Ragsdale v. Turnock
| Decision Date | 22 March 1990 |
| Docket Number | No. 85 C 6011.,85 C 6011. |
| Citation | 734 F. Supp. 1457 |
| Parties | Richard M. RAGSDALE, M.D., individually and on behalf of all other physicians similarly situated; Margaret Moe, individually and on behalf of female patients at her medical facility; Northern Illinois Women's Center, an Illinois corporation; Sarah Roe, and Jane Doe, individually and on behalf of all other women similarly situated, Plaintiffs, v. Bernard J. TURNOCK, Director of the Illinois Department of Public Health; Neil F. Hartigan, Attorney General, State of Illinois; Cecil A. Partee, on behalf of all State's Attorneys in the State of Illinois; Robert C. Thompson, Acting Director, Illinois Department of Professional Regulation, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Colleen K. Connell, Harvey Grossman, Roger Baldwin Foundation of ACLU, Ltd., Alan S. Gilbert, Lorie A. Chaiten, Sonnenschein, Nath & Rosenthal, Chicago, Ill., for plaintiffs.
Harold E. McKee, III, Asst. State's Atty., Kathleen Kreisel Flahavin, Asst. Atty. Gen., Chicago, Ill., for defendants.
Before the court is the parties' joint motion under Rule 23(e) of the Federal Rules of Civil Procedure for approval of a proposed settlement and consent decree. For the reasons stated below, the court grants the motion and enters the consent decree.
Plaintiffs brought this action on June 28, 1985, seeking declaratory and injunctive relief from the enforcement of portions of three Illinois statutes, the Medical Practice Act, Ill.Rev.Stat. ch. 111, §§ 4433(1)(a)-(e) (later recodified as §§ 4400-22(1)(a)-(e)), the Ambulatory Surgical Treatment Center Act, Ill.Rev.Stat. ch. 111½, §§ 157-8.1 et seq., and regulations promulgated thereunder, and the Health Facilities Planning Act, Ill.Rev.Stat. ch. 111½, §§ 1152 et seq.
Plaintiffs challenged the constitutionality of these statutes and regulations, contending that they form a scheme which in effect requires all abortions to be performed in a hospital or its functional equivalent. Plaintiffs charged that this scheme violated the equal protection rights of Illinois physicians who perform or desire to perform abortions, and the privacy rights of Illinois women who desire or may desire to obtain an abortion. This court agreed, and on November 27, 1985, granted plaintiffs' motion for preliminary injunction.1 On March 10, 1988, the United States Court of Appeals for the Seventh Circuit upheld the injunction, except for one portion which it vacated as moot.2
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. Before the date scheduled for oral argument, the parties negotiated the proposed consent decree now before this court. The decree seeks to resolve all claims for declaratory and injunctive relief brought by plaintiffs and reserves their claim for attorney's fees, costs and expenses. On December 1, 1989, the Supreme Court granted the parties' joint motion to defer proceedings there pending this court's decision to approve or disapprove the proposed decree.
Following the Supreme Court's order, the parties gave notice of the proposed settlement to the plaintiff and defendant classes, with this court's approval.3 The court allowed any class members objecting to the proposed settlement to file submissions by February 9, 1990, with responses due the following week. During this period, the court received 326 telephone calls, two telegrams, and 1,266 letters. The court read every single letter in its entirety.
On February 23, 1990, the court conducted a hearing to assess the fairness of the proposed settlement. The parties explained their reasons for negotiating the settlement; afterward, the court heard objections from amici who had filed briefs with the court.4 Finally, the court permitted individuals attending the hearing—who filled the largest courtroom in the courthouse—to express their views if they wished. After reviewing the prior findings of fact and conclusions of law issued by this court, reviewing the opinion of the Seventh Circuit Court of Appeals and the applicable decisions of the United States Supreme Court, examining the briefs filed by the parties and objectors, and hearing and considering all of the written and oral presentations made in connection with the fairness hearing5, the court makes the following findings of fact and conclusions of law.
In deciding whether to approve a proposed consent decree, "a district court must determine whether it is lawful, fair, reasonable, and adequate." E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir.1985). The court does not draw on a clean slate, however. Deference must be given to the settlement, since it embodies a negotiated compromise between the parties. A district court should therefore "be chary of disapproving a consent decree." Id., p. 890. Indeed, the court "may not deny approval of a consent decree unless it is unfair, unreasonable, or inadequate." Id., p. 889.
The consent decree proposed here enjoins the enforcement of certain statutory provisions challenged by plaintiffs. Foremost among them are § 157-8.3(A) of the ASTCA, defining any facility in which a medical or surgical procedure is utilized to terminate a pregnancy as an "Ambulatory Surgical Treatment Center"; and a host of regulations requiring ASTCs to comport with physical plant specifications and other restrictions which "in effect ... require ASTCs to be the functional equivalent of small hospitals."6 It was this statutory scheme that plaintiffs regarded as infringing on the constitutional right of women to have an abortion, a view shared by this court and the Court of Appeals.
The consent decree introduces a new scheme which identifies two types of surgical facilities: those that perform abortions beyond 18 weeks gestational age, or with general, epidural, or spinal anesthesia, or with incisions exposing the patient to a risk of infection; and those that perform abortions within 18 weeks gestational age, under local anesthesia. The former are made subject to a panoply of licensing provisions under the ASTCA and Health Facilities Planning Act. The latter, while still obliged to obtain a license, are required to comply with a new set of regulations tailored to those facilities.7
This scheme is neither unfair, unreasonable, or inadequate. As counsel for both parties noted during the fairness hearing, the settlement addresses each side's principal concern. To plaintiffs' satisfaction, the decree preserves their constitutional right to have or provide abortions; to defendants' satisfaction, it permits the Department of Public Health to regulate outpatient clinics devoted to abortions and abortion-related procedures. The decree reflects "the essence of settlement," which is "compromise ... Each side gains the benefit of immediate resolution of the litigation and some measure of vindication for its position while foregoing the opportunity to achieve an unmitigated victory." Hiram Walker, 768 F.2d at 889.
Various objectors insist that the proposed consent decree compromises too much. Family Planning Associates Medical Group (FPA), a major provider of abortion services in Chicago and elsewhere, objects to the provision that subjects an abortion-only surgical facility to full ASTC regulatory requirements if it uses general anesthesia. "That provision," says FPA, "permits the imposition of burdensome and medically unnecessary regulations that would impermissibly infringe on the rights of the physician class to provide abortion services ..." FPA brief, p. 2.
FPA's argument is unavailing. General anesthesia is more hazardous than local anesthesia, a fact to which Doctors Ragsdale and Hern, plaintiff and plaintiffs' expert, respectively, testified. State Defendants' Response, p. 8. Indeed, the Abortion Standards and Guidelines of Planned Parenthood Federation of America, Inc. provide that "general anesthesia may not be used in out-of-hospital settings." Id. In view of this distinction between local and general anesthesia, the court cannot conclude that the provision challenged by FPA renders the settlement unfair or unreasonable.
Equally unavailing are suggestions by a number of objectors that Webster v. Reproductive Health Services, Inc., ___ U.S. ___, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), requires disapproval of the settlement. Webster concerned the use of public facilities and employees to perform abortions, the use of public funding for abortion counseling, and viability testing at 20 weeks gestation. These issues are not involved here. As the state defendants properly observe, "the Webster decision did not provide any definitive pronouncements for purposes of this litigation and did not overrule the previous relevant Supreme Court decisions." State Defendants' Response, p. 9.
Similarly, mere speculation that the Supreme Court might uphold the provisions challenged here in light of Webster will not invalidate the consent decree.8 In deciding whether to approve a settlement, "the district court should refrain from resolving the merits of the controversy or making a precise determination of the parties' respective legal rights." Hiram Walker, 768 F.2d at 889. Settlement proceedings are not an appropriate occasion for resolving the merits of undecided legal issues. The court declines the invitation of some objectors to do so.
Other objectors insist that the consent decree endangers the health and safety of women seeking abortions. There is no evidence to support this contention. To the contrary, in their briefs and at the fairness hearing, counsel for both parties made clear what their intentions were during settlement negotiations: to assure safe and sanitary conditions for abortion procedures while permitting...
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Ragsdale v. Turnock
...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 The decree has, for the first time since November 27, 1985, r......
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Magnuson v. City of Hickory Hills
...of self-correction, so long as they appear genuine. Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.1988), later proceeding, 734 F.Supp. 1457 (N.D.Ill.1990). The crucial inquiry is "whether there has been complete discontinuance, whether effects continue after discontinuance, and whether ......
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