Peckmann v. Thompson, 89-2344.

• Decision Date: 19 September 1990
• Docket Number: No. 89-2344.,89-2344.
• Citation: 745 F. Supp. 1388
• Parties: Betty PECKMANN, et al., Plaintiffs, v. Robert THOMPSON, et al., Defendants.
• Court: U.S. District Court — Central District of Illinois

745 F. Supp. 1388

Betty PECKMANN, et al., Plaintiffs, v. Robert THOMPSON, et al., Defendants.

No. 89-2344.

United States District Court, C.D. Illinois.

September 19, 1990.

Edward Zukosky, Wenona, Ill., George F. Taseff, Jennings Novick Eggan & Ostling, Bloomington, Ill., William C. Zukosky, Urbana, Ill., for plaintiffs.

Randy E. Blue, Asst. Atty. Gen., Springfield, Ill., for Robert Thompson, Bernard Turnock and Neil Hartigan.

Kenneth R. Boyle, Patrick Delfino, State's Atty. Appellate Prosecutor, Springfield, Ill., for other defendants.

ORDER

BAKER, Chief Judge.

The plaintiff, Betty Peckmann, is a traditional midwife who has been practicing midwifery since the mid-1950's. Peckmann's co-plaintiff, Kim Perry, seeks to enter the practice of traditional midwifery and is currently serving as an apprentice to a traditional midwife. Peckmann's other co-plaintiffs, William and Kimberly Dick, are a couple that wish to have children with the aid of a traditional midwife. The defendants are: Robert Thompson, Director of the Illinois Department of Professional Regulation, Bernard Turnock, the Director of the Illinois Department of Public Health, Neil Hartigan, the Illinois Attorney General, and several State's Attorneys from various Illinois counties. The plaintiffs bring this action under 42 U.S.C. § 1983, seeking a court order requiring Illinois to recognize traditional midwifery and a declaratory judgment declaring the Illinois Medical Practice Act of 1987, Ill.Rev.Stat. ch. 111, para. 4400-1 — 4400-63 (1989), unconstitutional.

This matter is before the court on the defendants' motion to dismiss.

Facts

On December 8, 1988, a grand jury in Christian County, Illinois, indicted the plaintiffs, Peckmann and Perry, and charged them with practicing medicine without a license in violation of Ill.Rev. Stat. ch. 111, para. 4400-50 (1987). Prior to their trial, Peckmann and Perry agreed to file this civil action to obtain a ruling on the constitutionality of the Illinois Medical Practice Act in exchange for the dropping of the charges. The Dicks joined the plaintiffs, and suit was filed in this court in November, 1989.

Jurisdiction

Before reviewing the merits of the defendants' motion, the court must satisfy itself that a case or controversy exists. In their oral argument, the defendants hinted that the plaintiffs lacked standing to bring this complaint and that the plaintiffs' complaint was not ripe for review. The Court disagrees.

To have standing, the plaintiffs "must show that they personally have suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendants; and that the injury is likely to be redressed by a favorable decision." Oriental Health Spa v. City of Ft. Wayne, 864 F.2d 486, 489 (7th Cir.1988) (quoting Heckler v. Matthews, 465 U.S. 728, 738, 104 S.Ct. 1387, 1394, 79 L.Ed.2d 646 (1984)). In the present case, the plaintiffs are contesting the constitutionality of a criminal statute. The Supreme Court has held that plaintiffs need not first expose themselves to actual arrest or prosecution before challenging such a criminal statute's constitutionality. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979). In any event, in this case, the plaintiffs were actually indicted under the challenged Act and threat of prosecution under the Act continues to loom over them. Thus, the plaintiffs have standing to challenge the statute.

Similarly, the court concludes that the plaintiffs' challenge to the Act is ripe for review. Where the constitutionality of a state law is in question, a number of factors govern whether the "substantial controversy" threshold of ripeness has been reached. Wisconsin's Environmental Decade, Inc. v. State Bar of Wisconsin, 747 F.2d 407, 411 (7th Cir.1984). These include the magnitude of the threat that the challenged law will actually be enforced against the plaintiff, the nature of the consequences risked by the plaintiff if the challenged law should be enforced against him, and whether the plaintiff has actually been forced to alter his conduct as a result of the law under attack. Id.

In Wisconsin's Environmental Decade, the Seventh Circuit upheld a district court's dismissal on ripeness grounds of a challenge to a Wisconsin statute prohibiting the unauthorized practice of law. In that case, the plaintiff for many years had participated in administrative proceedings before the Wisconsin Public Service Commission. After the State Bar of Wisconsin threatened to recommend that the plaintiff be charged with the unauthorized practice of law, the plaintiff filed suit. The Seventh Circuit noted that, though the plaintiff sought to challenge the constitutionality of a criminal statute, there was no threat of criminal prosecution, nor was there any change in the plaintiff's conduct as a result of the law. Id. Thus, the case was not ripe.

In contrast, the plaintiffs in this case are under the threat of criminal prosecution by the State of Illinois. In fact, two of the plaintiffs were actually indicted. Thus, there is a "substantial controversy," and the case is ripe.

Discussion

I.

The plaintiffs assert that the defendants' actions violate several of their constitutional rights, including the right to equal protection and privacy. For any of these claims ultimately to succeed, however, the Court must find that the plaintiffs have a constitutional right to practice midwifery, or to avail themselves of that profession's services, and that Illinois has impermissibly interfered with that right. Instead, the Court finds that Illinois acted within its constitutional police power limits in amending its Medical Practice Act.

The Supreme Court repeatedly has held that states are empowered, under their police power, to prescribe the qualifications of who may practice medicine, using that term in its broadest sense to include all the healing arts. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955) (prohibiting opticians from filling lenses without written prescription of optometrist or ophthalmologist); Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590 (1923) (licensing dentists); McNaughton v. Johnson, 242 U.S. 344, 37 S.Ct. 178, 61 L.Ed. 352 (1917) (excluding ophthalmologists from optometry); Collins v. Texas, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 439 (1912) (licensing osteopaths). This authority of states to regulate the practice of the healing arts includes the power to set up licensing boards to admit or exclude persons from the profession. See Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590 (1923); Collins v. Texas, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 439 (1912); Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987 (1910); Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563 (1903). Such regulation does not violate the rights of those who wish to avail themselves of the services of an excluded or regulated profession. Although persons may enjoy a right to seek or reject medical treatment generally, cf. Cruzan v. Missouri Dep't of Health, ___ U.S. ___, 110 S.Ct. 2841, 2851, 111 L.Ed.2d 224 (1990) (there is a constitutional "liberty interest" in refusing unwanted medical care), there is no constitutional right to select a particular treatment or procedure over the rational objections of a governmental licensing authority. See Rutherford v. United States, 616 F.2d 455, 457 (10th Cir.1980) (upheld FDA's ban of Laetrile for the treatment of cancer).

The profession of midwifery is no different from the other healing arts,¹ and is not entitled to any special constitutional treatment. Although a state may not impose upon midwifery an irrational regulatory scheme, a state has broad powers to determine the proper amount of state involvement in its practice. Illinois may decide whether or not to require a license to practice midwifery. If Illinois elects to require a license, it may decide what qualifications a person must have to receive a license as well as what sort of treatments or procedures a midwife may perform.

Under the 1987 Medical Practice Act, Illinois eliminated the separate licensing procedure for midwives which it had previously employed. Compare Ill.Rev. Stat. ch. 111, para. 4400-1 — 4400-63 (1989) with Ill.Rev.Stat. ch. 111, para. 4401 — 4478 (1985). Although the wisdom of the change in the treatment of midwives may be debated, there is nothing in the Constitution which prohibits Illinois from rationally exercising its police power towards midwives; the Constitution does not demand that midwifery be recognized or licensed in Illinois.

II.

To note that the state has the constitutional authority to regulate a particular profession, however, does not dispose of this case. The plaintiffs assert that, even if Illinois has the power to regulate midwives, the 1987 Medical Practice Act does so by way of an impermissibly vague penal statute in violation of their right to due process.² After careful review, the Court agrees and finds that, though this matter is before the Court on the defendants' motion to dismiss, no further briefing of the issues would be helpful and that declaratory judgment for the plaintiffs is appropriate.³

The dangers of vague laws were clearly articulated by the Supreme Court in Grayned v. City of Rockford:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and

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