Friendship Medical Center, Ltd. v. Chicago Bd. of Health

• Decision Date: 16 November 1973
• Docket Number: No. 73 C 1965.,73 C 1965.
• Citation: 367 F. Supp. 594
• Parties: FRIENDSHIP MEDICAL CENTER, LTD., and T. R. M. Howard, Plaintiffs, v. The CHICAGO BOARD OF HEALTH et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

367 F. Supp. 594

FRIENDSHIP MEDICAL CENTER, LTD., and T. R. M. Howard, Plaintiffs, v. The CHICAGO BOARD OF HEALTH et al., Defendants.

No. 73 C 1965.

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

November 16, 1973.

COPYRIGHT MATERIAL OMITTED

Jenner & Block, Chicago, Ill., for plaintiffs.

Richard L. Curry, Chicago Corp. Counsel, Chicago, Ill., for defendants.

OPINION

AUSTIN, District Judge.

Plaintiffs brought this suit for alleged violations of 42 U.S.C. § 1983,¹ seeking an injunction against enforcement, and a declaration of unconstitutionality, of the 1973 Abortion Services Regulations promulgated by the Chicago Board of Health.² The case is presently before this court to resolve the questions raised by defendants' joint motion to dismiss the complaint. The alleged facts are as follows:

Plaintiffs are a medical corporation and a physician who own and operate an abortion clinic in Chicago. They challenge certain aspects of the Regulations for Abortion Services adopted and promulgated by defendants Chicago Board of Health, Oldberg (its president), and its members. Generally, the regulations are safety measures which prescribe the methods and conditions under which abortions may be performed, regardless of the duration of the patient's pregnancy.³ They also require the filing of a registration form by any facility in which abortions are performed, containing facts indicating compliance with all the rules.⁴ If an abortion clinic fails to register or otherwise comply with the regulations, the Board of Health may order the discontinuance of operation until the clinic is registered or the violations corrected.

Plaintiffs claim the abortion regulations violate the United States Constitution in that: (a) they unduly restrict the rights of abortion patients to personal and marital privacy as established by the First, Fourth, Fifth, Ninth and Fourteenth Amendments; (b) they deny equal protection of the laws; (c) they violate the procedural and substantive due process guarantees of the Fifth and Fourteenth Amendments; and (d) they are overbroad and vague in violation of the due process clauses of the Fifth and Fourteenth Amendments.

Plaintiffs further claim that the regulations violate the Illinois Constitution in that: (a) they violate the right to privacy set forth in Article 1, Section 6; (b) they violate the due process and equal protection clauses of Article 1, Section 2; and (c) they violate the right to remedy and justice under Article 1, Section 12.

Lastly, plaintiffs claim the regulations unlawfully infringe upon their right to engage in the diagnosis and treatment of human ailments, by restricting their right to diagnose the "disease" of pregnancy and to properly treat it by aborting it, in that (a) they require the registration of abortion clinics with the Board of Health; (b) they require that the performance of abortions be only in clinics registered with the Board of Health; (c) they require that an abortion clinic have an ambulance service to transport an abortion patient in an emergency to a hospital within a total transport time of 15 minutes, and that it have a writen affiliation agreement with the hospital so the latter will accept abortion patients in need of follow-up emergency care; (d) they require a period of 24 hours between the initial examination and the termination of pregnancy; (e) they require a pathological examination of all tissue removed from the uterus of an abortion patient; and (f) they impose other improper conditions which plaintiffs fail to specify. Plaintiffs assert these conditions are unrelated to the reasonable and vital needs and interests involved; that they are unrelated to the extent to which the subject pregnancy may be in the first trimester thereof; and that they are therefore unconstitutional.

The precise questions presented here are: (a) whether this court has subject-matter jurisdiction of this suit; (b) whether plaintiffs have standing to litigate all the constitutional issues presented in their complaint; (c) whether this case is moot; and (d) whether the complaint states a claim upon which relief may be granted under 42 U.S.C. § 1983, in light of the recent decisions of the Supreme Court in 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).

JURISDICTION

Subject-matter jurisdiction of the instant suit is alleged to rest upon 28 U. S.C. § 1331,⁵ which confers upon this court the power to adjudicate federal constitutional questions in which the amount in controversy exceeds $10,000, exclusive of interest and costs. In support of their allegation of jurisdiction, plaintiffs claim the amount in controversy exceeds the $10,000 figure.

Defendants move to dismiss, asserting that mere allegation that the amount in controversy exceeds $10,000 does not by itself give a court jurisdiction under § 1331. Rather, further allegations of fact from which the amount can be inferred must be made. They argue that since plaintiffs do not make such additional allegations, the jurisdictional amount cannot be considered to exist. Therefore, they conclude this court lacks jurisdiction.

The object of this suit is to enjoin the enforcement of, and to declare unconstitutional, a municipal regulation. It is becoming increasingly recognized in cases where such relief is sought, that the amount in controversy is the value of the benefit which will be conferred upon the plaintiff if he prevails. See C. Wright, Law of Federal Courts § 34 at 117 (2d ed. 1970). Stated another way, the amount in controversy in a suit to enjoin a regulatory law is the cost to the plaintiff if he is forced to obey that law. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1934).

The abortion regulations in the present case require plaintiffs to maintain certain conditions and equipment at their clinic, and to hire certain personnel. Plaintiffs allege neither what the cost of compliance with the regulations will be nor that they will not incur the expenses unless so required.⁶ Thus, the amount in controversy in the instant suit is far from certain. However, such certainty is not required, absent evidence contrary to the plaintiffs' jurisdictional allegations, to prevent dismissal. The rule governing dismissal for want of jurisdiction is that the sum claimed by the plaintiff to be in issue controls if apparently made in good faith. "It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal." St. Paul Mercury Indemnity Co. v. Red Cab Company, 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1937) (emphasis added). There being no evidence that plaintiffs' jurisdictional allegations were made in bad faith, and there being an insufficient basis upon which to conclude to a legal certainty that, as a result of the abortion regulations, plaintiffs' expenses will be increased by less than $10,000, defendants' motion to dismiss for lack of subject-matter jurisdiction must be denied.

STANDING

In support of their motion to dismiss, defendants argue that plaintiffs lack standing to question the constitutionality of the abortion regulations. For the following reasons, their argument must be rejected in part; and therefore the motion to dismiss is granted only in part.

A. The Issue of Privacy

The question presented here is whether a private physician has standing to seek injunctive and declaratory relief against municipal health regulations, because they allegedly violate his patients' rights to personal and marital privacy. In other words, may a physician bring an action on behalf of his patients to protect their own fundamental constitutional rights, if they themselves are able to assert and protect their rights in the courts without his aid? Although one distinguished Court in this District has held in the affirmative on this issue, see Doe v. Scott, 321 F. Supp. 1385, 1387-1388 (N.D.Ill.1971), I cannot agree for the following reasons.

In order to assert a particular issue, it is established beyond all doubt that the plaintiff must have standing to do so. Furthermore, the doctrine of standing has come to require a twofold inquiry: first, whether the dispute at hand represents a "case of controversy" under Article III of the Constitution so it will be presented in an adversary context in a form historically viewed as capable of judicial resolution; and second, whether the litigant has a personal stake or interest in the outcome of that controversy. Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The first inquiry goes to the jurisdiction of the court to entertain the question presented, and the second is a rule of self-restraint which precludes a person from challenging the constitutionality of state action by invoking the rights of others. Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L. Ed. 1586 (1953). An exception to this second rule is that a party may assert the rights of others where "it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court." Id. at 257, 73 S.Ct. at 1035.

In the present case, plaintiffs seek to have the abortion regulations declared unconstitutional and to enjoin the Chicago Board of Health from enforcing the regulations on the ground that they unduly restrict the rights to personal and marital privacy. Surely, this is a "case or controversy" within the meaning of Article III. But whose rights are asserted here? Clearly, they are not those of the individual plaintiff. Rather, they are the rights of his patients who are not parties to this suit. Moreover, plaintiff Howard does not purport to claim his own right to privacy is violated. Therefore, plaintiffs are asserting the rights of others in this case; and there is absolutely no reason why the patients cannot seek redress of alleged...