman's
dividual patient as to how much we give as to that but
I also think that-how much emphasis we give and as to
decision and it may serve only to confuse and punish her
what, but, as I say, it is also important for the patient
and to heighten her anxiety contrary to accepted medical
to have an opportunity to express her feelings about the
practice." Id. at 762, 106 S.Ct. at 2179.
pregnancy and about the abortion and, perhaps, the rela-
tionship in which it occurred.
In contrast, the counseling requirements of § 205.730(b)
Q Would you always, Dr. Hern, for example, include in
include a description of the procedure to be performed,
your discussion with the woman a discussion of the alter-
an explanation of risks and possible complications, and a
natives for dealing with pregnancy?
discussion of alternatives. These requirements are signifi-
A Yes. And depending also to some extent on the patient's
cantly less instrusive than the ones invalidated in Thorn-
interest in this subject. Some patients absolutely refuse
burgh, and the record establishes through Dr. Hern's
to discuss alternatives; they come in and they have their
testimony as an expert witness, that counseling is an in-
minds absolutely made up about what they want to do
dispensable part of a thorough pre-operative evaluation
and they are impatient to get on with the process and
and preparation of a patient for an abortion procedure.
they really do not wish to spend a great deal of time talk-
ing about, for example, adoption."
Dr. Hern testified that appropriate counseling should in-
clude a discussion of the alternatives for dealing with preg-
(Emphasis added).
nancy.21 As the Supreme Court has repeatedly recognized,
22 According to the majority, the counseling requirement and in
particular "the requirement of a 'discussion of alternatives' is un-
constitutional." The majority relied on Ragsdale's testimony to the
21 Dr. Hern, the court-qualified expert, testified as follows:
effect that discussions of alternatives might not be appropriate.
"Q Now, you testified earlier that you do provide counseling
Ragsdale speculated that it would be inappropriate to inform a
in your facility, is that right, doctor?
woman of alternatives if her continuing health was dependent on
(Footnote continued on following page)
(Footnote continued on following page)
App. 78
App. 79
true since "[a]bortion is inherently different from other
the bill) places on informed consent. The Illinois counsel-
medical procedures, because no other procedure involves
ing regulations merely require that a woman planning to
the purposeful termination of potential life." Harris v.
terminate her pregnancy do SO knowingly; Roe does not
McRae, 448 U.S. 297, 325, 100 S.Ct. 2671, 2692 (1980).
hold to the contrary. However, § 205.730(b)(2)(D) requires
Thus, I emphasized in Zbaraz v. Hartigan, 763 F.2d at
that "[c]ounselors shall have no financial interest in the
1549-50 (Coffey, J., dissenting):
patient's decision" and appears to interfere with the
"There are severe psychological and emotional
physician-patient relationship and should be severed and
stresses involved not only before and during the abor-
enjoined. Thus, I do not believe that the counseling re-
tion procedure, but for days, months and even years
quirements of § 205.730(b), except (2)(D), are improper and
following the procedure
For many individuals
would uphold their validity.
the abortion decision raises questions that are
often influenced by sincere, deep-rooted religious
IV
beliefs, moral principles, and convictions.
[J]ust
In conclusion, I am convinced that individual states have
as in any surgical procedure, [a woman] is entitled
the obligation, the duty, and the power to license medical
to an explanation of the reasonable alternatives to
ASTC facilities where semi-complex (minor) surgical proce-
abortion.
dures, including first-trimester abortions, are performed
I am firmly convinced that Illinois can require a counselor
as a valid exercise of a state's interest in protecting health
to provide a woman with a description of the procedure
and ensuring maximum safety for the patients. Determin-
to be performed, an explanation of risks and possible com-
ing where to strike the balance between competing inter-
plications, and a discussion of alternatives so that the
ests is a matter for the legislature, not for the court. The
woman can make a responsible enlightened choice in light
Constitution wisely vests the legislative branch of the
of the fact that no other medical procedure "involves the
government with the power and authority to enact laws,
purposeful termination of a potential life." Harris v. McRae,
for the legislature is better equipped to carry out that
448 U.S. at 325, 100 S.Ct. at 2692. Further, the majority's
task in that interested parties, such as state and local
rejection of the counseling requirements ignores the recent
governmental representatives, medical experts, etc., are
trend in medicine which encourages patients to seek sec-
able to present their respective positions before the legis-
ond opinions before undergoing surgical procedures. In
lative body in a more open, unrestricted, informal forum.
some instances insurance companies have even required
Thereafter, the myriad of questions and problems, as well
a second opinion with respect to non-emergency surgeries
as their possible solutions, are brought before the entire
before providing coverage. These developments reflect the
legislative branch of government and are subject to the
importance the medical profession (as well as those footing
scrutiny of public hearing and debate. When dealing with
the complex and ever-changing question of how to pro-
vide the best health care at a reasonable cost to its citi-
22 continued
zens, the factfinding and policy making capabilities of a
her undergoing a medically necessary abortion. Obviously, in this
court of law are far more limited and confined due to the
situation a "discussion of alternatives" is inappropriate simply
because there are no alternatives. The majority's interpretation
very nature of a court of law. A truly independent judi-
of the Illinois regulations would lead to absurd results. It is clear
ciary must always exercise its powers of review and deci-
that a discussion of alternatives is required only when alternatives
sion making with discretion and reservation, recognizing
in fact exist.
that we are not competent to make social and economic
App. 80
App. 81
policy decisions, and giving due deference to the legisla-
APPENDIX
tive branch of government. Our judicial responsibility ob-
ligates us to declare an act by another governmental unit
to be void only if we believe the enacted law is contrary
TITLE 77 ILLINOIS ADMINISTRATIVE CODE:
to the Constitution. After reviewing the ASTCA and the
PUBLIC HEALTH
challenged provisions of the IHFPA, I am convinced that
the expressed will of the people as enacted in these Illi-
CHAPTER 1: DEPARTMENT OF PUBLIC HEALTH
nois statutes is not contrary to the principles of the Con-
SUBCHAPTER b: HOSPITALS AND AMBULATORY
stitution; thus, I would not interfere with this well-
CARE FACILITIES
reasoned judgment of the Illinois legislature, a coequal
PART 205
branch of the government. Surely the Illinois legislature
MINIMUM STANDARDS, RULES AND REGULATIONS
is entitled to require that all surgical procedures, including
FOR THE LICENSURE OF
first-trimester abortions, are performed "under conditions
AMBULATORY SURGICAL TREATMENT CENTERS.
ensuring maximum safety for the woman [as well as the
man]." Connecticut v. Menillo, 423 U.S. at 11, 96 S.Ct.
at 171.
Moreover, other than § 16(1) of the MPA, its companion
SUBPART A: GENERAL
clause in the ASTCA, and § 205.730(b)(2)(D), I believe that
Section 205.120 Licensure
the statutes and regulations in question do not place a
a) An application for license shall be made to the De-
burden on a woman's decision to terminate her pregnancy
partment on forms provided by it. This application
in the first trimester. Further, if one is able to find a
shall contain the information required under the Act
burden, it is certainly below the level of de minimis. Last-
and this Part. The application shall be submitted
ly, the regulations reflect common, accepted and approved
not less than sixty (60) days prior to the date of
standards of medical practice and procedure and are de-
intended operation.
signed to enhance the safety of Illinois' citizens, an im-
b) The application shall include but not be limited to
portant state interest. For the foregoing reasons, I would
the following information:
reverse the order of the district court.
1) the name(s) and address(es) of person(s) who
own and/or operate the facility and the name
under which they do business. A corporation
shall submit:
A) a copy of its certificate of incorporation,
B) list of the title, name, and address of each
of its corporate officers,
C) list of the name and address of each of its
shareholders holding more than 5%, of the
shares.
2) location of the facility.
3) description of the facility including but not
limited to interviewing, examination, surgical,
and recovery room facilities.
App. 82
App. 83
4) schematic architectural plans.
E) Every facility licensed under this Act, and
5) documentation of compliance with all applicable
any premises proposed to be conducted as
building, utility and Safety Codes.
a facility by an applicant for a license shall
6) description of services to be provided by the
be open during its regular business hours
facility including a list of surgical procedures
to an inspection authorized in writing by
to be performed.
the Director. No notice need be given to
7) list of all personnel including their name, ad-
any person prior to any inspection,
dress, position, qualifications and licensure.
F) Any corporation operating an Ambulatory
8) All applications shall be signed by the applicant
Surgical Treatment Center devoted pri-
and the application shall include a verification
marily to providing facilities for abortion
form acknowledging the application to be true
must have a physician who is licensed to
and complete and certifying that the applicant
practice medicine in all of its branches and
has knowledge of and understands the action
is actively engaged in the practice of medi-
required to comply with the Act and licensing
cine at the center, on the Board of Direc-
requirements. The form shall be verified by a
tors as a condition to licensure of the center.
notary public. The forms shall be accompanied
e) Only those facilities, services, programs and pro-
by a license fee of $500.
cedures included in the application shall be licensed.
9) As a condition of the issuance or renewal of the
A new application is required for the following:
license of any Ambulatory Surgical Treatment
1) change in ownership,
Center:
2) change in location,
A) The applicant shall file a statement of owner-
3) remodeling of facility S0 as to change the inter-
ship. The applicant shall agree to update
viewing, examination, surgical or recovery room
the information required in the statement
space or number,
of ownership every 6 months from the in-
4) addition of services or programs.
itial date of filing,
AGENCY NOTE: The addition of new spe-
B) Each license shall file an attested financial
cialty services, for example, podiatry or ob-
statement with the Department by July 1,
stetrics/gynecology, may require changes in
1980 and at times thereafter as required,
consulting committee, procedures and/or
C) Financial statements shall be filed annual-
staffing. Therefore, the Department finds
ly on or before April 1, of each year for
that a new license is needed.
the previous calendar year, or within three
d) The license shall be valid for one (1) year, unless
(3) months after the close of the fiscal
sooner suspended or revoked, shall be renewable
period of the licensee,
annually upon approval by the Department and pay-
D) A financial statement shall be filed with
ment of a license fee of $300. Each license shall be
the Department on forms provided by the
issued only for the premises and persons named in
Department or on annual financial state-
the application and shall not be transferable or as-
ments prepared on forms used by the ap-
signable. The licenses shall be posted in a conspicu-
plicant. At minimum, they shall include de-
ous place on the licensed premises. A placard or
tailed balance sheets, statements of income
registry of all physicians on staff in the facility shall
and statements of expense,
be centrally located and available for inspection to
App. 84
App. 85
any interested persons. The renewal application
medical gases. The current edition of the National
shall be on forms provided by the Department and
Fire Protection Association Code (Standard No. 56a)
shall be submitted to it not less than 30 days prior
shall be used as the standard.
to the expiration date.
d) There shall be written procedures to assure the
e) The facility shall give written notice to the Depart-
safety in storage and use of all narcotics and medi-
ment within seven (7) days of any of the following:
cations in accordance with state and federal law.
1) change of administrative staff,
(Source: Amended at 3 III. Reg. 30, p. 371, effective
2) change of medical director,
July 23, 1979)
3) change of staff physicians,
*
*
*
4) change of supervising nurse,
SUBPART E: GENERAL PATIENT CARE
5) addition or deletion of surgical procedures per-
formed,
Section 205.520 Preoperative Care
6) in the case of a corporation change in any share-
a) Where medical evaluation, examination, and referral
holders equity involving 5% or more interest.
are made from a private physician's office, hospital,
(Source: Amended at 6 III. Reg. 6220, effective May 17,
or clinic, pertinent records thereof shall be avail-
1982)
able and made part of the patient's clinical record
* * *
at the time the patient is registered and admitted
to the ambulatory surgical treatment center.
SUBPART D: EQUIPMENT, SUPPLIES,
b) A complete medical history shall be obtained and
AND FACILITY MAINTENANCE
the physical examination shall be complete. A hemo-
Section 205.410 Equipment
globin or hematocrit and examination of the urine
Equipment shall be in good working order and shall be
for sugar, protein, and acetone shall be performed
available in numbers sufficient to provide good patient
by a qualified laboratory technician prior to the
care based on the procedures to be performed in the facil-
following procedures:
ity.
1) those performed with general anesthesia,
a) There shall be monitoring equipment, suction ap-
2) those performed with local anesthesia with se-
paratus, oxygen and related items available within
dation,
the surgical and postoperative recovery area. Cardiac
3) those performed to terminate pregnancy.
pulmonary resuscitation equipment shall be avail-
c) A written statement indicating informed consent
able in all facilities.
and a signed authorization by the patient for the
b) There shall be written procedures governing the
performance of the specific surgical procedure shall
care, use, sterilization, storage and disposal of all
be procured and made part of the patient's clinical
materials to insure that an adequate supply of
record.
sterile equipment is available for each procedure.
d) Surgical procedures shall not be performed on pa-
The section on "Sterilization and Disinfection" from
tient's having medical, surgical, or psychiatric con-
Infection Control in the Hospital, most recent edi-
ditions or complications as specified by the consult-
tion, American Hospital Association, shall be used
ing committee in the facility's written policies.
as the guideline.
(Source: Amended at 6 Ill. Reg. 10974, effective August
e) There shall be written procedures to assure safety
30, 1982)
in storage and use of inhalation anesthetics and
App. 86
App. 87
Section 205.530 Operative Care
AGENCY NOTE: Procedures involving the
a) Surgical procedures shall be performed only by a
pregnant uterus are subject to particular
qualified physician, dentist or podiatrist within the
complications and postoperative care re-
limits of his/her defined specific practice privileges.
quires a special knowledge on the part of
b) A qualified anesthesiologist, a dental anesthesiolo-
nursing staff.
gist or a certified registered nurse anesthetist,
(Source: Amended at 3 Ill. Reg. 30, p. 371, effective
medically directed by a licensed physician who ad-
July 23, 1979)
ministers or directs the administration of anesthesia
Section 205.730 General Patient Care
in an Illinois licensed hospital, shall be present for
a) Examination
the administration of anesthetics and recovery of
1) Prior to obstetrical procedures blood Rh factor
patients when any general or major regional anes-
shall be determined by a qualified laboratory
thetic is used.
technician for every patient.
c) All tissues removed during surgery shall be exam-
2) The physician performing an abortion procedure
ined by a consulting pathologist and all x-rays shall
shall establish the diagnosis of pregnancy by ap-
be read by a consulting radiologist who shall pro-
propriate clinical evaluation and testing prior
vide a written report of his/her examination to the
to performing an abortion procedure.
attending physician. A copy of this report shall be
3) Time shall be allowed between the initial exam-
filed in the patient's clinical record within seven (7)
ination and termination of pregnancy to permit
(Source: days. Amended at 6 III. Reg. 13337, effective October
the reporting to and reviewing of all laboratory
tests with the patient by the facility physician.
20, 1982)
b) Counseling
* * *
1) Counseling shall be provided following disclo-
SUBPART G: ADDITIONAL REQUIREMENTS
sure to the patient of the diagnosis of preg-
FOR FACILITIES IN WHICH
nancy, and prior to performance of any surgical
OBSTETRICAL/GYNECOLOGICAL PROCEDURES
procedure. It shall be done individually and in
ARE PERFORMED.
a room designated for such use which shall not
be the procedure room.
Section 205.710 Abortions
2) All facilities shall provide orientation training
Abortions shall be provided to the public with the same
for counselors and insure that each counselor
standards of safety, effectiveness, and regard for patients
is qualified to:
rights as any other health service.
A) Counseling shall be done by a person quali-
(Source: Amended at 3 III. Reg. 30, p. 371, effective
fied to:
July 23, 1979)
i) discuss alternatives for dealing with
Section 205.720 Personnel
an unwanted pregnancy;
At least one registered professional nurse with postgrad-
ii) describe the procedures used in the
uate education or experience in obstetrical or gynecologi-
facility;
cal nursing shall supervise and direct the nursing person-
iii) explain the risks and possible compli-
nel and care of patients having obstetrical procedures.
cations of each procedure;
iv) provide contraception information.
App. 88
App. 89
B) Demonstration of such counseling qualifica-
Section 205.750 Postoperative Requirements
tions shall be required by the Department.
a) Each obstetrical/gynecological service shall provide
C) Documentation of orientation training shall
Rh factor sensitization prophylaxis to all Rh nega-
be required by the Department.
tive patients according to standard medical pro-
D) Counselors shall have no financial interest
cedures.
in the patient's decision.
b) Information on availability of family planning ser-
3) Counseling shall include a discussion of alter-
vices shall be provided, when desired by the pa-
natives, description of the procedure to be per-
tient. When, in the physician's opinion, it is in the
formed, explanation of risks and possible compli-
best interest of the patient and with the patient's
cations. Contraceptive information may be pro-
consent, family planning services may be initiated
vided postoperatively. Group counseling may be
prior to the discharge of the patient.
provided in addition to individual counseling.
(Source: Amended at 5 Ill. Reg. 12756, effective No-
The patient's clinical record shall include docu-
vember 4, 1981)
mentation of the counseling received.
AGENCY NOTE: In the opinion of the Am-
Section 205.760 Reports
bulatory Surgical Treatment Center Li-
a) A report of each abortion procedure performed in
an ambulatory surgical treatment center shall be
censing Board, the patient should make a
made to the Department on forms provided by it.
decision concerning the procedure in an at-
These reports shall be submitted not later than ten
mosphere free from coercion. Consequent-
ly, the Board believes this is best ac-
(10) days following the month in which the abor-
complished in a room separate and apart
tion was performed. Reports shall be submitted on
from the procedure room. The Board be-
procedures performed whether or not the patient
lieves that it is difficult to reach a truly
was pregnant.
voluntary decision while the patient is un-
b) Reports shall not be filled out in such a manner
or at such a time as to avoid accurate reporting
dressed and on the procedure table.
(Source: Amended at 5 Ill. Reg. 12756, effective No-
of complications.
c) If the facility becomes aware of a complication
vember 4, 1981)
following the submission of the original report, then
Section 205.740 Preoperative Requirements
a supplemental report shall be submitted to the De-
Abortions may be performed in a ambulatory surgical
partment.
treatment center on only those patients with gestation up
(Source: Amended at 3 III. Reg. 30, p. 371, effective
to and including 12 weeks commencing with ovulation
July 23, 1979)
rather than computed on the basis of the menstrual cycle,
*
*
*
as determined by the physician, if the patient's medical
SUBPART I: BUILDING DESIGN, CONSTRUCTION
condition permits. Abortions shall not be performed in an
STANDARDS, AND PHYSICAL REQUIREMENTS
Ambulatory Surgical Treatment Center on those patients
whose gestation exceeds 12 weeks.
Section 205.1320 General Considerations
(Source: Amended at 3 Ill. Reg. 30, p. 371, effective
a) Location
July 23, 1979)
This facility shall be indentifiably separate from
other facilities and functions.
App. 90
App. 91
b) Narrative Program
permit at least 2'-6" clearance at each side and
The sponsor for each project shall provide a nar-
at both ends of the examination table.
rative program of functions for the facility which
2) A lavatory or sink equipped for handwashing
contains space requirements, staffing patterns, de-
with knee or foot control shall be provided.
partmental relationships and other basic informa-
3) A counter or shelf space for writing shall be
tion relating to the fulfillment of the institution's
provided.
objectives. This may be a general or detailed de-
b) Procedure room(s)
scription of each function to be performed, space
1) Provide at least one procedure room with a
needed for these functions, hours of operation, num-
minimum clear area of 250 square feet and a
ber of staff or other occupants of the various spaces,
minimum dimension of 14 feet, exclusive of fixed
types of equipment required, interrelationship of
and movable cabinets and shelves. Any other
various functions and spaces, and description of
procedure rooms shall not be less than 120
those services necessary for the complete function-
square feet with a minimum dimension of 10
ing of the facility but which are available elsewhere
feet.
in the community and, therefore, need not be dupli-
2) Provide a communication system connecting
cated in this facility. Explain the type of surgery
with the control station.
or procedures, the volume of work, the number of
3) Provide special features such as x-ray film il-
doctors, etc.
luminators, and storage space as required by
e) Size
the program.
The extent (number and types) of the diagnostic,
c) Recovery room(s)
clinical, and administrative facilities to be provided
1) Room(s) for post-anesthesia recovery for surgi-
shall be determined by the services contemplated
cal patients shall be provided.
and the estimated patient load as described in the
2) Recovery room(s) shall contain a minimum of
narrative program.
100 square feet of usable floor space for single
d) Provisions for the Handicapped
bed occupancy and at least 80 square feet per
The design shall provide for accessibility to the phy-
bed for multiple bed occupancy, SO arranged
sically handicapped (public, staff, and patients).
that there will be at least 3 feet between beds
e) Privacy for Patient
and 4 feet of clear space at the foot of each
The design of the facility shall provide for the
bed.
privacy and dignity of the patient during interview,
3) This room(s) shall contain a drug distribution
examination, and treatment.
station, handwashing facility, charting facilities,
(Source: Amended at 6 III. Reg. 6220, effective May 17,
nurses' station, and storage space for supplies
1982)
and equipment.
4) Provide a toilet which is accessible to the recov-
Section 205.1360 Clinical Facilities
ery room, without having to leave the recovery
a) Examination room(s)
room to reach it. The water closet shall be
1) Each examination room(s) shall have a minimum
equipped with a gray diverter valve.
clear floor area of 80 square feet, and a mini-
5) A separate supervised room may be provided
mum dimension of 8 feet, excluding such spaces
for use by patients who are able to leave the
as vestibule, toilet, closet, and work counter
recovery (post-anesthesia) room but need addi-
(whether fixed or movable). Arrangements shall
App. 92
App. 93
tional time for all vital signs to be stabilized
f) Fluid waste disposal facilities shall be convenient-
to the point where the patient may leave the
ly located with respect to the general procedure
facility. This room shall be equipped with re-
rooms.
clining or lounge type chairs for patients and
g)
shall contain a minimum of 50 square feet of
1) A clean workroom or a clean supply room is
usable floor space for each patient to be accom-
required when clean materials are assembled
modated at any one time.
within the surgical suite prior to use. A clean
6) These recovery rooms may be combined, if de-
workroom shall contain a work counter, sink
sired.
equipped for handwashing, and space for clean
7) Provide a minimum of four recovery beds or
and sterile supplies. A clean supply room shall
lounge chairs for each procedure room. At least
be provided when the narrative program de-
one of the four must be a bed, and the other
fines a system for the storage and distribution
three may be lounge chairs or beds.
of clean and sterile supplies which would not
(Source: Amended at 6 III. Reg. 6220, effective May 17,
require the use of a clean workroom.
1982)
2) An autoclave shall be incorporated into the
Section 205.1370 Support Service Areas
clean workroom.
a) A control station shall be located to permit visual
h) Anesthesia storage facilities shall be provided. Flam-
surveillance of all traffic which enters the operating
mable anesthetics are prohibited.
suite.
i) Medical gas supply storage with space for reserve
b) Provide sterilizing facility(ies) with high speed auto-
nitrous oxide and oxygen cylinders shall be pro-
clave(s) conveniently located to serve all procedure
vided, with all tanks properly secured.
rooms. Approved alternate provisions may be made
j) Storage area for equipment and supplies used in
for replacement of sterile instruments during sur-
surgical suite shall be provided.
gery.
k) Staff and personnel facilities shall be provided for
c) A drug distribution station shall be provided for
male and female personnel (orderlies, technicians,
storage and preparation of medication to be admin-
nurses, and doctors) working within the surgical
istered to patients.
suite. The areas shall contain lounge, lockers, toilets,
d) Scrub stations with knee or foot or elbow actuated
lavatories equipped for handwashing, and space for
faucets shall be provided near the entrances to the
changing clothing. These areas shall be arranged to
procedure rooms. Scrub facilities shall be arranged
provide a one-way traffic pattern so that person-
to minimize splatter on nearby personnel or supply
nel entering from outside the surgical suite can
carts.
change, gown, and move directly into the surgical
e) A soiled workroom for the exclusive use of the sur-
suite. Space for removal of scrub suits and foot
gical suite staff shall be provided. The soiled work-
covers shall be designed so that personnel using it
room shall contain a work counter, sink equipped
will avoid physical contact with clean personnel.
for handwashing, waste receptacle, and linen recep-
1) Provide change areas where patients can change
tacle. This room may be used for cleaning anesthe-
from street clothing into hospital gowns in privacy,
sia equipment.
and be prepared for surgery. This shall include
lockers, toilets, clothing change or gowning area(s),
and space for the administration of medications.
App. 94
App. 95
m) Stretcher storage area shall be out of direct line
of traffic.
b) The facility or section shall have at least two exits
n) Janitor's closet containing a floor receptor or ser-
remote from each other. Other details relating to
exits and fire safety shall be in accordance with
vice sink, and storage space for housekeeping sup-
Section 13 (Business Occupancy) of the latest edi-
plies and equipment shall be provided exclusively
for the surgical suite.
tion of NFPA Standard 101 and the requirements
outlined herein. These Standards govern where dif-
(Source: 1982) Amended at 6 III. Reg. 6220, effective May 17,
ferent from the code.
c) Items such as drinking fountains, telephone booths,
Section 205.1380 Diagnostic Facilities
vending machines, and portable equipment shall be
If the pre-admission evaluation tests are to be performed
located SO as not to restrict corridor traffic or re-
within the facility, the following services shall be provided.
duce the corridor width below the required mini-
a) Radiographic suite, if provided, shall contain the
mum.
following:
d) All doors to toilets which may be used by patients
1) film processing area
shall be equipped with hardware which will permit
2) viewing and administration area
access in an emergency.
3) film storage facilities
e) The minimum width of doors for patient access to
4) toilet room with handwashing facilities, direct-
examination and treatment rooms shall be 3'-0".
ly accessible from each fluoroscopy room with-
f) The minimum width of doors to rooms needing ac-
out entering the general corridor area.
cess for stretchers (procedure rooms, recovery) shall
5) dressing area with convenient access to toilets.
be 3'-8".
b) Laboratory suite shall contain the following mini-
g) Doors on all openings between corridors and rooms
mum facilities:
or spaces subject to occupancy, except elevator
1) Laboratory work counter with sink and vacuum,
doors, shall be swing type.
and electric services.
h) Doors, except doors to spaces such as small closets
2) Lavatory or counter sink equipped for hand-
which are not subject to occupancy, shall not swing
washing.
into corridors in a manner that might obstruct traf-
3) Storage cabinet or closet.
fic flow or reduce the required corridor width.
4) Specimen collection facilities equipped with a
i) Doors, sidelights, borrowed lights, and windows in
toilet and lavatory.
which the glazing extends downs to within 18 inches
5) Blood collection facilities shall have space for
of the floor (thereby creating possibility of acciden-
a chair and work counter.
tal breakage by pedestrian traffic) shall be glazed
(Source: Amended at 6 III. Reg. 6220, effective May 17,
with safety glass, wire glass, or plastic glazing ma-
1982)
terial that will resist breaking and will not create
*
*
dangerous cutting edges when broken in accordance
Section 205.1400 Details and Finishes
with the State of Illinois Safety Glazing Materials
a) Minimum public corridor width shall be 5'-0", except
Act (Ill. Rev. Stat. 1981, ch. 111½, par. 3101 et
those corridors where patients are transported in
seq.). Similar materials shall be used in wall open-
stretchers or carts shall be 8'-0".
ings unless required otherwise for fire safety.
App. 96
App. 97
j) Thresholds and expansion joint covers shall be made
o) Flammable Anesthetics are prohibited.
flush with the floor surface to facilitate use of
p) Cubicle curtains and draperies shall be noncombus-
wheelchairs and carts.
tible or rendered flame retardant and shall pass
k) Air dryers, or paper towel dispensers and waste
both the large and small scale tests of NFPA Stan-
receptacles shall be provided at all handwashing
dard 701.
fixtures.
q) Interior finish of walls and ceilings of all exit ways,
1) Where labeled fire doors are required, these shall
storage rooms, and areas of unusual fire hazard
be certified by an independent testing laboratory
shall have a flame spread rating of not more than
as meeting the construction requirements equal to
those for fire doors in National Fire Protection As-
r) 25. Floor finish materials shall have a flame spread
sociation (NFPA) Standard 80. Reference to a labeled
rating of not more than 75. If a separate underlay-
fire door shall be construed to include labeled frame
ment is used with any floor finish material, the
and hardware.
flame spread test assembly shall include the under-
m) Radiation protection requirements of X-ray and
gamma ray installations shall conform to the re-
s) layment. All interior finish materials shall have smoke de-
quirements of the Department of Nuclear Safety
veloped rating of 450 or less. The use of materials
Rules for Protection Against Radiation (32 III. Adm.
known to produce large amounts of toxic gases shall
Code, Subchapter b) and should follow guidelines
be avoided.
of NCRP reports #33 dated February 1968, and #49
t) Floor materials shall be easily cleanable and have
dated September 1976. Provisions shall be made for
wear resistance appropriate for the location involved.
testing and completed installation before use, and
1) In all areas frequently subject to wet cleaning
all defects must be corrected before use.
methods, floor materials shall not be physical-
n) The minimum ceiling height shall be 8'-0", with the
ly affected by germicidal and cleaning solutions.
following exceptions:
2) Floors that are subject to traffic while wet,
1) Boiler rooms, if provided, shall have ceiling
shall have a nonslip surface.
clearance not less than 2'-6" above the main
u) Wall finishes shall be washable and in the immedi-
boiler header and connecting piping.
ate area of plumbing fixtures, shall be smooth and
2) Radiographic and other rooms containing ceil-
moisture resistant.
ing-mounted equipment and including those
v) Floor and wall penetrations by pipes, ducts, and
with ceiling-mounted surgical light fictures shall
conduits shall be tightly sealed to minimize entry
have height required to accommodate the equip-
of rodents and insects. Joints of structural elements
ment and/or fixture.
shall be similarly sealed.
3); Ceilings in corridors, storage rooms, toilet rooms,
w) Ceilings shall be cleanable and those in sensitive
and other minor rooms may be not less than
areas such as surgical rooms shall be readily wash-
7'-8".
able and without crevices that can retain dirt par-
4) Suspended tracks, rails, and pipes located in
ticles. These sensitive areas shall have a finished
path of normal traffic shall be not less than 6'-
ceiling, covering all overhead ductwork and piping.
8" above the floor.
x) Finished ceilings may be omitted in mechanical and
equipment spaces, shops, general storage areas, and
App. 98
App. 99
similar spaces, unless required for fire-resistive pur-
shall be removed near the floor level. At least two
poses.
exhaust outlets shall be used in each procedure
y) Acoustical ceilings are recommended in corridors,
multipurpose rooms, and waiting areas.
h) room. All central ventilation or air conditioning systems
(Source: 1982) Amended at 6 III. Reg. 6220, effective May 17,
shall be equipped with filters having efficiencies not
less than those specified in the following table:
*
*
*
SUBPART J: MECHANICAL
FILTER EFFICIENCIES FOR CENTRAL VENTILATION
AND AIR CONDITIONING SYSTEMS IN
Section 205.1540 Air Conditioning, Heating and
AMBULATORY SURGICAL TREATMENT FACILITIES
Ventilating Systems
Filter
a) The systems shall be designed to provide the com-
Efficiencies
fort temperatures and humidities as recommended
Minimum
(Percent)
by ASHRAE Standards.
Number of Filter Bed Filter Bed
b) Air handling systems shall conform to "Installation
90A-1976. of Air Conditioning and Ventilating Systems," NFPA
Area
Designation
Filter Beds
No. 1
No. 2
Procedure and
c) For spaces not exceeding 25,000 cubic feet in volume,
Recovery Rooms
2
25
90
25
-
heating, air conditioning, and ventilating systems
All Other Areas
1
shall conform to "Standard for the Installation of
i) All filter efficiencies shall be average atmospheric
Warm Air Heating and Air Conditioning Systems,
dust spot efficiencies tested in accordance with the
NFPA 90-B, 1973, except return ducts shall be con-
American Society of Refrigeration and Heating, Air
structed of material equal to that specified for sup-
Conditioning Engineers (ASHRAE) Standards 52-68.
ply ducts, Chap. 2, paragraph 1.1., Duct Materials.
j) For systems serving procedure and recovery rooms,
d) Outdoor air intakes shall be located as far as prac-
filter bed No. 1 shall be located upstream of the
tical but not less than 15 feet from exhaust outlets
conditioning equipment and filter bed No. 2 shall
of ventilation systems, combustion equipment stacks,
be located downstream of the supply fan and condi-
medical-surgical vacuum systems, plumbing vent
tioning equipment including humidifiers.
stacks or from areas which may collect vehicular
k) Filter frames shall be durable and shall provide an
exhaust and other noxious fumes.
airtight fit with the enclosing duct work. All joints
e) All ventilation air outlets and inlets shall conform
between filter segments and enclosing duct work
to NFPA 90A-Chapter 2, paragraph 3.2. Location
shall be gasketed or sealed to provide a positive
of Outlets and Inlets.
seal against air leakage.
f) The ventilation systems shall be designed and bal-
1) A manometer shall be installed across each filter
anced to provide the ventilation and pressure rela-
bed serving procedure and recovery rooms.
tionships as shown in Table A.
m) Fire and smoke dampers shall be constructed, lo-
g) The ventilation air supplied to the procedure rooms
cated and installed in accordance with the require-
shall be delivered at or near the ceiling of the area
ments of NFPA 90A.
served, and all exhaust or return air from the area
App. 100
App. 101
n) All systems, regardless of size, which serve more
Section 205. TABLE A General Pressure Relationships and Ven-
than one smoke or fire zone, shall be equipped with
tilation Rates of Ambulatory Surgery Area
smoke detectors to shut down fans automatically as
Minimum
specified in paragraph 4-3.1 of NFPA 90A.
Pressure
Total Air
All Air
o) The ventilation system for anesthesia storage rooms
Within
Relation-
Changes per
Exhausted
shall conform to the requirements of "Standard for
Area
ship
Hour
Directly
Inhalation Anesthetics" NFPA 56A, including the
Room Units
to Adjacent
Supplied
to
Recircu-
gravity option ventilation system.
Designation
Areas
to Room
Outdoors
lated
p) Boiler rooms shall be provided with sufficient out-
door air to maintain combustion rates of equipment
Procedure Room
+
15
Optional
No
and limit temperatures in working stations to 97° F
Examination Room
0
6
Optional
Optional
Effective Temperature as defined by ASHRAE
Recovery Room
+
6
Optional
Optional
Handbook of Fundamentals.
Medication Area
+
4
Optional
Optional
q) Rooms containing heat-producing equipment, such
X-Ray Room
0
6
Optional
Optional
as boiler rooms and heater rooms, shall be insulated
Soiled Workroom
or Soiled Holding
-
10
Yes
No
and ventilated to prevent any floor surface above
Clean Workroom
from exceeding a temperature of 100° F.
or Clean Holding
+
4
Optional
Optional
(Source: Amended at 6 III. Reg. 6220, effective May 17,
Darkroom
-
10
Yes
No
1982)
Toilet Room
-
10
Yes
No
Janitors' Closet
-
10
Yes
No
Sterilizer Equip.
Rm.
-
10
Yes
No
Linen and Trash
Rm.
-
1-
Yes
No
Laboratory
-
6
Optional
Optional
Soiled Linen
Storage
-
10
Yes
No
Clean Linen
Storage
+
2
Optional
Optional
Anesthesia Storage
0
8
Yes
No
Central Services Area
Soiled Area
-
6
Yes
No
Clean Area
+
4
Optional
Optional
Equipment Storage
0
2
Optional
Optional
+ = Positive
- = Negative
0 = Equal
(Source: Amended at 6 III. Reg. 6220, effective May 17,
1982)
App. 102
App. 103
APPENDIX B
APPENDIX C
JUDGMENT - ORAL ARGUMENT
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
For the Seventh Circuit
Chicago, Illinois 60604
Chicago, Illinois 60604
March 10, 1988.
April 13, 1988.
Before
Before
Hon. WILLIAM J. BAUER, Chief Judge
Hon. WILLIAM J. BAUER, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JESSE E. ESCHBACH, Senior Circuit Judge
Hon. JESSE E. ESCHBACH, Senior Circuit Judge
RICHARD M. RAGSDALE, M.D., et al.,
RICHARD M. RAGSDALE, et al.,
Plaintiffs-Appellees,
No. 85-3242
Plaintiffs-Appellees,
VS.
No. 85-3242
V.
BERNARD J. TURNOCK, Director of Illinois Department of
State of Illinois, GARY L. CLAYTON, Director of the Illi-
Public Health, NEIL F. HARTIGAN, Attorney General,
BERNARD J. TURNOCK, Director of the Illinois Department
of Public Health, et al.,
nois Department of Registration and Education,
Defendants-Appellants.
Defendants-Appellants.
Appeal from the United States District Court
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
for the Northern District of Illinois, Eastern Division.
No. 85-C-6011-John A. Nordberg, Judge.
No. 85-C-G011-John A. Nordberg, Judge.
This cause was heard on the record from the United
States District Court for the Northern District of Illinois,
ORDER
Eastern Division, and was argued by counsel.
On consideration whereof, IT IS ORDERED AND AD-
The slip opinion in this matter issued on March 10, 1988,
JUDGED by this Court that with the exception of the
is amended as follows:
tion of the injunction regarding the second trimester hos- por-
In footnote 6 at pages 14-15, strike the present third
pitalization requirement, which is VACATED AS MOOT,
and fourth sentences and replace them with the follow-
the preliminary injunction is AFFIRMED, in accordance
ing sentence.
with the opinion of this Court filed this date. Costs on
appeal are assessed to appellants.
App. 104
App. 105
However, the district court undertook a thorough
APPENDIX D
examination of the traditional factors governing
the granting of preliminary relief, i.e., the lack
of an adequate remedy at law, irreparable harm,
UNITED STATES COURT OF APPEALS
balance of harms, likelihood of success on the
For the Seventh Circuit
merits, and the public interest.
Chicago, Illinois 60604
At page 3, line 10, strike the word "Providers" and
substitute the word "Planning."
AMENDED ORDER
At page 5, line 13, strike the word "or" and substi-
tute the word "for."
August 16, 1988.
At page 32, lines 5-7, strike the citation "Zbaraz v.
Hartigan, 763 F.2d 1532, 1545 (7th Cir. 1985), appeal
Before
pending, No. 85-673" and substitute the following
Hon. WILLIAM J. BAUER, Chief Judge
"Zbaraz v. Hartigan, 763 F.2d 1532, 1545 (7th Cir.
Hon. JOHN L. COFFEY, Circuit Judge
1985) aff'd
U.S.
, 108 S. Ct. 479 (1987)."
Hon. JESSE E. ESCHBACH, Senior Circuit Judge
RICHARD M. RAGSDALE, M.D., et al.,
Plaintiffs-Appellees,
No. 85-3242
V.
BERNARD J. TURNOCK, Director of Illinois Dept. of Public
Health; NEIL F. HARTIGAN, Attorney General, State of
Illinois; and GARY L. CLAYTON, Director of Illinois Dept.
of Registration & Education,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 85 C 6011-John A. Nordberg, Judge.
ORDER
On consideration of the petition for rehearing and sug-
gestion for rehearing en bane filed by defendants-appel-
App. 106
App. 107
lants and the answer filed by plaintiffs-appellees, a vote
APPENDIX E
was requested on the suggestion for a rehearing en bane.
A majority of the members of the original panel voted
to deny the petition for rehearing, and the suggestion of
UNITED STATES COURT OF APPEALS
rehearing en bane failed by an equally divided court.*
For the Seventh Circuit
Judges Wood, Posner, Coffey, Manion, and Kanne voted
Chicago, Illinois 60604
to grant rehearing en banc. Accordingly,
IT IS ORDERED that the aforesaid petition for rehear-
August 12, 1988.
ing and suggestion for rehearing en bane is DENIED.
Before
Hon. WILLIAM J. BAUER, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JESSE E. ESCHBACH, Senior Circuit Judge
RICHARD M. RAGSDALE, M.D., et al.,
Plaintiffs-Appellees,
No. 85-3242
V.
BERNARD J. TURNOCK, Director of Illinois Dept. of Public
Health; NEH. F. HARTIGAN, Attorney General, State of
Illinois; and GARY L. CLAYTON, Director of Illinois Dept.
of Registration & Education,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division
No. 85 C 6011-John A. Nordberg. Judge
ORDER
On consideration of the petition for rehearing and sug-
* Judge Kenneth F. Ripple did not participate in the considera-
gestion for rehearing en bane filed by defendants-appel-
tion of the suggestion for rehearing en banc.
App. 108
App. 109
lants and the answer filed by plaintiffs-appellees, a vote
APPENDIX F
was requested on the suggestion for a rehearing en banc.
A majority of the judges in regular active service did not
vote to rehear the case en banc, and a majority of the
[Entered December 11, 1985]
members of the original panel voted to deny the petition
IN THE UNITED STATES DISTRICT COURT
for rehearing. Accordingly,
FOR THE NORTHERN DISTRICT OF ILLINOIS
IT IS ORDERED that the aforesaid petition for rehear-
EASTERN DIVISION
ing and suggestion for rehearing en banc is DENIED.
RICHARD M. RAGSDALE, M.D., et al.,
Plaintiffs,
VS.
BERNARD J. TURNOCK, et al.,
Defendants.
No. 85 C 6011 - Judge Nordberg
CLASS CERTIFICATION AND
PRELIMINARY INJUNCTION ORDER
This matter came to be heard upon plaintiffs' motion
for class certification and upon plaintiff's motion for a pre-
liminary injunction to enjoin and restrain defendants from
enforcing § 16.1(a)-(e) of the Illinois Medical Practice Act,
III. Rev. Stat. ch. 111, § 4433(a)-(e) ("the MPA"), the Illi-
nois Ambulatory Surgical Treatment Center Act, Ill. Rev.
Stat. ch. 111½, 9 157-8.1, et seq. ("the ASTC Act"), regula-
tions promulgated under the ASTC Act, and the Illinois
Health Facilities Planning Act, III. Rev. Stat. ch. 111½,
§ 1152-1168 ("the HFP Act"), against persons offering,
performing, or desiring to offer or perform first or early
second trimester abortions. The parties presented evi-
dence and argument to the Court in hearings November
18-22 and November 26, 1985, and memoranda of law.
Based upon the evidence, arguments and memoranda pre-
Judge Kenneth F. Ripple did not participate in the consideration
sented to the Court, on November 27, 1985 the Court
of the suggestion for rehearing en banc.
issued a Memorandum Opinion and Order granting plain-
App. 108
App. 109
lants and the answer filed by plaintiffs-appellees, a vote
APPENDIX F
was requested on the suggestion for a rehearing en bane.
A majority of the judges in regular active service did not
vote to rehear the case en banc, and a majority of the
[Entered December 11, 1985|
members of the original panel voted to deny the petition
IN THE UNITED STATES DISTRICT COURT
for rehearing. Accordingly,
FOR THE NORTHERN DISTRICT OF ILLINOIS
IT IS ORDERED that the aforesaid petition for rehear-
EASTERN DIVISION
ing and suggestion for rehearing en bane is DENIED.
RICHARD M. RAGSDALE, M.D., et al.,
Plaintiffs,
VS.
BERNARD J. TURNOCK, et al.,
Defendants.
No. 85 C 6011 - Judge Nordberg
CLASS CERTIFICATION AND
PRELIMINARY INJUNCTION ORDER
This matter came to be heard upon plaintiffs' motion
for class certification and upon plaintiff's motion for a pre-
liminary injunction to enjoin and restrain defendants from
enforcing § 16.1(a)-(e) of the Illinois Medical Practice Act,
III. Rev. Stat. ch. 111, § 4433(a)-(e) ("the MPA"), the Illi-
nois Ambulatory Surgical Treatment Center Act, III. Rev.
Stat. ch. 111½, 9 157-8.1, et seq. ("the ASTC Act"), regula-
tions promulgated under the ASTC Act, and the Illinois
Health Facilities Planning Act, Ill. Rev. Stat. ch. 111½,
§ 1152-1168 ("the HFP Act"), against persons offering,
performing, or desiring to offer or perform first or early
second trimester abortions. The parties presented evi-
dence and argument to the Court in hearings November
18-22 and November 26, 1985, and memoranda of law.
Based upon the evidence, arguments and memoranda pre-
Judge Kenneth F. Ripple did not participate in the consideration
sented to the Court, on November 27, 1985 the Court
of the suggestion for rehearing en banc.
issued a Memorandum Opinion and Order granting plain-
App. 110
App. 111
tiffs' motion for class certification and plaintiffs' motion
(c) Enforcing or applying the HFP Act, III. Rev.
for preliminary injunction.
Stat. ch. 111½, $ 1152-1168, against any person or
Based upon this Court's November 27, 1985 Memoran-
facility to the extent such person or facility offers
dum Opinion and Order and the findings of fact and con-
or performs, or desires to offer or perform, first and/
clusions of law therein, IT IS HEREBY ORDERED, AD.
or early second trimester abortions or other abortion-
JUDGED AND DECREED as follows:
related gynecological procedures, such as a dilation
and curettage;
1. This matter shall be maintained as a class action.
The Court hereby certifies the following classes:
(d) Initiating any prosecution against, including but
not limited to civil and administrative proceedings,
(a) A plaintiff class consisting of all physicians and
or imposing any sanction upon any person who offers
surgeons who perform or desire to perform abortions
or performs or desires to offer or perform first and/
in the State of Illinois;
or early second trimester abortions or other abortion-
(b) A plaintiff class consisting of all Illinois women
related gynecological procedures, such as a dilation
of child-bearing age who desire or may desire an
and curettage, in violation of § 16.1(a)-(e) of the MPA,
abortion sometime in the future;
the ASTC Act, or any of its provisions, or rules and
(c) A defendant class consisting of all State's Attor-
regulations promulgated thereunder, or the HFP Act.
neys in the State of Illinois.
3. This order shall be effective immediately and shall
2. Until further order of this Court, defendants Bernard
supplement this Court's November 27, 1985 order.
J. Turnock, Neil F. Hartigan, and Gary L. Clayton, in
4. The $2,000 bond given by plaintiffs on November 27,
their official capacities, and their successors, officers,
1985 and then approved by the Court shall also secure
agents, servants, employees, and attorneys, and those per-
the preliminary injunction order contained herein.
sons in active concert or participation with them, and
Richard M. Daley and the other 101 State's Attorneys
ENTER: /s/ JOHN A. NORDBERG
in Illinois, their successors, officers, agents, servants, em-
United States District
ployees and attorneys and those persons in active con-
Court Judge
cert or participation with them, are hereby enjoined from
the following actions:
Date: December 11, 1985
(a) Enforcing $ 16.1(a)-(e) of the MPA, III. Rev.
Stat. ch. 111, § 4433(a)-(e);
(b) Enforcing or applying the ASTC Act, III. Rev.
Stat. ch. 111½, 157-8.1 et seq., or any of its provi-
sions, or rules or regulations promulgated thereunder,
against any person or facility to the extent such per-
son or facility offers or performs, or desires to offer
or perform, first and/or early second trimester abor-
tions or other abortion-related gynecological proced-
ures, such as a dilation and curettage;
App. 112
App. 113
APPENDIX G
named plaintiff, Dr. Richard M. Ragsdale; (2) a plaintiff
class of "all women in the state of Illinois of child-bear-
[Entered November 27, 1985]
ing age who desire or may desire an abortion sometime
in the future," represented by named plaintiffs Sarah Roe
IN THE UNITED STATES DISTRICT COURT
and Margaret Moe; and (3) a defendant class of "the State's
FOR THE NORTHERN DISTRICT OF ILLINOIS
Attorneys for all of the counties of the state of Illinois,"
EASTERN DIVISION
represented by named defendant, Richard M. Daley. The
plaintiffs have also moved the court to enjoin defendants
from enforcing, in derogation of a physician's right to per-
RICHARD M. RAGSDALE, M.D., et al.,
form, and a woman's right to obtain, first and early sec-
Plaintiffs,
ond trimester abortions, three Illinois statutes: (1) Sec-
V.
tion 16(1) of the Illinois Medical Practice Act ("MPA"),
III. Rev. Stat. ch. 111, para. 4433(1); (2) the Ambulatory
BERNARD J. TURNOCK, et al.,
Surgical Treatment Center Act of Illinois ("ASTCA"), III.
Defendants.
Rev. Stat. ch. 111½, para. 157-8.1 157-8.16, and the regu-
lations promulgated thereunder; and (3) the Illinois Health
No. 85 C 6011 - Judge Nordberg
Facilities Planning Act ("HFPA"), III. Rev. Stat. ch. 111½,
para. 1151-1168, and the regulations promulgated there-
under.
MEMORANDUM OPINION AND ORDER
The court has reviewed the pleadings of the parties deal-
Plaintiffs bring this action against defendants pursuant
ing with the class certification motion. The court held a
to 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. §§ 2201, 2202,
hearing on the motion for preliminary injunction on No-
seeking declaratory and injunctive relief. Plaintiffs chal-
vember 18-22 and 26, 1985. The court has reviewed the
lenge the constitutionality of three Illinois statutes, and
pleadings dealing with the preliminary injunction motion,
the regulations thereunder, which, plaintiffs contend, form
and has heard the opening statements and closing argu-
a scheme that in effect requires all abortions to be per-
ments of counsel and the testimony of witnesses. The
formed in a hospital or its functional equivalent. Plain-
court has considered all the evidence presented, including
tiffs charge that this scheme violates the equal protec-
the depositions of several witnesses who did not testify
tion rights of Illinois physicians who perform or desire
at the hearing. The court has drawn reasonable inferences
to perform abortions, and the privacy rights of Illinois
from this evidence, and has evaluated the legal arguments
women who desire or may desire to obtain an abortion.
presented by the parties. In judging the credibility of each
witness and the weight to be given the testimony of each,
This matter is now before the court on the motions of
the court has taken into account for each witness the in-
plaintiffs to certify two plaintiff classes and one defen-
telligence, ability and opportunity to observe, the age, the
dant class, and for a preliminary injunction against defen-
memory, the manner while testifying, any interest, bias,
dants. The plaintiffs have moved the court to maintain the
or prejudice the witness may have, and the reasonableness
following classes: (1) a plaintiff class of "all duly licensed
of the testimony considered in the light of all the evidence
physicians and surgeons performing or desiring to per-
in the case. The court has reviewed its extensive hearing
form pregnancy terminations in Illinois," represented by
notes and its references concerning credibility.
App. 114
App. 115
Based on all of the evidence and legal arguments pre-
cerns, for the most part, the requirements and the proced-
sented, and for the reasons set forth below, the court
ure for obtaining an ASTC license. One other provision of
grants, with some modification, plaintiffs' motion for certi-
the ASTCA deals specifically with abortion, and that is
fication of the three classes, and the court grants plain-
section 6.1, which requires any corporation operating an
tiffs' motion for a preliminary injunction. A preliminary
ASTC devoted primarily to providing facilities for abortion
consideration of the challenged statutes and regulations,
to have a physician, who is licensed to practice medicine
and of the facts, will greatly aid in the discussion of both
in all of its branches and is actively engaged in the prac-
motions. Therefore, the court now turns to the statutes
tice of medicine at the ASTC, on the ASTC's board of
and regulations, and to the facts.
directors as a condition to licensure of the ASTC.
The regulations promulgated pursuant to the ASTCA
I. The Challenged Statutes and Regulations
are comprehensive and detailed. They cover all aspects
The statutes and regulations which plaintiffs challenge
of the provision of abortion services, from personnel poli-
in this action present an unusual mixture of abortion-spe-
cies to physical plant requirements. Many of the regula-
cific and general provisions.¹ First, section 16 of the MPA
tions are abortion-specific. An entire section of the regula-
generally provides the grounds upon which the IDPH may
tions, Subpart G, is abortion-specific. The regulations in
revoke or suspend the medical license of any person. How-
subpart G include a prohibition upon the performance of
ever, subsection (1), the only portion of section 16 which
abortions after the first trimester and reporting require-
plaintiffs challenge, is abortion-specific. Under subsection
ments for each abortion performed in an ASTC.
(1), the IDPH may revoke or suspend the license of any
The physical plant requirements in the regulations cover
physician who performs an "elective abortion" in any place
building design, construction standards, physical require-
other than an ASTC, a hospital, or a facility run by the state,
ments and mechanical and electrical systems. In effect,
the federal government, or a state university or college. Es-
they require ASTCs to be the functional equivalent of
sentially, section 16(1) prohibits physicians from performing
small hospitals.² These regulations include, but are not
even one abortion in their offices, and requires physicians
limited to, the following:
who wish to provide abortion services in non-hospital en-
vironments to comply with the ASTCA and HFPA.
(a) Regulation 205.1320(a), requires an ASTC to be
"identifiably separate" from other [medical] facil-
The ASTCA defines what an ASTC is and provides for
ities and functions.
the licensure of all ASTCs. Section 3 of the ASTCA defines
an ASTC as "any institution, place or building devoted pri-
(b) Regulation 205.1330, requires anyone seeking to
marily to the maintenance and operation of facilities for
build or substantially remodel an ASTC to submit
the performance of surgical procedures or any facility in
work plans to the state for prior approval. These
which a medical or surgical procedure is utilized to termi-
work plans include architectural drawings, struc-
tural drawings, and mechanical drawings (which in-
nate a pregnancy, irrespective of whether the facility is
devoted primarily to this purpose." Thus, the ASTCA ap-
clude drawings of the heating, cooling, ventilation,
plies generally to all ASTCs devoted primarily to the per-
plumbing, drainage, stand-pipe and electrical sys-
formance of surgical procedures, regardless of the specific
tems).
procedure performed, while at the same time the ASTCA
(c) Regulation 205.1360(a), requires that an examina-
singles out, for more strict regulation, facilities at which
tion room be at least 80 square feet in size.
abortions are performed. The remainder of the ASTCA con-
App. 116
App. 117
(d) Regulation 205.1360(b), requires that a procedure
As can be seen, these regulations are extremely detailed.
room have a minimum clear area of 250 square feet.
The regulations, without question, cause abortion pro-
(e) Regulation 205.1370(a), requires an ambulatory sur-
viders to incure great construction or renovation costs.
gical treatment center to have a "control station"
The HFPA requires all "health Care facilities," which
located to permit "visual surveillance of all traffic
includes all ASTCs, to obtain a "permit," or certificate
which enters the operating suite".
of need, before acquiring major medical equipment or con-
(f) Regulation 205.1370(k), requires that "staff and per-
structing or modifying a health care facility. HFPA §§ 3,
sonnel facilities be provided for male and female
5. The procedure which the HFPA established for acquir-
personnel," including a lounge, lockers, separate
ing a certificate of need is as follows: (1) the applicant
toilets, and space for changing clothes.
must submit a comprehensive application to the Illinois
Health Facilities Planning Board ("Board"), HFPA § 6;
(g) Regulation 205.1370(n), requires a separate janitorial
(2) if there is an Areawide Health Planning Organization,
closet exclusively for the surgical suite.
the Board forwards the application to this organization
(h) Section 205.1380, requires an ambulatory surgical
for a period of review which may last up to 120 days,
treatment center to establish a "diagnostic facility"
HFPA § 8; (3) the Areawide Health Planning Organiza-
equipped to perform diagnostic tests far more elab-
tion, or the IDPH, must provide an opportunity for a pub-
orate and complex than those performed during the
lic hearing on the application, and may schedule that hear-
course of a pregnancy termination.
ing up to 90 days after the receipt of a complete applica-
(i) Regulation 205.1400 regulates the size of doors and
tion, HFPA § 8; and (4) ultimately, the Board will deter-
halls to require that some corridors be at least 8
mine whether to grant or deny the application for a cer-
feet in width and that doors to procedure rooms
tificate of need based on factors such as the applicant's
be at least 3 feet 8 inches wide. These dimensions
ability to provide a proper standard of health care ser-
parallel the requirements for hospital corridors.
vice for the community, the economic feasibility of the
project, and the project's consistency with the public in-
(j) Section 205.1540 regulates the air conditioning, heat-
terest and the orderly and economic development of such
ing and ventilation systems to require (a) specific
facilities, HFPA $ 6.3
filter efficiencies and (b) air flow systems "balanced"
to comply with the detailed ventilation and pressure
II. The Facts
relationships established by the regulation. Different
pressure relationships and air change requirements
The uncontroverted facts are as follows. Dr. Ragsdale
are specified for the following areas: (1) the proced-
is a licensed Illinois physician. He is the Director of the
ure room, (2) the examination area, (3) the recovery
Northern Illinois Women's Center ("NIWC"), which is
room, (4) the instrument cleaning room, (5) the toilet
located in Rockford, Illinois. The NIWC provides gyneco-
room, (6) the janitors' closet, (7) the linen and trash
logical, family planning and abortion services to women
area, (8) the anesthesia storage area, (9) the equip-
in northwest Illinois.
ment storage area, (10) the clean linen and storage
Since it opened in 1973, the NIWC has been the only
area, (11) the soiled linen storage area, (12) the lab-
provider of abortion services in the large area of north-
oratory area, and (13) miscellaneous other areas.
west Illinois. This geographic area extends west to Chi-
cago, east to Iowa, north to Wisconsin, and south to
App. 118
App. 119
Peoria. The NIWC offers first trimester and early second
garet Moe's facilities offer complete family planning edu-
trimester "Dilation and Evacuation" abortions, all per-
cation and medical care, including the prescription of con-
formed with a local anesthetic. The NIWC provides either
traceptives, pre-natal care and delivery-assistance for preg-
reduced fee or free abortion services to indigent women.
nant women.
In 1984, physicians at the NIWC performed 3,480 abor-
Margaret Moe receives approximately 60 requests for
tions. Few complications resulted.4
abortions per week at her clinics. She would like to offer
The NIWC is currently licensed under the ASTC, and
abortion services at her facilities, and the licensed physi-
has been SO since 1973, although at no time has the NIWC
cians she employs are competently trained and willing to
fully complied with the ASTCA and its regulations.5 The
perform safe abortions. However, Margaret Moe's facilities
current location of the NIWC is the Rockford Medical
do not comply with the physical plant, structural and ad-
Arts Building, which is operated by the Rockford Services
ministrative requirements of the ASTCA and its regula-
Company.
tions. As set forth more fully below, Margaret Moe has
In early February, 1985, the Rockford Services Com-
not, and cannot, renovate her existing facilities or con-
pany informed Dr. Ragsdale that his lease would not be
struct new facilities that would comply with the ASTCA
renewed. The fundamental reason the Rockford Services
and its regulations because of the prohibitive cost of such
Company did not renew Dr. Ragsdale's lease, as set out
a project.
in the telephonic deposition of Mr. Delts, the President
The two other named plaintiffs are Sarah Roe and Jane
of the Rockford Services Company, is that the premises
Doe. Sarah Roe is a female citizen of the United States,
of the NIWC are needed as office space for physicians
of child-bearing age and a resident of Rockford, Illinois.
that refer more patients to the adjoining Rockford Me-
She is the mother of two children. Ms. Roe had an abor-
morial Hospital. Deposition of William Delts, p. 15. Another
tion at the Northern Illinois Women's Center for which
factor in the decision, however, was the determination
she was charged only a minimal fee because of her cur-
that it would cost approximately $240,000 for the building
rent indigent financial situation. She may need another
to be brought into compliance with the ASTCA and its
abortion in the future. Jane Doe is a female citizen of the
regulations. Id. at 8, 9, 14.
United States and of child-bearing age. She is a resident
Since the Rockford Services Company informed him that
of Rockford, married and the mother of several children.
From other doctors in the Rockford area, Ms. Doe learned
his lease would not be renewed, Dr. Ragsdale has at-
that uterine fibroids associated with a recent pregnancy
tempted to find new facilities and secure a certificate of
need for such facilities. Dr. Ragsdale, for reasons set forth
posed a serious risk to her health; she was told that it
below in detail, has not been able to secure a relocation
was unlikely she would be able to carry her pregnancy
site for the NIWC. On December 31, 1985, the NIWC
past five months. Despite the severe pain and emotional
trauma associated with this health threat, Ms. Doe was
must vacate its premises in the Rockford Medical Arts
refused abortion services by several doctors in Rockford.
Building. At that time, because of a lack of a relocation
site, the NIWC will be forced to close altogether.
Finally she was referred to Dr. Ragsdale at the NIWC
from whom Ms. Doe received an abortion.
Margaret Moe is a registered nurse, and she currently
operates two medical facilities, one in Elgin, Illinois, and
III. Motion For Class Certification
another in Palatine, Illinois. The Elgin facility is in Kane
County, and the Palatine facility is in Cook County. Mar-
As stated above, plaintiffs have moved the court to
maintain the following classes: (1) a plaintiff class of "all
App. 120
App. 121
duly licensed physicians and surgeons performing or desir-
court now considers whether the proposed classes meet
ing to perform pregnancy terminations in Illinois," repre-
the class action requirements of Rule 23.
sented by named plaintiff, Dr. Ragsdale; (2) a plaintiff
class of "all women in the state of Illinois of child-bearing
A. The Plaintiff Class of Physicians
age who desire or may desire an abortion sometime in
the future," represented by named plaintiffs, Margaret
This proposed class consists of all duly licensed physi-
Moe and Sarah Roe; and (3) a defendant class of "the
cians and surgeons performing or desiring to perform
State's Attorneys for all of the counties of the State of
pregnancy terminations in Illinois, and the proposed rep-
Illinois," represented by named defendant, Richard M.
resentative of this class is Dr. Ragsdale. The court finds
Daley. Defendants Bernard J. Turnock, Director of the
that the requirements of Rule 23 are met as to this class
Illinois Department of Public Health ("IDPH"), Neil F.
and its representative, Dr. Ragsdale.
Hartigan, Attorney General of Illinois, and Gary L. Clay-
First, this proposed class of plaintiffs is SO numerous
ton, Director of the Illinois Department of Registration
that it would be impracticable to individually join all of
and Education ("IDRE"), through their counsel, have op-
its members. Although plaintiffs did not present direct
posed the certification of the plaintiff classes. In addition,
evidence of the number of class members, plaintiffs did
defendant Richard M. Daley, through his attorney, has
state that there are approximately 65,860 abortions per-
objected to being named as the representative of the de-
formed in Illinois annually. Plaintiffs' Motion to Maintain
fendant class of Illinois State's Attorneys.
Class Actions, p. 3. In addition, during the hearing on
Rule 23 of the Federal Rules of Civil Procedure governs
the motion for preliminary injunction, plaintiff Margaret
the certification of classes in federal courts. In order for
Moe stated that the physicians she employs in her two
a class to be certified, it must meet the four criteria set
Illinois health care clinics desire to perform abortions, and
out in 23(a) and must also qualify under any one of the
that she knew of physicians in Cook, Kane and DuPage
subsections of 23(b). The four criteria of 23(a) are that (1)
counties who would also perform abortions, but for the
the class is so numerous as to make joinder impracticable;
challenged statutes and regulations.⁶ This evidence amounts
(2) there are common questions of law or fact; (3) the
to more than mere speculation or conclusory allegations
claims or defenses of the representative parties are typical
as to the numerousity of the class. See Valentino v. How-
of the claims or defenses of the class; and (4) the repre-
lett, 528 F.2d 975, 978 (7th Cir. 1976). Also, although an
sentative parties will fairly and adequately protect the in-
exact number of class members has not been determined,
terests of the class. Subsection (b) provides that a class
due to the difficulty in making such a determination, this
action may be maintained if the prosecution of separate
does not preclude class certification. Vergara v. Hamp-
actions would create certain risks, the party opposing the
ton, 581 F.2d 1281, 1284 (7th Cir. 1978), cert. denied, 441
class has acted on grounds generally applicable to the
U.S. 905 (1979). The court finds that plaintiffs have pre-
class, making injunctive and declaratory relief appropri-
sented sufficient evidence of the numerousity of this class
ate, or the court finds that the questions of law or fact
of physicians.
common to the members of the class predominate and that
Second, there are questions of law or fact common to
a class action is the superior method for adjudication of
the members of this proposed class. Not all factual or
the controversy. The burden of establishing these class re-
legal questions raised in a lawsuit need be common, SO
quirements rests on plaintiffs. Eggleston v. Chicago Jour-
long as a single issue of law or fact is common to all class
neymen Plumbers Local Union No. 130, 657 F.2d 890,
members. Thillens, Inc. v. Community Currency Exchange
895 (7th Cir. 1981), cert. denied, 455 U.S. 1017 (1982). The
App. 122
App. 123
Assoc. of Illinois, 97 F.R.D. 668, 677 (N.D. III. 1983). Also,
B. The Plaintiff Class of Women
variance in class members' positions on the common issue
This proposed class consists of all women in Illinois of
should not be dispositive of the decision to certify the
child-bearing age who desire or may desire an abortion
class action. Id. Here, all Illinois physicians who perform,
sometime in the future, and the proposed representatives
or desire to perform, abortions are subject to the chal-
are Margaret Moe and Sarah Roe. The court finds that
lenged statutes and regulations. The question of law com-
the requirements of Rule 23 are met as to this class; how-
mon to all physicians in this class is whether the statutes
ever, the court appoints, as the named representatives
and regulations unconstitutionally impede the equal protec-
of this class, Margaret Moe and Dr. Ragsdale. The defen-
tion right of physicians in this class to practice their pro-
dants contend that Sarah Roe does not have standing to
fession.
assert her own privacy rights, let alone the privacy rights
Third, Dr. Ragsdale's claims are typical of the claims
of the proposed class members. Such contention need not
of the class. As a licensed Illinois physician who performs
detain the court at this time, and the court does not de-
abortions in the course of his regular medical practice,
cide here whether Sarah Roe does have standing, for it
Dr. Ragsdale is subject to the challenged statutes and
is clear that Margaret Moe and Dr. Ragsdale have stand-
regulations in the same manner as all other Illinois physi-
ing to litigate this lawsuit on behalf of themselves as well
cians performing, or desiring to perform, abortions.⁷
as on behalf of the proposed class of Illinois women. See,
Fourth, Dr. Ragsdale will fairly and adequately protect
e.g., Westchester Women's Health Organization v. Whalen,
the interests of the class. The test of adequacy of repre-
475 F. Supp. 734, 737 (S.D. N.Y. 1979). The court now
sentation is two-pronged: (1) the representative must be
turns to the requirements of Rule 23.
able to conduct the litigation; and (2) the representative's
As stated previously, approximately 65,860 abortions are
interests must not be antagonistic to those of the class
performed in Illinois annually. Clearly, the proposed class
members. Thillens, 97 F.R.D. at 679. Dr. Ragsdale has
is so numerous as to make joinder impracticable. Also,
clearly demonstrated his ability to conduct the litigation
as noted before, the difficulty in determining the exact
in the preliminary injunction proceedings. Furthermore,
number of class members does not preclude class certifi-
his attorneys have considerable experience in civil rights
cation.
litigation. Also, Dr. Ragsdale does not have interests an-
There is a question of law common to all members of
tagonistic to the interests of the class.
the proposed class. The common question of law is whether
Finally, this proposed class meets the requirements of
the challenged statutes and regulations unconstitutional-
23(b)(2), as the defendants, in either promulgating, admin-
ly burden the right to privacy of the class members.
istering or enforcing the challenged statutes and regula-
As for the typicality of the claims of Dr. Ragsdale and
tions, have acted on grounds generally applicable to the
Margaret Moe, and the adequacy of their representation,
class, making injunctive and declaratory relief appropriate.
the court finds that both of these named plaintiffs clear-
Here, plaintiffs seek only injunctive and declaratory re-
ly have standing to assert the claims of Illinois women
lief.⁸ Finding this class meets the requirements of Rule
who desire, or may desire, to obtain an abortion. In
23, the court therefore certifies this plaintiff class and
Friendship Medical Center, Ltd. v. Chicago Board of
finds Dr. Ragsdale to be an adequate representative.
Health, 505 F.2d 1141, 1145-1148 (7th Cir. 1974), cert.
denied, 420 U.S. 955 (1975), the Seventh Circuit held that
both the physician and the corporate plaintiff had stand-
App. 124
App. 125
ing to assert that the abortion regulations unduly infringed
Peltason, 359 F. Supp. 320, 323 (N.D. III. 1973) ("As to
upon the privacy rights of their patients. In SO holding,
the court relied on Doe v. Bolton, 410 U.S. 179 (1973),
[the organization's] representation of its members, it would
be absurd to hold that an organization has standing in
as making it clear that physicians threatened with criminal
the constitutional sense, but is barred by the technical re-
liability for the performance of an "illegal" abortion do
State's abortion law.
have a sufficient interest to challenge the validity of a
quirements of Rule 23, Fed.R.Civ.P. [citations omitted].")
In fact, these representatives seem particularly appropri-
ate in light of the fact that persons remain in this class
In the present case, Dr. Ragsdale and Margaret Moe
for only a short period of time.
are not threatened with criminal prosecution, and Mar-
As the above discussion establishes, this proposed plain-
garet Moe is not a physician. However, as owners and
tiff class meets the requirements of section (a) of Rule
operators of medical centers, both are threatened, under
23. The proposed class also meets the requirements of
the ASTCA and the HFPA, with liability for a "business
Rule 23(b)(2), for the same reasons as discussed with
offense," punishable by a fine of $10,000.00 for each "vio-
regard to the plaintiff class of physicians. The court there-
lation." Each day may constitute a separate violation.
fore certifies this plaintiff class of Illinois women of child-
ASTCA § 12, HFPA § 14. In addition, under the ASTCA,
bearing age who desire, or may desire, to obtain an abor-
the IDPH may deny, suspend or revoke an ASTC license
tion, and finds Margaret Moe and Dr. Ragsdale to be ade-
and may even "immediately" close a facility under cer-
quate representatives of the class.
tain conditions, and, under the HFPA, the Illinois Health
Facilities Planning Board may deny an application for a
permit needed for the acquisition of major medical equip-
C. The Defendant Class of State's Attorneys
ment or the construction or modification of a health care
This defendant class consists of the State's Attorneys
facility. ASTCA §§ 7, 9(a), HFPA § 10.9 Also, Dr. Rags-
for all of the 102 counties in the State of Illinois. The
dale is threatened, under the MPA, with the revocation
named representative is Richard M. Daley, State's Attor-
of his medical license. MPA § 16(1). Clearly, both Margaret
ney for Cook County, Illinois.
Moe and Dr. Ragsdale have an extremely concrete inter-
est in the outcome of this litigation, and both therefore
Rule 23 unquestionably authorizes the certification of
have standing to assert the interests of their patients in
defendant classes. Section 23(a) provides, in part:
this action. See Birth Control Centers, Inc. v. Reizen, 508
One or more members of a class may sue or be sued
F. Supp. 1366, 1369 (E.D. Mich. 1981) (holding that cor-
as representative parties on behalf of all only if
porate and physician plaintiffs have standing to assert the
(3) the claims or defenses of the representative par-
claims of their patients), aff'd in part, vac. in part, 743
ties are typical of the claims or defenses of the class
F.2d 352 (6th Cir. 1984).
[emphasis added].
As the named plaintiffs have standing to assert the
Fed.R.Civ.P. 23(2). In addition, Section 23(b) provides that
claims of this proposed class of women, the court finds
a class action may be maintained if the requisites of Sec-
that the requirements of typicality and adequacy of repre-
tion 23(a) are met, and "the prosecution of separate ac-
sentation have been met. 10 The court finds that the named
tions by or against individual members of the class" would
plaintiffs are adequate representatives despite the fact
create certain risks (emphasis added). See Thillens, 97
that they are not technically members of the proposed
F.R.D. at 673.
plaintiff class. See Undergraduate Student Association v.
App. 126
App. 127
Indeed, in other similar cases in which the plaintiffs
Asgrow Seed Co., 425 F.2d 1059 (7th Cir. 1970), the named
have questioned the constitutionality of various sections
defendant likewise objected to representing the defendant
of the Illinois abortion laws, the courts have certified
class. In both cases, the courts certified the defendant
defendant classes of State's Attorneys, with the State's
classes and found the named defendants to be adequate
Attorney of Cook County as the named representative.
representatives. According to the Research Corp. court,
Zbaraz v. Hartigan, 584 F. Supp. 1452, 1454 (N.D. III.
the defendants' objection to being the named representa-
1984), modified on other grounds, 763 F.2d 1532 (7th Cir.
tives "is hardly enough to overcome the overwhelming evi-
1985) (challenging the Parental Notice Abortion Act and
dence of their ability and intention to challenge the plain-
designating Richard M. Daley as the representative of
tiff's assertions" and "this factor of 'desire,' as opposed
all the State's Attorneys of all the counties in Illinois);
to ability should not be given more than token weight."
Wynn v. Scott, 449 F. Supp. 1302, 1306 (N.D. III. 1978),
Research Corp., 301 F. Supp. at 499. See also Thillens,
aff'd sub nom., Wynn v. Carey, 599 F.2d 193 (7th Cir.
97 F.R.D. at 679.
1979) (challenging certain sections of the Abortion Act of
The Thillens court, however, did discuss the special due
1975); Wynn v. Scott, 448 F. Supp. 997, 1000 (N.D. III.
1978), aff'd sub nom., Wynn v. Carey, 582 F.2d 1375 (7th
process concerns which arise upon a motion for certifica-
tion of a defendant class. As the court noted, the Su-
Cir. 1978) (challenging the Illinois Abortion Parental Con-
sent Act of 1977). However, there is no indication that
preme Court has balanced the concurrent goals of preserv-
the State's Attorney of Cook County, Illinois objected to
ing fundamental fairness to absent members of a defen-
dant class and promoting judicial economy "by holding
representing the class of all Illinois State's Attorneys in
these cases.
that due process is satisfied and absent members of a
class are bound SO long as the interests of the absentees
In the present case, Richard M. Daley does object to
are adequately represented [citations omitted]." Thillens,
being named as the representative of a defendant class
97 F.R.D. at 674. As seen above, the adequacy of the
of Illinois State's Attorneys. In his answer to the plain-
named representative is not an additional requirement,
tiffs' complaint, Mr. Daley "denie(d] that he should be a
but a requirement already found in Rule 23. The Thillens
class representative" and stated that (1) the class of
court, however, demanded that this requirement be "strict-
State's Attorneys of all 102 counties in Illinois is not SO
ly observed" as to defendant classes, because of the spe-
numerous that joinder of all members is impracticable; (2)
cial due process concerns. With this in mind, this court
it is incorrect to assume that each State's Attorney in
now turns to the requirements for class certification found
Illinois would assert the same defense to the plaintiff's
in Rule 23.
claims; and (3) he, through his assistants, generally depends
First, the court finds that the class of 102 State's Attor-
on the Illinois Attorney General for the defense in cases
challenging Illinois abortion laws. Defendant Daley's An-
neys, who are dispersed through the State of Illinois, is
so numerous that it would be impracticable to individually
swer, pp. 2, 3. Mr. Daley, through his attorney, repeated
his objection to representative status in a later notice of
join its members. Second, the court finds that there are
October 30, 1985 and at the hearing on plaintiffs' motion
questions of law common to the proposed class of defen-
dants. Here, the plaintiffs' claim is that the challenged
for preliminary injunction.
statutory and regulatory scheme is unconstitutional-that
In Thillens, 97 F.R.D. 668, and in Research Corp. v.
it violates the privacy rights of women desiring to ob-
Pfister Associated Growers, Inc., 301 F. Supp. 497 (N.D.
tain abortions and the equal protection rights of physi-
III. 1969), appeal dismissed sub nom., Research Corp. v.
cians desiring to provide abortion services. The overriding
App. 128
App. 129
of the challenged statutes and regulations.
common issue of law, therefore, is the constitutionality
to obtain an abortion, Section 16(1) of the MPA, the
ASTCA and the regulations thereunder, and the HFPA
Third, the court finds that the defenses of Richard M.
and the regulations thereunder. In ruling on a motion for
Daley are typical of the defenses of the class of Illinois
a preliminary injunction, the court must consider the fol-
State's Attorneys. Obviously, the primary defense of Mr.
lowing factors: (1) whether the plaintiffs have no adequate
Daley and of all the State's Attorneys in this case will
remedy at law and will suffer irreparable harm if the court
be that the challenged statutes and regulations are indeed
does not grant the preliminary injunction; (2) whether the
constitutional. 12
irreparable harm the plaintiffs will suffer outweighs any
Finally, the court finds Mr. Daley to be an adequate
irreparable harm that may reflect on the defendants if
representative of the interests of the class. Mr. Daley,
the court issues the injunction; (3) whether the plaintiffs
through his staff, has already demonstrated, in the pre-
have shown a "better than negligible" likelihood of suc-
liminary injunction hearing, his ability to conduct the liti-
ceeding on the merits; and (4) whether the injunction will
gation. Mr. Daley is sued in his official capacity; therefore,
disserve the public interest. Roland Machinery Co. v.
no serious question can be raised regarding his ability to
Dresser Industries, 749 F.2d 380, 386-387 (7th Cir. 1984).
carry the expense of the class defense. Furthermore, Mr.
Here, the court finds that all four factors weigh decided-
Daley and his staff have considerable litigation experience.
ly in favor of issuing a preliminary injunction.
Also, Mr. Daley is a member of the proposed class, and
his interests in the subject matter of the litigation are
A. No Adequate Remedy At Law
not antagonistic to the interests of the members of the
And Irreparable Harm
class of State's Attorneys.
Plaintiffs in this case have demonstrated that they will
The court therefore finds that this proposed class meets
indeed experience irreparable harm should the court not
the requirements of section (a) of Rule 23. This class also
issue this injunction. The challenged statutory and regu-
meets the requirements of section (b)(1) of Rule 23. The
latory scheme, as written and as enforced, has the effect
prosecution of separate actions against individual members
of raising the cost and limiting the availability of abor-
of the defendant class would indeed create a risk of in-
tions. The scheme forces complying facilities to raise their
consistent or varying adjudications, and plaintiffs would
fees, possibly beyond the economic means of some women,
thereby be faced with incompatible standards of conduct.
discourages other non-complying facilities from offering
Having found that the requirements of Rule 23 have been
abortion services, and makes it difficult, if not impossi-
met as to this class, the court now certifies this defen-
ble, for current abortion facilities to move or new abor-
dant class of Illinois State's Attorneys, represented by
tion facilities to be constructed.
named defendant Mr. Daley.
In Fox Valley Reproductive Health Care v. Arft, 446 F.
Supp. 1072, 1073-1074 (E.D. Wisc. 1978), the court found
IV. Motion For Preliminary Injunction
that the plaintiff abortion clinic sufficiently established ir-
As stated above, plaintiffs have moved the court to pre-
reparable harm. The town ordinance challenged in that
liminarily enjoin defendants from administering and en-
case is very similar to the ASTCA and its regulations
forcing, in derogation of the equal protection rights of
here, in that (1) the town ordinance applied generally to
physicians who perform, or desire to perform, abortions
any nonhospital facility at which surgical, diagnostic, or
and privacy rights of women who desire, or may desire,
therapeutic procedures were performed; (2) certain pro-
visions applied specifically to abortion clinics; and (3) the
App. 130
App. 131
ordinance was comprehensive, regulating licensing, build-
out in the HFPA, those desiring to open or move to a
ing plans and specifications, supplies and equipment, medi-
new facility must complete a lengthy, detailed applica-
cal policies and procedures, record keeping, patient care,
tion, 15 in which the applicant must disclose the fact that
and physician and nurse qualifications. The plaintiff in For
abortions will be performed at the proposed facility and
Valley contended that irreparable harm was threatened,
must identify the ownership of the proposed facility. The
because the high cost of bringing the facility in compliance
general public may obtain a copy of this application through
with the ordinance would force it to raise its current fee
the state freedom of information law. 16 Ill. Rev. Stat. ch.
of $150 to a fee of between $300 and $500, an amount
116, para. 201, et seq. Also, as part of the certificate of
which would be beyond the economic means of poor women.
need process, the "recognized areawide health planning
The court held that this contention, "in conjunction with
organization" or the IDPH must provide an opportunity
the solicitude courts have shown for a woman's right to
for, and notice of, a public hearing "for the purpose of
freedom from interference in deciding whether to seek an
allowing the applicant and any interested person to pre-
abortion," supported a finding that irreparable harm was
sent public testimony concerning the approval, denial, re-
threatened. Fox Valley, 446 F. Supp. at 1074.
newal or revocation of the [certificate of need]." HFPA
In the present case, plaintiffs have also demonstrated
§ 8.
that the extensive regulations force those offering abor-
Given the current climate of the abortion debate, placing
tion services to raise their fees for abortion services. 13
information in the hands of the public, such as the owner-
This may indeed place the abortion procedure beyond the
ship of a facility in which persons propose to provide abor-
economic means of some women.
tion services, subjects both the owner of the building and
Plaintiffs have also demonstrated that the extensive
the proposed provider to the possibility of harrassment
ASTCA regulations discourage or "chill" those desiring
and even threats of violence to themselves, their families
to offer abortion services from opening an abortion facil-
and their friends. 17 In the case of Dr. Ragsdale, after the
ity or from adding abortion services to the services they
public received notice of a hearing on a proposed new site
already provide at their facilities. Margaret Moe testified
for the NIWC, but before the hearing took place, the
at the hearing that she has desired to offer abortion ser-
landlord of the proposed site, with whom Dr. Ragsdale
vices at the two health care clinics she operates since
had an informal agreement, withdrew the site. Dr. Rags-
1974. She contacted the IDPH on various occasions from
dale secured a second site before the public hearing. Dr.
1974-1982, and was told on each occasion that abortion
Ragsdale entered a formal agreement with the landlord
facilities must secure an ASTC license and comply with
of this second site. Approximately 1,200 people attended
the ASTCA regulations.¹⁴ Because of the extensive, ex-
the hearing on March 14, 1985. The hearing began at 7:00
pensive, and, indeed, prohibitive physical plant require-
p.m. with a statement by Dr. Ragsdale announcing the
ments in the regulations, Margaret Moe decided she could
NIWC's proposed move. No other statement could be
not offer abortion services at her clinics, and she still does
heard for the rest of the hearing, which lasted until 10:00
not offer abortion services at her clinics.
p.m., because of the shouting and generally riotous atmos-
phere. Friends of Dr. Ragsdale, fearing for his safety, es-
In addition, plaintiffs have also shown that the certifi-
corted the Ragsdale family from the hearing. The landlord
cate of need requirement of the HFPA makes it extreme-
for the second site withdrew the site within 48 hours of
ly difficult, if not impossible, for those desiring to pro-
the hearing, despite the formal agreement he had entered
vide abortion services to construct a facility or move to
with Dr. Ragsdale. The areawide health planning organiza-
a new location. Under the certificate of need process set
App. 132
App. 133
tion in the area of the proposed new sites of the NIWC
abortion facility may delay the abortion and thereby in-
did eventually determine that there was a need for the
crease the health risk or prevent the abortion altogether.
NIWC. 18 However, by the time this determination was
Also, travelling a distance subjects a woman to greater
made, Dr. Ragsdale no longer had a site to which he could
expense, as the woman must pay for the cost of transpor-
move the NIWC. As it now stands, the NIWC, the only
tation and may need to hire a babysitter or miss a day
outpatient abortion facility in all of northwest Illinois, will
of work and lose that day's pay. In addition, other fac-
close December 31, 1985 without a relocation site.
tors affecting a woman's decision to terminate her preg-
In her testimony at the hearing, Margaret Moe pointed
nancy, such as her confidence in the competency of the
out yet another way in which the certificate of need pro-
physician performing the abortion and her ability to return
cedure under the HFPA impedes efforts to provide abor-
for follow-up care, would be adversely affected if the
tion services. Recently, many hospitals have had difficul-
woman were required to travel a great distance to ob-
ty filling their available beds because of the emphasis on
tain an abortion.20
outpatient health care. With many empty hospital beds,
The court finds that plaintiffs have clearly established
it may be difficult for those who desire to provide abor-
that irreparable injury will result if the injunction is not
tion services to establish a "need" for an outpatient abor-
issued. See Doe v. Charleston Area Medical Center, 529
tion facility.
F.2d 638, 644 (4th Cir. 1975) ("Roe v. Wade and Doe v.
Bolton
As the above discussion makes clear, the challenged
establish beyond argument that denial under
statutes and regulations do place a very real and a very
color of law of the right to abort, implicit in the right
heavy burden on the right of a woman to decide to ter-
to be let alone, constitutes irreparable injury.") Accord,
minate her pregnancy. The effect of the statutory and
Gary-Northwest Indiana Women's Services, Inc. v. Bowen,
regulatory scheme is to increase the cost of abortions and
496 F. Supp. 894, 902 (N.D. Ind. 1980).
decrease their availability. As a result of the scheme,
The court finds that plaintiffs have established irrepar-
Margaret Moe does not provide abortion services at her
able injury despite the argument of defendants that ir-
two Illinois clinics even though the physicians at the
reparable injury is not established because the IDPH does
clinics are ready, willing, and able to perform abortions,
not enforce certain sections of the statutes and certain
and even though approximately sixty patients a week at
regulations. The State asserted in the hearing that the
the clinics request an abortion. Also, as a result of the
IDPH does not currently enforce the following statutes
scheme, the NIWC, the only outpatient abortion facility
and regulations: (1) MPA § 16(1), requiring abortions to
in northwest Illinois, will close at the end of this year
be performed in an ASTC or hospital; (2) ASTCA $ 3(A),
without a relocation site.
defining an ASTC as including any facility in which a
The effect on women desiring to terminate their preg-
medical procedure is utilized to terminate a pregnancy,
nancies, as clarified by the hearing testimony of Margaret
regardless of whether the facility is primarily devoted to
Moe, is enormous. First, many women are not able to ob-
this purpose; (3) Regulation 205.740, prohibiting the per-
tain an abortion in their own community, and they may
formance of other than first trimester abortions in ASTCs;
find it difficult to secure a means of transportation to the
and (4) Regulation 205.760, requiring a report of each
nearest abortion facility, which may, in fact, be quite a
abortion procedure performed in an ASTC.
distance from their community. Having to make travel
However, the IDPH has on no occasion formally notified
plans, arrange a day off and negotiate a loan, if needed,
physicians or abortion providers of its decision not to en-
and then actually having to travel some distance to an
force these provisions. Also, the IDPH has not attempted
App. 134
App. 135
to amend the regulations or introduce amendatory legisla-
to decide whether to obtain an abortion. Id. at 153. At
tion in the Illinois legislature. With no formal commitment
the same time, the Court acknowledged that this funda-
of nonenforcement, the statutory and regulatory require-
mental right "is not unqualified and must be considered
ments, even if not in fact enforced, clearly "chill" poten-
against important state interests in abortion." Id. at 154.
tial abortion providers. Moreover, even if there were a
However, as pointed out in Roe, 410 U.S. at 155, and
formal nonenforcement agreement, the discussion above
more recently in City of Akron v. Akron Center for Re-
demonstrates that plaintiffs have established irreparable
productive Health, 462 U.S. 416, 427 (1983), restrictive
injury resulting from the statutory and regulatory scheme,
state regulation of the right to choose abortion, as with
as written and as enforced.
other fundamental rights, must be supported by a compel-
The court notes, at this time, the irony implicit in the
ling state interest.
defendants' nonenforcement argument. At the preliminary
In Roe, the Court identified the relevant state interests
injunction hearing, Dr. Hern, an expert on abortion prac-
and the point at which those interests become compelling.
tice, testified that most important factor in determining
According to the Court, the state has an interest in the
the safety of an abortion is the skill and experience of
health of the mother, and this interest becomes compelling
the physician. According to Dr. Hern, a physician who
at approximately the end of the first trimester. After the
performs only a few abortions a year will be less skilled
first trimester, the state may, in promoting this interest,
than physicians with a practice "primarily devoted" to the
"regulate the abortion procedure in ways that are reason-
performance of abortions. Under the statutory and regula-
ably related to maternal health." Roe, 410 U.S. at 164.
tory scheme, as defendants contend it is now enforced,
Until that time, a pregnant woman must be allowed, in
physicians performing thousands of abortions yearly are
consultation with her physician, to decide to abort and
more strictly regulated than physicians performing a few
to effectuate that decision "free of interference by the
abortions a year.
State." Id. at 163; Akron, 462 U.S. at 429-430.
The Court in Roe based its identification of the end of
B. Harm To The Plaintiffs Outweighs
the first trimester as the "compelling point" on the find-
Any Harm To Defendants
ing that, according to medical literature available in 1973,
first trimester abortions are as safe for a woman as nor-
The threatened harm to the plaintiffs clearly outweighs
any possible harm defendants may suffer if the court
mal childbirth. Roe, 410 U.S. at 163. In Akron, the Court
issues the preliminary injunction. Indeed, it is difficult to
noted that medical developments in the past decade "have
discern exactly what, if any, harm will befall defendants
extended the period in which abortions are safer than
upon the issuance of this injunction, which will merely pre-
childbirth." Akron, 462 U.S. at 429, n. 11.2¹ Still, the
Akron Court held it "prudent
to retain Roe's iden-
vent defendants from enforcing the challenged statutes
and regulations. See e.g., Fox Valley, 446 F. Supp. at 1074.
tification of the beginning of the second trimester as the
approximate time at which the State's interest in mater-
nal health becomes sufficiently compelling
(emphasis
C. Likelihood of Success On The Merits
added)." Id. The court now turns to the Roe trimester
In the landmark case of Roe v. Wade, 410 U.S. 113
standard, as interpreted in Akron and other cases, to pro-
(1973), the Supreme Court established that the right of
vide the legal framework for the constitutional evaluation
privacy, grounded in the concept of personal liberty guar-
of the challenged statutes and regulations.
anteed by the Constitution, encompasses a woman's right
App. 136
App. 137
First, the court notes that the statutes and regulations
Thus, any regulation, even a general regulation, which
here apply to all facilities in which any abortions are per-
burdens a woman's rights to choose to terminate her preg-
formed. None of the statutes or regulations exclude from
nancy during the first trimester would have to meet the
their scope facilities in which first or early second tri-
compelling governmental interest requirement. In addi-
mester abortions are performed. However, this does not
tion, under Roe and Akron, a regulation which burdens
mean that the statutes and regulations are per se uncon-
a woman's right to choose to terminate her pregnancy
stitutional. As the Akron court noted, certain State regu-
during the early second trimester must be "reasonably
lations that have no "significant impact" on a woman's
relate[d]" to the preservation and protection of maternal
exercise of her abortion right during the first trimester
health. Akron, 462 U.S. at 430-431; Roe, 410 U.S. at 163.
may be permissible where justified by important State
In the present case, plaintiffs have overwhelmingly dem-
health objectives. Akron, 462 U.S. at 430. See Planned
onstrated the burden that the challenged statutory and
Parenthood of Central Missouri v. Danforth, 428 U.S. 52
regulatory scheme places on a woman's right to choose
(1976) (upholding regulations which applied to first tri-
to terminate her pregnancy during the first and early sec-
mester abortions and required that a patient give writ-
ond trimester. As noted in the previous discussion of ir-
ten consent prior to the abortion, and that records be kept
reparable injury, the scheme, as written and as enforced,
of all abortions); Connecticut v. Menillo, 423 U.S. 9 (1975)
increases the cost and decreases the availability of abor-
(upholding a statute requiring that only licensed physicians
tions. Also, the scheme may delay the effectuation of a
perform abortions, including first trimester abortions).
woman's decision to abort.
Neither does Roe stand for the proposition that any gen-
Charles v. Carey, 627 F.2d 772, 777 (7th Cir. 1980), app.
eral medical regulation which applies to the performance
after remand, sub nom. Charles v. Daley, 749 F.2d 452
of first and early second trimester abortions is per se con-
(7th Cir. 1984), instructs that once a plaintiff has shown
stitutional. As the Seventh Circuit stated in Friendship
that interference in the pregnancy termination decision
Medical Center, Ltd. v. Chicago Board of Health, 505 F.2d
is "sufficiently substantial and not de minimus," the State
1141, 1153-1154 (7th Cir. 1974), cert. denied, 420 U.S. 955
must show that there is compelling basis for the law and
(1975):
that the burden is not undue or unjustifiable. Here, plain-
Furthermore, any proposed regulation, even if applied
tiffs have demonstrated that the challenged scheme sub-
universally to all similar medical procedures, because
stantially interferes with the pregnancy termination deci-
of the fundamental right of a woman to procure an
sion during the first and early second trimester.
abortion during the first trimester, would have to
Defendants, however, have failed to produce any evi-
meet a compelling governmental interest requirement.
dence at all of a compelling or even rational basis for the
Thus, any general health regulations which would ap-
challenged statutes and regulations. The defendants pre-
ply to first trimester abortions would have to be
sented no evidence in their pleadings or at the hearing
limited so as to give effect to the fundamental rights
that the statutes and regulations are medically necessary. 23
as established by Roe and Doe; that is, not be bur-
Dr. Barton, the defendant's expert in obstetries and gyne-
densome on a woman's right to decide to abort a
cology, testified at the hearing that he was of the opinion
pregnancy. By this we mean that in all probability
that there is a medical necessity for some regulation by
nothing broader than general requirements as to the
the state of outpatient abortion facilities, but Dr. Barton
maintaining of sanitary facilities and general re-
did not testify as to the medical necessity of any of the
quirements as to meeting minimal building code
statutes or regulations here challenged. Also, Dr. Barton
standards would be permissible. (Emphasis added.)
App. 138
App. 139
agreed that there is no medical reason to single out abor-
by local building codes. Also, physicians performing abor-
tion from other medically analogous procedures for differ-
tions are obligated to practice surgery with care and will
ent regulation. Defendants, at best, have shown that
still be subject to disciplinary action under the remaining
selected regulations, such as Regulation 205.730(b)(2)(a),
subsections of section 16 of the MPA. The court therefore
which sets out the qualifications for counselors, are con-
finds that the public interest will be served by the issu-
sistent with accepted medical practice. This is not equiva-
ance of this preliminary injunction.
lent to a showing of medical necessity.
Plaintiffs have established the burdensome nature of the
E. Scope of The Preliminary Injunction
scheme as a whole. Defendants have failed to demonstrate
Having found preliminary injunctive relief is appropriate
a compelling, or even a rational, basis for the statutory
in this case, the court now turns to the scope of the pre-
and regulatory scheme. Therefore, the court now finds
liminary injunctive relief granted. In the above discussion
that there is a reasonable likelihood that plaintiffs will
dealing with the plaintiffs' demonstration of the likelihood
succeed on the merits.
of their success on the merits, the court found that defen-
dants have failed to show a compelling need or even a
D. Harm To The Public Interest
rational basis for the burdensome statutory and regulatory
scheme. Accordingly, the court preliminarily enjoins defen-
In Fox Valley, 446 F. Supp. at 1075, the court found
dants from enforcing the challenged statutes and regula-
that the public's interest would not be disserved by the
tions against any plaintiffs who offer or perform first or
issuance of the preliminary injunction. The court reasoned
early second trimester abortions.
that the public's interest lies in the enforcement of that
which is mandated by the Constitution, and the Constitu-
tion mandated that the abortion regulation challenged in
V. Conclusion
that case not be imposed. Likewise, in the present case,
For the reasons set forth above, the court grants plain-
the Constitution mandates that the challenged statute and
tiffs' motion for certification of two plaintiff classes and
regulations not be applied to physicians who perform first
one defendant class, with some modification. Also, the
trimester abortions or early second trimester DE abor-
court grants plaintiffs' motion for preliminary injunction,
tions, or to the facilities in which these procedures are
and hereby enjoins defendants from enforcing the chal-
performed.
lenged statutes and regulations against any plaintiff offer-
Of course, the public also has an interest in the preser-
ing, performing, or desiring to offer or perform a first
vation and protection of a patient's health. However, con-
or early second trimester abortion.
trary to the argument of the State's Attorney at the pre-
liminary injunction hearing, the injunction which the court
ENTER: /s/ JOHN A. NORDBERG
now issues will not disserve this interest. At the hear-
United States District Judge
ing, the State's Attorney argued that, if the court issued
the injunction prayed for, this would "open the door" to
substandard abortion facilities in Illinois. Not so. The in-
Date: November 27, 1985
junction here will not leave abortion clinics, such as the
NIWC, free from all state regulation. On the contrary,
such facilities will still have to meet the standards set
App. 140
App. 141
I The challenged statutes are not part of the explicitly separate
in a few days after an abortion at the NIWC, such as a fever
Illinois "Abortion Laws," III. Rev. Stat. ch. 38, para. 81-21 to 81.
from infection. These extremely low complication rates attest to
35, 81-51 to 81-55, 81-61 to 81-70, the constitutionality of which has
Dr. Ragsdale's skill and experience as an abortion provider. Both
been challenged on several occasions. See, e.g., Zbaruz ". Hartigan,
Margaret Moe, an expert in the area of women's health care and
763 F.2d 1532 (7th Cir. 1985); Charles " Carey, 627 F.2d 772 (7th
family planning, and Dr. Hern, an expert on abortion practice, tes-
Cir. 1980), appeal after remand sub nom. Charles 11. Daley, 749
tified at the hearing that, in their opinion, Dr. Ragsdale is an ex-
F.2d 452 (7th Cir. 1984), probable jurisdiction noted sub nom. Dia-
tremely skilled and careful abortion provider. Indeed, even Dr.
mond v. Charles, 105 S.Ct. 2356 (1985); Wynn v. Carey, 599 F.2d
Barton, the defendants' expert on obstetries and gynecology, testi-
193 (7th Cir. 1979); Wynn v. Carey, 582 F.2d 1375 (7th Cir. 1978).
fied that he has "some certainty" that the hospital in which he
Likewise, there have been previous challenges to the constitu-
works, Illinois Masonic Medical Center, has referred patients to
tionality of the statutes involved in this case. In Village of Oak
Dr. Ragsdale for abortions.
Lawn v. Marcowitz, 86 III. 2d 406, 427 N.E.2d 36 (1981), the Illi-
5 There are currently 44 ASTCs in Illinois. Approximately half
nois Supreme Court struck down a portion of a village ordinance,
of these provide abortion services.
on equal protection and privacy grounds, which incorporated the
ASTCA's definition of an Ambulatory Surgical Treatment Center
6 In the preliminary injunction hearing, defendant Richard M.
("ASTC"). Also in Bickham v. Lashof, No. 76 C 4564, slip op.
Daley, through his attorney, did point out on cross examination
(N.D. III. Jan. 28, 1981), the court denied defendants' motion to
of Margaret Moe that Margaret Moe had personally worked with
dismiss the allegations in plaintiff's complaint that the ASTCA and
physicians in only Cook and Kane Counties.
MPA are unconstitutional. However, this case, which dealt with
7 Defendants contend in their Response to the Motion for Class
some of the exact issues presented here, was apparently dismissed
Certification that Dr. Ragsdale's claims are not typical of those
for want of prosecution without a decision on the merits.
of the proposed class because the NIWC has been a licensed ASTC
2 Mr. Triemari, a Consulting Engineer and an expert in plumb-
since 1973; therefore, "Dr. Ragsdale is challenging the constitution-
ing, heating and air conditioning, testified at the injunction hear-
ality of the statutes and regulations through which he has bene-
fitted for more than ten years." Defendants' Response, p. 3. The
ing that the ASTC physical plant regulations are comparable, or
court finds this argument without merit. Defendants do not articu-
generally equivalent, to those in the Illinois Hospital Licensing
late what "benefit" Dr. Ragsdale receives under the challenged
Act, Ill.Rev.Stat. ch. 111½, para. 142, et seq., and the Chicago Hos-
pital Ordinance. He also testified that many of the requirements,
statutes and regulations. Neither do defendants recognize that other
members of the proposed class may also have operated licensed
such as those dealing with air flow, are not required of physicians'
offices.
ASTCs for a number of years. It is axiomatic that those to whom
statutes and regulations apply may challenge the constitutional-
3 Raymond Passeri, the Chief of the Division of Facilities De-
ity of such statutes and regulations despite a period of compliance.
velopment at the IDPH and the Executive Secretary of the Board,
See, e.g., Friendship Medical Center, Ltd. v. Chicago Board of Health,
testified at the hearing that the HFPA was enacted in part be-
505 F.2d 1141, 1146 (7th Cir. 1974), cert. denied, 420 U.S. 955
cause of the concern that allowing an unlimited number of health
(1975). Indeed, under the standing requirements of Article III of
care facilities to be constructed would not fill a "need," but would
the United States Constitution, as interpreted by the courts, par-
instead waste the Illinois taxpayers' money because of the cost-
ties against whom statutes and regulations directly operate may
plus disbursement arrangement. This arrangement is no longer in
be the "best" plaintiffs for a constitutional challenge, given their
effect, and, certainly, abortion facilities do not utilize public funds
concrete personal stake in the outcome of the litigation.
for construction or renovation; therefore, the certificate of need
8 Defendants contend that the declaratory and injunctive relief
procedure seems particularly inappropriate as applied to abortion
facilities.
plaintiffs request can be granted to all class members without cer-
tifying a class; therefore, plaintiffs' motion should be denied. In
Dr. Ragsdale presented the NIWC's complication statistics at
the Seventh Circuit, however, if a class meets the prerequisites
the hearing. According to Dr. Ragsdale, approximately 9 women
of Rule 23, a court may not deny class certification on the ground
per 40,000 require immediate hospitalization after having an abor-
of lack of "need." Brown v. Scott, 602 F.2d 791, 795 (7th Cir. 1979),
tion at the NIWC, no deaths have resulted from abortions at the
aff'd sub nom. Carey v. Brown, 447 U.S. 455 (1980); Vergara, 581
NIWC, and 10 to 15 women per 40,000 develop complications with-
F.2d at 1284.
App. 142
App. 143
9 In Friendship, the challenged regulations empowered the city
action specifically against them. This "affirmative defense" in Mr.
to deny authorization to those seeking to operate abortion facilities
Daley's answer apparently rested on the fact that Dr. Ragsdale's
and to order the closing of a facility not in compliance with its
clinic was not in Cook County; therefore, Mr. Daley could not pros-
regulations. According to the Seventh Circuit, "Surely, those sub-
ecute under the ASTCA or HFPA, and Dr. Ragsdale did not
ject to such deprivations through the use of governmental power
"state a cause of action" against Mr. Daley. Dr. Ragsdale is not
have a sufficient interest to maintain this type of action. [citations
the only plaintiff, however. Margaret Moe, another named plain-
omitted]" Friendship, 505 F.2d at 1146.
tiff, owns and operates a medical facility in Cook County, and she
10 Based on the preliminary injunction proceedings, it is clear
clearly has stated a cause of action against Mr. Daley.
that Dr. Ragsdale and Margaret Moe will adequately represent
Given the certification of the two plaintiff classes in this order,
the interests of this proposed plaintiff class. In both the pleadings
it is expected that few, if any, State's Attorneys will be able to
and the hearing on the preliminary injunction motion, the named
raise this defense. Accordingly, the court finds that the possibili-
plaintiffs, through their attorneys, focused almost exclusively on
ty that any one State's Attorney will raise this defense does not
the alleged unconstitutional burden that these statutes and regula-
substantially affect the "typical" nature of the named defendants'
tions place on the right of Illinois women to decide whether to
defenses. See Research Corp., 301 F. Supp. at 499.
obtain an abortion.
13 Dr. Ragsdale testified at the preliminary injunction hearing
11 The Thillens court also discussed the problems inherent in
that his current fee for an abortion is approximately $250. Dr.
certifying both plaintiff and defendant classes in the same action.
Ragsdale estimated that if he were to move his practice to a facil-
Thillens, 97 F.R.D. at 675-76. The court noted that courts are
ity similar to his current facility, which does not fully comply with
often reluctant to certify a defendant class when the action is
the ASTCA regulations, he would have to increase by $22.45 the
brought by a plaintiff class because of the concern that each plain-
fee per patient over the next two years to cover his costs. Plain-
tiff member has not been injured by each defendant member. How-
tiffs' Exhibit No. 17. Relocating his practice to a building in total
ever, according to the court, as it interpreted In re Gap Stores
compliance with the regulations, on the other hand, would add
Securities Litigation, 79 F.R.D. 283 (N.D. Cal. 1978), the require-
another $25.21 to the increase, making the total increase in fee
ment that each named plaintiff have a claim against each defen-
per patient $47.66. Plaintiffs' Exhibit No. 18.
dant may be waived where the defendant members are related
14 Margaret Moe also testified that she telephoned the IDPH
by a conspiracy or "juridical link." The Thillens court went on
on November 18, 1985, to find out whether the IDPH still requires
to define a "juridical link" as "some legal relationship which
all abortion facilities to be licensed. At that time, an employee
relates all defendants in a way such that single resolution of the
in the division of the ASTC licensing informed her that the IDPH
dispute is preferred to a multiplicity of similar actions. [citations
was not currently requiring licenses for abortion facilities, but the
omitted]"
IDPH "recommended" licensure. Margaret Moe had never before
There is clearly a "juridical link" between the Illinois State's
been informed that the IDPH was no longer requiring abortion
Attorneys here. Under Ill. Rev. Stat. ch. 14, para. 5, each and
facilities to obtain ASTC licenses. The court notes that it was not
every State's Attorney is charged with the duty of prosecuting
clear from this testimony whether the IDPH no longer requires
all civil and criminal actions in which the people of the state or
ASTC licenses even for facilities "primarily devoted" to the per-
county may be concerned. Also, under section 14 of the HFPA,
formance of abortions. The testimony of Mary Lloyd Lowe, Deputy
which deals with violations, the State's Attorneys are specifically
Chief Counsel for the Illinois Department of Public Health, and
charged with the duty of representing the people of Illinois in pro-
Defendants' Exhibit No. 2, an IDPH internal memorandum written
ceedings under that section. As all State's Attorneys are charged
by Michael Anderson, indicate that the IDPH still requires licen-
under the same statutes with the duty to take uniform enforce-
sure for those facilities "primarily devoted" to providing abortion
ment action with respect to plaintiffs, the court therefore finds
services.
that the State's Attorneys are related in a way such that single
15 Dr. Ragsdale testified at the hearing that it took him five
resolution of the dispute is preferred to a multiplicity of similar
full working days to complete the HFPA application for a certifi-
actions.
cate of need.
12 Some of the State's Attorneys may contend, as Mr. Daley
16 At the preliminary injunction hearing, Mary Lloyd Lowe tes-
did in his Answer, that the plaintiffs have not stated a cause of
tified that the IDPH also releases ASTC license applications, when
App. 144
App. 145
requested, pursuant to the Illinois Freedom of Information Act.
still more sections of the "general" Michigan Public Health Code,
Under the ASTCA and its regulations, such applications must also
which required all freestanding surgical outpatient facilities to have
include a statement of ownership and a description of the services
transfer agreements with hospitals and to have six-foot corridors.
to be provided. ASTCA § 7(a), 77 III. Admin. Code § 205.120. The
23 Plaintiffs, on the other hand, presented testimony by Dr.
ASTC license application is also lengthy and detailed, as demon-
Ragsdale and Dr. Hern that the regulations are not only medical-
strated by Plaintiffs' Exhibit No. 21, Dr. Ragsdale's 1985 ASTC
ly unnecessary, but some of the regulations, particularly those re-
license application.
quiring ASTCs to be hospital-like facilities, may be medically detri-
17 Dr. Ragsdale testified that the ASTCA requirements that
mental, for women often find it psychologically reassuring when
an abortion facility be separately licensed and maintain an "identifi-
they are able to effectuate their decision to abort in a comfortable,
ably separate" facility also subject abortion providers and their
more personalized atmosphere.
patients to threats and harrassment.
Defendants' difficulty in providing evidence of the medical neces-
18 See Plaintiffs' Exhibit No. 11, "Certificate of Need Investiga-
sity of the burdensome statutes and regulations challenged here
tive Staff Report to the Comprehensive Health Planning of North-
is understandable, given that other courts have already found that
ern Illinois Regional Board and Project Review Committee."
similar or identical provisions burden a woman's right to choose
to terminate her pregnancy without furthering a compelling state
19 Margaret Moe testified at the hearing that approximately
interest. See Arnold v. Sendak, 416 F. Supp. 22 (S.D. Ind. 1976)
90% of the patients at her Elgin, Illinois clinic have no means of
(finding unconstitutional an Indiana statute requiring all abortions
transportation, and approximately 50% of the patients at her Pala-
to be performed in hospitals or licensed health care facilities), aff'd
tine, Illinois clinic have no means of transportation.
mem., 429 U.S. 968 (1976); Village of Oak Laum v. Marcowitz,
20 According to Margaret Moe, one of the greatest concerns of
86 III. 2d 406, 427 N.E.2d 36 (1981) (finding the portion of the
the patients at her clinics who desire to have an abortion is that
definition of an ASTC including "any facility in which a medical
Margaret Moe be able to refer them to a physician she knows is
or surgical procedure is utilized to terminate a pregnancy, irrespec-
competent. Were Margaret Moe able to offer abortion services at
tive of whether the facility is devoted primarily to this purpose"
her own clinics, she could, of course, assure her patients of the
to be unconstitutional).
competency of the performing physicians.
21 Dr. Ragsdale and Dr. Hern both testified at the hearing of
the safety of the Dilation and Evacuation procedure, which has
recently become the method most often utilized for abortions in
the early part of the second trimester. In addition, defendants ten-
dered as their Exhibit No. 6 the Standards for Obstetric-Gynecolo-
gical Services, developed by the American College of Obstetricians
and Gynecologists ("ACOG Standards") (6th ed. 1985). According
to the ACOG Standards, and as noted by the Akron Court, uncom-
plicated abortions, up to 14 weeks from the last menstrual period,
may be performed in a physician's office or an outpatient clinic.
ACOG Standards, p. 60.
22 In Abortion Coalition v. Michigan Department of Public
Health, 426 F. Supp. 471, 474-476 (E.D. Mich. 1977), the court,
in dicta, indicated that general regulations imposed upon medical-
ly analogous procedures are not invalid as applied to first trimester
abortions. However, at the same time, the court held certain pro-
visions of the "general" statute to be unconstitutional as applied
to first trimester abortions. Moreover, in Birth Control Centers,
Inc. v. Reizen, 508 F. Supp. 1366 (E.D. Mich. 1981), aff'd in part,
vac. in part, 743 F.2d 352 (6th Cir. 1984), the court struck down
App. 146
App. 147
APPENDIX H
Professional Regulation,* hereby appeal to the Supreme
Court of the United States from judgment of the United
NOTICE OF APPEAL
States Court of Appeals for the Seventh Circuit affirm-
ing an order of the United States District Court, North-
[Filed November 7, 1988]
ern District of Illinois, Eastern Division, and holding un-
IN THE
constitutional and enjoining enforcement of the Ambulatory
UNITED STATES COURT OF APPEALS
Surgical Treatment Center Act and the rules and regula-
FOR THE SEVENTH CIRCUIT
tions promulgated thereunder; the Health Facilities Plan-
ning Act; and par. 4433(1)(a)-(e) of the Illinois Medical
No. 85-3242
Practice Act to the extent any person or facility offers
or performs, or desires to offer or perform first and/or
early second trimester abortions or other abortion-related
gynecological procedures. The judgment was entered on
RICHARD M. RAGSDALE, M.D., et al.,
March 10, 1988. On August 12, 1988 the appellants' peti-
Plaintiffs-Appellees,
tion for rehearing and suggestion for rehearing en bane
was denied.
VS.
This appeal is taken pursuant to 28 U.S.C. Section
BERNARD J. TURNOCK, M.D., M.P.H., Director of the Illi-
1254(a).
nois Department of Public Health, et al.,
Defendants-Appellants.
Respectfully submitted,
NEIL F. HARTIGAN
Appeal from the United States District Court
Attorney General of Illinois
for the Northern District of Illinois, Eastern Division
No. 85 C 6011-John Nordberg, Judge Presiding
BY: /s/ KATHLEEN KREISEL FLAHAVEN
Assistant Attorney General
General Law Division
NOTICE OF APPEAL TO THE
100 West Randolph Street
SUPREME COURT OF THE UNITED STATES
13th Floor
Chicago, Illinois 60601
Notice is hereby given that defendants-appellants Bernard
J. Turnock, Director of the Illinois Department of Public
Health; Neil F. Hartigan, Attorney General of Illinois; and
Stephen F. Selcke, Director of the Illinois Department of
* Successor in public office to Gary L. Clayton, Director of the
Illinois Department of Registration and Education.
App. 148
App. 149
AFFIDAVIT OF SERVICE
APPENDIX I
I hereby aver that a true and correct copy of the fore-
going was served upon all parties required to be served
at the listed addresses by depositing same in the United
Ambulatory Surgical Treatment Center Act,
States mail chute located at 100 West Randolph Street,
Chicago, Illinois 60601 on the 7th day of November, 1988
111½ III. Rev. Stat. 11 157-8.1, et seq.
with proper postage prepaid.
AMBULATORY SURGICAL TREATMENT
CENTER ACT
Alan S. Gilbert
Colleen K. Connell
AN ACT relating to the inspection, licensing and regula-
Lorie A. Chaiten
The Roger Baldwin
tion of ambulatory surgical treatment centers. P.A.
Sonnenschein, Carlin,
Foundation of ACLU
78-227, approved and eff. July 19, 1973.
Nath & Rosenthal
20 East Jackson Boulevard
8000 Sears Tower
Suite 1600
157-8.1. Short title
Chicago, Illinois 60606
Chicago, Illinois 60604
§ 1. This act may be cited as the Ambulatory Surgical
Randolph T. Kemmer
Treatment Center Act.
Assistant State's Attorney
500 Richard J. Daley Center
157-8.2. Declaration of public policy-Purpose
Chicago, Illinois 60602
§ 2. It is declared to be the public policy that the State
has a legitimate interest in assuring that all medical pro-
/s/ KATHLEEN KREISEL FLAHAVEN
cedures, including abortions, are performed under circum-
stances that insure maximum safety. Therefore, the pur-
SUBSCRIBED AND SWORN TO
pose of this Act is to provide for the better protection
BEFORE ME THIS 7th DAY
of the public health through the development, establish-
OF NOVEMBER, 1988.
ment, and enforcement of standards (1) for the care of
individuals in ambulatory surgical treatment centers, and
(2) for the construction, maintenance and operation of am-
/s/ JANET M. VOLDRICH
bulatory surgical treatment centers, which, in light of ad-
Notary Public
vancing knowledge, will promote safe and adequate treat-
ment of such individuals in ambulatory surgical treatment
centers.
157-8.3. Definitions
§ 3. As used in this Act, unless the context otherwise
requires, the following words and phrases shall have the
meanings ascribed to them:
(A) "Ambulatory surgical treatment center" means any
institution, place or building devoted primarily to the main-
tenance and operation of facilities for the performance of
surgical procedures or any facility in which a medical or
App. 150
App. 151
surgical procedure is utilized to terminate a pregnancy,
(F) "Dentist" means a person licensed to practice den-
irrespective of whether the facility is devoted primarily
tistry under the "Illinois Dental Practice Act."3
to this purpose. Such facility shall not provide beds or
(G) "Podiatrist" means a person licensed to practice
other accommodations for the overnight stay of patients.
podiatry under "An Act to regulate the practice of podia-
Individual patients shall be discharged in an ambulatory
try in the State of Illinois", approved April 26, 1917, as
condition without danger to the continued well being of
amended.4
the patients or shall be transferred to a hospital.
Amended by P.A. 83-333, $ 60, eff. Sept. 14, 1983.
The term "ambulatory surgical treatment center" does
not include (1) any institution, place, building or agency
1 Paragraph 142 et seq. of this chapter.
required to be licensed pursuant to the "Hospital Licens-
2 Paragraph 4151-101 et seq. of this chapter.
ing Act", approved July 1, 1953, as amended.¹
3 Chapter 111, 9 2201 et seq.
(2) any person or institution required to be licensed
4 Chapter 111, 1 4901 et seq.
pursuant to the "Nursing Home Care Reform Act of
1979" approved August 23, 1979, as amended;2
157-8.4. Necessity of license-Municipal regulation
(3) hospitals or ambulatory surgical treatment centers
$ 4. No person shall open, conduct or maintain an am-
maintained by the State of any department or agency
bulatory surgical treatment center without first obtain-
thereof, where such department or agency has authority
ing a license from the Department.
under law to establish and enforce standards for the
Nothing in this Act shall be construed to impair or
hospitals or ambulatory surgical treatment centers under
abridge the power of municipalities to license and regulate
its management and control;
ambulatory surgical treatment centers, provided that the
(4) hospitals or ambulatory surgical treatment centers
municipal ordinance requires compliance with at least the
maintained by the Federal Government or agencies there-
minimum requirements developed by the Department pur-
of; or
suant to this Act.
(5) any place, agency, clinic, or practice, public or pri-
The Administrative Review Law, as heretofore or here-
vate, whether organized for profit or not, devoted exclu-
after amended,¹ shall be applicable to the judicial review
sively to the performance of dental or oral surgical proce-
of final administrative decisions of the regulatory agency
dures.
of the municipality. Any municipality having an ordinance
licensing and regulating ambulatory surgical treatment
(B) "Person" means any individual, firm, partnership,
centers which provides for minimum standards and regula-
corporation, company, association, or joint stock associa-
tions which meet at least the minimum requirements es-
tion, or the legal successor thereof.
tablished pursuant to this Act shall make such periodic
(C) "Department" means the Department of Public
reports to the Department as the Department may deem
Health of the State of Illinois.
necessary. This report shall include a list of ambulatory
(D) "Director" means the Director of the Department
surgical treatment centers meeting standards substantially
of Public Health of the State of Illinois.
equivalent to those promulgated by the Department under
this Act. The Department may issue a license to such am-
(E) "Physician" means a person licenced to practice
bulatory surgical treatment centers based upon such re-
medicine in all of its branches in the State of Illinois.
ports or the Department may conduct investigations or
App. 152
App. 153
sued inspections to determine whether a license should be is-
to these ambulatory surgical treatment centers.
(2) The licensure status or record of the applicant, or
Amended 1982. by P.A. 82-783, Art. XI, $ 201, eff. July 13,
if the applicant is a firm, partnership or association, of
any of its members, or if a corporation, of any of its offi-
1 Chapter 110, 1 3-101 et seq.
cers or directors, or of the person designated to manage
or supervise the facility, from any other state where the
applicant has done business in a similar capacity indicates
157-8.5. Application for license
that granting a license to the applicant would be detrimen-
§ 5. An application for a license to operate an ambula-
tal to the interests of the public; or
tory surgical treatment center shall be made to the De-
(3) The applicant has insufficient financial or other re-
partment upon forms provided by it and shall contain
sources to operate and conduct the facility in accordance
information as the Department reasonably requires, which such
with the requirements of this Act and the minimum stan-
the may include affirmative evidence of ability to comply with
dards, rules and regulations promulgated thereunder.
regulations, promulgated by virtue thereof.
provisions of this Act and the standards, rules and
The Director shall only issue a license if he finds that
the applicant facility complies with this Act and the rules,
All applications required under this Section shall be
regulations and standards promulgated pursuant thereto
license fee of $500.
signed by the applicant, verified, and accompanied by a
and:
(a) is under the medical supervision of one or more
Amended by P.A. 81-224, § 1, eff. Jan. 1, 1980.
physicians;
(b) permits a surgical procedure to be performed only
157-8.6. Issuance of license-RequirementsRenew of
by a physician, podiatrist or dentist who at the time is
license-Provisional licenses
privileged to have his patients admitted by himself or an
§ 6. Upon receipt of an application for a license, the
associated physician and is himself privileged to perform
ing reasons:
Director may deny the application for any of the follow-
surgical procedures in at least one Illinois hospital; and
(c) maintains adequate medical records for each patient.
(1) Conviction of the applicant, or if the applicant is
A license, unless sooner suspended or revoked, shall be
a firm, if partnership or association, of any of its members,
renewable annually upon approval by the Department and
the or a corporation, of any of its officers or directors, of
payment of a license fee of $300. Each license shall be
of person designated to manage or supervise the facility, or
issued only for the premises and persons named in the
turpitude, as shown by a certified copy of the record of
a felony, or of 2 or more misdemeanors involving moral
application and shall not be transferable or assignable. The
licenses shall be posted in a conspicuous place on the li-
the court of conviction, or, in the case of the conviction
censed premises. A placard or registry of all physicians
of a misdemeanor by a court not of record, as shown by
on staff in the facility shall be centrally located and avail-
other evidence, if the Director determines, after investiga-
able for inspection to any interested person. The Depart-
tion, that such person has not been sufficiently rehabili-
ment may, either before or after the issuance of a license,
evidence that the moral character of the applicant, or
tated to warrant the public trust; or other satisfactory
request the cooperation of the State Fire Marshal. The
report and recommendations of this agency shall be in
manager, or supervisor of the facility is not reputable;
writing and shall state with particularity its findings with
App. 154
App. 155
respect to compliance or noncompliance with such mini-
mum standards, rules and regulations.
157-8.7. Denial, suspension and revocation of license-
Notice-Hearings-Subpenas-epositions
bulatory surgical treatment center which does not substan- am-
The Director may issue a provisional license to any
§ 7. The Director after notice and opportunity for hear-
tially comply with the provisions of this Act and the
ing to the applicant or licensee may deny, suspend, or
dards, rules and regulations promulgated by virtue thereof stan-
revoke a license to open, conduct and maintain an am-
provided that he finds that such ambulatory surgical treat-
bulatory surgical treatment center in any case in which
he or she finds that there has been a substantial failure
ment center will undertake changes and corrections which
upon completion will render the ambulatory surgical treat.
to comply with the provisions of this Act or the standards,
ment center in substantial compliance with the provisions
rules and regulations established by virtue thereof.
of this Act, and the standards, rules and regulations
Such notice shall be effected by registered mail or by
adopted hereunder, and provided that the health and safe-
personal service setting forth the particular reasons for
ty of the patients of the ambulatory surgical treatment
the proposed action and fixing a date, not less than 15
center will be protected during the period for which such
days from the date of such mailing or service, at which
provisional license is issued. The Director shall advise the
time the applicant or licensee shall be given an oppor-
licensee of the conditions under which such provisional li-
tunity for a hearing.
cense is issued, including the manner in which the facilities
A copy of the notice shall be displayed in a conspicuous
fail to comply with the provisions of the Act, standards,
place adjacent to the license required to be displayed un-
rules and regulations, and the time within which the
der Section 6 of this Act1 until such time as the Depart-
changes and corrections necessary for such ambulatory
ment renders its final administrative order. At the end
surgical treatment center to substantially comply with this
of each fiscal quarter the Department shall prepare and
Act, and the standards, rules and regulations of the De-
publish a report regarding the status or final disposition
partment relating thereto shall be completed.
of its actions against licensees or applicants that have
Amended by P.A. 81-224, § 1, eff. Jan. 1, 1980.
been served with notice regarding a contemplated denial,
a refusal to renew or revocation of a license by the De-
157-8.6-1. Abortions-Licensed physicians
partment. The report shall identify the facility and the
licensee or applicant that are the subject of contemplated
§ 6.1. Notwithstanding any other provision of this Act,
action and summarize the facts and charges that constitute
any corporation operating an Ambulatory Surgical Treat-
the grounds for such action. The reports shall be conveyed
ment Center devoted primarily to providing facilities for
to the Governor and the General Assembly and shall be
abortion must have a physician, who is licensed to practice
made available to the general public free of charge. Copies
medicine in all of its branches and is actively engaged in
of such reports shall be available for distribution through
the practice of medicine at the Center, on the board of
local health departments and regional and sub-regional of-
directors as a condition to licensure of the Center.
fices of the Department.
Added by P.A. 81-771, § 1, eff. Jan. 1, 1980.
The hearing shall be conducted by the Director or by
an individual designated in writing by the Director as
Hearing Officer to conduct the hearing. On the basis of
any such hearing, or upon default of the applicant or li-
censee, the Director shall make a determination specify-
App. 156
App. 157
ing his or her findings and conclusions. A copy of such
Any circuit court of this State, upon the application of
determination shall be sent by registered mail or served
the Director, or upon the application of any other party
personally upon the applicant or licensee.
the proceeding, may, in its or his or her discretion,
The procedure governing hearings authorized by this
compel to the attendance of witnesses, the production of
Section shall be in accordance with rules promulgated by
books, papers, records or memoranda and the giving of
the Department. A full and complete record shall be kept
testimony before the Director or Hearing Officer conduct-
of all proceedings, including the notice of hearing, com-
ing an investigation or holding a hearing authorized by
plaint, and all other documents in the nature of pleadings,
this Act, by an attachment for contempt or otherwise, in
written motions filed in the proceedings, and the report
the same manner as production of evidence may be com-
and orders of the Director and Hearing Officer. All testi-
pelled before the court.
mony shall be reported but need not be transcribed unless
The Director or Hearing Officer, or any party in an in-
the decision is sought to be reviewed pursuant to the Ad-
vestigation or hearing before the Department, may cause
ministrative Review Law.2 A copy or copies of the tran-
the depositions of witnesses within the State to be taken
script may be obtained by any interested party on pay-
in the manner prescribed by law for like depositions in
ment of the cost of preparing such copy or copies.
civil actions in courts of this State, and to that end com-
The Director or Hearing Officer, shall upon his or her
pel the attendance of witnesses and the production of
own motion, or on the written request of any party to
books, papers, records, or memoranda.
the proceeding, issue subpoenas requiring the attendance
Amended by P.A. 82-783, Art. XI, $ 201, eff. July 13,
and the giving of testimony by witnesses, and subpoenas
1982; P.A. 83-334, $ 87, eff. Sept. 14, 1983; P.A. 83-345,
duces tecum requiring the production of books, papers,
§ 67, eff. Sept. 14, 1983.
records or memoranda. All subpoenas and subpoenas
duces tecum issued under the terms of this Act may be
1 Paragraph 157-8.6 of this chapter.
served by any person of legal age. The fees of witnesses
2 Chapter 110, 9 3-101 et seq.
for attendance and travel shall be the same as the fees
P.A. 83-334, in the first paragraph, inserted "or she"; in the sec-
of witnesses before the Circuit Court of this State, such
ond paragraph, substituted "15" for "fifteen"; in the fourth para-
fees to be paid when the witness is excused from further
graph, inserted "or her"; in the sixth paragraph, inserted "or her",
substituted "above stated" for "aforesaid", and, at the end of the
attendance. When the witness is subpoenaed at the in-
sixth paragraph, substituted "by a circuit court" for "out of a
stance of the Director or Hearing Officer, such fees shall
court of record"; in the seventh paragraph, following "State",
be paid in the same manner as other expenses of the De-
deleted "or any judge thereof, either in term time or vacation",
partment, and when the witness is subpoenaed at the in-
and, also in the seventh paragraph, inserted "or her", and sub-
stituted "the" for "said" the last place it appears in the seventh
stance of any other party to any such proceeding the
Department may require that the cost of service of the
paragraph. P.A. 83-345, in the second paragraph, substituted "15" for "fif-
subpoena or subpoena duces tecum and the fee of the wit-
teen"; in the sixth paragraph, inserted "or her", and substituted
ness be borne by the party at whose instance the witness
"legal" for "full"; in the last sentence of the sixth paragraph, in-
was summoned. In such case, the Department in its dis-
serted "so" and "circuit", and, following "issued", deleted "as
cretion, may require a deposit to cover the cost of such
aforesaid", and, following "court", deleted "of record"; in the sev-
service and witness fees. A subpoena or subpoena duces
enth paragraph, following "State", deleted "or any judge thereof,
tecum SO issued as above stated shall be served in the
either in term time or vacation"; in the seventh paragraph, pre-
ceding "discretion", deleted "or his"; and substituted "the" for
same manner as a subpoena issued by a circuit court.
"said" the last place it appears in the seventh paragraph.
App. 158
App. 159
Final legislative action, 83rd General Assembly:
(b) No public funds shall be expended for the care or
P.A. 83-334-June 20, 1983
treatment of any patient in an ambulatory surgical treat-
P.A. 83-345-June 20, 1983
ment center which has failed to file the financial state-
See Ill.Rev.Stat. ch. 1, 9 1105 as to the effect of (1) more than
ment required by this Section, and no public funds shall
one amendment of a section at the same session of the General
be paid to or on behalf of a facility which has failed to
Assembly or (2) two or more acts relating to the same subject
file a statement.
matter enacted by the same General Assembly.
(c) The Director shall promulgate regulations for the
filing of financial statements, and shall provide in these
157-8.7a. Statement or ownership
regulations for forms, information required, intervals and
§ 7a. (a) As a condition of the issuance or renewal of
dates of filing, and such other provisions as he may deem
the license of any ambulatory surgical treatment center,
necessary. Regulations shall be published in sufficient time
the applicant shall file a statement of ownership. The ap-
to permit those licensees who must first file financial
plicant shall agree to update the information required in
statements time in which to do so.
the statement of ownership every 6 months from the in-
(d) The Director shall seek the advice and comments
itial date of filing.
of other State and Federal agencies which require the
(b) The statement of ownership shall include the follow-
submission of financial data from facilities licensed under
ing:
this Act and shall incorporate the information require-
(1) The name, telephone number and occupation of
ments of these agencies into the forms it adopts or issues
every person who has entered into a contract to manage
under this Act and shall otherwise coordinate its regula-
or operate or who owns or controls, directly or indirect-
tions with the requirements of these agencies so as to
ly, any of the shares of stock of, or any other financial
impose the least possible burden on licensees. No other
interest in, the facility which is the subject of the applica-
State agency may require submission of financial data
tion or license, and the percentage of such interest; and
except as expressly authorized by law or as necessary
to meet requirements of federal law or regulation. In-
(2) The address of any facility, wherever located, any
formation obtained under this Section shall be made avail-
financial interest in which is owned or controlled, direct-
able, upon request, by the Department to any other State
ly or indirectly, by the applicant, if the facility is required
agency or legislative commission to which such informa-
to be licensed if it were located in this State.
tion is necessary for investigations or to execute the in-
Added by P.A. 81-224, § 1, eff. Jan. 1, 1980.
tent of State or Federal law or regulation.
Added by P.A. 81-224, § 1, eff. Jan. 1, 1980.
157-8.7b. Financial statements
§ 7b. (a) Each licensee shall file an attested financial
157-8.8. Construction, alterations or additions to treatment
statement with the Department by July 1, 1980 and at
centers-Approval by Department
times thereafter as required. An audited financial state-
§ 8. Before commencing construction of new facilities
ment may be required of a particular facility, if the Direc-
or specified types of alteration or additions to an existing
tor determines that additional information is needed.
ambulatory surgical treatment center, architectural draw-
ings and specifications therefor shall be submitted to the
Department for review and approval. Final approval of
App. 160
App. 161
the drawings and specifications for compliance with design
lated to the patients, unless continued treatment of any
and construction standards shall be obtained from the
given patient is necessary to protect his or her health or
Department before the alteration, addition, or new con-
life. A written order setting forth the grounds on which
struction is begun.
any action under this Section is based shall be served on
the licensee within 24 hours after such action is taken.
157-8.9. Inspections and investigations-Confidentiality of
Any licensee whose ambulatory surgical treatment center
information
has been closed may, within 10 days thereafter, by writ-
ten notice, request that the Director conduct a hearing
§ 9. The Department shall make or cause to be made
and a reinspection under the provisions of this Act. If a
such inspections and investigations as it deems necessary
subsequent inspection discloses that the violations of this
but in no case less than 4 inspections of any licensed facil-
Act or rules, regulations or standards have been abated,
ity in a fiscal year. Information received by the Depart-
the Director shall cancel the order of closing and permit
ment through filed reports, inspection, or as otherwise
patients to be treated therein. The remedies provided in
authorized under this Act shall not be disclosed publicly
this Section are in addition to and not exclusive of any
in such manner as to identify individual patients, except
other remedy provided by law.
to another State agency for purposes of investigation of
professional or business practices in a licensed ambulatory
Added by P.A. 81-224, § 1, eff. Jan. 1, 1980.
surgical treatment center, which State agency shall not
1 Paragraph 157-8.12 of this chapter.
disclose such individual patient information publicly.
Every facility licensed under this Act and any premises
157-8.9b. Complaints-Ambulatory surgical treatment center
proposed to be conducted as a facility by an applicant for
a license shall be open at all reasonable times to an in-
§ 9b. The Department shall establish by rule a proce-
spection authorized in writing by the Director. No notice
dure for receiving and investigating complaints regarding
need be given to any person prior to any inspection.
any ambulatory surgical treatment center or any physi-
cian practicing in any such facility.
Amended by P.A. 81-1509, Art. I, § 69, eff. Sept. 26, 1980.
Added by P.A. 81-224, $ 1, eff. Jan. 1, 1980.
Article I of P.A. 81-1509 was the 1980 Combining Revisory Act,
which resolved multiple actions of the 81st General Assembly
through P.A. 81-1224.
157-8.10. Standards, rules and regulations-Construction-
Personnel-Equipment-Facilities, programs and services
157-8.9a. Closings-Orders-Hearings and reinspections
§ 10. The Department shall prescribe and publish mini-
§ 9a. Whenever an inspection of any ambulatory surgi-
mum standards, rules and regulations necessary to imple-
cal treatment center discloses that the continued opera-
ment the provisions of this Act which shall include, but
tion of such facility constitutes an imminent and serious
not be limited to:
menace to the health or safety of the patients thereof,
(a) construction of the facility including, but not limited
or in the event of a conviction of a licensee under Sec-
to, plumbing, heating, lighting, and ventilation which shall
tion 12 of this Act,1 the inspector is authorized to immedi-
ensure the health, safety, comfort and privacy of patients
ately close such facility. Once the facility has been closed,
and protection from fire hazard;
the personnel employed there shall cease any activity re-
App. 162
App. 163
(b) number and qualifications of all personnel, including
Amended by P.A. 82-783, Art. XI, $ 201, eff. July 13,
administrative and nursing personnel, having reponsibility
1982.
for any part of the care provided to the patients;
1 Chapter 110, 9 3-101 et seq.
(c) equipment essential to the health, welfare and safety
2 Chapter 110, 1 3-101.
of the patients; and
(d) facilities, programs and services to be provided in
157-8.12. Violations-Penalties
connection with the care of patients in ambulatory surgical
treatment centers.
$ 12. Any person opening, conducting or maintaining
an ambulatory surgical treatment center without a license
issued pursuant to this Act shall be guilty of a business
157-8.10a. Administrative Procedure Act-Application
offense punishable by a fine of $10,000 and each day's
$ 10a. The provisions of "The Illinois Administrative
violation shall constitute a separate offense. Any person
Procedure Act", approved September 22, 1975,1 are here-
opening, conducting or maintaining an ambulatory surgical
by expressly adopted and shall apply to all administrative
treatment center who violates any other provision of this
rules and procedures of the Department of Public Health
Act shall be guilty of a business offense punishable by
under this Act, except that in case of conflict between
a fine of not more than $10,000.
"The Illinois Administrative Procedure Act" and this Act
Amended by P.A. 81-224, § 1, eff. Jan. 1, 1980.
the provisions of this Act shall control, and except that
Section 5 of the Illinois Administrative Procedure Act2
157-8.13. Violation of Act or rules and regulations as
relating to procedures for rule-making does not apply to
the adoption of any rule required by federal law in con-
nuisance-Injunction
nection with which the Department is precluded by law
§ 13. The operation or maintenance of an ambulatory
from exercising any discretion.
surgical treatment center in violation of this Act or of
the Rules and Regulations promulgated by the Depart-
Added by P.A. 79-1347, $ 17, eff. July 1, 1977.
ment is declared a public nuisance inimical to the public
1 Chapter 127, 1 1001 et seq.
welfare. The Director of the Department, in the name of
2 Chapter 127, 1 1005.
the People of the State, through the Attorney General
or the State's Attorney of the county in which the viola-
tion occurs, may, in addition to other remedies herein pro-
157-8.11. Review under Administrative Review Law
vided, bring action for an injunction to restrain such viola-
§ 11. Whenever the Department refuses to grant, or
tion or to enjoin the future operation or maintenance of
revokes or suspends a license to open, conduct or maintain
any such ambulatory surgical treatment center.
an ambulatory surgical treatment center, the applicant or
licensee may have such decision judicially reviewed. The
157-8.14. Licensing Board-Appointment-Qualifications-
provisions of the Administrative Review Law¹ and the
Term-Vacancy-Expenses-Meetings-Duties
rules adopted pursuant thereto shall apply to and govern
all proceedings for the judicial review of final administra-
§ 14. The Governor shall appoint an Ambulatory Sur-
tive decisions of the Department hereunder. The term
gical Treatment Center Licensing Board composed of 12
"administrative decisions" is defined as in Section 3-101
persons. Four members shall be practicing physicians; one
of the Code of Civil Procedure.²
member shall be a practicing podiatrist; one member shall
App. 164
App. 165
be a dentist who has been licensed to perform oral sur-
157-8.15. Severability of invalid provisions
gery; one member shall be an Illinois registered profes-
§ 15. If any provision of this Act or the application
sional nurse who is employed in an ambulatory surgical
thereof to any person or circumstance shall be held in-
treatment center; one member shall be a person actively
valid, such invalidity shall not affect the provisions of ap-
engaged in the supervision or administration of a health
plication of the Act which can be given effect without the
facility; and 4 members shall represent the general public
invalid provision or application, and to this end the pro-
and shall have no personal economic interest in any insti-
visions of the Act are declared to be severable.
tution, place or building licensed pursuant to this Act. In
making Board appointments, the Governor shall give con-
sideration to recommendations made through the Director
157-8.16. Effective date
by appropriate professional organizations.
§ 16. This Act shall take effect upon its becoming a
Each member shall hold office for a term of 3 years and
law.
the terms of office of the members first taking office shall
expire, as designated at the time of appointments, 3 at
the end of the first year, 3 at the end of the second year,
and 6 at the end of the third year, after the date of ap-
pointment. The term of office of each original appointee
shall commence October 1, 1973; and the term of office
of each successor shall commence on October 1 of the year
in which his predecessor's term expires. Any member ap-
pointed to fill a vacancy occurring prior to the expiration
of the term for which his predecessor was appointed shall
be appointed for the remainder of such term. Board mem-
bers, while serving on business of the Board shall receive
actual and necessary travel and subsistence expenses while
SO serving away from their places of residence. The Board
shall meet as frequently as the Director deems necessary,
but not less than once a year. Upon request of 3 or more
members, the Director shall call a meeting of the Board.
The Board shall advise and consult with the Department
in the administration of this Act, provided that no rule,
regulation or standard shall be adopted by the Depart-
ment concerning the operation of ambulatory surgical
treatment centers licensed under this Act which has not
had prior approval of the Ambulatory Surgical Treatment
Center Licensing Board.
Amended by P.A. 79-339, § 1, eff. Oct. 1, 1975.
App. 166
App. 167
APPENDIX J
1153. Definitions
§ 3. As used in this Act: "Health care facilities" means
and includes the following facilities and organizations:
Health Facilities Planning Act,
111½ III. Rev. Stat. 11 1151, et seq.
1. An ambulatory surgical treatment center required to
be licensed pursuant to the "Ambulatory Surgical Treat-
ILLINOIS HEALTH FACILITIES PLANNING ACT
ment Center Act", approved July 19, 1973, as amended;¹
AN ACT to provide for the planning of Illinois health
2. An institution, place, building, or agency required
facilities. P.A. 78-1156, approved and eff. Aug. 27, 1974.
to be licensed pursuant to the "Hospital Licensing Act",
approved July 1, 1953, as amended;2
1151. Short title
3. Any institution required to be licensed pursuant to
$ 1. This Act shall be known and may be cited as the
the "Nursing Home Care Reform Act of 1979", approved
Illinois Health Facilities Planning Act.
August 23, 1979, as amended;3
1152. Purpose of Act
4. Hospitals, nursing homes, ambulatory surgical treat-
§ 2. The purpose of this Act is to establish a procedure
ment centers or kidney disease treatment centers, or
designed to reverse the trends of increasing costs of
health maintenance organizations maintained by the State
health care resulting from unnecessary construction or
or any department or agency thereof;
modification of health care facilities. Such procedure shall
5. Kidney disease treatment centers, including a free-
represent an attempt by the State of Illinois to improve
standing hemodialysis unit; and
the financial ability of the public to obtain necessary
6. Any health maintenance organization required to be
health services, and to establish an orderly and compre-
operated pursuant to the "Health Maintenance Organiza-
hensive health care delivery system which will guarantee
tion Act", approved August 27, 1974, as now or hereafter
the availability of quality health care to the general public.
amended,4 and which:
This Act shall establish a procedure (1) which requires
(A) is a qualified health maintenance organization under
a person establishing, constructing or modifying a health
Section 1310(d) of the Public Health Services Act;5 or
care facility, as herein defined, to have the qualifications,
background, character and financial resources to adequate-
(B) (i) provides or otherwise makes available to enrolled
ly provide a proper service for the community; (2) that
participants health care services, including at least the
promotes through the process of recognized local and area-
following basic health care services: usual physician ser-
wide health facilities planning, the orderly and economic
vices, hospitalization, laboratory, x-ray, emergency and
development of health care facilities in the State of Illi-
preventive services, and out of area coverage; (ii) is com-
nois that avoids unnecessary duplication of such facilities;
pensated (except for co-payments) for the provision of the
(3) that promotes planning for and development of health
basic health care services listed in clause (i) to enrolled
care facilities needed for comprehensive health care es-
participants by a payment which is paid on a periodic
pecially in areas where the health planning process has
basis without regard to the date the health care services
identified unmet needs; and (4) that carries out these pur-
are provided and which is fixed without regard to the fre-
poses in coordination with the Agency and the comprehen-
quency, extent, or kind of health service actually provided;
sive State health plan developed by that Agency.
and (iii) provides physicians' services primarily (I) direct-
Amended by P.A. 80-941, § 1, eff. Sept. 22, 1977.
App. 168
App. 169
ly through physicians who are either employees or part-
in any activity which involves the providing, administering
ners of such organization, or (II) through arrangements
or financing of any type of health care facility, or (d) who
with individual physicians or one or more groups of physi-
is or ever has been a member of the immediate family
cians (organized on a group practice or individual prac-
of the person defined by (a), (b), or (c).
tice basis).
"State Board" means the Health Facilities Planning
No federally owned facility shall be subject to the pro-
Board.
visions of this Act, nor facilities used solely for healing
"Construction or modification" means the establishment,
by prayer or spiritual means.
erection, building, alteration, reconstruction, moderniza-
With the exception of those health care facilities specifi-
tion, improvement, extension, discontinuation, change of
cally included in this Section, nothing in this Act shall
ownership, of or by a health care facility, or the purchase
be intended to include facilities operated as a part of the
or acquisition by or through a health care facility of equip-
practice of a physician or other licensed health care pro-
ment or service for diagnostic or therapeutic purposes or
fessional, whether practicing in his individual capacity or
for facility administration or operation, or any capital ex-
within the legal structure of any partnership, medical or
penditure made by or on behalf of a health care facility
professional corporation, or unincorporated medical or pro-
which exceeds the capital expenditure minimum.
fessional group. Further, this Act shall not apply to physi-
"Establish" means the construction of a health care
cians or other licensed health care professional's practices
facility or the replacement of an existing facility on an-
where such practices are carried out in a portion of a
other site.
health care facility under contract with such health care
facility by a physician or by other licensed health care
"Major medical equipment" means medical equipment
professionals, whether practicing in his individual capaci-
which is used for the provision of medical and other health
ty or within the legal structure of any partnership, medi-
services and which costs in excess of the capital expen-
cal or professional corporation, or unincorporated medical
diture minimum, except that such term does not include
or professional groups. This Act shall apply to construc-
medical equipment acquired by or on behalf of a clinical
tion or modification and to establishment by such health
laboratory to provide clinical laboratory services if the
care facility of such contracted portion which is subject
clinical laboratory is independent of a physician's office
to facility licensing requirements, irrespective of the party
and a hospital and it has been determined under Title
responsible for such action or attendant financial obliga-
XVIII of the Social Security Act6 to meet the require-
tion.
ments of paragraphs (10) and (11) of Section 1861(s) of such
Act.⁷ In determining whether medical equipment has a
"Person" means any one or more natural persons, legal
value in excess of the capital expenditure minimum, the
entities, governmental bodies other than federal, or any
value of studies, surveys, designs, plans, working draw-
combination thereof.
ings, specifications, and other activities essential to the
"Consumer" means any person other than a person (a)
acquisition of such equipment shall be included.
whose major occupation currently involves or whose of-
"Capital Expenditure" means an expenditure: (A) made
ficial capacity within the last 12 months has involved the
by or on behalf of a health care facility (as such a facil-
providing, administering or financing of any type of health
ity is defined in this Act); and (B) which under generally
care facility, (b) who is engaged in health research or the
accepted accounting principles is not properly chargeable
teaching of health, (c) who has a material financial interest
as an expense of operation and maintenance, or is made
App. 170
App. 171
to obtain by lease or comparable arrangement any facility
"Local health planning organization" means those local
or part thereof or any equipment for a facility or part;
health planning organizations that are designated as such
and which exceeds the capital expenditure minimum.
by the areawide health planning organization of the appro-
For the purpose of this paragraph, the cost of any
priate area.
studies, surveys, designs, plans, working drawings, speci-
"Physician" means a person licensed to practice in ac-
fications, and other activities essential to the acquisition,
cordance with the Medical Practice Act, as amended.9
improvement, expansion, or replacement of any plant or
equipment with respect to which an expenditure is made
"Licensed health care professional" means a person
shall be included in determining if such expenditure ex-
licensed to practice a health profession under pertinent
ceeds the capital expenditures minimum. Donations of
licensing statutes of the State of Illinois.
equipment or facilities to a health care facility which if
"Director" means the Director of the Illinois Depart-
acquired directly by such facility would be subject to
ment of Public Health.
review under this Act shall be considered capital expen-
ditures, and a transfer of equipment or facilities for less
"Agency" means the Illinois Department of Public
than fair market value shall be considered a capital ex-
Health.
penditure for purposes of this Act if a transfer of the
"Comprehensive health planning" means health planning
equipment or facilities at fair market value would be sub-
concerned with the total population and all health and as-
ject to review.
sociated problems that affect the well-being of people and
"Capital expenditure minimum" means $400,000 for ma-
that encompasses health services, health manpower, and
jor medical equipment and $600,000 for all other capital
health facilities; and the coordination among these and
expenditures, both of which shall be annually adjusted to
with those social, economic, and environmental factors that
reflect the increase in construction costs due to inflation.
affect health.
"Areawide" means a major area of the State delineated
Amended by P.A. 82-745, § 1, eff. May 7, 1982; P.A.
on a geographic, demographic, and functional basis for
83-333, $ 63, eff. Sept. 14, 1983.
health planning and for health service and having within
1 Paragraph 157.8-1 et seq. of this chapter.
it one or more local areas for health planning and health
2 Paragraph 142 et seq. of this chapter.
service. The term "region", as contrasted with the term
3 Paragraph 4151-101 et seq. of this chapter.
"subregion", and the word "area" may be used synony-
mously with with term "areawide".
4 Paragraph 1401 et seq. of this chapter.
5 42 U.S.C.A. § 300e-9.
"Local" means a subarea of a delineated major area that
6 42 U.S.C.A. § 1395 et seq.
on a geographic, demographic, and functional basis may
7 42 U.S.C.A. § 1395x.
be considered to be part of such major area. The term
8 42 U.S.C.A. § 300k et seq.
"subregion" may be used synonymously with the term
"local".
9 Chapter 111, 1 4401 et seq.
"Areawide health planning organization" or "Compre-
hensive health planning organization" means the health
1153.1. Major medical equipment-Acquisition
systems agency designated by the Secretary, Department
§ 3.1. Until January 1, 1984 and not thereafter, any
of Health, Education, and Welfare, pursuant to federal
person proposing to acquire major medical equipment (as
Public Law 93-641,8 or any successor agency,
defined in this Act) is subject to the provisions of this
App. 172
App. 173
Act regarding obtaining a permit or exemption. The pro-
members individuals familiar with community health needs
visions of this Section shall be in effect until January 1,
but whose interest in the operation, construction or utiliza-
1984, or the repeal of Public Law 93-641, as amended,
tion of health care facilities are derived from factors other
whichever shall come first.
than those related to his profession, business, or economic
Added by P.A. 82-745, § 1, eff. May 7, 1982.
gain, and who represent, so far as possible, different geo-
1 42 U.S.C.A. $ 300k et seq.
graphic areas of the State. Not more than 7 of the ap-
pointments shall be of the same political party.
Paragraph effective until Jan. 1, 1984, or the repeal
The Directors of the Illinois Departments of Public Aid,
of the National Health Planning and Resources De-
Mental Health and Public Health, or their designated rep-
velopment Act of 1974 (42 U.S.C.A. § 300k et seq.).
resentatives, shall serve as ex-officio, non-voting members
of the State Board.
1154. Health Facilities Planning Board-Membership-Ap-
Of those appointed by the Governor as voting members,
pointment-Term-Compensation-Quorum
each member shall hold office for a term of 3 years: pro-
§ 4. There is created the Health Facilities Planning
vided, that any member appointed to fill a vacancy oc-
Board, which shall perform such functions as hereinafter
curring prior to the expiration of the term for which his
described in this Act.
predecessor was appointed shall be appointed for the re-
The State Board shall consist of 13 voting members, in-
mainder of such term and the term of office of each suc-
cluding: 7 consumer members; one member representing
cessor shall commence on July 1 of the year in which his
the commercial health insurance industry in Illinois; one
predecessor's term expires. In making original appoint-
member representing the hospital service corporations in
ments to the State Board, the Governor shall appoint 5
Illinois; one member who is actively engaged in the field
members for a term of one year, 5 for a term of 2 years,
of hospital management; one member who is a professional
and 3 for a term of 3 years, and each of these terms of
nurse registered in Illinois; one member who is a physi-
office shall commence on July 1, 1974. Each member shall
cian in active private practice licensed in Illinois to prac-
hold office until his successor is appointed and qualified.
tice medicine in all of its branches; and one member who
No member shall serve more than 3 consecutive 3-year
is actively engaged in the field of skilled nursing or inter-
terms, except for those members who are ex-officio, non-
mediate care facility management.
voting members.
The State Board shall be appointed by the Governor,
State Board members, while serving on business of the
with the advice and consent of the Senate. In making the
State Board, shall receive actual and necessary travel and
appointments, the Governor shall give consideration to
subsistence expenses while so serving away from their
recommendations made by (1) the professional organiza-
places of residence. In addition, while serving on business
tions concerned with hospital management for the hospital
of the State Board, each member shall receive compen-
management appointment and (2) professional organiza-
sation of $150 per day for each day served at regular or
tions concerned with long term care facility management
special meetings of the State Board or at committee meet-
for the long term care facility management appointment
ings approved by the Chairman of the State Board, ex-
and (3) professional medical organizations for the physi-
cept that such compensation shall not exceed $7,500 in
cian appointment and (4) professional nursing organizations
any one year for any member.
for the nurse appointment, and shall appoint as consumer
App. 174
App. 175
The State Board shall provide for its own organization
obtain a permit for any purpose under this Act until the
and procedures, including the selection of a Chairman and
State health facilities plan referred to in paragraph (4)
such other officers as deemed necessary. The Director,
of Section 12 of this Act1 has been approved and adopted
with concurrence of the State Board, shall name as full-
by the State Board subsequent to public hearings hav-
time Executive Secretary of the State Board, a person
ing been held thereon.
qualified in health care facility planning and in administra-
A permit or exemption shall be obtained prior to the
tion. The Agency shall provide administrative and staff
acquisition of major medical equipment or to the construe-
support for the State Board. The State Board shall ad-
tion or modification of a health care facility which:
vise the Director of its budgetary and staff needs and con-
sult with the Director on annual budget preparation.
(a) requires a total capital expenditure in excess of the
capital expenditure minimum; or
The State Board shall meet at least once each quarter,
or as often as the Chairman of the State Board deems
(b) substantially changes the scope or changes the fune-
necessary, or upon the request of a majority of the mem-
tional operation of the facility; or
bers.
(c) changes the bed capacity of a health care facility
Seven members of the State Board shall constitute a
by increasing or decreasing the total number of beds or
quorum. The affirmative vote of 7 of the members of the
by distributing beds among various categories of service
State Board shall be necessary for any action requiring
or by relocating beds from one physical facility or site
a vote to be taken by the State Board. A vacancy in the
to another by more than 10 beds or more than 10% of
membership of the State Board shall not impair the right
total bed capacity as defined by the State Board, which-
of a quorum to exercise all the rights and perform all the
ever is less, over a 2 year period.
duties of the State Board as provided by this Act.
A permit shall be valid only for the defined construction
Amended by P.A. 81-149, $ 1, eff. Jan. 1, 1980.
or modifications, site, amount and person named in the
application for such permit and shall not be transferable
or assignable. A permit shall be valid until such time as
1155. Permits or exemptions-Construction, modification or
the project has been completed, provided that (a) obliga-
establishment of health care facilities-Acquisition of
tion of the project occurs within 12 months following issu-
major medical equipment
ance of the permit except for major construction projects
§ 5. After effective dates set by the State Board, no
such obligation must occur with 18 months following is-
person shall construct, modify or establish a health care
suance of the permit; and (b) the project commences and
facility or acquire major medical equipment without first
proceeds to completion with due diligence. Major construc-
obtaining a permit or exemption from the State Board.
tion projects, for the purposes of this Act, shall include
The State Board shall set effective dates applicable to all
but are not limited to: projects for the construction of new
or to each classification or category of health care facilities
buildings; additions to existing facilities; modernization
and applicable to all or each type of transaction for which
projects whose cost is in excess of $1,000,000 or 10% of
a permit is required. Varying effective dates may be set,
the facilities' operating revenue, whichever is less; and
providing the date or dates SO set shall apply uniformly
such other projects as the State Board shall define and
statewide.
prescribe pursuant to this Act. The State Board may re-
Notwithstanding any effective dates established by this
new that permit for an additional reasonable length of
Act or by the State Board, no person shall be required to
time upon showing by the applicant that additional time
App. 176
App. 177
is required to complete the establishment, construction or
The State Board shall establish by regulation the proce-
modification of the health care facility or acquisition of
dures and requirements regarding issuance of exemptions.
major medical equipment.
Such exemptions shall be limited to those transactions
specified by Title XV of the federal Public Health Services
Persons who otherwise would be required to obtain a
Act1 and shall include acquisitions of existing health care
permit shall be exempt from such requirement if the State
facilities by any person.
Board finds that with respect to establishing a new facility
or construction of new buildings or additions or modifica-
All applications shall be signed by the applicant and
tions to an existing facility, final plans and specifications
shall be verified by any 2 officers thereof.
for such work have prior to October 1, 1974, been sub-
Upon receipt of an application for a permit, the State
mitted to and approved by the Department of Public
Board shall approve and authorize the issuance of a per-
Health in accordance with the requirements of applicable
mit if it finds (1) that the applicant is fit, willing, and able
laws. Such exemptions shall be null and void after Decem-
to provice a proper standard of health care service for
ber 31, 1979 unless binding construction contracts were
the community with particular regard to the qualification,
signed prior to December 1, 1979 and unless construction
background and character of the applicant, (2) that eco-
has commenced prior to December 31, 1979. Such exemp-
nomic feasibility is demonstrated in terms of effect on the
tions shall be valid until such time as the project has been
existing and projected operating budget of the applicant
completed provided that the project proceeds to comple-
and of the health care facility; in terms of the applicant's
tion with due diligence.
ability to establish and operate such facility in accordance
The acquisition by any person of major medical equip-
with licensure regulations promulgated under pertinent
ment that will not be owned by or located in a health
state laws; and in terms of the projected impact on the
care facility and that will not be used to provide services
total health care expenditures in the facility and communi-
to inpatients of a health care facility shall be exempt from
ty, (3) that safeguards are provided which assure that the
review provided that a notice is filed in accordance with
establishment, construction or modification of the health
exemption requirements.
care facility or acquisition of major medical equipment is
consistent with the public interest, and (4) that the pro-
Amended by P.A. 82-745, § 1, eff. May 7, 1982.
posed project is consistent with the orderly and economic
1 Paragraph 1162 of this chapter.
development of such facilities and equipment and is in ac-
cord with standards, criteria, or plans of need adopted
1156. Application for permit or exemption-Exemption
and approved pursuant to the provisions of Section 12 of
this Act.2
regulations
§ 6. An application for a permit or exemption shall be
Amended by P.A. 82-745, $ 1, eff. May 7, 1982.
made to the State Board upon forms provided by the
1 42 U.S.C.A. § 300u et seq.
State Board. This application shall contain such informa-
2 Paragraph 1162 of this chapter.
tion as the State Board deems necessary. Such applica-
tion shall include affirmative evidence on which the Direc-
tor may make the findings required under this Section
1156.1. Submission of applications-Timetable
and upon which the State Board may make its decision
$ 6.1. The State Board shall require applications to be
on the approval or denial of the permit or exemption.
submitted in accordance with a timetable established by
the State Agency, and review all completed applications
App. 178
App. 179
pertaining to similar types of services, facilities, or equip-
Recognition of these organizations with regard to health
ment affecting the same health service area in relation
facilities planning, including establishment of the criteria
to each other (but no less often than twice a year).
for such recognition, shall be the responsibility of the
State Board, as provided elsewhere in this Act.
The State Board shall specify when applications may be
exempted from this timetable and from being reviewed
The Agency is authorized to make grants-in-aid or to
in relation to each other.
furnish direct services to organizations in the development
of health facilities planning capability, as a part of other
The provisions of this Section shall be in effect until
financial and service assistance which the Agency is em-
January 1, 1984, or the repeal of Public Law 93-641, as
powered and required to provide in support of health plan-
amended,¹ whichever shall come first.
ning organizations.
Added by P.A. 82-745, § 1, eff. May 7, 1982.
Upon receipt of an application for a permit to establish,
1 42 U.S.C.A. $ 300k et seq.
construct or modify a health care facility, the Agency shall
Paragraph effective until Jan. 1, 1984, or the repeal
notify the applicant in writing within 10 working days
of the National Health Planning and Resources De-
either that the application is complete or the reasons why
velopment Act of 1974 (42 U.S.C.A. § 300k et seq.).
the application is not complete. If the application is com-
plete, the Agency shall notify affected persons of the
beginning of a review and the review time cycle for the
1157. Cooperation of other age. ies in obtaining informa-
purposes of this Act shall begin on the date this notifica-
tion relating to applications
tion is mailed.
§ 7. The Director of the State Board may request the
Upon notifying affected persons of the beginning of a
cooperation of county and multiple-county health depart-
review of an application for a permit, a complete copy
ments, municipal boards of health, and other governmental
of such application shall be transmitted to the areawide
and nongovernmental agencies in obtaining information
health planning organization serving the area or communi-
and in conducting investigations relating to applications
ty where the health care facility or major medical equip-
for permits.
ment is proposed to be acquired, established, constructed
Amended by P.A. 80-941, § 1, eff. Sept. 22, 1977.
or modified. The Agency shall also transmit a complete
copy of such application to any reasonably contiguous
areawide health planning organization. The Agency shall
1158. Areawide health planning organizations
afford a reasonable time as established by the State
§ 8. The Agency shall assist communities and regions
Board, but not to exceed 120 days in length, for the
throughout the State to establish areawide health planning
areawise planning organizations' review of the application.
organizations and, in particular, shall assist such organiza-
After reviewing the application, each recognized areawide
tions to develop health care facilities planning which meets
planning organization shall certify its findings to the State
the criteria for recognition thereof. Areawide health plan-
Board as to whether or not the application is approved
ning organizations may be recognized to do health facilities
or disapproved in accordance with standards, criteria or
planning by providing this component of health planning
plans of need adopted and approved by the recognized
within the organization or by contracting with a special-
areawide health planning organization pursuant to its rec-
purpose health planning organization that meets the
ognition by the State Board for health care facilities plan-
criteria for health facilities planning.
ning. The 120-day period shall begin on the day the ap-
App. 180
App. 181
plication is found to be substantially complete, as that
the Agency shall be afforded a reasonable time, but not
term is defined by the State Board. During such 120-day
to exceed 120 days, for its review and finding thereon.
period, the applicant may request an extension. An ap-
The Agency shall submit its review and finding to the
plicant may modify the application at any time prior to
State Board for its approval or denial of the permit.
a final administrative decision on the application.
When an application for a permit is initially reviewed
Upon its receipt of an application, the areawide health
by a recognized areawide health planning organization or
planning organization or the Agency, as the case may be,
the Agency, as herein provided, the organization or the
may submit a copy of such application to the federally-rec-
Agency, as the case may be, shall afford an opportunity
ognized professional standards review organizátion, if any,
for a public hearing within a reasonable time after receipt
and appropriate local health planning organization, if any,
of the complete application, not to exceed 90 days. Notice
existing in the area where the proposed project is to oc-
of such hearing shall be made promptly by certified mail
cur. Such organizations may review the application for a
to the applicant and, within 10 days of the hearing, by
permit and submit, within 30 days from the receipt of the
publication in a newspaper of general circulation in the
application, a finding to the agency or to the areawide
area or community to be affected. Such hearing shall be
health planning organization, as the case may be. A re-
conducted in the area or community where the proposed
view and finding by a federally-recognized professional
project is to occur, and shall be for the purpose of allow-
standards review organization must be relevant to the ac-
ing the applicant and any interested person to present
tivities for which such organization is recognized, and shall
public testimony concerning the approval, denial, renewal
be considered by the Agency or the areawide health plan-
or revocation of the permit. All interested persons attend-
ning organization, as the case may be, in its review of
ing such hearing shall be given reasonable opportunity to
the application.
present their views or arguments in writing or orally, and
The State Board shall prescribe and provide the forms
a record of all such testimony shall accompany any recom-
upon which the review and finding of the organization
mendation of the Agency or the recognized areawide
shall be made. The recognized areawide health planning
health planning organization for the issuance, denial, rev-
organizations shall submit their review and finding to the
ocation or renewal of a permit to the State Board. The
Agency for its finding on the application and transmittal
State Board shall promulate reasonable rules and regula-
to the State Board for its consideration of denial or ap-
tions governing the procedure and conduct of such hear-
proval. Whenever the State Board renders a decision on
ings.
an application which is contrary to the finding of the
Amended by P.A. 82-745, $ 1, eff. May 7, 1982.
areawide health planning organization or agency thereon,
1 Paragraph 1160 of this chapter.
that organization shall be provided a written detailed
statement of the reasons for the inconsistency and shall
be afforded an opportunity for a hearing before a hear-
1159. Certificate of recognition-Application-Hearing
ing officer, who is appointed by the State Board. Such
§ 9. An application for a certificate of recognition for
hearing shall be conducted in accordance with the provi-
an areawide health planning organization for health facili-
sions specified in Section 10 of this Act.¹
ties planning shall be made to the State Board upon forms
If there is no areawide health planning organization in
provided by it and shall contain evidence that standards,
the area where the proposed establishment, construction
criteria and plans of need have been adopted and approved
or modification of a health care facility is to occur, then
by the organization for health care facilities planning for
App. 182
App. 183
the area which the applicant intends to serve and such
Agency pursuant to the public hearing in conjunction with
other information as may reasonably be required. All such
the recommendation of the Agency for the approval, de-
applications for a certificate of recognition shall be sub-
nial or revocation of the certificate of recognition.
mitted to the State Board and evaluated by the Agency.
Amended by P.A. 81-149, $ 1, eff. Jan. 1, 1980.
If the Agency finds that the applicant for a certificate
of recognition for health facilities planning meets the
criteria established under this Act, it shall submit its
1160. Denial of application for permit or renewal thereof
recommendation of approval to the State Board. A certifi-
or a certificate of recognition-Appearance-Hearing-
cate of recognition shall be approved by the State Board
Record-Review under Administrative Review Law-Wit-
and shall be valid for such period as the State Board,
nesses
upon its findings determines that the recognized areawide
§ 10. When a motion by the State Board, to approve
health planning organization continues to comply with the
an application for a permit, a renewal thereof or a cer-
criteria for recognition. The State Board shall annually
tificate of recognition, fails to pass, or when a motion to
review the certificate of recognition and afford an oppor-
deny an application for permit, a renewal thereof or a cer-
tunity for public comment in order to determine that the
tificate of recognition, is passed, the applicant or a holder
recognized areawide health planning organization continues
of a permit, as the case may be, and such other parties
to comply with the criteria for recognition. A certificate
as the State Board permits, will be given an opportunity
of recognition may be revoked by the State Board, follow-
to appear before the State Board and present such infor-
ing opportunity for appeal and hearing as provided in this
mation as may be relevant to the approval of a permit
Act. Upon loss of recognition, funds awarded to the area-
or certificate or renewal or in resistance of a denial of
wide health planning organization by the Agency pursuant
the application.
to this Act shall be terminated.
Subsequent to an appearance by the applicant before
When an application for a certificate of recognition of an
the State Board or default of such opportunity to appear,
areawide health planning organization for health facilities
a motion by the State Board to approve an application
planning is made to the State Board, the Agency shall
for permit, a renewal thereof or a certificate of recogni-
conduct a public hearing within a reasonable period after
tion which fails to pass or a motion to deny an applica-
receipt of the application, not to exceed 90 days. Notice
tion for permit, a renewal thereof or a certificate of rec-
of such hearing shall be made promptly to the applicant
ognition which passes shall be considered denial of the
by certified mail and by publication in a newspaper of gen-
application for permit, renewal thereof, or certificate of
eral circulation in the area where the applicant intends
recognition, as the case may be. Such action of denial or
to conduct health facilities planning. Such hearings shall
an action by the State Board to revoke a permit or a cer-
be conducted by the Agency in the area affected, and shall
tificate of recognition shall be communicated to the appli-
be for the purpose of allowing the applicant and all inter-
cant or holder of the permit or certificate of need. Such
ested parties to present public testimony concerning the
person or organization shall be afforded an opportunity
approval, denial or revocation of a certificate of recogni-
for a hearing before a hearing officer, who is appointed
tion. All interested parties attending such hearing shall
by the State Board. A written notice of a request for such
be given reasonable opportunity to present their views
hearing shall be served upon the Chairman of the State
orally or in writing, and a record of such testimony shall
Board within 30 days following notification of the deci-
be transmitted to the State Board by the Agency. The
sion of the State Board. The State Board shall schedule
State Board shall consider all testimony submitted by the
App. 184
App. 185
a hearing within 30 days thereafter. Following its consid-
poena or subpoena duces tecum SO issued shall be served
eration of the report of the hearing, or upon default of
in the same manner as a subpoena issued out of a court.
the party to the hearing, the State Board shall make its
Any circuit court of this State upon the application of
final determination, specifying its findings and conclusions.
the State Board or upon the application of any other party
A copy of such determination shall be sent by certified
to the proceeding, may, in its discretion, compel the at-
mail or served personally upon the party.
tendance of witnesses, the production of books, papers,
A full and complete record shall be kept of all proceed-
records, or memoranda and the giving of testimony before
ings, including the notice of hearing, complaint, and all
it or its hearing officer conducting an investigation or
other documents in the nature of pleadings, written mo-
holding a hearing authorized by this Act, by an attach-
tions filed in the proceedings, and the report and orders
ment for contempt, or otherwise, in the same manner as
of the State Board or hearing officer. All testimony shall
production of evidence may be compelled before the court.
be reported but need not be transcribed unless the deci-
The State Board or its hearing officer, or any party to
sion is appealed in accordance with Administrative Review
a hearing under this Act, may cause the depositions of
Law, as now or hereafter amended.¹ A copy or copies of
witnesses within the State to be taken in the manner
the transcript may be obtained by any interested party
prescribed by law for like depositions in civil actions in
on payment of the cost of preparing such copy or copies.
courts of this State, and to that end compel the attend-
The State Board or hearing officer shall upon-its own
ance of witnesses and the production of books, papers or
or his motion, or on the written request of any party to
memoranda.
the proceeding who has, in the State Board's or hearing
Amended by P.A. 82-783, Art. XI, § 215, eff. July 13,
officer's opinion, demonstrated the relevancy of such re-
1982.
quest to the outcome of the proceedings, issue subpoenas
requiring the attendance and the giving of testimony by
1 Chapter 110, 1 3-101 et seq.
witnesses, and subpoenas duces tecum requiring the pro-
duction of books, papers, records, or memoranda. The fees
1161. Review under Administrative Review Law
of witnesses for attendance and travel shall be the same
as the fees of witnesses before the circuit court of this
§ 11. Any person who is adversely affected by a final
State.
decision of the State Board may have such decision judi-
cially reviewed. The provisions of the Administrative Re-
When the witness is subpoenaed at the instance of the
view Law, as now or hereafter amended,¹ and the rules
State Board, or its hearing officer, such fees shall be paid
adopted pursuant thereto shall apply to and govern all
in the same manner as other expenses of the Agency, and
proceedings for the judicial review of final administrative
when the witness is subpoenaed at the instance of any
decisions of the State Board. The term "administrative
other party to any such proceeding the State Board may,
decisions" is as defined in Section 3-101 of the Code of
in accordance with the rules of the Agency, require that
Civil Procedure.2
the cost of service of the subpoena or subpoena duces
tecum and the fee of the witness be borne by the party
Amended by P.A. 82-745, $ 1, eff. May 7, 1982; P.A.
at whose instance the witness is summoned. In such case,
82-783, Art. XI, $ 215, eff. July 13, 1982; P.A. 82-1057,
the State Board in its discretion, may require a deposit
Art. II, § 16, eff. Feb. 11, 1983.
to cover the cost of such service and witness fees. A sub-
1 Chapter 110, 1 3-101 et seq.
2 Chapter 110, 1 3-101.
App. 186
App. 187
Article II of P.A. 82-1057, the 2nd 1982 Revisory Act, resolved
(c) The extent of utilization of existing facilities;
multiple actions of the 82nd General Assembly through P.A. 82-1016.
(d) The availability of facilities which may serve as
alternatives or substitutes;
1162. Powers and duties of agency
(e) The availability of personnel necessary to the opera-
§ 12. For purposes of this Act, the Agency shall exer-
tion of the facility;
cise the following powers and duties:
(f) Multi-institutional planning and the establishment of
(1) Prescribe, with prior approval of the State Board,
multi-institutional systems where feasible;
rules, regulations, standards, criteria, procedures or re-
views which may vary according to the purpose for which
(g) The financial and economic feasibility of proposed
a particular review is being conducted or the type of proj-
construction or modification;
ect reviewed and which are required to carry out the pro-
(h) In the case of health care facilities established by
visions and purposes of this Act;
a religious body or denomination, the needs of the mem-
(2) Adopt, with approval of the State Board, procedures
bers of such religious body or denomination may be con-
for public notice and hearing on all proposed rules, regula-
sidered to be public need; and
tions, standards, criteria, and plans required to carry out
(i) The provisions of Sections 1527, 1531 and 1532, Title
the provisions of this Act;
XV, of the federal Public Health Services Act.1
(3) Prescribe, with prior approval of the State Board,
The health care facility plans which are developed and
criteria for recognition for areawide health planning
adopted in accordance with this Section shall form the
organizations, including, but not limited to, standards for
basis for the plan of the State to deal most effectively
evaluating the scientific bases for judgments on need and
with statewide health needs in regard to health care fa-
procedure for making these determinations;
cilities.
(4) Develop criteria and standards for health care
(5) Coordinate with other state agencies having respon-
facilities planning, conduct statewide inventories of health
sibilities affecting health care facilities, including those of
care facilities, and develop health care facility plans which,
licensure and cost reporting;
upon adoption by the State Board, shall be utilized in the
(6) Coordinate with Federal agencies the procedures es-
review of applications for permit under this Act. Such
tablished by this Act and the required functions to be
health facility plans shall be coordinated by the Agen-
established by the Agency for purposes of carrying out
cy with the health care facility plans areawide health
the duties and powers which have been designated to the
planning organizations and with other pertinent State
Agency under the provisions of Sec. 1122, Title XI, of
Plans.
the Social Security Act;2
In developing health care facility plans, the Agency
(7) Solicit, accept, hold and administer on behalf of the
should consider but not be limited to the following:
State any grants or bequests of money, securities or prop-
(a) The size, composition and growth of the population
erty to the Agency for use by the State Board, the Agen-
of the area to be served;
cy or recognized areawide health planning organizations
in the administration of this Act;
(b) The number of existing and planned facilities offer-
ing similar programs;
(8) Charge and collect from the permit applicant an
amount determined by the State Board to be a reasonable
App. 188
App. 189
application fee for the processing of the application by the
(12) Prescribe, with prior approval of the State Board,
State Board, the Agency and the appropriate recognized
rules, regulations, standards and criteria pertaining to the
areawide health planning organization. The State Board
granting of permits for construction and modifications
shall set the amount by regulation. All fees collected
which are emergent in nature and must be undertaken
under the provision of this Act shall be deposited with
immediately to prevent or correct structural deficiencies
the State Treasurer;
or hazardous conditions that may harm or injure persons
(9) Where local resources are not sufficient, to provide
using the facility, as defined in the rules and regulations
the necessary technical and financial assistance to recog-
of the State Board. This procedure is exempt from public
nized areawide health planning organizations to assist in
hearing requirements of this Act.
the planning which will enable the organization to effec-
Amended by P.A. 82-745, § 1, eff. May 7, 1982.
tively carry out the functions provided for it in this Act;
1 42 U.S.C.A. §§ 300m-6, 300n and 300n-1.
(10) In addition to all powers and duties required of
2 42 U.S.C.A. $ 1320a-1.
the Agency and the State Board pertaining to applica-
tions for a permit for the construction or modification of
health care facilities, the Agency shall prescribe, with the
1163. Investigations of applications for permits and cer-
prior approval of the State Board and in consultation with
tificates of recognition
the recognized areawide health planning organizations,
§ 13. The Agency or the State Board shall make or
procedures for review, standards and criteria which the
cause to be made such investigations as it or the State
State Board, upon adoption thereof, shall utilize to make
Board deems necessary in connection with an application
periodic areawide reviews and determinations of the ap-
for a permit or an application for a certificate of recogni-
propriateness of any existing health services being ren-
tion, or in connection with a determination of whether or
dered by health care facilities subject to the Act. The
not construction or modification which has been com-
State Board shall consider recommendations of the area-
menced is in accord with the permit issued by the State
wide health planning organization and the Agency in mak-
Board or whether construction or modification has been
ing its determinations;
commenced without a permit having been obtained. The
(11) Prescribe, with prior approval of the State Board in
State Board may issue subpoenas duces tecum requiring
consultation with the recognized areawide health planning
the production of records and may administer oaths to
organizations, rules, regulations, standards and criteria for
such witnesses.
the conduct of an expeditious review of applications for
Any circuit court of this State, upon the application of
permits for projects of construction or modification of a
the State Board or upon the application of any party to
health care facility, which projects are non-substantive in
such proceedings, may, in its discretion, compel the at-
nature. Such rules shall not abridge the right of areawide
tendance of witnesses, the production of books, papers,
health planning organizations to make recommendations
records, or memoranda and the giving of testimony before
on the classification and approval of projects, nor shall
the State Board, by a proceeding as for contempt, or
such rules prevent the conduct of a public hearing upon
otherwise, in the same manner as production of evidence
the timely request of an interested party. Such reviews
may be compelled before the court.
shall not exceed 60 days from the date the application
The Agency shall require all health facilities operating
is declared to be complete by the Agency;
in this State to provide such reasonable reports at such
times and containing such information as is needed by it
App. 190
App. 191
to carry out the purposes and provisions of this Act.
represent the Agency in the proceedings, maintain an ac-
Health facilities not complying with this requirement shall
tion in the name of the State for injunction or other proc-
be reported to licensing, accrediting, certifying, or pay-
ess against any person or governmental unit to restrain
ment agencies as being in violation of State law. Health
or prevent the acquisition of major medical equipment,
care facilities and other parties at interest shall have
the establishment, construction or modification of a health
reasonable access, under rules established by the State
care facility without the required permit, or to restrain
Board, to all planning information submitted in accord
or prevent the occupancy or utilization of the equipment
with this Act pertaining to their area.
acquired or facility which was constructed or modified
Amended by P.A. 80-941, § 1, eff. Sept. 22, 1977.
without the required permit.
Amended by P.A. 82-745, § 1, eff. May 7, 1982.
1163.1. Necessity of permit
§ 13.1. Any person constructing or modifying a health
1165.1. Individual liability for damages
care facility or portion thereof without obtaining a re-
§ 15.1. No individual who, as a member of the State
quired permit shall not be eligible to apply for any neces-
Board or of an areawide health planning organization
sary operating licenses or be eligible for payment by any
board, or as an employee of the State or of an areawide
State agency for services rendered in that facility or por-
health planning organization, shall, by reason of his per-
tion thereof until the required permit is obtained.
formance of any duty, function, or activity required of,
Added by P.A. 80-941, § 1, eff. Sept. 22, 1977.
or authorized to be undertaken by this Act, be liable for
the payment of damages under any law of the State, if
1164. Violations-Fine
he has acted within the scope of such duty, function, or
activity, has exercised due care, and has acted, with
§ 14. Any person acquiring major medical equipment
respect to that performance, without malice toward any
or establishing, constructing or modifying a health care
person affected by it.
facility without a permit issued under this Act or in viola-
tion of the terms of such a permit is guilty of a business
Added by P.A. 80-941, § 1, eff. Sept. 22, 1977.
offense and may be fined up to $10,000. The State's Attor-
neys of the several counties or the Attorney General shall
1166. Partial invalidity
represent the People of the State of Illinois in proceedings
§ 16. If any provision of this Act or the application
under this Section.
thereof to any person or circumstance shall be held in-
Amended by P.A. 82-745, § 1, eff. May 7, 1982.
valid, such invalidity shall not affect the provisions or ap-
plication of this Act which can be given effect without
1165. Proceedings to prevent acquisition of major medical
the invalid provision or application, and to this end the
equipment or the establishment, construction or modifi-
provisions of the Act are declared to be severable.
cation of health care facility
$ 15. Notwithstanding the existence or pursuit of any
1167. Home rule unit-Exercise of powers and functions
other remedy, the Agency may, in the manner provided
§ 17. It is hereby specifically declared that the powers
by law, upon the advice of the Attorney General who shall
and functions exercised and performed by the State pur-
suant to this Act are exclusive to the State of Illinois and
App. 192
App. 193
that these powers and functions shall not be exercised,
APPENDIX K
either independently or concurrently, by any home rule
unit.
Medical Practice Act
1168. Administrative Procedure Act-Application
111 III. Rev. Stat. 1 4400-22
$ 18. The Illinois Administrative Procedure Act, as now
or hereafter amended,¹ is hereby expressly adopted and
4400-22. Disciplinary action-Grounds
incorporated herein and shall apply to the State Board
§ 22. A. The Department may revoke, suspend, place
and the Agency as if all of the provisions of such Act
on probationary status, or take any other disciplinary ac-
were included in this Act; except that in case of a con-
tion as the Department may deem proper with regard to
fliet between the Administrative Procedure Act and this
the license or visiting professor permit of any person
Act the provisions of this Act shall control. This Section
issued under this Act to practice medicine, or to treat
applies to the Agency and the State Board 6 months after
human ailments without the use of drugs and without op-
the effective date of this amendatory Act of 1977.
erative surgery upon any of the following grounds:
Added by P.A. 80-818, § 1, eff. Sept. 20, 1977.
1. Performance of an elective abortion in any place,
I Chapter 127, 1 1001 et seq.
locale, facility, or institution other than:
(a) a facility licensed pursuant to the "Ambulatory
Surgical Treatment Center Act" as heretofore or here-
after amended;¹
(b) an institution licensed pursuant to "An Act relating
to the inspection, supervision, licensing, and regulation of
hospitals" approved July 1, 1953, as heretofore or here-
after amended;2 or
(c) an ambulatory surgical treatment center or hospital-
ization or care facility maintained by the State or any
agency thereof, where such department or agency has
authority under law to establish and enforce standards
for the ambulatory surgical treatment centers, hospitaliza-
tion, or care facilities under its management and control; or
(d) ambulatory surgical treatment centers, hospitaliza-
tion or care facilities maintained by the Federal Govern-
ment; or
(e) ambulatory surgical treatment centers, hospitaliza-
tion or care facilities maintained by any university or col-
lege established under the laws of this State and sup-
ported principally by public funds raised by taxation;
App. 194
App. 195
2. Performance of an abortion procedure in a wilful and
13. Violation of any provision of this Act or of the
wanton manner on a woman who was not pregnant at the
"Medical Practice Act", approved June 30, 1923, as
time the abortion procedure was performed;
amended,³ prior to the repeal of that Act, or violation of
the rules, or a final administrative action of the Direc-
3. The conviction of a felony in this or any other juris-
tor, after consideration of the recommendation of the Dis-
diction, except as otherwise provided in subsection B of
this Section, whether or not related to practice under this
ciplinary Board;
Act, or the entry of a guilty or nolo contendere plea to
14. Dividing with anyone other than physicians with
a felony charge;
whom the licensee practices in a partnership, Professional
Association or Medical or Professional Corporation any
4. Gross negligence in practice under this Act;
fee, commission, rebate or other form of compensation for
5. Engaging in dishonorable, unethical or unprofessional
any professional services not actually and personally ren-
conduct of a character likely to deceive, defraud or harm
dered. Nothing contained in this subsection prohibits per-
the public;
sons holding valid and current licenses under this Act
6. Obtaining any fee by fraud, deceit, or misrepresenta-
from practicing medicine in partnership under a partner-
tion;
ship agreement or in a corporation authorized by "The
Medical Corporation Act", as now or hereafter amended,4
7. Habitual or excessive use or abuse of drugs defined
or as an association authorized by "The Professional Asso-
in law as controlled substances, of alcohol, or of any other
ciation Act" as now or hereafter amended,5 or under "The
substances which results in the inability to practice with
Professional Corporation Act" as now or hereafter amend-
reasonable judgment, skill or safety;
ed,6 or from pooling, sharing, dividing or apportioning the
8. Practicing under a false or, except as provided by
fees and monies received by them or by the partnership,
law, an assumed name;
corporation or association in accordance with the partner-
9. Fraud or misrepresentation in applying for, or pro-
ship agreement or the policies of the Board of Directors
of the corporation or association. Nothing contained in this
curing, a license under this Act or in connection with ap-
subsection prohibits 2 or more corporations authorized by
plying for renewal of a license under this Act;
"The Medical Corporation Act", as now or hereafter
10. Making a false or misleading statement regarding
amended, from forming a partnership or joint venture of
their skill or the efficacy or value of the medicine, treat-
such corporations, and providing medical, surgical and
ment, or remedy prescribed by them at their direction in
scientific research and knowledge by employees of these
the treatment of any disease or other condition of the
corporations if such employees are licensed under this Act,
body or mind;
or from pooling, sharing, dividing, or apportioning the fees
11. Allowing another person or organization to use
and monies received by the partnership or joint venture
their license, procured under this Act, to practice;
in accordance with the partnership or joint venture agree-
ment. Nothing contained in this subsection shall abrogate
12. Disciplinary action of another state or jurisdiction
the right of 2 or more persons, holding valid and current
against a license or other authorization to practice as a
licenses under this Act, to each receive adequate compen-
medical doctor, doctor of osteopathy or doctor of chiro-
sation for concurrently rendering professional services to
practic, a certified copy of the record of the action taken
a patient and divide a fee; provided, the patient has full
by the other state or jurisdiction being prima facie evi-
knowledge of the division, and, provided, that the division
dence thereof;
App. 196
App. 197
is made in proportion to the services performed and re-
suant to the Abused and Neglected Child Reporting Act,
sponsibility assumed by each;
approved June 26, 1975, as now or hereafter amended,8
and upon proof by clear and convincing evidence that the
15. A finding by the Medical Disciplinary Board that
licensee has caused a child to be an abused child or neg-
the registrant after having his or her license placed on
lected child as defined in the Abused and Neglected Child
probationary status or subjected to conditions or restric-
Reporting Act;
tions violated the terms of the probation or failed to com-
ply with such terms or conditions;
24. Solicitation of professional patronage by any cor-
poration, agents or persons, or profiting from those rep-
16. Abandonment of a patient;
resenting themselves to be agents of the licensee;
17. Prescribing, selling, administering, distributing, giv-
25. Gross and wilful and continued overcharging for
ing or self-administering any drug classified as a controlled
professional services, including filing false statements for
substance (designated product) or narcotic for other than
collection of fees for which services are not rendered, in-
medically accepted therapeutic purposes;
cluding, but not limited to, filing such false statements
18. Promotion of the sale of drugs, devices, appliances
for collection of monies for services not rendered from the
or goods provided for a patient in such manner as to ex-
medical assistance program of the Department of Public
ploit the patient for financial gain of the physician;
Aid under the Public Aid Code;
19. Offering, undertaking or agreeing to cure or treat
26. A pattern of practice or other behavior which dem-
disease by a secret method, procedure, treatment or med-
onstrates incapacity or incompetence to practice under this
icine, or the treating, operating or prescribing for any
Act;
human condition by a method, means or procedure which
27. Mental illness or disability which results in the in-
the licensee refuses to divulge upon demand of the De-
ability to practice under this Act with reasonable judg-
partment;
ment, skill or safety;
20. Immoral conduct in the commission of any act
28. Physical illness, including, but not limited to, deteri-
related to the licensee's practice;
oration through the aging process, or loss of motor skill
21. Wilfully making or filing false records or reports
which results in a physician's inability to practice under
in his or her practice as a physician, including, but not
this Act with reasonable judgment, skill or safety;
limited to, false records to support claims against the med-
ical assistance program of the Department of Public Aid
29. Cheating on or attempt to subvert the licensing ex-
aminations administered under this Act;
under the Public Aid Code;⁷
22. Wilful omission to file or record, or wilfully im-
30. Wilfully or negligently violating the confidentiality
between physician and patient except as required by law;
peding the filing or recording, or inducing another per-
son to omit to file or record, medical reports as required
31. The use of any false, fraudulent, or deceptive state-
by law, or wilfully failing to report an instance of sus-
ment in any document connected with practice under this
pected abuse or neglect as required by law;
Act;
23. Being named as a perpetrator in an indicated report
32. Aiding and abetting an individual not licensed un-
by the Department of Children and Family Services pur-
der this Act in the practice of a profession licensed under
this Act;
App. 198
App. 199
33. Violating state or federal laws or regulations re-
3 years next after receipt by the Department of a com-
lating to controlled substances;
plaint alleging the commission of or notice of the convie-
tion order for any of the acts described herein. Except
34. Failure to report to the Department any adverse
for the grounds numbered (8), (9) and (29), no action shall
final action taken against them by another licensing juris-
be commenced more than 5 years after the date of the
diction (any other state or any territory of the United
incident or act alleged to have violated this Section. In
States or any foreign state or country), by any peer re-
the event of the settlement of any claim or cause of ac-
view body, by any health care institution, by any profes-
tion in favor of the claimant or the reduction to final judg-
sional society or association related to practice under this
ment of any civil action in favor of the plaintiff, such
Act, by any governmental agency, by any law enforcement
claim, cause of action or civil action being grounded on
agency, or by any court for acts or conduct similar to acts
the allegation that a person licensed under this Act was
or conduct which would constitute grounds for action as
negligent in providing care, the Department shall have
defined in this Section;
an additional period of one year from the date of such
35. Failure to report to the Department surrender of
settlement or final judgment in which to investigate and
a license or authorization to practice as a medical doc-
commence formal disciplinary proceedings under Section
tor, a doctor of osteopathy or doctor of chiropractic in
36 of this Act,9 except as otherwise provided by law. The
another state or jurisdiction, or surrender of membership
time during which the holder of the license was outside
on any medical staff or in any medical or professional
the State of Illinois shall not be included within any period
association or society, while under disciplinary investiga-
of time limiting the commencement of disciplinary action
tion by any of those authorities or bodies, for acts or con-
by the Department.
duct similar to acts or conduct which would constitute
The entry of an order or judgment by any circuit court
grounds for action as defined in this Section;
establishing that any person holding a license under this
36. Failure to report to the Department any adverse
Act is a person in need of mental treatment operates as
judgment, settlement, or award arising from a liability
a suspension of that license. That person may resume
claim related to acts or conduct similar to acts or con-
their practice only upon the entry of a Departmental order
duct which would constitute grounds for action as defined
based upon a finding by the Medical Disciplinary Board
in this Section;
that they have been determined to be recovered from
37. Failure to transfer copies of medical records as re-
mental illness by the court and upon the Disciplinary
Board's recommendation that they be permitted to resume
quired by law;
their practice.
38. Failure to furnish the Department, its investigators
or representatives, relevant information, legally requested
The Department may refuse to issue or may suspend
by the Department after consultation with the Chief Medi-
the license of any person who fails to file a return, or
cal Coordinator or the Deputy Medical Coordinator;
to pay the tax, penalty or interest shown in a filed return,
or to pay any final assessment of tax, penalty or interest,
All proceedings to suspend, revoke, place on probation-
as required by any tax Act administered by the Illinois
ary status, or take any other disciplinary action as the
Department of Revenue, until such time as the require-
Department may deem proper, with regard to a license on
ments of any such tax Act are satisfied.
any of the foregoing grounds, must be commenced within
App. 200
App. 201
The Department, upon the recommendation of the Dis-
by the Disciplinary Board, as a condition for continued,
ciplinary Board, shall adopt rules which set forth stan-
reinstated, or renewed licensure to practice. Any physi-
dards to be used in determining:
cian, whose license was granted pursuant to Sections 9,
17, or 19 of this Act, 10 or, continued, reinstated, renewed,
(a) When a person will be deemed sufficiently rehabili-
disciplined or supervised, subject to such terms, conditions
tated to warrant the public trust;
or restrictions who shall fail to comply with such terms,
(b) What constitutes dishonorable, unethical or unpro-
conditions or restrictions, or to complete a required pro-
fessional conduct of a character likely to deceive, defraud,
gram of care, counseling, or treatment, as determined by
or harm the public;
the Chief Medical Coordinator or Deputy Medical Coordi-
(c) What constitutes immoral conduct in the commis-
nators, shall be referred to the Director for a determina-
tion as to whether the licensee shall have their license
sion of any act related to the licensee's practice; and
suspended immediately, pending a hearing by the Discipli-
(d) What constitutes gross negligence in the practice
nary Board. In instances in which the Director immediate-
of medicine.
ly suspends a license under this Section, a hearing upon
However, no such rule shall be admissible into evidence
such person's license must be convened by the Discipli-
in any civil action except for review of a licensing or other
nary Board within 15 days after such suspension and com-
disciplinary action under this Act.
pleted without appreciable delay. The Disciplinary Board
shall have the authority to review the subject physician's
In enforcing this Section, the Illinois State Medical Disci-
record of treatment and counseling regarding the impair-
plinary Board, upon a showing of a possible violation, may
ment, to the extent permitted by applicable federal stat-
compel any individual licensed to practice under this Act,
utes and regulations safeguarding the confidentiality of
or who has applied for licensure or certification pursuant
medical records.
to this Act, to submit to a mental or physical examina-
tion, or both, as required by and at the expense of the
An individual licensed under this Act, affected under
Department. The examining physician or physicians shall
this Section, shall be afforded an opportunity to dem-
be those specifically designated by the Disciplinary Board.
onstrate to the Disciplinary Board that they can resume
The individual to be examined may have, at his or her
practice in compliance with acceptable and prevailing stan-
own expense, another physician of his or her choice pres-
dards under the provisions of their license.
ent during all aspects of the examination. Failure of any
The Department may promulgate rules for the imposi-
individual to submit to mental or physical examination,
tion of fines in disciplinary cases, not to exceed $5,000
when directed, shall be grounds for suspension of his or
for each violation of this Act. Fines may be imposed in
her license until such time as the individual submits to
conjunction with other forms of disciplinary action, but
the examination if the Disciplinary Board finds, after no-
shall not be the exclusive disposition of any disciplinary
tice and hearing, that the refusal to submit to the exam-
action arising out of conduct resulting in death or injury
ination was without reasonable cause. If the Disciplinary
to a patient. Any funds collected from such fines shall be
Board finds a physician unable to practice because of the
deposited in the Medical Disciplinary Fund.
reasons set forth in this Section, the Disciplinary Board
shall require such physician to submit to care, counsel-
B. The Department shall revoke the license or visiting
ing, or treatment by physicians approved or designated
professor permit of any person issued under this Act to
practice medicine or to treat human ailments without the
App. 202
App. 203
use of drugs and without operative surgery, who has been
APPENDIX L
convicted a second time of committing any felony under
the Illinois Controlled Substances Act,¹¹ as amended, or
who has been convicted a second time of committing a
77 Illinois Administrative Code,
Class 1 felony under Sections 8A-3 and 8A-6 of The Illi-
nois Public Aid Code, as amended. 12 A person whose li-
Chapter 1, $ 205, Subchapter b
cense or visiting professor permit is revoked under this
subsection B of Section 22 of this Act shall be prohibited
TITLE 77: PUBLIC HEALTH
from practicing medicine or treating human ailments with-
CHAPTER 1: DEPARTMENT OF PUBLIC HEALTH
out the use of drugs and without operative surgery.
SUBCHAPTER b: HOSPITAL AND AMBULATORY
Amended by P.A. 85-686, § 2, eff. Sept. 22, 1987.
CARE FACILITIES
1 Chapter 111½, 9 157-8.1 et seq.
PART 205
AMBULATORY SURGICAL TREATMENT CENTER
2 Chapter 111½, 9 142 et seq.
3 Paragraph 4401 et seq. of this chapter (repealed; see, now,
LICENSING REQUIREMENTS
1 4400-1 et seq. of this chapter).
4 Chapter 32, 1 631 et seq.
SUBPART A: GENERAL
5 Chapter 106½, 9 101 et seq.
Section
6 Chapter 32, 1 415-1 et seq.
205.110
Definitions
7 Chapter 23, 1 1-1 et seq.
205.120
Licensure
B Chapter 23, 1 2051 et seq.
9 Paragraph 4400-36 of this chapter.
SUBPART B: OWNERSHIP AND MANAGEMENT
10 Paragraph 4400-9, 4400-17 or 4400-19 of this chapter.
Section
11 Chapter 56½, 1 1100 et seq.
205.210
Ownership, Control and Management
12 Chapter 23, 11 8A-3 and 8A-6.
205.220
Organizational Plan
205.230
Standards of Professional Work
205.240
Policies and Procedures Manual
SUBPART C: PERSONNEL
Section
205.310
Personnel Policies
205.320
Presence of Qualified Physician
205.330
Nursing Personnel
205.340
Basic Life Support
205.350
Ambulatory Surgical Treatment Center
App. 204
App. 205
SUBPART D: EQUIPMENT, SUPPLIES, AND
SUBPART I: BUILDING DESIGN, CONSTRUCTION
FACILITY MAINTENANCE
STANDARDS, AND PHYSICAL REQUIREMENTS
Section
Section
205.410
Equipment
205.1310
Plant and Service Requirements
205.420
Sanitary Facility
205.1320
General Considerations
205.1330
New Construction, Additions and Major
SUBPART E: GENERAL PATIENT CARE
Alterations
205.1340
Minor Alterations and Remodeling Changes
Section
205.1350
Administration Department and Public
205.510
Emergency Care
Areas
205.520
Preoperative Care
205.1360
Clinical Facilities
205.530
Operative Care
205.1370
Support Service Areas
205.540
Postoperative Care
205.1380
Diagnostic Facilities
205.1390
Other Building Services
SUBPART F: RECORDS AND REPORTS
205.1400
Details and Finishes
205.1410
Construction, Including Fire-Resistive
Section
Requirements
205.610
Clinical Records
205.620
Statistical Data
SUBPART J: MECHANICAL
SUBPART G: ADDITIONAL REQUIREMENTS
Section
FOR FACILITIES IN WHICH OBSTETRICAL/
205.1510
General
GYNECOLOGICAL PROCEDURES ARE PERFORMED
205.1520
Thermal and Acoustical Insulation
205.1530
Steam and Hot Water Systems
Section
205.1540
Air Conditioning, Heating and Ventilating
205.710
Abortions
Systems
205.720
Personnel
205.730
General Patient Care
205.740
Preoperative Requirements
SUBPART K: PLUMBING AND OTHER
Postoperative Requirements
PIPING SYSTEMS
205.750
205.760
Reports
Section
205.1610
General
SUBPART H: PROCEDURES
205.1620
Plumbing Fixtures
FOR INVESTIGATION OF COMPLAINTS
205.1630
Water System
205.1640
Drainage Systems
Section
205.1650
Identification
205.810
Complaints
205.820
Acknowledgement of Complaint
205.830
Investigation
205.840
Prompt Investigation
205.850
Methods
205.860
Notification of Results
App. 206
App. 207
nurse-anesthetist by the American Association of Nurse
SUBPART L: ELECTRICAL
Anesthetists.
Section
"Department" means the Department of Public Health
205.1710
General
of the State of Illinois.
205.1720
Switchboards and Power Panels
"Licensed Practical Nurse" means a person licensed un-
205.1730
Panelboards
der The Illinois Nursing Act (III. Rev. Stat. 1979, ch.
205.1740
Lighting
111, par. 3401 et seq.) to practice practical nursing.
205.1750
Receptacles (Convenience Outlets)
"Qualified Anesthesiologist" means a physician who is
205.1760
Grounding
licensed to practice medicine in all its branches in the
205.1770
Equipment Installation in Special Areas
State of Illinois and who is a Diplomate of the Amer-
205.1780
Emergency Electric Service
ican Board of Anesthesiology; or American College of
205.1790
Fire Alarm System
Anesthesiology; or who is a Diplomate of the American
Osteopathic Board of Anesthesiology; or who is Board
TABLE A General Pressure Relationships and Ventilation
eligible or possess training and experience equivalent
Rates of Ambulatory Surgery Area
to such eligibility; or who possess training and experi-
ence acceptable to the Department and whose primary
AUTHORITY: Implementing and authorized by the Am-
practice is anesthesiology.
bulatory Surgical Treatment Center Act (III. Rev. Stat.
"Qualified Consulting Committee" means a committee
1981, ch. 111½, pars. 157-8.1 et seq.).
whose members are qualified Surgeons, Obstetricians,
SOURCE: Amended July 18, 1974; emergency amend-
Gynecologists, Anesthesiologists or Pathologists or other
ment at 3 III. Reg. 10, p. 43, effective February 23, 1979,
Consulting Physicians consisting of not less than 3 mem-
for a maximum of 150 days; amended at 3 Ill. Reg. 30, p.
bers who shall establish the required standards com-
371, effective July 23, 1979; amended at 5 III. Reg. 12756,
mensurate with the size, scope, extent and complexity
effective November 4, 1981; amended at 6 Ill. Reg. 6220,
of service programs and procedures for which the facil-
6225, and 6226, effective May 17, 1982; amended at 6 III.
ity is licensed. The consulting committee shall act as
Reg. 10974, effective August 30, 1982; amended at 6 III.
the credentials committee.
Reg. 13337, effective October 20, 1982; amended at 7 III.
"Qualified Consulting Surgeon, Obstetrician, Gynecolo-
Reg. 7640, effective June 14, 1983; codified at 8 III. Reg.
gist, Anesthesiologist, Pathologist, or other Consulting
9367.
Physician" means a physician who is licensed in the
State of Illinois and who is a Diplomate of an appropri-
ate specialty board or who has completed the training
SUBPART A: GENERAL
and experience required for specialty board certification.
Section 205.110 Definitions
"Qualified Physician" means an individual who is li-
"Ambulatory Surgical Treatment Center." The term am-
censed to practice medicine in all branches in the State
bulatory surgical treatment center shall have meaning
of Illinois.
as ascribed in the "Ambulatory Surgical Treatment
"Qualified Dentist" means a dentist who is licensed to
Center Act" of 1973 as now and hereafter amended.
practice under the Dental Practice Act, (III. Rev. Stat.
(The Act) (III. Rev. Stat. 1979, ch. 111½, pars. 157-8.1
1979, ch. 111, pars. 2202 et seq.).
et seq.).
"Qualified Podiatrist" means a podiatrist who is licensed
"Certified Registered Nurse Anesthetist" means a reg-
to practice under "An Act to regulate the practice of
istered professional nurse who has been certified as a
App. 208
App. 209
podiatry in the State of Illinois", (Ill. Rev. Stat. 1979,
6) description of services to be provided by the
ch. 111, pars. 4901 et seq.).
facility including a list of surgical procedures
"Registered Professional Nurse" means a registered
to be performed.
nurse or a registered professional nurse who is regis-
7) list of all personnel including their name, ad-
tered under the Illinois Nursing Act (Ill. Rev. Stat.
dress, position, qualifications and licensure.
1979, ch. 111, pars. 3401 et seq.), and practices profes-
8) All applications shall be signed by the applicant
sional nursing.
and the application shall include a verification
"Student Nurse" means a person enrolled in a course
form acknowledging the application to be true
of instruction at an approved school of professional or
and complete and certifying that the applicant
practical nursing and who is supervised by a nursing
has knowledge of and understands the action
instructor of the school.
required to comply with the Act and licensing
(Source: Amended at 3 III. Reg. 30, p. 371, effective July
requirements. The form shall be verified by a
notary public. The forms shall be accompanied
23, 1979)
by a license fee of $500.
9) As a condition of the issuance or renewal of the
Section 205.120 Licensure
license of any Ambulatory Surgical Treatment
a) An application for license shall be made to the De-
Center:
partment on forms provided by it. This application
A) The applicant shall file a statement of owner-
shall contain the information required under the Act
ship. The applicant shall agree to update
and this Part. The application shall be submitted
the information required in the statement
not less than sixty (60) days prior to the date of
of ownership every 6 months from the ini-
intended operation.
tial date of filing,
b) The application shall include but not be limited to
B) Each license shall file an attested financial
the following information:
statement with the Department by July 1,
1) the name(s) and address(es) of person(s) who
1980 and at times thereafter as required,
own and/or operate the facility and the name
C) Financial statements shall be filed annual-
under which they do business. A corporation
ly on or before April 1, of each year for
shall submit:
the previous calendar year, or within three
A) a copy of its certificate of incorporation,
(3) months after the close of the fiscal
B) list of the title, name, and address of each
period of the licensee,
D) A financial statement shall be filed with
of its corporate officers,
C) list of the name and address of each of its
the Department on forms provided by the
shareholders holding more than 5%, of the
Department or on annual financial state-
ments prepared on forms used by the ap-
shares.
2) location of the facility.
plicant. At minimum, they shall include de-
3) description of the facility including but not limited
tailed balance sheets, statements of income
to interviewing, examination, surgical, and re-
and statements of expense.
covery room facilities.
E) Every facility licensed under this Act, and
4) schematic architectural plans.
any premises proposed to be conducted as
5) documentation of compliance with all applicable
a facility by an applicant for a license shall
building, utility and Safety Codes.
App. 210
App. 211
be open during its regular business hours
e) The facility shall give written notice to the Depart-
to an inspection authorized in writing by
ment within seven (7) days of any of the following:
the Director. No notice need be given to
1) change of administrative staff,
any person prior to any inspection,
2) change of medical director,
F) Any corporation operating an Ambulatory
3) change of staff physicians,
Surgical Treatment Center devoted primar-
4) change of supervising nurse,
ily to providing facilities for abortion must
5) addition or deletion of surgical procedures per-
have a physician who is licensed to prac-
formed,
tice medicine in all of its branches and is
6) in the case of a corporation change in any share-
actively engaged in the practice of medicine
holders equity involving 5% or more interest.
at the center, on the Board of Directors
(Source: Amended at 6 III. Reg. 6220, effective May 17,
as a condition to licensure of the center.
1982)
c) Only those facilities, services, programs and proce-
dures included in the application shall be licensed.
SUBPART B: OWNERSHIP AND MANAGEMENT
A new application is required for the following:
1) change in ownership,
Section 205.210 Ownership, Control and Management
Ownership, control and management shall be disclosed at
2) change in location,
3) remodeling of facility SO as to change the inter-
the time of application. The names and addresses of each
viewing, examination, surgical or recovery room
person with financial interest in the facility shall be sub-
mitted to the Department.
space or number,
4) addition of services or programs.
(Source: Amended at 3 III. Reg. 30, p. 371, effective
AGENCY NOTE: The addition of new spe-
July 23, 1979)
cialty services, for example, podiatry or ob-
Section 205.220 Organizational Plan
stetrics/gynecology, may require changes in
An organizational plan shall be known to the staff and avail-
consulting committee, procedures and/or
able for public information in the facility. The document
staffing. Therefore, the Department finds
shall clearly set forth the organization, duties, responsibil-
that a new license is needed.
ity, accountability and relationships of professional staff
d) The license shall be valid for one (1) year, unless
and other personnel. All owners, administrators, profes-
sooner suspended or revoked, shall be renewable
sional staff and ancillary personnel shall act in accordance
annually upon approval by the Department and pay-
with this document. This document shall be submitted to
ment of a license fee of $300. Each license shall be
the Department with the initial application and thereafter
issued only for the premises and persons named in
will be reviewed at regular inspections by the Department.
the application and shall not be transferable or as-
(Source: Amended at 3 III. Reg. 30, p. 371, effective
signable. The licenses shall be posted in a conspicu-
July 23, 1979)
ous place on the licensed premises. A placard or
Section 205.230 Standards of Professional Work
registry of all physicians on staff in the facility shall
Management and/or the owner of the ambulatory surgical
be centrally located and available for inspection to
any interested persons. The renewal application
treatment center shall maintain proper standards of pro-
shall be on forms provided by the Department and
fessional work in the licensed facility.
shall be submitted to it not less than 30 days prior
to the expiration date.
App. 212
App. 213
a) A qualified consulting committee shall be appointed
5) The consulting committee shall act as a tissue
in writing by the management and/or owner of the
committee and shall review at least quarterly
ambulatory surgical treatment center and shall es-
pathological reports from procedures performed
tablish and enforce standards for professional work
by each physician on the staff. Evidence of such
in the facility and standards of competency for physi-
review shall be recorded in the minutes.
cians. The consulting committee shall meet not less
b) A qualified physician shall be designated "Medical
than quarterly and shall document all meetings with
Director."
written minutes. These written minutes shall be
1) The Medical Director shall secure compliance
maintained at the facility and shall be available for
with the policies and procedures pertaining to
inspection by the Department.
medical and surgical procedures, approved by
1) The membership of the consulting committee
the consulting committee.
shall reflect the types of procedures performed.
2) The Medical Director shall medically supervise
If the facility performs more than 50 procedures
the professional personnel involved directly in
per month or more than 10% of the total proce-
the care of patients undergoing surgical pro-
dures performed are in a specific speciality area
cedures, including their preoperative and post-
then there shall be a consulting physician of
operative care and follow-up.
that specialty on the consulting committee.
3) The Medical Director shall establish and secure
2) The consulting committee shall review develop-
compliance of standards for the observation of
ment and content of the written policies and
patients by nursing personnel during the post-
procedures of the center, the procedures for
operative period.
granting privileges, and the quality of the sur-
(Source: Amended at 3 III. Reg. 30, P. 371, effective
gical procedures performed. Evidence of such
July 23, 1979)
review shall be recorded in the minutes.
Section 205.240 Policies and Procedures Manual
3) Credentials shall be provided by those physicians
The management/owner of the ambulatory surgical treat-
seeking practice privileges. These credentials
ment center shall formulate a written policies and proce-
shall be reviewed by the credentials committee
dures manual. This shall be done in cooperation with the
and specific practice privileges identified and
medical and professional staff and shall be approved by
recorded. Record of such accepted practice privi-
the consulting committee. These procedures shall provide
leges shall be available for facility staff use and
for the acceptance, care, treatment, anesthesia services,
public information within the facility.
discharge, referral, and follow-up of all patients and all
4) A physician granted specific practice privileges
incidental operations of the facility. This manual shall be
all provide evidence that he/she has equiva-
available to all staff in the center and shall be followed
lent practice privileges in at least one licensed
by them at all times in the performance of their duties.
Illinois hospital. Documentation of said evidence
(Source: Amended at 3 III. Reg. 30, p. 371, effective
shall be available for inspection by the Depart-
July 23, 1979)
ment. A list of such privileges granted each
physician on the staff of the ambulatory surgi-
cal treatment center shall be posted at all times
for the staff of the center.
App. 214
App. 215
SUBPART C: PERSONNEL
Section 205.350 Ambulatory Surgical Treatment Center
Section 205.310 Personnel Policies
Each ambulatory surgical treatment center shall have one
Each ambulatory surgical treatment center shall have
of the following:
written personnel policies including job descriptions for
a) a qualified medical technician who is certified by
each staff position, which shall include minimum qualifica-
the American Society of Clinical Pathologists or is
tions required for the position. There shall be a docu-
the holder of a letter, certificate, or record from
mented procedure for orientation of new employees to the
the Bureau of Quality Assurance of the Department
facility's policies and procedures as well as the person-
of Health, Education, and Welfare that he/she has
nel policies including a copy of the appropriate job descrip-
passed the Federal Proficiency Examination Pro-
tion.
gram for Clinical Laboratory Technologists, to per-
(Source: Amended at 3 III. Reg. 30, p. 371, effective
form required laboratory procedures.
July 23, 1979)
b) A written agreement with a laboratory, licensed by
Section 205.320 Presence of Qualified Physician
the Department, to perform required laboratory
A qualified physician shall be present at the facility at
procedures.
all times during the operative and postoperative period
(Source: Amended at 3 III. Reg. 30, p. 371, effective
for all patients.
July 23, 1979)
(Source: Amended at 3 III. Reg. 30, p. 371, effective
July 23, 1979)
SUBPART D: EQUIPMENT, SUPPLIES,
Section 205.330 Nursing Personnel
AND FACILITY MAINTENANCE
At least one registered professional nurse with postgradu-
Section 205.410 Equipment
ate education or experience in surgical nursing shall direct
Equipment shall be in good working order and shall be
and supervise the nursing personnel and the nursing care
available in numbers sufficient to provide good patient care
of patients and shall be on duty at all times on the prem-
based on the procedures to be performed in the facility.
ises when patients are present.
a) There shall be monitoring equipment, suction ap-
Nursing care may be provided by student nurses and
paratus, oxygen and related items available within
licensed practical nurses who have been trained in
the surgical and postoperative recovery area. Car-
observation and emergency techniques for preoper-
diac pulmonary resuscitation equipment shall be
ative and postoperative care of surgical patients and
available in all facilities.
who are under the direct personnel supervision of a
b) There shall be written procedures governing the
registered nurse at all times.
care, use, sterilization, storage and disposal of all
(Source: Amended at 3 III. Reg. 30, p. 371, effective
materials to insure that an adequate supply of
July 23, (1979)
sterile equipment is available for each procedure.
The section on "Sterilization and Disinfection" from
Section 205.340 Basic Life Support
At least one person who is certified in "Basic Life Sup-
Infection Control in the Hospital, most recent edi-
port" by the American Heart Association shall be on the
tion, American Hospital Association, shall be used
premises while patients are present.
as the guideline.
(Source: Amended at 3 III. Reg. 30, p. 371, effective
e) There shall be written procedures to assure safety
in storage and use of inhalation anesthetics and
July 23, 1979)
medical gases. The current edition of the National
App. 216
App. 217
Fire Protection Association Code (Standard No. 56a)
globin or hematocrit and examination of the urine
shall be used as the standard.
for sugar, protein, and acetone shall be performed
d) There shall be written procedures to assure the
by a qualified laboratory technician prior to the fol-
safety in storage and use of all narcotics and medi-
lowing procedures:
cations in accordance with state and federal law.
1) those performed with general anesthesia,
(Source: Amended at 3 III. Reg. 30, p. 371, effective
2) those performed with local anesthesia with se-
July 23, 1979)
dation,
Section 205.420 Sanitary Facility
3) those performed to terminate pregnancy.
The ambulatory surgical treatment center shall insure
c) A written statement indicating informed consent
maintenance of a sanitary facility with all equipment in
and a signed authorization by the patient for the
good working order. Written procedures shall include pro-
performance of the specific surgical procedure shall
vision for garbage and refuse removal, insect and rodent
be procured and made part of the patient's clinical
control, maintenance of water, heat, ventilation and air
record.
conditioning, and electrical service.
d) Surgical procedures shall not be performed on pa-
(Source: Amended at 3 III. Reg. 30, p. 371, effective
tient's having medical, surgical, or psychiatric con-
July 23, 1979)
ditions or complications as specified by the consult-
ing committee in the facility's written policies.
(Source: Amended at 6 III. Reg. 10974, effective August
SUBPART E: GENERAL PATIENT CARE
30, 1982)
Section 205.510 Emergency Care
Section 205.530 Operative Care
a) Each facility shall have a written plan of procedure
a) Surgical procedures shall be performed only by a
to be followed in case of fire, explosion, or non-
qualified physician, dentist or podiatrist within the
patient medical emergency. This plan shall specify
limits of his/her defined specific practice privileges.
persons to be notified and actions to be taken and
b) A qualified anesthesiologist, a dental anesthesiolo-
shall be known by all staff of the facility.
gist or a certified registered nurse anesthetist,
b) Each facility shall be prepared to manage those
medically directed by a licensed physician who ad-
emergencies which may be associated with proce-
ministers or directs the administration of anesthesia
dures performed there.
in an Illinois licensed hospital, shall be present for
(Source: Amended at 3 III. Reg. 30, p. 371, effective
the administration of anesthetics and recovery of
July 23, 1979)
patients when any general or major regional anes-
thetic is used.
Section 205.520 Preoperative Care
a) Where medical evaluation, examination, and referral
e) All tissues removed during surgery shall be exam-
are made from a private physician's office, hospital,
ined by a consulting pathologist and all x-rays shall
or clinic, pertinent records thereof shall be available
be read by a consulting radiologist who shall pro-
and made part of the patient's clinical record at the
vide a written report of his/her examination to the
time the patient is registered and admitted to the
attending physician. A copy of this report shall be
ambulatory surgical treatment center.
filed in the patient's clinical record within seven (7)
b) A complete medical history shall be obtained and
days.
the physical examination shall be complete. A hemo-
(Source: Amended at 6 III. Reg. 13337, effective Oc-
tober 20, 1982)
App. 218
App. 219
Section 205.540 Postoperative Care
2) Limitations and/or restrictions of activities of
a) Patients who have had general anesthesia, local
the patient.
anesthesia with sedation, or a pregnancy termination
3) Specific telephone number to be used by the
shall be observed in the facility for a period of time
patient, at anytime, should any complication or
sufficient to ensure that no immediate postoperative
question arise.
complications are present. No patient shall be re-
4) A date for follow-up or return visit after the
quired to leave the center in less than one (1) hour
performance of the surgical procedure which
following the procedures.
shall be scheduled within six weeks.
b) Patients in whom a complication is known or sus-
e) Patients shall be discharged only on the written
pected to have occurred during or after the per-
signed order of a physician.
formance of a surgical procedure, shall be informed
(Source: Amended at 3 III. Reg. 30, p. 371, effective
of such condition and arrangements made for treat-
July 23, 1979)
ment of the complication. In the event of admis-
sion to an inpatient facility a summary of care given
SUBPART F: RECORDS AND REPORTS
in the ambulatory surgical treatment center con-
cerning the suspected complication shall accompany
Section 205.610 Clinical Records
Accurate and complete clinical records shall be maintained
the patient.
c) To insure availability of follow-up care at a licensed
for each patient and all entries in the clinical record shall
hospital, the ambulatory surgical treatment center
be made at the time the surgical procedure is performed
shall provide written documentation of one of the
and when care, treatment, medications, or other medical
services are given. The record shall include, but not be
following: 1) A transfer agreement with a licensed hospital
limited to, the following:
within approximately fifteen (15) minutes travel
a) patient identification.
time of the facility.
b) admitting information including patient history,
2) A statement that the medical director of the
physical examination findings, diagnosis or need for
facility has full admitting privileges at a licensed
medical services.
hospital within approximately fifteen (15) minutes
c) pre-counseling notes.
travel time and that he/she will assume respon-
d) signed informed consent.
sibility for all facility patients requiring such
e) confirmation of pregnancy (when abortion is per-
formed).
follow-up care.
3) A statement that each staff physician, dentist,
f) signed physician orders.
or podiatrist has admitting privileges in a li-
g) laboratory test reports, pathologist's report of tissue,
censed hospital within fifteen (15) minutes travel
and radiologist's report of x-rays.
h) anesthesia record.
time of the facility.
d) Written instructions shall be issued to all patients
i) operative record.
in accordance with the standards approved by the
j) medication and medical treatments.
consulting committee of the ambulatory surgical
k) recovery room progress notes.
treatment center and shall include the following:
I) physician and nurses' progress notes.
1) Symptoms of complications associated with pro-
m) condition at time of discharge.
cedures performed.
App. 220
App. 221
n) patient instructions.
Section 205.730 General Patient Care
o) post-counseling notes.
a) Examination
(Source: Amended at 3 III. Reg. 30, p. 371, effective
1) Prior to obstetrical procedures blood Rh factor
July 23, 1979)
shall be determined by a qualified laboratory
Section 205.620 Statistical Data
technician for every patient.
Each ambulatory surgical treatment center shall submit
2) The physician performing an abortion procedure
to the Department annually, clinical statistical data includ-
shall establish the diagnosis of pregnancy by ap-
ing the following:
propriate clinical evaluation and testing prior
a) the number and type of procedures performed.
to performing an abortion procedure.
b) the number and type of complications reported.
3) Time shall be allowed between the initial exam-
c) the number of patients requiring transfer to a li-
ination and termination of pregnancy to permit
censed hospital for treatment of complications.
the reporting to and reviewing of all laboratory
d) the number of patients returning for follow-up con-
tests with the patient by the facility physician.
tact.
b) Counseling
e) the number of deaths.
1) Counseling shall be provided following disclo-
(Source: Amended at 3 III. Reg. 30, p. 371, effective
sure to the patient of the diagnosis of preg-
July 23, 1979)
nancy, and prior to performance of any surgical
procedure. It shall be done individually and in
SUBPART G: ADDITIONAL REQUIREMENTS
a room designated for such use which shall not
be the procedure room.
FOR FACILITIES IN WHICH
OBSTETRICAL/GYNECOLOGICAL PROCEDURES
2) All facilities shall provide orientation training
for counselors and insure that each counselor
ARE PERFORMED
is qualified to:
Section 205.710 Abortions
A) Counseling shall be done by a person quali-
Abortions shall be provided to the public with the same
fied to:
standards of safety, effectiveness, and regard for patients
i)
discuss alternatives for dealing with
rights as any other health service.
an unwanted pregnancy;
(Source: Amended at 3 Ill. Reg. 30, p. 371, effective
ii) describe the procedures used in the
July 23, 1979)
facility;
Section 205.720 Personnel
iii) explain the risks and possible compli-
At least one registered professional nurse with postgrad-
cations of each procedure;
uate education or experience in obstetrical or gynecologi-
iv) provide contraception information.
cal nursing shall supervise and direct the nursing person-
B) Demonstration of such counseling qualifica-
nel and care of patients having obstetrical procedures.
tions shall be required by the Department.
AGENCY NOTE: Procedures involving the
C) Documentation of orientation training shall
pregnant uterus are subject to particular
be required by the Department.
complications and postoperative care re-
D) Counselors shall have no financial interest
quires a special knowledge on the part of
in the patient's decision.
nursing staff.
3) Counseling shall include a discussion of alter-
(Source: Amended at 3 III. Reg. 30, p. 371, effective
natives, description of the procedure to be per-
July 23, 1979)
App. 222
App. 223
formed, explanation of risks and possible compli-
consent, family planning services may be initiated
cations. Contraceptive information may be pro-
prior to the discharge of the patient.
vided postoperatively. Group counseling may be
(Source: Amended at 5 III. Reg. 12756, effective No-
provided in addition to individual counseling.
vember 4, 1981)
The patient's clinical record shall include docu-
Section 205.760 Reports
mentation of the counseling received.
a) A report of each abortion procedure performed in
AGENCY NOTE: In the opinion of the Am-
an ambulatory surgical treatment center shall be
bulatory Surgical Treatment Center Li-
made to the Department on forms provided by it.
censing Board, the patient should make a
These reports shall be submitted not later than ten
decision concerning the procedure in an at-
(10) days following the month in which the abor-
mosphere free from coercion. Consequent-
tion was performed. Reports shall be submitted on
ly, the Board believes this is best accom-
procedures performed whether or not the patient
plished in a room separate and apart from
was pregnant.
the procedure room. The Board believes
b) Reports shall not be filled out in such a manner
that it is difficult to reach a truly volun-
or at such a time as to avoid accurate reporting
tary decision while the patient is undressed
of complications.
and on the procedure table.
c) If the facility becomes aware of a complication fol-
(Source: Amended at 5 III. Reg. 12756, effective No-
lowing the submission of the original report, then
vember 4, 1981)
a supplemental report shall be submitted to the De-
Section 205.740 Preoperative Requirements
partment.
Abortions may be performed in an ambulatory surgical
(Source: Amended at 3 III. Reg. 30, p. 371, effective
treatment center on only those patients with gestation up
July 23, 1979)
to and including 12 weeks commencing with ovulation
rather than computed on the basis of the menstrual cycle,
SUBPART H: PROCEDURES
as determined by the physician, if the patient's medical
FOR INVESTIGATION OF COMPLAINTS
condition permits. Abortions shall not be performed in an
Section 205.810 Complaints
Ambulatory Surgical Treatment center on those patients
All complaints against ambulatory surgical treatment cen-
whose gestation exceeds 12 weeks.
ters shall be reported to the Illinois Department of Public
(Source: Amended at 3 Ill. Reg. 30, p. 371, effective
Health. Complaints should preferably be in writing and
July 23, 1979)
contain sufficient facts to facilitate the investigation. Com-
Section 205.750 Postoperative Requirements
plaints by telephone will be accepted. Complaints will
a) Each obstetrical/gynecological service shall provide
be required in writing if needed to support legal action
Rh factor sensitization prophylaxis to all Rh neg-
against applicant.
ative patients according to standard medical pro-
(Source: Amended at 6 III. Rev. 6220, effective May
17, 1982)
b) cedures. Information on availability of family planning ser-
Section 205.820 Acknowledgement of Complaint
vices shall be provided, when desired by the pa-
Upon receipt of each complaint the Department will, with-
tient. When, in the physician's opinion, it is in the
best interest of the patient and with the patient's
App. 224
App. 225
in seven (7) days, acknowledge by letter receipt of the
SUBPART I: BUILDING DESIGN, CONSTUCTION
STANDARDS, AND PHYSICAL REQUIREMENTS
complaint. (Source: Amended at 6 III. Reg. 6220, effective May
Section 205.1310 Plant and Service Requirements
17, 1982)
All ambulatory surgical treatment centers are required
Section 205.830 Investigation
to meet the following physical plant and service require-
If the complaint contains allegations which, if true, would
ments.
constitute a prima facie violation of the Ambulatory Sur-
a) All proposed facilities shall meet these requirements
gical Treatment Center Act or this Part an investigation
before licensure will be granted.
will be conducted. Whenever the complaint concerns mat-
b) All existing facilities that are not in compliance with
ters outside the jurisdiction of the Department of Public
this Section, and subsequent Sections, shall come
Health, or may concern matters which are within the
into compliance no later than May 17, 1984.
jurisdiction of another agency, the complaint also will be
(Source: Amended at 7 III. Reg. 7640, effective June
referred to the appropriate agency whenever SO doing
14, 1983)
does not violate patient confidentiality.
Section 205.1320 General Considerations
(Source: Amended at 6 III. Reg. 6220, effective May
a) Location
17, 1982)
This facility shall be identifiably separate from other
Section 205.840 Prompt Investigation
facilities and functions.
The Department will promptly investigate each complaint
b) Narrative Program
within thirty (30) days of receipt of the complaint. Com-
The sponsor for each project shall provide a nar-
plaints which constitute a threat to the public health will
rative program of functions for the facility which
be investigated within ten (10) days of receipt of the com-
contains space requirements, staffing patterns, de-
partmental relationships and other basic informa-
plaint. (Source: Amended at 6 III. Reg. 6220, effective May
tion relating to the fulfillment of the institution's
objectives. This may be a general or detailed de-
17, 1982)
scription of each function to be performed, space
Section 205.850 Methods
needed for these functions, hours of operation, num-
The Department will utilize the most efficient and effec-
ber of staff or other occupants of the various spaces,
tive methods to investigate each complaint. This may in-
types of equipment required, interrelationship of
clude inspections pursuant to Section 9 of the Act and
various functions and spaces, and description of
the issuance of subpoenas and subpoenas duce tecum pur-
those services necessary for the complete function-
suant to Section 7 of the Act, when appropriate.
ing of the facility but which are available elsewhere
(Source: Amended at 6 Ill. Reg. 6220, effective May
in the community and, therefore, need not be dupli-
17, 1982)
cated in this facility. Explain the type of surgery
Section 205.860 Notification of Results
or procedures, the volume of work, the number of
Upon the conclusion of the investigation the complainant
doctors, etc.
will be notified of the results of the investigation and any
c) Size
action taken by the Department.
The extent (number and types) of the diagnostic,
(Source: Amended at 6 III. Reg. 6220, effective May
clinical, and administrative facilities to be provided
17, 1982)
shall be determined by the services contemplated
App. 226
App. 227
and the estimated patient load as described in the
1) The plans shall be drawn at a scale sufficiently
large to clearly present the proposed design.
narrative program.
d) Provisions for the Handicapped
2) The drawings shall include:
The design shall provide for accessibility to the phy-
A) a plan of each floor including the basement
sically handicapped (public, staff, and patients).
or ground floor,
B) plan showing roads, parking areas, side-
e) Privacy for Patient
The design of the facility shall provide for the pri-
walks, etc.,
vacy and dignity of the patient during interview,
C) elevations of all facades,
D) sections through the building,
examination, and treatment.
(Source: Amended at 6 III. Reg. 6220, effective May
E) and all adjacent areas clearly labeled if ad-
dition or alteration.
17, 1982)
3) The total gross floor area shall be shown on the
Section 205.1330 New Construction, Additions and Major
drawings.
Alterations
4) Outline specifications shall provide a general de-
Requirements and procedures for new construction, addi-
scription of the construction including finishes;
tions, and major alterations are as follows:
acoustical material, its extent and type; heating
a) Preliminary drawings and outline specifications
and ventilating systems; and the type of elevators.
whether for new construction or for substantial al-
5) A brief narrative of the proposed program.
terations, shall be submitted to the Department
g) Second stage submission. Working Drawings and
with a program narrative description for review and
Specifications.
approval prior to starting final working drawings
All working drawings shall be well prepared SO that
and specifications.
clean and distinct prints may be obtained; be ac-
b) The final working drawings and specifications shall
curately dimensioned and include all necessary ex-
be submitted to the Department for review and ap-
planatory notes, schedules and legends. Working
proval prior to release of contract documents for
drawings shall be complete and adequate for con-
bidding. Change orders which affect scope and/or
tract purposes. Separate drawings shall be prepared
function shall be submitted for approval prior to
for each of the following branches of work: Archi-
c) The execution. Department shall be notified of the award of
tectural, Structural, Mechanical, Electrical. They
shall include or contain the following:
contracts, and when construction has been com-
1) Architectural Drawings.
pleted. Approval by the Department prior to occu-
A) Site plan showing all new topography, new-
pancy is required.
ly established levels and grades, existing
d) The preparation and submission of drawings and
structures on the site (if any), new build-
specifications shall be executed by, or under the im-
ings and structures, roadways, walks, and
mediate supervision of an architect registered in the
the extent of the areas to be landscaped.
State of Illinois.
All structures and improvements which are
e) First stage submission. Design Development Draw-
to be removed under the construction con-
ings and Outline Specifications.
tract shall be shown.
f) Development of the preliminary sketch plans indi-
B) Plan of each floor.
cating in detail the assignment of all spaces, size
C) Elevations of each facade.
of areas and rooms, indicating in outline, the fixed
D) Sections through building.
and movable equipment and furniture.
App. 228
App. 229
E) If elevators and dumbwaiters are provided,
drawings are required showing shaft de-
iv) Sizes, types and heating surfaces of
tails and dimensions, sizes of cab platforms
boilers, furnaces, with stokers and oil
and doors, travel distances including eleva-
burners, if any.
tion height of landings, pit sizes, and ma-
v) Pumps, tanks, boiler breeching and
piping and boiler room accessories.
chine rooms.
F) Special care areas, and similar areas shall
vi) Air conditioning systems with required
be detailed at a scale to show the location,
equipment, water and refrigerant pip-
ing, and ducts.
type, size and connection of all fixed and
vii) Supply and exhaust ventilating sys-
movable equipment.
G) Schedule of finishes.
tems with connections and piping.
viii) Air quantities for all room supply and
2) Structural Drawings.
A) Plans of foundations, floors, roofs and all
exhaust ventilating duct openings.
intermediate levels shall show a complete
B) tems. Plumbing, Drainage and Stand Pipe Sys-
design with sizes, sections, and the relative
location of the various members. Schedule
i) Size and elevation of: street sewer,
house sewer, house drains, street
of beams, girders and columns.
water main and water service into
B) Floor levels, column centers, and off-sets
the building.
shall be dimensioned.
C) Special openings and pipe sleeves shall be
ii) Location and size of soil, waste, and
dimensioned or otherwise noted for easy
vent stacks with connections to house
drains, cleanouts, fixtures and equip-
reference.
ment.
D) Details of all special connections, assemblies
iii) Size and location of hot, cold and cir-
and expansion joints shall be given.
culating mains, branches, and risers
E) Notes on design data shall include the name
from the service entrance, and tanks.
of the governing building code, values or
allowable unit stresses, assumed live loads,
iv) Riser diagram of all plumbing stacks
with vents, water risers and fixture
including wind loads, earthquake load, and
connections.
soil bearing pressures.
3) Mechanical Drawings. The drawings with specifi-
v) Any gas, oxygen and similar piped
systems.
cations shall show the complete heating, cool-
vi) Any standpipe and sprinkler systems.
ing and ventilation systems; plumbing, drainage,
vii) All fixtures and equipment that re-
stand pipe, and sprinkler systems.
quire water and drain connections.
A) Heating, Cooling and Ventilation.
4) Electrical Drawings. Drawings shall show all
i) Any radiators, coils and steam heated
electrical wiring, outlets, and equipment which
equipment, such as sterilizers.
require electrical connections.
ii) Heating and steam mains and branches
A) Electrical service entrance with switches
with pipe sizes.
iii) Diagram of heating and steam risers
and feeders to the public service feeders,
characteristics of the light and power cur-
with pipe sizes.
rent, transformers and their connections if
located in the building.
App. 230
App. 231
B) Location of main switchboard, power panels,
b) The lobby shall include, if indicated by the approved
light panels and equipment. Feeder and
program for the facility, the following:
conduit sizes shall be shown with schedule
1) wheelchair and cart storage
of feeder breakers or switches.
2) reception and information counter
C) Light outlets, receptacles, switches, power
3) waiting area
outlets, and circuits.
4) public toilets
D) Telephone layout showing service entrance,
5) public telephones
telephone switchboard, strip boxes, tele-
6) drinking fountain
phone outlets and branch conduits as ap-
c) Interview spaces for private interviews relating to
proved by the telephone company. Where
social services, credit, and admissions shall be pro-
public telephones are used for inter-com-
vided.
munication, provide separate room and con-
d) Adequate office space for records, business, meet-
duits for racks and automatic switching
ing, and staff shall be provided.
equipment as required by the telephone
e) A multipurpose room for conferences, and health
company.
education purposes including provisions for show-
E) Fire alarm system with stations, signal de-
ing visual aids shall be provided if required by the
vices, control board and wiring diagrams.
program.
F) Emergency electrical system with outlets,
f) Storage spaces shall be provided for:
transfer switch, source of supply, feeders,
1) office supplies
and circuits as required by the approved
2) sterile supplies, medical/surgical supplies and
program as required under the electrical
equipment
part of these Standards.
3) pharmaceutical supplies
(Source: Amended at 6 III. Reg. 6220, effective May
4) housekeeping supplies and equipment
17, 1982)
(Source: Amended at 6 III. Reg. 6220, effective May
Section 205.1340 Minor Alterations and Remodeling
17, 1982)
Changes
Section 205.1360 Clinical Facilities
Minor alterations and remodeling changes which do not
a) Examination room(s)
affect the structural integrity of the building, or change
1) Each examination room(s) shall have a minimum
functional operation, or which do not affect safety, need
clear floor area of 80 square feet, and a mini-
not be submitted for prior approval.
mum dimension of 8 feet, excluding such spaces
(Source: Amended at 6 III. Reg. 6220, effective May
as vestibule, toilet, closet, and work counter
17, 1982)
(whether fixed or movable). Arrangements shall
permit at least 2'-6" clearance at each side and
Section 205.1350 Administration Department and Public
at both ends of the examination table.
Areas
2) A lavatory or sink equipped for handwashing
Administration Department and Public Areas are facilities
with knee or foot control shall be provided.
to be provided when indicated by the approved program.
3) A counter or shelf space for writing shall be
a) The entrance shall be sheltered from the weather,
provided.
located by grade level and must be able to accom-
modate wheelchairs and stretchers, if applicable.
App. 232
App. 233
b) Procedure room(s)
1) Provide at least one procedure room with a
6) sired. These recovery rooms may be combined, if de-
minimum clear area of 250 square feet and a
minimum dimension of 14 feet, exclusive of
7) Provide a minimum of four recovery beds
fixed and movable cabinets and shelves. Any
lounge chairs for each procedure room. At least or
other procedure rooms shall not be less than
10 feet.
(Source: 17, 1982) Amended at 6 III. Reg. 6220, effective May
three may be lounge chairs or beds.
one of the four must be a bed, and the other
120 square feet with a minimum dimension of
2) Provide a communication system connecting
with the control station.
Section 205.1370 Support Service Areas
3) Provide special features such as x-ray film illu-
minators, and storage space as required by the
a) A control station shall be located to permit
program.
suite. surveillance of all traffic which enters the operating visual
c) Recovery room(s)
1) Room(s) for post-anesthesia recovery for surgi-
b) Provide sterilizing facility(ies) with high speed
cal patients shall be provided.
clave(s) conveniently located to serve all auto-
2) Recovery room(s) shall contain a minimum of
for rooms. Approved alternate provisions procedure be
100 square feet of usable floor space for single
gery. replacement of sterile instruments may during made sur-
bed occupancy and at least 80 square feet per
bed for multiple bed occupancy, SO arranged
c) A drug distribution station shall be provided
that there will be at least 3 feet between beds
istered storage to and patients. preparation of medication to be admin- for
and 4 feet of clear space at the foot of each
bed.
d) faucets Scrub stations with knee or foot or elbow
3) This room(s) shall contain a drug distribution
shall be provided near the entrances actuated to
station, handwashing facility, charting facilities,
nurses' station, and storage space for supplies
carts. splatter on nearby personnel or arranged supply
to procedure minimize rooms. Scrub facilities shall be the
and equipment.
4) Provide a toilet which is accessible to the re-
e) A soiled workroom for the exclusive use of the
covery room, without having to leave the recov-
gical suite staff shall be provided. The soiled sur-
ery room to reach it. The water closet shall be
equipped with a gray diverter valve.
tacle. handwashing, waste receptacle, and linen equipped
for room shall contain a work counter, sink work-
5) A separate supervised room may be provided
sia This room may be used for cleaning anesthe- recep-
equipment.
for use by patients who are able to leave the
f) Fluid waste disposal facilities shall be
recovery (post-anesthesia) room but need addi-
tional time for all vital signs to be stabilized
rooms. ly located with respect to the general convenient- procedure
to the point where the patient may leave the
g)
facility. This room shall be equipped with re-
clining or lounge type chairs for patients and
1) A clean workroom or a clean supply room is
shall contain a minimum of 50 square feet of
usable floor space for each patient to be accom-
modated at any one time.
workroom shall contain a work counter, sink
within the surgical suite prior to use. A clean
required when clean materials are assembled
equipped for handwashing, and space for clean
App. 234
App. 235
and sterile supplies. A clean supply room shall
Section 205.1380 Diagnostic Facilities
be provided when the narrative program de-
If the pre-admission evaluation tests are to be performed
fines a system for the storage and distribution
within the facility, the following services shall be provided.
of clean and sterile supplies which would not
a) Radiographic suite, if provided, shall contain the fol-
require the use of a clean workroom.
lowing:
2) An autoclave shall be incorporated into the
1) film processing area
clean workroom.
2) viewing and administration area
h) Anesthesia storage facilities shall be provided.
3) film storage facilities
Flammable anesthetics are prohibited.
4) toilet room with handwashing facilities, direct-
i) Medical gas supply storage with space for reserve
ly accessible from each fluoroscopy room with-
nitrous oxide and oxygen cylinders shall be pro-
out entering the general corridor area.
vided, with all tanks properly secured.
5) dressing area with convenient access to toilets.
j) Storage area for equipment and supplies used in
b) Laboratory suite shall contain the following mini-
surgical suite shall be provided.
mum facilities:
k) Staff and personnel facilities shall be provided for
1) Laboratory work counter with sink and vacuum,
male and female personnel (orderlies, technicians,
and electric services.
nurses, and doctors) working within the surgical
2) Lavatory or counter sink equipped for hand-
suite. The areas shall contain lounge, lockers, toilets,
washing.
lavatories equipped for handwashing, and space for
3) Storage cabinet or closet.
changing clothing. These areas shall be arranged to
4) Specimen collection facilities equipped with a
provide a one-way traffic pattern SO that person-
toilet and lavatory.
nel entering from outside the surgical suite can
5) Blood collection facilities shall have space for
change, gown, and move directly into the surgical
a chair and work counter.
suite. Space for removal of scrub suits and foot
(Source: Amended at 6 III. Reg. 6220, effective May
covers shall be designed SO that personnel using it
17, 1982)
will avoid physical contact with clean personnel.
Section 205.1390 Other Building Services
1) Provide change areas where patients can change
a) Engineering service and equipment areas shall have
from street clothing into hospital gowns in privacy,
and be prepared for surgery. This shall include
sufficient space for equipment rooms for boilers, fur-
lockers, toilets, clothing change or gowning area(s),
naces, mechanical equipment, and electrical equip-
ment.
and space for the administration of medications.
b) Waste processing services shall be provided for the
m) Stretcher storage area shall be out of direct line
sanitary storage and disposal of waste by incinera-
of traffic.
tion, mechanical destruction, compaction, container-
n) Janitor's closet containing a floor receptor or ser-
ization, removal, or by a combination of these tech-
vice sink, and storage space for housekeeping sup-
niques.
plies and equipment shall be provided exclusively
c) Storage rooms for building maintenance supplies
for the surgical suite.
and yard equipment shall be provided.
(Source: Amended at 6 III. Reg. 6220, effective May
d) Janitor's closets shall be provided with a floor re-
17, 1982)
ceptor or service sink.
(Source: Amended at 6 III. Reg. 6220, effective May
17, 1982)
App. 236
App. 237
Section 205.1400 Details and Finishes
j) Thresholds and expansion joint covers shall be made
a) Minimum public corridor width shall be 5'-0", ex-
flush with the floor surface to facilitate use of
cept those corridors where patients are transported
wheelchairs and carts.
in stretchers or carts shall be 8'-0".
k) Air dryers, or paper towel dispensers and waste
b) The facility or section shall have at least two exits
remote from each other. Other details relating to
fixtures. receptacles shall be provided at all handwashing
exits and fire safety shall be in accordance with
I) Where labeled fire doors are required, these shall
Section 13 (Business Occupancy) of the latest edi-
be certified by an independent testing laboratory
tion of NFPA Standard 101 and the requirements
as meeting the construction requirements equal to
outlined herein. These Standards govern where dif-
those for fire doors in National Fire Protection Asso-
ferent from the code.
ciation (NFPA) Standard 80. Reference to a labeled
c) Items such as drinking fountains, telephone booths,
fire door shall be construed to include labeled frame
vending machines, and portable equipment shall be
and hardware.
located SO as not to restrict corridor traffic or reduce
m) Radiation protection requirements of X-ray and
the corridor width below the required minimum.
gamma ray installations shall conform to the re-
d) All doors to toilets which may be used by patients
quirements of the Department of Nuclear Safety
shall be equipped with hardware which will permit
Rules for Protection Against Radiation (32 III. Adm.
access in any emergency.
Code, Subchapter b) and should follow guidelines
e) The minimum width of doors for patient access to
of NCRP reports #33 dated February 1968, and #49
examination and treatment rooms shall be 3'-0".
dated September 1976. Provisions shall be made for
f) The minimum width of doors to rooms needing ac-
testing and completed installation before use, and
cess for stretchers (procedure rooms, recovery) shall
all defects must be corrected before use.
be 3'-8".
n) The minimum ceiling height shall be 8'-0", with the
g) Doors on all openings between corridors and rooms
following exceptions:
or spaces subject to occupancy, except elevator
1) Boiler rooms, if provided, shall have ceiling
doors, shall be swing type.
clearance not less than 2'-6" above the main
h) Doors, except doors to spaces such as small closets
boiler header and connecting piping.
which are not subject to occupancy, shall not swing
2) Radiographic and other rooms containing ceiling-
into corridors in a manner that might obstruct traf-
mounted equipment and including those with
fic flow or reduce the required corridor width.
ceiling-mounted surgical light fixtures shall have
i) Doors, sidelights, borrowed lights, and windows in
height required to accommodate the equipment
which the glazing extends down to within 18 inches
and/or fixture.
of the floor (thereby creating possibility of acciden-
3) Ceilings in corridors, storage rooms, toilet rooms,
tal breakage by pedestrian traffic) shall be glazed
and other minor rooms may be not less than
with safety glass, wire glass, or plastic glazing ma-
7'-8".
terial that will resist breaking and will not create
4) Suspended tracks, rails, and pipes located in
dangerous cutting edges when broken in accordance
path of normal traffic shall be not less than 6'-
with the State of Illinois Safety Glazing Materials
8" above the floor.
Act (Ill. Rev. Stat. 1981, ch. 111½, par. 3101 et
o) Flammable Anesthetics are prohibited.
seq.). Similar materials shall be used in wall open-
ings unless required otherwise for fire safety.
App. 238
App. 239
p) Cubicle curtains and draperies shall be noncombusti-
y) Acoustical ceilings are recommended in corridors,
ble or rendered flame retardant and shall pass both
multipurpose rooms, and waiting areas.
the large and small scale tests of NFPA Standard
(Source: Amended at 6 III. Reg. 6220, effective May
701.
17, 1982)
q) Interior finish of walls and ceilings of all exit ways,
storage rooms, and areas of unusual fire hazard
Section 205.1410 Construction, Including Fire-Resistive
shall have a flame spread rating of not more than
Requirements
25.
a) Buildings shall be of the following heights and con-
r) Floor finish materials shall have a flame spread
struction types with automatic extinguishment sys-
rating of not more than 75. If a separate underlay-
tem identified in the table below:
ment is used with any floor finish material, the
flame spread test assembly shall include the under-
layment.
Construction
s) All interior finish materials shall have smoke de-
Stories
veloped rating of 450 or less. The use of materials
Type
1
2
3
Over 3
known to produce large amounts of toxic gases shall
be avoided.
2-hour Fire Resistive
X
X
X
X
t) Floor materials shall be easily cleanable and have
1-hour Protected Noncombustible
X
X
X
wear resistance appropriate for the location involved.
Noncombustible
X
X
Heavy Timber
X
X*
1) In all areas frequently subject to wet cleaning
1-hour Protected Ordinary
X
X*
methods, floor materials shall not be physical-
1-hour Protected Wood Frame
X*
ly affected by germicidal and cleaning solutions.
Ordinary
X*
2) Floors that are subject to traffic while wet,
shall have a nonslip surface.
u) Wall finishes shall be washable and in the immedi-
Key:
ate area of plumbing fixtures, shall be smooth and
X = Permitted types of construction.
moisture resistant.
* = Building requires automatic extinguish-
v) Floor and wall penetrations by pipes, ducts, and
ment protection except in procedure
conduits shall be tightly sealed to minimize entry
rooms. Smoke detectors must be installed
of rodents and insects. Joints of structural elements
in procedure rooms and all rooms not
shall be similarly sealed.
normally occupied (janitor's closet, stor-
w) Ceilings shall be cleanable and those in sensitive
age, locker rooms, etc.).
areas such as surgical rooms shall be readily wash-
b) Walls enclosing stairways, elevator shafts, chutes,
able and without crevices that can retain dirt par-
and other vertical shafts, boiler rooms, and storage
ticles. These sensitive areas shall have a finished
rooms (containing combustible materials) shall be of
ceiling, covering all overhead ductwork and piping.
not less than one-hour fire resistive construction,
x) Finished ceilings may be omitted in mechanical and
except in buildings over 3 stories in height, where
equipment spaces, shops, general storage areas, and
2 hour enclosure is required.
similar spaces, unless required for fire-resistive pur-
c) Building insulation materials, unless sealed on all
poses.
sides and edges, shall have a flame spread rating
App. 240
App. 241
of 25 or less and a smoke developed rating of 450
5) Chilled water, refrigerant, other process piping
or less when tested in accordance with NFPA Stan-
and equipment operating with fluid tempera-
dard 258.
tures below ambient dew point.
d) Elevators and Dumbwaiters
6) Water supply and drainage piping with fluid
1) All ambulatory surgical treatment centers lo-
temperatures below ambient dew point.
cated above the first floor of the building shall
7) Air ducts and casings with outside surface tem-
have an electric or electrohydraulic elevator.
peratures below ambient dew point.
2) Inspections and tests shall be made, and writ-
8) Other piping, duets, and equipment necessary
ten certification be furnished, that the installa-
to maintain the efficiency of the system.
tion meets the requirements of all applicable
b) Insulation may be omitted from hot water and
safety regulations and codes.
steam condensate piping not subject to contact by
(Source: Amended at 6 III. Reg. 6220, effective May
patients when such insulation is unnecessary for
17, 1982)
preventing excessive system heat loss or excessive
heat gain in the surrounding space.
SUBPART J: MECHANICAL
c) Insulation on cold surfaces shall include an exterior
Section 205.1510 General
vapor barrier.
a) Mechanical systems shall be tested, balanced, and
d) Insulation, including finishes and adhesives on ex-
operated to demonstrate that the installation and
terior surfaces of ducts, pipes, and equipment, shall
performance of these systems conform to the require-
have a flame spread rating of 25 or less and a smoke
ments of these Standards.
developed rating of 450 or less as determined by
b) Upon completion of the contract, the owner shall
an independent testing laboratory in accordance
be provided with a complete set of manufacturer's
with NFPA 255. Exception: Duct, pipe, and equip-
operating, maintenance and preventive maintenance
ment coverings shall not be required to meet these
instructions, and parts list with numbers and de-
requirements where they are located entirely out-
scription for each piece of equipment. The owner
side the building, or do not penetrate a wall or roof
shall also be provided with instruction in the oper-
or do not create an exposure hazard.
ational use of the systems and equipment as re-
e) Linings in air ducts and equipment shall meet the
Erosion Test Method described in UL Pub. No. 181.
(Source: quired. Amended at 6 III. Reg. 6220, effective May
These linings, including coatings and adhesives, and
17, 1982)
insulation on exterior surfaces of pipes and ducts
Section 205.1520 Thermal and Acoustical Insulation
in building spaces used as air supply plenums, shall
a) Insulation shall be provided for the following with-
have a flame spread rating of 25 or less and a smoke
developed rating of 450 or less as determined by
in the building:
1) Boilers, smoke breeching and stacks.
an independent testing laboratory in accordance
2) Steam supply and condensate return piping.
with NFPA 255.
3) Hot water piping above 180° F and all hot
f) Duct linings shall not be used in systems supply-
ing procedure and recovery rooms unless terminal
water heaters.
4) Hot water piping above 125° F which is exposed
filters of at least 90 percent efficiency are installed
downstream of the linings.
to contact by patients.
(Source: Amended at 6 III. Reg. 6220, effective May
17, 1982)
App. 242
App. 243
Section 205.1530 Steam and Hot Water Systems
g) The ventilation air supplied to the procedure rooms
a) Boilers and/or hot water heaters shall have the
shall be delivered at or near the ceiling of the area
capacity, based upon the net ratings published by
served, and all exhaust or return air from the area
the Hydronics Institute, to supply the normal re-
shall be removed near the floor level. At least two
quirements of all the systems and equipment.
exhaust outlets shall be used in each procedure
b) Supply and return mains and risers of space heating
room.
and process steam systems shall be valved to isolate
h) All central ventilation or air conditioning systems
the various sections of each system. Each piece of
shall be equipped with filters having efficiencies not
equipment shall be valved at the supply and return
less than those specified in the following table:
ends.
(Source: Amended at 6 III. Reg. 6220, effective May
FILTER EFFICIENCIES FOR CENTRAL VENTILATION
17, 1982)
AND AIR CONDITIONING SYSTEMS IN
Section 205.1540 Air Conditioning, Heating and Ventilat-
AMBULATORY SURGICAL TREATMENT FACILITIES
ing Systems
a) The systems shall be designed to provide the com-
Filter
fort temperatures and humidities as recommended
Efficiencies
by ASHRAE Standards.
Minimum
(Percent)
b) Air handling systems shall conform to "Installation
Number of
Filter Bed Filter Bed
of Air Conditioning and Ventilating Systems," NFPA
Area Designation
Filter Beds
No. 1
No. 2
90A-1976.
Procedure and
c) For spaces not exceeding 25,000 cubic feet in volume,
Recovery Rooms
2
25
90
heating, air conditioning, and ventilating systems
All Other Areas
1
25
-
shall conform to "Standard for the Installation of
Warm Air Heating and Air Conditioning Systems,
i) All filter efficiencies shall be average atmospheric
NFPA 90-B, 1973, except return ducts shall be con-
dust spot efficiencies tested in accordance with the
structed of materials equal to that specified for sup-
American Society of Refrigeration and Heating, Air
ply ducts, Chap. 2, paragraph 1.1., Duct Materials.
Conditioning Engineers (ASHRAE) Standards 52-68.
d) Outdoor air intakes shall be located as far as prac-
j) For systems serving procedure and recovery rooms,
tical but not less than 15 feet from exhaust outlets
filter bed No. 1 shall be located upstream of the
of ventilation systems, combustion equipment stacks,
conditioning equipment and filter bed No. 2 shall
medical-surgical vacuum systems, plumbing vent
be located downstream of the supply fan and condi-
stacks or from areas which may collect vehicular
tioning equipment including humidifiers.
exhaust and other noxious fumes.
k) Filter frames shall be durable and shall provide an
e) All ventilation air outlets and inlets shall conform
airtight fit with the enclosing duct work. All joints
to NFPA 90A-Chapter 2, paragraph 3.2. Location
between filter segments and enclosing duct work
of Outlets and Inlets.
shall be gasketed or sealed to provide a positive
f) The ventilation systems shall be designed and bal-
seal against air leakage.
anced to provide the ventilation and pressure rela-
I) A manometer shall be installed across each filter
tionships as shown in Table A.
bed serving procedure and recovery rooms.
App. 244
App. 245
m) Fire and smoke dampers shall be constructed, lo-
c) All fixtures for use by medical and nursing staff
cated and installed in accordance with the require-
shall be trimmed with valves which can be operated
ments of NFPA 90A.
without the use of hands.
n) All systems, regardless of size, which serve more
1) When blade handles are used for this purpose,
than one smoke or fire zone, shall be equipped with
the blade handles shall not exceed 4½ inches
smoke detectors to shut down fans automatically as
in length.
specified in paragraph 4-3.1 of NFPA 90A.
2) The serub sinks for surgery shall be trimmed
o) The ventilation system for anesthesia storage rooms
with valves which are aseptically operated (i.e.,
shall conform to the requirements of "Standard for
knee or foot or elbow actuated) without the use
Inhalation Anesthetics" NFPA 56A, including the
of hands. Wrist blade handles are not acceptable.
gravity option ventilation system.
(Source: Amended at 6 III. Reg. 6220, effective May
p) Boiler rooms shall be provided with sufficient out-
17, 1982)
door air to maintain combustion rates of equipment
Section 205.1630 Water System
and limit temperatures in working stations to 97° F
a) Water systems shall be designed to supply water
Effective Temperature as defined by ASHRAE Hand-
at sufficient pressure to operate all fixtures and
book of Fundamentals.
equipment during maximum demand periods.
q) Rooms containing heat-producing equipment, such
b) Each water service main, branch main, riser, and
as boiler rooms and heater rooms, shall be insulated
branch to a group of fixtures shall be valved. Stop
and ventilated to prevent any floor surface above
valves shall be provided at each fixture.
from exceeding a temperature of 100° F.
c) Approved backflow preventers or vacuum breakers
(Source: Amended at 6 III. Reg. 6220, effective May
shall be installed on hose bibbs, laboratory sinks,
17, 1982)
janitors' sinks, and on all other fixtures to which
hoses or tubing are, or can be attached.
SUBPART K: PLUMBING AND OTHER
d) Water distribution systems shall be arranged to
PIPING SYSTEMS
provide hot water at each hot water outlet at all
Section 205.1610 General
times.
All plumbing systems shall be designed and installed in
(Source: Amended at 6 III. Reg. 6220, effective May
accordance with the requirements of the Illinois Plumb-
17, 1982)
ing Code (77 III. Adm. Code 890).
Section 205.1640 Drainage Systems
(Source: Amended at 6 III. Reg. 6220, effective May
a) Building sewers shall discharge into a community
17, 1982)
sewage system.
Section 205.1620 Plumbing Fixtures
b) Where a community sewage system is not available,
a) Plumbing fixtures shall be of nonabsorptive acid-
sewage and liquid wastes shall be collected, treated
resistant materials.
and disposed of in a private treatment system which
must conform to local and State regulations.
b) The water supply spout, for lavatories and sinks
(Source: Amended at 6 III. Reg. 6220, effective May
required for filling pitchers, for medical and nurs-
ing staff handwashing, shall be mounted SO that its
17, 1982)
discharge point is a minimum perpendicular distance
of 5 inches above the rim of the fixture.
App. 246
App. 247
Section 205.1650 Identification
e) Overload protection devices shall be suitable for
All piping for, heating, ventilating and air conditioning,
operating properly in the ambient temperature con-
and service water systems shall be coded and marked for
ditions.
easy identification.
(Source: Amended at 6 III. Reg. 6220, effective May
(Source: Amended at 6 III. Reg. 6220, effective May
17, 1982)
17, 1982)
Section 205.1730 Panelboards
Panelboards serving lighting and appliance circuits shall
SUBPART L: ELECTRICAL
be located on the same floor as the circuits they serve.
Section 205.1710 General
This requirement does not apply to any emergency sys-
a) All material including equipment, conductors, con-
tem circuits.
trols, and signaling devices shall be installed to pro-
(Source: Amended at 6 III. Reg. 6220, effective May
vide a complete electrical system with the necessary
17, 1982)
characteristics and capacity to supply the required
Section 205.1740 Lighting
electrical facilities. All materials shall be listed as
a) All spaces occupied by people, machinery, and equip-
complying with available standards of Underwriters'
ment within buildings, approaches to the buildings,
Laboratories, Inc., or other similarly established
and parking lots shall have lighting.
standards.
b) A portable or fixed examination light shall be pro-
b) All electrical installations and systems shall be
vided in each examination and treatment room.
tested to show that the equipment is installed and
c) Procedure rooms shall have general lighting, in ad-
operates as required. A written record of perform-
dition to local lighting provided by adequate light-
ance tests on special electrical systems and equip-
ing units at the procedure tables. Each lighting unit
ment shall be supplied to the owner. Such tests
at the tables, except for portable units, shall be con-
shall show compliance with the governing codes and
nected to an independent circuit.
shall include grounding continuity and alarm sys-
(Source: Amended at 6 III. Reg. 6220, effective May
tems.
17, 1982)
(Source: Amended at 6 III. Reg. 6220, effective May
17, 1982)
Section 205.1750 Receptacles (Convenience Outlets)
a) Duplex grounding type receptacles shall be installed
Section 205.1720 Switchboards and Power Panels
in all areas or rooms in sufficient quantities for the
Circuit breakers or fusible switches that provide discon-
tasks to be performed.
necting means and overcurrent protection for conductors
b) A minimum of one duplex receptacle for each wall
connected to switchboards and panelboards shall be en-
shall be installed in each work area or room, other
closed or guarded to provide a dead-front type of as-
than storage or locker rooms.
sembly.
e) A minimum of two duplex receptacles shall be located
a) The main switchboard shall be located in a separate
.convenient to each examination and work table.
enclosure accessible only to authorized persons.
d) Duplex receptacles for cleaning equipment and gen-
b) The switchboards shall be convenient for use, readi-
eral use shall be installed approximately 50'0" apart
ly accessible for maintenance, clear of traffic lanes,
in all corridors and within 25'0" of ends of corridors.
and in a dry ventilated space free of corrosive fumes
(Source: Amended at 6 Ill. Reg. 6220, effective May
or gases.
17, 1982)
App. 248
App. 249
Section 205.1760 Grounding
In areas used for patient care or treatment, all receptacles
4) General illumination and selected receptacles in
operating at over 100 volts, shall be grounded by an in-
the vicinity of the generator set, if installed.
sulated copper conductor, sized in accordance with Table
5) Illumination in procedure and recovery room.
250-95 of the 1975 National Electrical Code, and installed
6) If 110 volt equipment will be utilized to main-
with the branch conductors supplying these receptacles.
tain heart action, breathing, to control bleeding
or other essential functions, receptacles con-
(Source: Amended at 6 Ill. Reg. 6220, effective May
nected to emergency power sources shall be in-
17, 1982)
stalled.
Standard 205.1770 Equipment Installation in Special Areas
(Source: Amended at 6 III. Reg. 6220, effective May
a) X-ray Installations. Fixed and mobile X-ray equip-
17, 1982)
ment installations, if installed, shall conform to Ar-
Section 205.1790 Fire Alarm System
ticle 660 of NFPA Standards 70, 1975 Edition.
A manually operated electrically supervised fire alarm sys-
b) Installation in non-flammable anesthetizing locations
tem shall be installed in each facility.
of all electrical equipment and devices, receptacles,
(Source: Amended at 6 III. Reg. 6220, effective May
and wiring shall comply with NFPA Standard 70,
17, 1982)
1975 Edition. Exception: Isolated electrical systems
are not required.
(Source: Amended at 6 III. Reg. 6220, effective May
17, 1982)
Section 205.1780 Emergency Electric Service
a) An emergency source of electricity shall be pro-
vided and connected to certain circuits for lighting
to provide electricity during an interruption of the
normal electric supply.
b) The source of this emergency electric service shall
be a generator set, storage batteries or unit equip-
ment as described in Art. 700-6 NFPA Standard 70.
c) Emergency electric service shall be provided to the
following:
1) Illumination of means of egress as required in
NFPA Standard 101.
2) Illumination for exit signs and exit directional
signs as required in NFPA Standard 101.
3) Alarm systems including fire alarms activated
at manual stations, water flow alarm devices of
sprinkler system if electrically operated, fire
and smoke detecting systems, and alarms re-
quired for nonflammable medical gas systems
if installed.
App. 250
Section 205. TABLE A General Pressure Relationships and Ven-
tilation Rates of Ambulatory Surgery Area
Minimum
Pressure
Total Air
All Air
Within
Relation-
Changes per
Exhausted
Area
ship
Hour
Directly
Room Units
to Adjacent
Supplied
to
Recircu-
Designation
Areas
to Room
Outdoors
lated
Procedure Room
+
15
Optional
No
Examination Room
0
6
Optional
Optional
Recovery Room
+
6
Optional
Optional
Medication Area
+
4
Optional
Optional
X-Ray Room
0
6
Optional
Optional
Soiled Workroom
or Soiled Holding
-
10
Yes
No
Clean Workroom
or Clean Holding
+
4
Optional
Optional
Darkroom
-
10
Yes
No
Toilet Room
-
10
Yes
No
Janitors' Closet
-
10
Yes
No
Sterilizer Equip.
Rm.
-
10
Yes
No
Linen and Trash
Rm.
-
1-
Yes
No
Laboratory
-
6
Optional
Optional
Soiled Linen
Storage
-
10
Yes
No
Clean Linen
Storage
+
2
Optional
Optional
Anesthesia Storage
0
8
Yes
No
Central Services Area
Soiled Area
-
6
Yes
No
Clean Area
+
4
Optional
Optional
Equipment Storage
0
2
Optional
Optional
+ = Positive
- = Negative
0 = Equal
(Source: Amended at 6 III. Reg. 6220, effective May 17,
1982)