627 F.2d 772 (7th Cir. 1980), 79-2399, Charles v. Carey

Docket Nº:79-2399, 79-2400.
Citation:627 F.2d 772
Party Name:Allen G. CHARLES, M.D., et al., Plaintiffs-Appellants, v. Bernard CAREY et al., Defendants-Appellees. The HOPE CLINIC FOR WOMEN et al., Plaintiffs-Appellants, v. William J. SCOTT et al., Defendants-Appellees.
Case Date:July 29, 1980
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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627 F.2d 772 (7th Cir. 1980)

Allen G. CHARLES, M.D., et al., Plaintiffs-Appellants,

v.

Bernard CAREY et al., Defendants-Appellees.

The HOPE CLINIC FOR WOMEN et al., Plaintiffs-Appellants,

v.

William J. SCOTT et al., Defendants-Appellees.

Nos. 79-2399, 79-2400.

United States Court of Appeals, Seventh Circuit

July 29, 1980

Argued Jan. 18, 1980.

As Amended July 31, 1980.

Rehearing and Rehearing En Banc Denied Oct. 28, 1980.

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Merle L. Royce, II, Chapman & Royce, Ltd., Chicago, Ill., Frank Susman, Clayton, Mo., for plaintiffs-appellants.

John A. Dienner, III, Asst. State's Atty., Thomas J. Marzen, Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, and CUMMINGS and PELL, Circuit Judges.

PELL, Circuit Judge.

These consolidated appeals challenge the district court's denial of a preliminary injunction of certain sections of S.B. 47, the Illinois Abortion Law of 1975, enacted, as amended, on October 30, 1979, over the veto of Illinois Governor Thompson. 1 Some of the plaintiffs are physicians engaged in the practice of obstetrics and gynecology, and some of the plaintiffs are corporations that perform abortion services for women. The complaint seeks declaratory and injunctive relief from the enforcement, operation, and effect of S.B. 47 under 42 U.S.C. § 1983. Some of the defendants are Illinois officials charged with enforcing S.B. 47, and some of the defendants are intervenors. In their complaint, the plaintiffs charged that the Act as a whole is unconstitutional, but the district court rejected this argument and analyzed the constitutionality of the Act on a section-by-section basis, granting a preliminary injunction only as to certain sections. 2 When the district court denied relief, the denial was based either on the plaintiffs' lack of standing or the plaintiffs' failure to show a substantial likelihood of success on the merits. The defendants have not appealed the district court's order and it, of course, continues in effect as to the sections enjoined.

S.B. 47 is a regulatory statute of daedalian complexity defining abortion and prescribing procedures applicable to that operation. On appeal, the plaintiffs have asked us to review the district court's denial of

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the preliminary injunction as to the following sections of S.B. 47: 3 sections 3.2, 3.5, and 6(6), requiring and defining "informed consent," section 3.1, requiring certain consultation procedures, sections 2(6) and 2(10), defining "abortion" and "abortifacient" respectively, section 6(2), making any "human being aborted alive" an "individual" for the purpose of the Illinois Criminal Code, and, finally, sections 7 and 8, establishing procedures for disposition of infants surviving abortions as abandoned children. 4 After addressing preliminary arguments concerning the appropriate standard of review and validity of the Act as a whole, we shall address each challenged section in the order set forth above.

To obtain preliminary injunctive relief in the district court, the plaintiffs must demonstrate that there is a reasonable likelihood of success on the merits, that they lack an adequate remedy at law, that irreparable harm to the plaintiffs outweighs any harm to the defendants, and that issuance of the injunction would serve the public interest. See, e. g., Ekanem v. Health & Hospital Corp., 589 F.2d 316, 319 (7th Cir. 1978); Fox Valley Harvestore v. A. O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir. 1976). The decision to grant or deny a preliminary injunction is a matter for the discretion of the district court and is reversible, of course, only for an abuse of discretion. It is also well-settled, however, that the application of an improper legal standard in determining the likelihood of success on the merits is never within the district court's discretion. Benda v. Grand Lodge of the International Association of Machinists, 584 F.2d 308, 314 (9th Cir. 1978). See White v. Roughton, 530 F.2d 750, 754 (7th Cir. 1976); Airco, Inc. v. Energy Research & Development Administration, 528 F.2d 1294, 1296 n.1 (7th Cir. 1975); Milsen Co. v. Southland Corp., 454 F.2d 363, 369 (7th Cir. 1971). Similarly, misapplication of the law to particular facts is an abuse of discretion. Milsen Co. v. Southland Corp., supra, 454 F.2d at 369 n.9. In either of these circumstances, the denial of the preliminary injunction should be reversed and the injunction entered if necessary to protect the rights of the parties. White v. Roughton, supra, 530 F.2d at 754-55; Milsen Co. v. Southland Corp., supra, 454 F.2d at 369.

The cornerstone of the plaintiffs' argument for reversal is the failure of the district court to apply the proper legal standard in reviewing S.B. 47. According to the plaintiffs, it is the burden of the defendants to show a compelling State interest justifying the regulations in S.B. 47. It is well-settled that a regulation that interferes with the woman's right to decide whether to bear a child must be narrowly drawn to express only the legitimate State interest at stake. E. g., Roe v. Wade, 410 U.S. 113, 155-56, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Wynn v. Carey, 599 F.2d 193, 196 n.6 (7th Cir. 1979); Wynn v. Carey, 582 F.2d 1375, 1384 (7th Cir. 1978). Of course, a law is not considered an interference with the pregnancy termination decision and subject to strict scrutiny simply because it concerns abortion. In Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), for example, the Supreme Court applied the rational basis test to a law that merely implemented a State's preference for childbirth over abortion without adding any "restriction on access to abortion that was not already

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there." 432 U.S. at 474, 97 S.Ct. at 2383. In applying the rational basis test under those circumstances, however, the Court in Maher emphasized that it was not retreating from its holding in Roe v. Wade : "There is a basic difference between direct state interference with a protected activity and state encouragement of an alternate activity consonant with legislative policy." Id. at 475, 97 S.Ct. at 2383. Thus, to trigger strict scrutiny of S.B. 47, it is the plaintiffs' burden to demonstrate only that it is a "direct interference" with the abortion decision or imposes restrictions that did not already exist. See also Harris v. McRae, --- U.S. ----, ----, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); Colautti v. Franklin, 439 U.S. 379, 386 & n.7, 99 S.Ct. 675, 681 & n.7, 58 L.Ed.2d 596 (1979); Wynn v. Scott, 449 F.Supp. 1302, 1307-08 (N.D.Ill.1978), aff'd sub nom. Wynn v. Carey, 599 F.2d 193 (7th Cir. 1979).

The defendants urge, however, that the plaintiffs must first show an "undue burden" on the abortion decision before the challenged law is subject to strict scrutiny. As support for this argument, the defendants rely on the following language of the Supreme Court:

In Planned Parenthood of Central Missouri v. Danforth, we today struck down a statute that created a parental veto . . .. At the same time, however, we held that a requirement of written consent on the part of a pregnant adult is not unconstitutional unless it unduly burdens the right to seek an abortion.

Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976) (emphasis added). 5 This argument is refuted by the quoted language itself; the term "undue burden" defines the ultimate constitutional issue, not merely the threshold requirement for strict scrutiny. When describing specifically the burden of the party challenging a state regulation, the Supreme Court has not used the term "undue." See Harris v. McRae, supra, --- U.S. at ----, 100 S.Ct. at 2685 ("if a law 'impinges upon a fundamental right explicitly or implicitly secured by the Constitution (it) is presumptively unconstitutional' "); Carey v. Population Services International, 431 U.S. 678, 686, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977) (" 'Compelling' is of course the key word; where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.") (emphasis added); id. at 688, 97 S.Ct. at 2018 ("The significance of (Roe v. Wade, Doe v. Bolton, and Planned Parenthood of Missouri v. Danforth ) is that they establish that the same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely. Both types of regulation 'may be justified only by a compelling state interest . . . and must be narrowly drawn to express only the legitimate state interests at stake.' ") (emphasis added). The threshold question whether there is a "burden" or "direct interference" in the pregnancy termination decision requires the plaintiff merely to show the requisite degree of interference. If the interference is sufficiently substantial and not de minimis, the State has to show the compelling basis for the law, that is, that the burden is not "undue" or unjustifiable. The defendants' proposed reading of the Supreme Court's language would virtually preclude the application of strict scrutiny to State interference in the abortion decision, for it would require the plaintiff to anticipate and to rebut possible reasons for the interference. Only if the plaintiff made this initial showing would the State be called upon to justify its actions. The defendants have suggested no standards by which the courts would determine whether a particular burden is "undue." Presumably the defendants

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would have the courts generally defer to the judgment of the...

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