Charles v. Carey, 79 C 4541

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Writing for the Court: Carol Kipperman, Chicago, Ill., Frank Susman, St. Louis, Mo., for plaintiffs Hope Clinic, et al
• Citation: 579 F. Supp. 377
• Parties: Allan 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.
• Docket Number: No. 79 C 4541,79 C 4548.,79 C 4541
• Decision Date: 14 July 1983

579 F. Supp. 377

Allan 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.

Nos. 79 C 4541, 79 C 4548.

United States District Court, N.D. Illinois, E.D.

July 14, 1983.

579 F. Supp. 378

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, 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.

MEMORANDUM OPINION

KOCORAS, District Judge:

For decision before me today is Plaintiffs' Renewed Motion for Preliminary Injunction. This motion seeks relief regarding certain specified sections of S.B. 47, the Illinois Abortion Law of 1975, as amended. A preliminary injunction has already been issued concerning major portions of the legislation as the result of the orders issued by Judge Flaum (Memorandum Opinion, November 16, 1979) and the Seventh Circuit Court of Appeals (Charles v. Carey, 627 F.2d 772 (7th Cir.1980)).¹

The standard which governs my decision is clear. "To obtain preliminary injunctive relief ..., the plaintiffs must demonstrate

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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." Charles v. Carey, 627 F.2d at 776. Plaintiffs will be considered to have shown their likelihood of success on the merits if restrictive state regulation of abortion is not supported by a compelling state interest. City of Akron v. Akron Center for Productive Health, Inc., ___ U.S. ___, ___, 103 S.Ct. 2481, 2490, 76 L.Ed.2d 687 (1983).² See also Charles v. Carey, 627 F.2d at 777.³

Plaintiffs argue that these standards are met and a preliminary injunction should issue with regard to the following statutory provisions: sections 2(6), 2(8), 2(9), 3.1(A), 3.1(B)(1)(a), 3.1(B)(1)(b), 3.2(A)(1)(a), 3.5(1), 6(3), 6(7), 10, 11(e), 11(f) and 12. Each shall be discussed in turn.

I. The Definitional Sections: Sections 2(6), 2(8) and 2(9)

Section 2 of the Act sets forth numerous definitions of statutory terms. Plaintiffs first challenge sections 2(8) and 2(9) which define, respectively, "Human being," and "Fetus." In full, these sections provide:

(8) "Human being" means the individual from fertilization until death.

(9) "Fetus" and "unborn child" each mean a human being from fertilization until birth.

Plaintiffs argue that these two sections incorporate the State's view of life as beginning at fertilization, a view which the Supreme Court has rejected.

Other statutory sections have been stricken by this Court, the Seventh Circuit Court of Appeals, and the Supreme Court for the reason set forth by plaintiffs. In Akron the Court found unconstitutional that subsection of the ordinance which required the attending physician to orally inform a pregnant woman "That the unborn child is a human life from the moment of conception ..."⁴ As the Court explained, that "requirement is inconsistent with the Court's holding in Roe v. Wade that a State may not adopt one theory of when life begins to justify its regulation of abortions. See 410 U.S. 113, 159-162, 93 S.Ct. 705, 729, 731" ___ U.S. at ___, 103 S.Ct. at 2500. A similar provision in the Illinois Statute has been enjoined by this Court. Section 3.5(2).

Likewise, the Seventh Circuit ordered that a preliminary injunction be issued as to sections 2(10) and 11(d) of the Illinois law, stating:

... use of the term "abortifacient" in describing certain birth control methods forces the physician to act as the mouth-piece for the State's theory of life. In this way, section 11(d) is merely a milder version of the "informed consent" provision of section 3.5(2), enjoined by the district court, requiring, among other things, that the patient be told that "the State ... wants you to know that in its view the child you are carrying is a living human being ..."

Charles v. Carey, 627 F.2d at 789.

There can be no question that sections 2(8) and 2(9) are written so as to espouse the State's theory of life. A human being is understood, in common parlance, to be a living person. Thus, to say that an individual

579 F. Supp. 380

at fertilization is a human being, is to say that life begins at fertilization, a theory clearly eschewed by the Supreme Court. Further, there can be no reason offered by the State as to why this definition, or its equivalent, is necessary to any constitutional purposes of the Act. Because section 2(9) incorporates the term "human being" into its definition of fetus, it suffers from the same constitutional infirmities. The plaintiffs have shown a reasonable likelihood that section 2(8) and 2(9) are unconstitutional.⁵

Plaintiffs next challenge Section 2(6) which defines "abortion":

(6) "Abortion" means the use of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with intent to cause fetal death.

Plaintiffs argue that because this section incorporates a derivative of the impermissible term "fetus"—"fetal death"—it also must fall.

I cannot agree. My refusal to allow "fetus" to be statutorily defined in terms of a "human being" does not mean that either "fetus" or "fetal death" are terms which cannot be understood, absent statutory definition. The terms, as used in 2(6) are not "so devoid of meaning that reasonable persons are deprived the opportunity to conform their conduct to the law." Charles v. Carey, 627 F.2d at 788, citing Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). Although the Seventh Circuit opinion stated the following in a bracketed passage at page 788 "although the use of the term `death' in conjunction with the term `fetal' may present problems not briefed here," it is my view that "fetal death" is not impermissibly vague.

Death has been variously defined as "a permanent cessation of all vital functions," "the passing or destruction of something inanimate," and "extinction." Webster's New Collegiate Dictionary, 1977 Edition. Whether death in this context is viewed as the destruction of the fetus, or as the extinction of the fetus, or as the permanent cessation of the fetus' capacity for future development, the plain meaning of the statute is manifest. The section is not rendered unconstitutionally vague and no injunction shall be entered as to it.⁶

II. The Duties of the Physician Who is to Perform the Abortion: Sections 3.1, 3.2(A)(1)(a), and 3.5(1)

Sections 3.1, 3.2(A)(1)(a) and 3.5 set forth certain duties to be fulfilled by the doctor who is to perform an abortion. Section 3.1(A) makes it a class 2 felony for a physician to perform an abortion if he "intentionally and knowingly" ignores the statutory requirement of first determining "in his best clinical judgment, that the abortion is necessary."⁷ Section 3.1(B) requires that the physician who is to perform the abortion and the woman upon whom it is to be performed have a private consultation "in a place, at a time and of a duration reasonably sufficient to enable the physician to determine whether, based upon his best clinical judgment, the abortion is necessary."

579 F. Supp. 381

The basis for the judgment of necessity is to be recorded on a form by the doctor. § 3.1(B)(1)(b). Exceptions and penalties are also delineated. § 3.1(B)(2)(3)

Section 3.2 is the "Informed Consent" provision. The Seventh Circuit has specifically upheld the introductory paragraph which states:

(A) No abortion shall be performed except with the voluntary and informed consent of the woman upon whom the abortion is to be performed.

See Charles v. Carey, 627 F.2d at 783. The correctness of this ruling was affirmed by the Supreme Court in Akron. ___ U.S. at ___, 103 S.Ct. at 2499.

Subpart (1)(a) of section 3.2 sets forth the requisites for a finding of "voluntary and informed" consent. As the section originally stood, particular information was to be given to the woman, "by the physician who is to perform the abortion," "at least 24 hours before the abortion." The required information included a true copy of her pregnancy test result (§ 3.2(A)(1)(a)); the name of the physician who will perform the abortion (§ 3.2(A)(1)(a)(i)); the medical risks associated with the particular abortion procedure to be employed (§ 3.2(A)(1)(a)(ii)); the probable gestational age of the fetus at the time the abortion is to be performed (§...