Fox Valley Reproductive Health Care Center, Inc. v. Arft, 78-C-28.

• Decision Date: 08 March 1978
• Docket Number: No. 78-C-28.,78-C-28.
• Citation: 446 F. Supp. 1072
• Parties: FOX VALLEY REPRODUCTIVE HEALTH CARE CENTER, INC., Plaintiff, v. John ARFT, Clyde Coenen, John Stevens, Leslie Woldt and Herbert Ziegler, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

446 F. Supp. 1072

FOX VALLEY REPRODUCTIVE HEALTH CARE CENTER, INC., Plaintiff, v. John ARFT, Clyde Coenen, John Stevens, Leslie Woldt and Herbert Ziegler, Defendants.

No. 78-C-28.

United States District Court, E. D. Wisconsin.

March 8, 1978.

Herrling, Swain, Drengler & McCanna by Robert W. Swain, Jr., Appleton, Wis., for plaintiff.

Herrling, Clark, Hartzheim & Siddal by Roger W. Clark, Appleton, Wis., for defendants.

DECISION and ORDER

MYRON L. GORDON, District Judge.

The plaintiff has filed a motion for a preliminary injunction. The parties have submitted briefs and affidavits in support of their respective positions. The motion will be granted.

This is an action challenging the health care regulations of the Town of Grand Chute. It is claimed that these regulations are an impermissible restriction on the plaintiff's performance of first trimester abortions. The plaintiff seeks declaratory and injunctive relief and compensatory and punitive damages. Jurisdiction is alleged to exist pursuant to 28 U.S.C. §§ 1343, 2201 and 2202. The defendants' alleged liability is predicated on 42 U.S.C. § 1983.

The plaintiff, Fox Valley Reproductive Health Care Center, Inc., is a private Wisconsin corporation formed to provide first trimester abortions, supportive counseling, and general reproductive health care education. The defendants, all of whom are sued in their individual and official capacities, are members of the Town of Grand Chute's board of health, and also variously serve as town board members, health officer, and town clerk.

The following facts appear to be undisputed. Beginning in early 1977, the officers of the plaintiff corporation investigated the feasibility of opening a reproductive health care clinic at which abortions would be performed for profit. Their research disclosed that annually between 1,700 and 2,300 women from the Fox Valley area traveled to Milwaukee or Madison to obtain abortions. Based on this information, a decision to open a clinic in the Fox Valley area was made.

The plaintiff corporation was formed; a building to house the clinic was leased; the building was remodeled; equipment and supplies were ordered; and arrangements for a medical staff were made. Substantial expenditures were incurred in making the above preparations.

On September 20, 1977, there were newspaper reports that the plaintiff was planning to open a clinic at which abortions would be performed. The next day, the defendant members of the town board visited the clinic. On September 23, 1977, the town's building inspector ordered that remodeling of the building cease, claiming that the work performed on the building exceeded the terms of the building and plumbing permits which had issued.

On October 18, 1977, the town board directed the town's attorney to draft an ordinance regulating abortion facilities. On October 19, 1977, the town's board of health held a public meeting to hear testimony regarding establishment of the clinic. According to the minutes of the meeting, a resolution was adopted opposing "abortion and the establishment of an abortion facility," and a second resolution was adopted authorizing the town's legal counsel to prepare "an ordinance regulating operation of the Abortion Clinic in Grand Chute." A set of regulations, denominated chapter 22 of the ordinances of the Town of Grand Chute, was adopted by the town board on November 1, 1977, and remains in effect.

The regulations apply to any nonhospital facility at which surgical, diagnostic, or therapeutic procedures are performed; however, certain provisions apply specifically to abortion clinics and procedures. In a comprehensive fashion, the 38 lengthy provisions regulate licensing, building plans and specifications, supplies and equipment, medical policies and procedures, record keeping, patient care, and physician and nurse qualifications. Upon a "conviction" of violating any provision of chapter 22, a "fine" or "forfeiture" of not more than "$500 nor less than $50.00" may be imposed, and for failure to pay such sum, the violator may be imprisoned in the county jail until the sum is paid.

The plaintiff avers that the clinic has been prepared to open and perform first trimester abortions since November 1, 1977, but that the clinic cannot conform to most of the provisions of chapter 22 which relate to the physical facility and to the policies and procedures concerning first trimester abortions. Consequently, the plaintiff's clinic's operations have been limited to counseling.

The plaintiff claims that the town's regulations in chapter 22 are invalid, overbroad, infringe unreasonably upon a woman's right of privacy, and are not related to recognized governmental objectives of protecting maternal health. The plaintiff also asserts that the regulations violate the substantive and procedural due process and equal protection guarantees of the Fourteenth Amendment. It is alleged that the defendants have denied the plaintiff the right to engage in a business protected by the laws and Constitution of the United States.

The guidelines to be followed by a district court on a motion for a preliminary injunction are well established. The plaintiff must demonstrate that:

"(1) the plaintiffs have no adequate remedy at law and will be irreparably harmed if the injunction does not issue; (2) the threatened injury to the plaintiffs outweighs the threatened harm the injunction may inflict on the defendant; (3) the plaintiffs have at least a reasonable likelihood of success on the merits; and (4) the granting of a preliminary injunction will not disserve the public interest." Fox Valley Harvestore v. A. O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir. 1976).

The plaintiff argues that irreparable harm will ensue if a preliminary injunction is not granted because the high cost of bringing the physical facility into compliance with chapter 22 will force the plaintiff to raise the planned fee for performing abortions to an amount which would be beyond the economic means of poor women. The plaintiff's affidavits state that the original planned fee for performing a first trimester abortion was to be $150, but that the fee would have to be increased to an amount between $300 and $500 if the plaintiff were burdened with the costs of compliance. These averments, in conjunction with the solicitude that courts have shown for a woman's right to freedom from interference in deciding whether to seek an abortion, a right which this plaintiff has standing to advance, Friendship Medical Center, Ltd. v. Chicago Board of Health, 505 F.2d 1141 (7th Cir. 1974), cert. denied 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975), support a finding that irreparable injury is threatened.

I also believe that the threatened harm to the plaintiff and its prospective clients—the total ban of first trimester abortions in the plaintiff's nonconforming facility—outweighs any harm the injunction may inflict on the defendants.

I also find that the plaintiff has a reasonable likelihood of success on the merits. In Friendship Medical Center, Ltd., supra, the court of appeals for this circuit sustained a challenge to regulations remarkably similar to those in chapter 22. Rejecting arguments akin to those made by the defendants in this case, the court held, at pp. 1151-52:

"Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) compel us to conclude that the fundamental right of privacy includes, at least during the first trimester of pregnancy, the right to be free from governmental regulations that have an

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