Friendship Medical Center, Ltd. v. Chicago Bd. of Health
| Decision Date | 24 March 1975 |
| Docket Number | No. 74-1070,74-1070 |
| Citation | 505 F.2d 1141 |
| Parties | FRIENDSHIP MEDICAL CENTER, LTD. and T.R.M. Howard, Plaintiffs-Appellants, v. The CHICAGO BOARD OF HEALTH et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Julian B. Wilkins and Robert L. Graham, Chicago, Ill., for plaintiffs-appellants.
Richard L. Curry, Corp. Counsel and Ann Acker, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellees.
Before SWYGERT, Chief Judge, and FAIRCHILD and SPRECHER, Circuit judges.
The question presented is whether the Chicago Board of Health may promulgate and enforce regulations which describe in substantial detail conditions, equipment, and procedures that medical facilities offering abortions must comply with, without regard to the trimester of pregnancy involved.
Friendship Medical Center, Ltd. is a medical corporation organized pursuant to the laws of Illinois, which owns and operates a medical facility that offers abortions to pregnant women. Plaintiff Howard is the president of Friendship, a member of its board of directors, a shareholder, as well as a physician who practices through the facilities which Friendship operates. The defendants are the Chicago Board of Health and the members of that Board.
Plaintiffs brought this suit for alleged violations of 42 U.S.C. 1983 1 seeking an injunction against enforcement, and a declaration that the regulations promulgated by the defendant are unconstitutional. Plaintiffs-appellants appeal from the decision of the district court denying them standing to assert as one of the grounds for invalidating the regulations a woman's fundamental right of privacy, and the order granting the defendant's motion to dismiss for failure to state a claim upon which relief could be granted. Friendship Medical Center, Ltd. v. Chicago Board of Health, 367 F.Supp. 594, 607 (N.D.Ill.1973). 2
The plaintiffs urge on this appeal that: (a) they have standing to challenge the abortion regulations on the grounds that the regulations unconstitutionally restrict their patient's rights to personal and marital privacy; (b) the abortion regulations are an invalid and overbroad enactment infringing unreasonably upon fundamental rights because of their failure to exclude the first trimester; and (c) they are invalid because of their stringent and sweeping requirements which are not legitimately related to recognized governmental objectives to protect maternal health. 3
The defendants contend that not only do the plaintiffs lack standing, but also that the Supreme Court's recent abortion decisions do not proscribe attempts by state or local governments to impose safety regulations that are reasonably related to their interest in protecting the health of those seeking abortions.
On January 22, 1973 the United States Supreme Court rendered its landmark decisions on abortion. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Shortly thereafter in May of 1973 the defendants adopted Regulations for Abortion Services for the City of Chicago. 4
The regulations require that an abortion be performed by a licensed physician and in a facility that complies with its provisions. Each facility is required to keep records in regard to the admission and discharge of patients, medical histories, results of tests, social services offered and other patient progress notes. Chicago Board of Health Regulations on Abortion Services, section IV(a), (hereinafter cited as Abortion Regulations). It must also prepare monthly reports which are to include the number of patients that requested, and were either given or denied abortions, and the name and address of patients who developed complications following the abortion and a description of such complications. Abortion Regulations, supra, section IV(b).
All equipment and supplies must be maintained in proper working order, and necessary solutions, drugs and medications must be available. There must be a knee or foot controlled sink immediately adjacent to the room where the abortion is performed, an elevator that can accommodate a stretcher if any abortion service is located above ground level, anesthesia and such other equipment as is necessary to treat for hemorrhage, shock, cardiac arrest, and other emergencies. Abortion Regulations, supra, sections VI, VIII, IX(c). Each abortion service is required to have facilities for registration, medical evaluation and examination, post-operative recovery and suitable furnishings and accommodations, including waiting and dressing rooms. Abortion Regulations, supra, sections IX, XII.
In addition every non-hospital abortion service must have a written affiliation agreement with a licensed Chicago hospital allowing the use of its laboratory facilities and providing for the treatment of its patients requiring emergency care. The abortion service must have immediately available organized transportation facilities capable of transporting patients to the affiliated hospital within fifteen minutes. Abortion Regulations, supra, sections I(d), VII, X. The regulations also require that an abortion service be supervised by a physician who is either a qualified obstetrician or surgeon; 5 that there be at least one registered professional nurse with post graduate experience in obstetric or gynecological nursing on duty at all times while the abortion service is in use and that there be a social service unit available to the patients of the service. Abortion Regulations, supra, sections XIII(b), XIV(b), XV.
Finally, the Chicago Board of Health requires that a complete medical history be obtained including not only a pelvic examination, but also the following laboratory tests on every patient: hematocrit, Rh factor, complete urinalysis and blood grouping. Abortion Regulations, supra, section XVI(c). There is also required to be an interval of at least twenty-four hours between the initial examination and the termination of the pregnancy to permit review of all laboratory tests 'and to permit and encourage thorough consideration and a firm decision by the patient regarding termination of pregnancy.' Abortion Regulations, supra, section XVI(e).
The regulations themselves provide for the closing of any abortion service that either fails to register or which, if it continued in operation would be in violation of any of the Board of Health's regulations. Abortion Regulations, supra, section XIX. In addition certain of the named defendants, as well as other employees of the defendant Board have been given 'full police powers' as well as the 'right to arrest' any individual that does not comply with the provisions of the health code. 6 Municipal Code of Chicago, ch. 9, 5.
The district court while allowing the plaintiffs to challenge the Abortion Regulations on substantive and procedural due process and equal protection grounds, refused to allow them to attack the regulations as violative of a woman's right of privacy as delineated in Roe and Doe. Friendship Medical Center, supra at 600. In our view the district court viewed plaintiffs' right to challenge the Board of Health's regulations too narrowly.
The initial inquiry in determining if the plaintiffs have the requisite standing to maintain this action is whether they have alleged such a personal stake in the outcome of the controversy so as to assure that there exists 'concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In the present case it is clear that both the individual and corporate plaintiff have a sufficient interest at stake to allow them to proceed with this action. Both plaintiffs allege that the regulations, which are aimed directly at them, restrict their rights to treat medical matters relating to abortions. This allegation can be fairly read to charge that the Abortion Regulations deprive Dr. Howard of his asserted right to offer abortions without substantial restrictions during the first trimester. In the instant case the defendants, pursuant to the Abortion Regulations, have the power to deny authorization to those seeking to operate an abortion facility 7 as well as the power to order the closing of any facility that it deems not in compliance with its regulations. 8 Surely, those subject to such deprivations through the use of governmental power have a sufficient interest to maintain this type of action. See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940).
In addition the defendants, pursuant to the Municipal Code of Chicago, have full police powers and the power to arrest. See note 6 supra. Whether proceedings brought under this section are characterized as quasicriminal, as the defendants asserted at oral argument, or criminal in nature, it is clear that they involve a deprivation of liberty. The plaintiffs in their action are the ones subject to this deprivation and accordingly have a requisite interest in attacking the validity of the challenged regulations.
The defendant takes the position that the Supreme Court's decision in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), precludes the granting of standing to an individual who is merely threatened with prosecution, and that this is especially so where as in the instant case the plaintiffs have in fact complied with the challenged regulations and have received approval to operate their clinic from the Chicago Board of Health. We cannot agree that the threat of prosecution is so...
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