Ragsdale v. Turnock
| Decision Date | 12 August 1988 |
| Docket Number | No. 85-3242,85-3242 |
| Citation | 841 F.2d 1358 |
| Parties | Richard M. RAGSDALE, et al., Plaintiffs-Appellees, v. Bernard J. TURNOCK, Director of the Illinois Department of Public Health, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kathleen T. Kreisel, Ill. Atty. Gen. Office, Chicago, Ill., for defendants-appellants.
Colleen K. Connell, American Civil Liberties Union, Alan S. Gilbert, Lorie A. Chaiten and Susan M. Kornfield, Sonnenschein, Carlin, Nath & Rosenthal, Chicago, Ill., for plaintiffs-appellees.
Before BAUER, Chief Judge, COFFEY, Circuit Judge, and ESCHBACH, Senior Circuit Judge.
Plaintiffs consist of a class of all duly licensed physicians and surgeons performing 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 Health, the Illinois Attorney General, and the Director of the Illinois Department of Registration and Education. Plaintiffs sued under 42 U.S.C. Sec. 1983 and 28 U.S.C. Secs. 2201-02, seeking declaratory and injunctive relief to the effect that three Illinois statutes and the regulations thereunder violate the constitutional right to privacy, specifically to abortion, as established in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and subsequent Supreme Court cases. This case comes to us on appeal from the district court's grant of plaintiffs' motion for a preliminary injunction. 625 F.Supp. 1212 (N.D.Ill.1985). Because we believe certain of the claims are moot, we vacate in part. In most respects, however, we affirm the preliminary injunction.
The statutory and regulatory scheme is somewhat complex. Therefore, we set it out in some detail. Section 16(1) of the Medical Practice Act ("the MPA"), 111 Ill.Rev.Stat. p 4433(1), allows for revocation or suspension of the license of any physician who performs an "elective abortion" in any place other than a licensed Ambulatory Surgical Treatment Center ("ASTC"), a hospital, or a facility run by the state or federal governments. 2 The Ambulatory The bulk of plaintiffs' specific challenges, however, are directed at the ASTCA and the regulations promulgated thereunder, and their application, via the MPA, to physicians desiring to perform first and early second trimester abortions. Accordingly, we set forth the ASTCA and its accompanying regulations in some detail. 4
Surgical Treatment Center Act, 111 1/2 Ill.Rev.Stat. paragraphs 157-8.1, et seq. (the "ASTCA" or the "Act"), provides for the licensure of all ASTCs, which it defines as "any ... place ... devoted primarily to ... the performance of surgical procedures or any facility in which a medical or surgical procedure is utilized to terminate a pregnancy, irrespective of whether the facility is devoted primarily to this purpose...." 111 1/2 Ill.Rev.Stat. p 157-8.3(A). In addition, plaintiffs have challenged those sections of the Health Facilities Planning Act, 111 1/2 Ill.Rev.Stat. paragraphs 1151, et seq. ("HFPA"), which require anyone seeking to open an ASTC to obtain a certificate of need for the facility from the Department of Public Health after a public hearing and 120-day review period. See 111 1/2 Ill.Rev.Stat. paragraphs 1155-1160. 3
The Act itself is largely procedural in operation and grants the Department of Public Health the authority to promulgate specific regulations governing ASTCs. 111 1/2 Ill.Rev.Stat. p 157-8.10. However, certain specific provisions of the statute also prescribe requirements for ASTCs. Section 6.1 of the ASTCA requires any corporation operating an ASTC devoted primarily to providing facilities for abortion to have on its board of directors a physician who is licensed to practice medicine in all of its branches and is actively engaged in the practice of medicine at the ASTC. Pars. 157-8.5 and 8.6 generally provide for licensing with an initial fee of $500 and an annual renewal fee of $300. Additionally, those sections require that a licensed facility be under the supervision of one or more physicians and that at least one physician have admitting and surgical privileges at an Illinois hospital. Pars. 157-8.7a and 8.7b require statements regarding the ownership of and financial condition of the facility. Par. 157-8.8 requires Department approval of construction of, alterations of, or additions to a facility. Par. 157-8.9 provides for quarterly inspections of facilities and provides for confidentiality of information received by the Department.
The remedial sections of the Act provide an array of enforcement mechanisms. Par. 157-8.9a provides that a facility may be closed by administrative order if its continued operation constitutes an imminent and serious menace to the health or safety of the patients or if the operator thereof has been convicted of a violation of par. 157-8.12. Par. 157-8.12 provides for a fine of $10,000 per day for operating a facility without a license or otherwise violating the Act. Par. 157-8.13 makes the operation of a facility in violation of the Act or regulations Par. 157-8.15 provides, in broad terms, for severability of the provisions of the Act.
a public nuisance subject to injunction.
The general regulations under the ASTCA, found in Title 77 of the Illinois Administrative Code, are detailed and govern many aspects of an ASTC.
For example, there are quite specific physical plant regulations which require: (1) a minimum size of 250 sq. ft. for at least one procedure room (any additional ones must be no smaller than 120 sq. ft.) and a minimum of 80 sq. ft. for examinations rooms; (2) that an ASTC be "identifiably separate from other medical facilities and functions"; (3) that a "control station" be located to allow visual surveillance of traffic entering the operating suite; (4) that facilities including a lounge, lockers, separate toilets, and a space for changing clothes be provided for male and female personnel; (5) a separate janitorial closet for the surgical suite; (6) a "diagnostic facility" if pre-admission evaluation tests are to be performed; and (7) minimum corridor (5' or 8' depending on whether stretchers are to be used) and door (3' or 3'8""") widths. Sec. 205.1310-1390. Also, an elaborate air-conditioning, heating, and ventilation system to provide for specific filter efficiencies and airflow relationships between rooms is required. Sec. 205.1540 and Table A.
The licensure regulation provides for a detailed application including identification of the owners and operators of the facility, its location, a description and architectural plans, documentation of compliance with building and safety 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, location of the facility, remodeling, or addition of services or programs. Notice to the Department must be given of any change in the administrative staff, medical director, staff physicians, supervising nurse, addition or deletion of surgical procedures, or change in any shareholder interest of five percent or more. Sec. 205.120.
Other general requirements include an organizational plan which is available for public information, a policies and procedures manual, and written personnel policies including job descriptions. Sec. 205.310. All facilities are required to have the following personnel present during the operative and post-operative period for all patients: a physician, a registered professional nurse with post-graduate education or experience in surgical nursing, and a person certified in "Basic Life Support" by the American Heart Association. Sections 205.320-40. Additionally, each facility must have either a certified medical technician or a written agreement with a licensed laboratory to perform required laboratory procedures. Sec. 205.350. A consulting committee must be established to develop standards of professional work and a physician must serve as the medical director of the facility. Sec. 250.230.
With regard to equipment, all facilities are required to have monitoring equipment, suction apparatus, oxygen, and cardiac pulmonary resuscitation equipment. Sec. 205.410. Additional written procedures are required to govern care, use, sterilization, storage and disposal of all materials, and to govern storage and use of all medications. Id. Additional written procedures are required for garbage and refuse removal, insect and rodent control, and maintenance of heating, ventilation and utility service. Sec. 205.420.
Patient care regulations include a requirement of a written "emergency" procedure in case of fire, explosion, or "other non-patient medical emergency," and preparation to manage the emergencies normally associated with the surgical procedures performed. Sec. 205.510. A "complete physical" is required and specified tests are required to be performed by a qualified laboratory technician for any procedures performed under general anesthesia, local anesthesia with sedation, or any pregnancy termination. A signed, written informed consent for any procedure is to be maintained with the patient's clinical records.
Sec. 205.520. All removed tissues are to be examined by a consulting pathologist. Sec. 205.530
Post-operative care regulations provide that any patient who has had general anesthesia, local anesthesia with sedation, or pregnancy termination is required to be observed for a period of time sufficient to detect any immediate post-operative complications, and that no patient be required...
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