Ragsdale v. Turnock, Nos. 90-1907

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore POSNER and FLAUM, Circuit Judges, and FAIRCHILD; FAIRCHILD; The author of this opinion concludes the application for intervention was not timely and would affirm for that reason as well. Additionally; POSNER; FLAUM
Citation941 F.2d 501
PartiesRichard M. RAGSDALE, M.D., individually and on behalf of all other physicians similarly situated, et al., Plaintiffs-Appellees, v. Bernard J. TURNOCK, Director of the Illinois Department of Public Health, et al., Defendants-Appellees, and Kenneth M. Reed, as Expectant Father and Next Friend of Baby Reed, et al., Proposed Intervenors-Appellants. Richard M. RAGSDALE, M.D., individually and on behalf of all other physicians similarly situated, et al., Plaintiffs-Appellees, and Ritaellen M. Murphy and Penny R. Greenwood, members of the Plaintiff class consisting of all Illinois women of child-bearing age who desire or may desire an abortion sometime in the future, Plaintiffs-Appellants, v. Bernard J. TURNOCK, Director of the Illinois Department of Public Health, et al., Defendants-Appellees, and Kenneth M. Reed, as Expectant Father and Next Friend of Baby Reed, et al., Proposed Intervenors-Appellants. & 90-2122.
Decision Date20 August 1991
Docket NumberNos. 90-1907,90-2123,90-1908

Page 501

941 F.2d 501
20 Fed.R.Serv.3d 1202
Richard M. RAGSDALE, M.D., individually and on behalf of all
other physicians similarly situated, et al.,
Plaintiffs-Appellees,
v.
Bernard J. TURNOCK, Director of the Illinois Department of
Public Health, et al., Defendants-Appellees,
and
Kenneth M. Reed, as Expectant Father and Next Friend of Baby
Reed, et al., Proposed Intervenors-Appellants.
Richard M. RAGSDALE, M.D., individually and on behalf of all
other physicians similarly situated, et al.,
Plaintiffs-Appellees,
and
Ritaellen M. Murphy and Penny R. Greenwood, members of the
Plaintiff class consisting of all Illinois women of
child-bearing age who desire or may desire an abortion
sometime in the future, Plaintiffs-Appellants,
v.
Bernard J. TURNOCK, Director of the Illinois Department of
Public Health, et al., Defendants-Appellees,
and
Kenneth M. Reed, as Expectant Father and Next Friend of Baby
Reed, et al., Proposed Intervenors-Appellants.
Nos. 90-1907, 90-2123, 90-1908 & 90-2122.
United States Court of Appeals,
Seventh Circuit.
Argued Dec. 4, 1990.
Decided Aug. 20, 1991.

Alan S. Gilbert, Susan M. Kornfield, Lorie A. Chaiten, Sonnenschein, Nath & Rosenthal, Colleen K. Connell, Chicago, Ill., for plaintiffs-appellees.

Kathleen Kreisel Flahaven, Asst. Atty. Gen., Office of the Atty. Gen., Terry L. McDonald, Harold E. McKee, III, Asst. States Attys., Cecil A. Partee, Office of the State's Atty. of Cook County, Chicago, Ill., for defendants-appellees.

Page 502

Craig H. Greenwood, Downers Grove, Ill., for proposed intervenors-appellants.

Lawrence J. Joyce, amicus curiae, pro se.

Before POSNER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

The party class representatives in this case moved for approval of a proposed settlement and consent decree, and the district court granted their motion. Plaintiffs had challenged statutes relating to abortion. After the parties reached an agreement, two expectant fathers representing the interests of fetuses moved to intervene as of right. The district court denied their motion, and they have appealed. Also, two purported members of the plaintiff class objected to the consent decree and have appealed.

BACKGROUND

This case concerns the constitutionality of certain Illinois laws having an impact on the performance of abortions. The plaintiffs sue on behalf of a class of physicians who perform or desire to perform abortions in Illinois and on behalf of a class of women who may desire abortion services. The defendants are various officers of the executive branch: the Director of the Illinois Department of Public Health, the Attorney General, the Director of the Department of Registration and Education, and the State's Attorney of Cook County who defends on behalf of a class consisting of the State's Attorneys of Illinois.

The plaintiffs filed this suit on June 28, 1985. They challenged three Illinois statutes and numerous regulations. They originally asked the district court "to enjoin defendants from enforcing, in derogation of a physician's right to perform, and a woman's right to obtain, first and early second trimester abortions, three Illinois statutes: (1) Section 16(1) of the Illinois Medical Practice Act ("MPA"), Ill.Rev.Stat. ch. 111, para. 4433(1) [now para. 4400-22(1)(a)-(e) ]; (2) the Ambulatory Surgical Treatment Center Act of Illinois ("ASTCA"), Ill.Rev.Stat. ch. 111 1/2, paras. 157-8.1-157-8.16, and the regulations promulgated thereunder; and (3) the Illinois Health Facilities Planning Act ("HFPA"), IIl.Rev.Stat. ch. 111 1/2, paras. 1151-1168, and the regulations promulgated thereunder." Ragsdale v. Turnock, 625 F.Supp. 1212, 1215 (N.D.Ill.1985).

"Essentially, section 16(1) [of the MPA] prohibits physicians from performing even one abortion in their offices, and requires physicians who wish to provide abortion services in non-hospital environments to comply with the ASTCA and the HFPA." Id. at 1216.

The ASTCA provides for licensure of all ambulatory surgical treatment centers (ASTCs) with regulations which, in effect, "require ASTCs to be the functional equivalent of small hospitals." Id. The HFPA requires all ASTCs to obtain a certificate of need. Id.

Upon finding that plaintiffs had established the burdensome nature of the scheme as a whole, and that defendants had failed to establish a compelling basis for it, the district court enjoined defendants, pendente lite, "from enforcing the challenged statutes and regulations against any plaintiff offering, performing, or desiring to offer or perform a first or early second trimester abortion." Id. at 1231.

This court affirmed (by a divided panel) with one exception. The portion of the injunction against enforcement of the "second trimester hospitalization requirement" was vacated as moot. Ragsdale v. Turnock, 841 F.2d 1358, 1376 (7th Cir.1988). The basis for the exception was that "the defendants have conceded, at least since 1983, that this requirement is unconstitutional under governing Supreme Court decisions and is therefore not enforced." Id. at 1365.

In affirming, this court noted that although "there may well be facets of the statute and regulations which would individually pass muster ... we are constrained to affirm the district court's injunction of the scheme as a whole." In response to a request for severance of unconstitutional

Page 503

portions, the court indicated its inability to untangle the constitutional from the unconstitutional provisions. Id. at 1375.

Defendants filed a Notice of Appeal, seeking review by the United States Supreme Court. On July 3, 1989, the Supreme Court entered an order accepting the case for oral argument but postponing the question of jurisdiction until the hearing on the merits. Turnock v. Ragsdale, 492 U.S. 916, 109 S.Ct. 3239, 106 L.Ed.2d 587 (1989). Oral argument was scheduled for December 5, 1989, but on November 22, 1989, the parties filed a joint motion to defer further proceedings in the Supreme Court pending submission of the proposed Consent Decree to the district court for approval. The Court granted the parties' joint motion. Turnock v. Ragsdale, --- U.S. ----, 110 S.Ct. 532, 107 L.Ed.2d 530 (1989).

The consent decree, unlike the preliminary injunction, is not a blanket prohibition of enforcement of the statutes at issue; it allows some regulation affecting abortions performed during the first half of pregnancy. Understanding the entire decree requires careful attention to details, and we see no reward in attempting a summary or detailed description here. For the terms of the decree and the observations of the district court concerning it, see Ragsdale v. Turnock, 734 F.Supp. 1457, 1460-62, 1466-70 (N.D.Ill.1990). The defendants claim that the decree benefits the state:

The decree has, for the first time since November 27, 1985, reinstated DPH's authority to regulate outpatient surgical facilities to the extent they perform abortions. Prior to the entry of the decree, the IDPH had been enjoined from exercising its statutory authority to license, regulate, and inspect such facilities. Clearly, the decree furthers the IDPH's interests in ensuring that surgical procedures, including abortions, be performed under circumstances ensuring maximum safety.

Brief of defendants-appellees at 14-15.

Because this case is a class action, the settlement could not be effective until all members of the classes were notified and it was approved by the district court. Fed.R.Civ.Pro. 23(e). The district judge conducted a fairness hearing (after notice, including publication) at which all class members were permitted to appear. All objectors to the proposed settlement were initially required to submit their responses by February 13, 1990. On February 13, Kenneth M. Reed and Mark I. Aughenbaugh as next friends of unborn children moved to intervene on behalf of "a class consisting of all Illinois unborn babies." On February 22, the district court denied the motion to intervene, but allowed the proposed intervenors to submit briefs as amici curiae.

Overall, the district court received 326 telephone calls, 2 telegrams, and 1266 letters, and the judge reviewed all of the submissions. On February 23, 1990, the district court conducted a fairness hearing. At the hearing, the court heard objections from amici who had filed briefs with the court and also allowed anyone attending the hearing to speak. The lawyer for the Murphy and Greenwood plaintiff class members and the proposed intervenors was allowed to speak. All of the objections argued on appeal appear to have been raised. On March 22, 1990, the district court approved the consent decree. Ragsdale v. Turnock, 734 F.Supp. 1457 (N.D.Ill.1990).

The appellants challenge both the refusal of the district court to allow the intervention of parties representing the interest of fetuses and the decision of the district court that the consent decree is lawful, reasonable, fair, and adequate.

INTERVENTION

The "petition to intervene and to maintain a class action of baby Reed and baby Aughenbaugh" was filed February 13, 1990, the last day initially set by the district court for filing objections to the proposed settlement. The petition was made as next friends by Kenneth Reed and Mark Aughenbaugh. They alleged their wives were pregnant, but did not allege any threat of abortion. The gestational age was not alleged, although that fact was

Page 504

material to any impact the consent decree could have on them. The petition invoked Rule 24(a)(2) of the Federal Rules of Civil Procedure, but was not, as required by Rule 24(c), "accompanied by a pleading setting forth the claim or defense for which intervention is sought."

Rule 24(a) does not require that an applicant must be permitted to intervene where "the applicant's interest is adequately represented by existing parties." Judge Nordberg orally denied the petition but granted Mr. Reed and Mr. Aughenbaugh leave to...

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51 practice notes
  • Horne v. Flores, Nos. 08–289
    • United States
    • United States Supreme Court
    • 25 Junio 2009
    ...risk of collusion between advocacy groups and executive officials who want to bind the hands of future policymakers); Ragsdale v. Turnock, 941 F.2d 501, 517 (C.A.7 1991) (Flaum, J., concurring in part and dissenting in part) (“[I]t is not uncommon for consent decrees to be entered into on t......
  • Horne v. Flores, Nos. 08–289
    • United States
    • United States Supreme Court
    • 25 Junio 2009
    ...risk of collusion between advocacy groups and executive officials who want to bind the hands of future policymakers); Ragsdale v. Turnock, 941 F.2d 501, 517 (C.A.7 1991) (Flaum, J., concurring in part and dissenting in part) (“[I]t is not uncommon for consent decrees to be entered into on t......
  • Macias v. N.M. Dep't of Labor, No. CIV 91-0509 JB/WPL
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 31 Marzo 2014
    ...collusion between advocacy groups and executive officials who want toPage 70bind the hands of future policymakers); Ragsdale v. Turnock, 941 F.2d 501, 517 (7th Cir. 1991)(Flaum, J., concurring in part and dissenting in part)("[I]t is not uncommon for consent decrees to be entered into ......
  • United States v. City of Albuquerque, No. CIV 14-1025 JB\SMV
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 12 Junio 2020
    ...a case it would be prejudicial to allow intervention.'" State v. City of Chi., 912 F.3d at 986-87 (citing Ragsdale v. Turnock, 941 F.2d 501, 504 (7th Cir. 1991)). The Seventh Circuit next looked at whether denying intervention would prejudice Lodge No. 97, noting that "the inabili......
  • Request a trial to view additional results
51 cases
  • Horne v. Flores, Nos. 08–289
    • United States
    • United States Supreme Court
    • 25 Junio 2009
    ...risk of collusion between advocacy groups and executive officials who want to bind the hands of future policymakers); Ragsdale v. Turnock, 941 F.2d 501, 517 (C.A.7 1991) (Flaum, J., concurring in part and dissenting in part) (“[I]t is not uncommon for consent decrees to be entered into on t......
  • Horne v. Flores, Nos. 08–289
    • United States
    • United States Supreme Court
    • 25 Junio 2009
    ...risk of collusion between advocacy groups and executive officials who want to bind the hands of future policymakers); Ragsdale v. Turnock, 941 F.2d 501, 517 (C.A.7 1991) (Flaum, J., concurring in part and dissenting in part) (“[I]t is not uncommon for consent decrees to be entered into on t......
  • Macias v. N.M. Dep't of Labor, No. CIV 91-0509 JB/WPL
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 31 Marzo 2014
    ...collusion between advocacy groups and executive officials who want toPage 70bind the hands of future policymakers); Ragsdale v. Turnock, 941 F.2d 501, 517 (7th Cir. 1991)(Flaum, J., concurring in part and dissenting in part)("[I]t is not uncommon for consent decrees to be entered into ......
  • United States v. City of Albuquerque, No. CIV 14-1025 JB\SMV
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 12 Junio 2020
    ...a case it would be prejudicial to allow intervention.'" State v. City of Chi., 912 F.3d at 986-87 (citing Ragsdale v. Turnock, 941 F.2d 501, 504 (7th Cir. 1991)). The Seventh Circuit next looked at whether denying intervention would prejudice Lodge No. 97, noting that "the inabili......
  • Request a trial to view additional results

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