Charles v. Carey, 79C4541

Decision Date02 November 1983
Docket Number79C4548.,No. 79C4541,79C4541
PartiesAllan G. CHARLES, M.D., Marvin Rosner, M.D., David Zbaraz, M.D. and Martin Motew, M.D., and on behalf of all others similarly situated, Plaintiffs, v. Bernard CAREY, State's Attorney for the County of Cook, Tyrone C. Fahner, Attorney General of the State of Illinois, their agents, successors and all others similarly situated and Byron Francis, M.D., Acting Director of Public Health, State of Illinois, Defendants. The HOPE CLINIC FOR WOMEN, LTD., an Illinois corporation, Hector N. Zevallos, M.D., National Health Care Services of Peoria, Inc., an Illinois corporation, Arthur C. Watson, Jr. M.D., and Robert C. Steptoe, M.D., Plaintiffs, v. Tyrone C. FAHNER, Attorney General of the State of Illinois and Bernard Carey, State's Attorney of Cook County, Illinois, Defendants.
CourtU.S. District Court — Northern District of Illinois

Lois Lipton, R. Peter Carey, Merle L. Royce, II, Prentice H. Marshall, Jr., Chicago, Ill., for plaintiff Charles, et al.; Roger Baldwin Foundation of ACLU, Inc., Chicago, Ill., of counsel.

Carol Kipperman, Chicago, Ill., Frank Susman, St. Louis, Mo., for plaintiffs Hope Clinic, et al.

Richard M. Daley, State's Atty., c/o Robert Tonos, Neil Hartigan, Atty. Gen., c/o Kathleen Kreisel, Chicago, Ill., for defendants.

Thomas J. Marzen, Maura Quinlan, Americans United for Life Legal Defense Fund, Chicago, Ill., for intervening defendants.


KOCORAS, District Judge:

This matter comes before the Court on the parties' cross motions for summary judgment. Plaintiffs seek entry of a permanent injunction against the enforcement of the Illinois Abortion Law of 1975, as amended,1 on the grounds that the legislation is unconstitutional. Numerous sections of the legislation have already been preliminarily enjoined as a result of orders issued by Judge Flaum (Memorandum Opinion, November 16, 1979), the Seventh Circuit Court of Appeals (Charles v. Carey, 627 F.2d 772 (7th Cir.1980)), and by this Court Charles v. Carey, 579 F.Supp. 377 (N.D.Ill.1983). In this opinion, the constitutionality of each section shall be discussed sequentially.2

Section 1 of the legislation is the Preamble. Despite the clear holding of the Supreme Court in Roe v. Wade,3 and reaffirmed in City of Akron v. Akron Center for Reproductive Health,4 that "a State may not adopt one theory of when life begins to justify its regulation of abortions,"5 the Preamble in the instant statute arguably attempts to do just that. It declares the General Assembly's view "that the unborn child is a human being from the time of conception and is ... entitled to the right of life from conception." However, because the Preamble also contains language which states that the legislature intended "to reasonably regulate abortion in conformance with the decisions of the United States Supreme Court in Roe v. Wade and its companion cases" (emphasis supplied), the Seventh Circuit has held that the Preamble does not express an unlawful purpose, when read as a whole. Charles v. Carey, 627 F.2d at 779. Most important, because the Preamble is largely rhetorical and effectively has little impact on the substantive provisions of this Act,6 it does not unconstitutionally burden a woman's protected interest in obtaining an abortion. Accordingly, Section 1 shall not be permanently enjoined.

In contrast, I find that certain portions of Section 2, the definitional section, do have an impact upon the substantive provisions of the legislation and therefore do burden a woman's choice regarding an abortion. Thus, for the reasons set forth in the earlier opinions by the Seventh Circuit7 and this Court,8 a permanent injunction shall issue against Sections 2(8), 2(9), and 2(10).

Section 2(2) defining viability was recently amended to replace the clause "more than momentary" with the word "sustained".9 This change removes the objections found by Judge Flaum earlier, and renders the definition constitutional under Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). The preliminary injunction entered as to Section 2(2) is therefore dissolved and no permanent injunction shall issue. The remaining portions of Section 2 are not being challenged by plaintiffs at this time,10 so they shall also stand.

Section 3.1(A) requires the doctor who is to perform an abortion to determine, for himself, that in his best clinical judgment the abortion is necessary. For the reasons set forth by this Court11 and the Court of Appeals12 in the earlier opinions, this subsection is constitutional and shall not be enjoined.

Section 3.1(B)(1)(a) sets forth certain requirements concerning a mandatory "consultation" between the woman and the doctor who is to perform her abortion. Defendants concede that it is an unconstitutional provision after Akron. A permanent injunction shall enter against it, for the reasons set forth in this Court's earlier opinion.13

Section 3.1(B)(1)(b) requires the doctor performing the abortion to describe, on a form provided by the State, the "basis" of his best clinical judgment that the abortion is necessary. Although this Court sees no constitutional difficulty in requiring a physician to "certify" that the abortion was medically necessary,14 to insist that a doctor "describe" the "basis" for that clinical judgment may unnecessarily interfere with both the confidentiality of the woman's abortion decision and the physician-patient consultation. The Akron Court made clear that neither of these two areas may be interfered with by the State during the first trimester, even by "minor regulations on the abortion procedure."15 Further, it is unclear what need the State has for more detailed information than a certification. Accordingly, a permanent injunction shall issue as to Section 3.1(B)(1)(b).16

Section 3.2 was written to ensure that a woman gives voluntary and informed consent before an abortion is performed. Numerous subparts of this section have been preliminarily enjoined, and a permanent injunction shall issue against them for the reasons set forth in the earlier opinions.17

The only portion of Section 3.2 about which there continues to be a dispute is the first sentence of Section 3.2(A) which provides, simply: "No abortion shall be performed except with the voluntary and informed consent of the woman upon whom the abortion is to be performed." Plaintiffs' primary argument is not directed towards the substance of this sentence, but rather, to any piecemeal treatment of the section.

Form must not be elevated over substance by any court, especially when constitutional issues are raised. However, a case such as this also involves a statute, drafted with parts and subparts, and containing a severability clause. In such a situation, when constitutional infirmities are discovered, the court must struggle to effectuate the constitutional purpose of the legislature, to decide which clauses, subparts and sections must be enjoined, and to determine which of the remaining provisions may still be enforced.

The Supreme Court's decision in Akron teaches that effectuation of the legislature's constitutional purpose may be accomplished in several ways. First, the court may strike an entire undivided provision, on the grounds that severing only certain words or phrases would leave a remnant which the court could not be sure would have been enacted alone.18 Alternatively, when a section has been carefully divided by the legislators into subsections, the court may find itself able to strike the unconstitutional subparts while leaving others, pursuant to a severability clause.19 Finally, when an introductory clause is followed by subparts, each of which are individually affected by the introduction, and the former is found to be unconstitutional, then each of the underlying subparts must also be enjoined because they are necessarily infected by the introduction's infirmities. This is true even if the subparts, standing alone, would be sound.20

In its earlier opinion, this Court followed the third approach outlined above to enjoin subsections 3.2(A)(1)(a)(i)-(iv). The overarching language in Section 3.2(A)(1)(a) was unconstitutional, so a preliminary injunction was issued against the subparts which followed it. In contrast, the disputed phrase in Section 3.2(A) does not follow any unconstitutional language; it is the first sentence of the section. It also sets forth a constitutional, and unquestionably wise requirement that informed consent be obtained.21 Although the legislature clearly wanted "informed consent" to be defined as it had set forth in (a)(i)-(iv), I cannot believe that it would have retreated entirely from its desire to demand such consent once faced with this Court's ruling as to that definition. Accordingly, I find that the first sentence of Section 3.2(A) should not be enjoined.

Section 3.3 is the mandatory parental notice section. Judge Flaum enjoined the entire section and defendants now concede its unconstitutionality. A permanent injunction must issue against it.

Section 3.4 requires spousal notification. I agree with Judge Flaum that the section is overinclusive and therefore unconstitutional.22 It must be permanently enjoined.23

Sections 3.5 and 4, regarding information to be distributed to the woman, and the required use of hospitals for abortions after the first trimester, are both conceded by defendants to be unconstitutional.24 Both shall be permanently enjoined.

Section 5 concerns post-viability abortions. Judge Flaum issued a preliminary injunction against the entire section based upon his finding that the definition of "viability" was unconstitutional. The recent amendment to the definition removes that earlier objection and renders Section 5(2) clearly constitutional.25 The preliminary injunction against this subpart is therefore dissolved. Section 5(3) is rendered meaningless because it references...

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5 cases
  • Diamond v. Charles
    • United States
    • United States Supreme Court
    • April 30, 1986
    ...627 F.2d 772, 789 (1980).12 On remand, the District Court permanently enjoined, among others, §§ 6(4), 2(10), and 11(d). Charles v. Carey, 579 F.Supp. 464 (1983).13 On appeal and cross-appeal, the Court of Appeals affirmed the entry of the permanent injunction as to the three sections, and ......
  • Charles v. Daley
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 22, 1988
    ...had permanently enjoined enforcement of twenty-five sections of the Act, including its primary operative provisions. See Charles v. Carey, 579 F.Supp. 464 (N.D.Ill.1983). The intervenors, together with the Illinois Attorney General and State's Attorney Daley, immediately appealed the issuan......
  • Ragsdale v. Turnock
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 12, 1988
    ...10 of the Illinois Abortion Law of 1975, an abortion-specific reporting requirement, was enjoined by Judge Kocoras in Charles v. Carey, 579 F.Supp. 464 (N.D.Ill.1983), aff'd in part, rev'd in part on other grounds Charles v. Daley, 749 F.2d 452 (7th Cir.1984) (Charles II ), appeal dismissed......
  • Keith v. Daley
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 18, 1985
    ...Plaintiffs allege that certain of the challenged subsections are identical to sections held unconstitutional in Charles v. Carey, 579 F.Supp. 464 (N.D.Ill.1983), aff'd, 749 F.2d 452, 461-62 (7th Cir.1984). Plaintiffs also challenge sections of HB 1399 which inter alia, declare, that human l......
  • Request a trial to view additional results

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