Wynn v. Scott

• Decision Date: 23 February 1978
• Docket Number: No. 78 C 237.,78 C 237.
• Parties: Ralph M. WYNN, M. D., Allan G. Charles, M. D., Jerzy Jozef (George) Biezenski, M. D., Marvin Rosner, M. D., Jane Doe and Sally Roe, Individually and on behalf of all others similarly situated, Plaintiffs, v. William J. SCOTT, Attorney General of the State of Illinois, Bernard Carey, State's Attorney for County of Cook, Illinois, their agents, successors, and all others similarly situated, and Paul Q. Peterson, M. D., Director of Public Health, State of Illinois, Defendants.
• Court: U.S. District Court — Northern District of Illinois

448 F. Supp. 997

Ralph M. WYNN, M. D., Allan G. Charles, M. D., Jerzy Jozef (George) Biezenski, M. D., Marvin Rosner, M. D., Jane Doe and Sally Roe, Individually and on behalf of all others similarly situated, Plaintiffs, v. William J. SCOTT, Attorney General of the State of Illinois, Bernard Carey, State's Attorney for County of Cook, Illinois, their agents, successors, and all others similarly situated, and Paul Q. Peterson, M. D., Director of Public Health, State of Illinois, Defendants.

No. 78 C 237.

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

February 23, 1978.

Lois J. Lipton, and David A. Goldberger, Roger Baldwin Foundation of the American Civil Liberties Union, Inc., R. Peter Carey, Jeffrey W. Finke, and Merle L. Royce, Sidley & Austin, Chicago, Ill., for plaintiffs.

John D. Gorby, Dennis J. Horan, Patrick A. Trueman, Americans United for Life Legal Defense Fund, Chicago, Ill., for intervening defendant, Eugene F. Diamond, M. D.

Bernard Carey, State's Atty. of Cook County, and John Dienner, Asst. State's Atty., Chicago, Ill., for defendants.

MEMORANDUM DECISION ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

MARSHALL, District Judge.

This civil rights action, brought under 42 U.S.C. § 1983 by four physicians and two pregnant minors, challenges the constitutionality of the Illinois Abortion Parental Consent Act of 1977. Jurisdiction is conferred by 28 U.S.C. § 1343(3). Plaintiffs seek a preliminary injunction restraining enforcement of the Act pursuant to Rule 65(a) F.R.Civ.P. This memorandum will stand as my findings and conclusions and the reasons for my decision under Rules 52(a) and 65(d).

The 1977 Act supplements the Illinois Abortion Law of 1975, Ill.Rev.Stat., ch. 38, §§ 81-21, et seq. (1977), which contains a provision prohibiting an unmarried woman under the age of 18 from obtaining an abortion without the consent of one of her parents unless a physician certifies that the abortion is necessary to preserve the life or health of the pregnant woman. Id., § 81-23(4). Enforcement of the 1975 Act has been preliminarily enjoined by a three-judge court of which I am a member, which was convened under the former provisions of 28 U.S.C. §§ 2281, 2284. Wynn et al. v. Scott et al., D.C., 449 F.Supp. 1302 (Wynn I). In that proceeding the defendants (who are the same as defendants here) have conceded the unconstitutionality of the parental consent provision of the 1975 Act in light of Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). The 1977 Act is clearly an effort by the Illinois General Assembly to regulate abortions performed on unmarried minors in a manner compatible with the Fourteenth Amendment as applied in Danforth. See, also, Baird v. Bellotti, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976). The broad question for decision is whether the General Assembly has succeeded.

The instant action was commenced on January 23, 1978 and assigned to me as related to Wynn I. Because it challenges a different statute than that involved in Wynn I and because three-judge courts are no longer required or authorized in litigation challenging state legislation of the nature here involved (28 U.S.C. § 2281 repealed Pub.L. 94-381, August 12, 1976, 90 Stat. 1119), I have entertained plaintiffs' motion for a preliminary injunction without the advice of or consultation with the judges who sit with me in Wynn I. As appears, infra, there is a slight overlap between the 1975 and 1977 Acts. Accordingly, it should be understood that the views expressed herein are solely mine and do not reflect of the views of my Brothers in Wynn I.

As previously noted, plaintiffs are four physicians, Ralph M. Wynn, Allan G. Charles, Jerzy Jozef Biezenski, and Marvin Rosner, and two women, Jane Doe and Sally Roe, who are under the age of 18, unmarried and pregnant. Plaintiff physicians are all engaged in the practice of obstetrics and gynecology. Each is on the staff of a major Chicago hospital. Three are on the faculties of prominent Chicago medical schools. Each is a distinguished member of his profession. Each provides, renders and performs pregnancy termination procedures for minor women as part of his medical practice and each intends to continue such medical services. Each alleges that the traditional and vital privacy of the doctor-patient relationship is curtailed by the 1977 Act because the Act prohibits the performance of an abortion on an unmarried minor woman without the written consent of both of her parents or an order of the Circuit Court of Illinois, except in those cases where an abortion is necessary for the preservation of the life of the pregnant minor. If plaintiff physicians perform a pregnancy termination procedure for an unmarried minor without such prior parental or judicial consent they are subject to criminal sanctions including incarceration for a period of one year. Contrary to defendants' assertion the plaintiff physicians have standing, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), and they have been certified as representatives of a class of all duly licensed physicians and surgeons presently performing or desiring to perform pregnancy terminations on minor patients in the State of Illinois and on behalf of minor patients desiring pregnancy terminations within the State of Illinois.

Plaintiff Jane Doe is 17 years, 9 months old, unmarried and about 9 weeks pregnant. She desires to terminate her pregnancy without obtaining either the consent of her parents, who reside in the Chicago metropolitan area, or judicial consent. Plaintiff Sally Roe is 17 years, 2 months old, unmarried and about 7 weeks pregnant. She, too, seeks to terminate her pregnancy without obtaining either the consent of her parents, who reside in the Chicago metropolitan area, or judicial consent. Ms. Doe and Roe have verified the complaint using their pseudonyms attesting that the allegations relating to each of them is true and that each has executed the complaint as her free act and deed. The minor female plaintiffs have standing, Doe v. Bolton, supra, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and they have been certified as representatives of a class of all unmarried minor females desiring pregnancy terminations within the State of Illinois.

Defendants are William J. Scott, Attorney General of the State of Illinois and its chief law enforcement officer, Bernard Carey, State's Attorney of Cook County, Illinois, who is responsible for the enforcement of the 1977 Act in Cook County, and Paul Q. Peterson, M.D., Director of the Department of Public Health of the State of Illinois, which is charged under the 1977 Act with the responsibilities of prescribing parental or judicial consent forms to be maintained by physicians on the termination of pregnancies of unmarried minor women. Mr. Carey has been sued not only in his capacity as State's Attorney of Cook County, Illinois but as the representative of the class of all State's Attorneys of the various counties of the state. Without objection I certified Mr. Carey as such a representative.

Eugene F. Diamond, M.D. seeks to be appointed guardian ad litem for minor incompetents, unborn children, infants born alive as the result of legal abortions, and pre-born children. In addition he seeks to intervene as a defendant as a parent of a minor daughter of child-bearing age and on behalf of the class of parents of minor daughters of child-bearing age. Dr. Diamond was permitted to intervene in Wynn I. While I have no doubt as to the adequacy of the representation which the defendant state and county officials will provide for all interests which are allegedly antagonistic to plaintiffs, I grant Dr. Diamond's motion to intervene as a defendant as a parent of a minor daughter of child-bearing age, Rule 24(b), F.R.Civ.P.

The Illinois Abortion Parental Consent Act of 1977 provides as follows:

Section 1. Legislative Intent. It is the intent of the General Assembly of the State of Illinois that the rights and responsibilities of parents be respected, that the health and welfare of minors and their unborn children be protected, and that no minor child who has not married shall be allowed to undergo an abortion operation without the consultation and consent of her parents, or a court order as part of the informed consent of the minor child seeking the abortion.

Section 2. Title of Act. This Act shall be known and may be cited as the Illinois Abortion Parental Consent Act of 1977.

Section 3. As used in this Act, "abortion" means the use of any instrument, medicine, drug or other substance, whatever, with the intent to procure a miscarriage of any woman, regardless of whether the woman is pregnant or whether a miscarriage is accomplished.

Section 4. No abortion shall be performed in this State if the woman is under 18 years of age and has not married except:

(1) By a duly licensed, consenting physician in the exercise of his best clinical medical judgment;

(2) After the minor, 48 hours prior to submitting to the abortion, certifies in writing her consent to the abortion and that her consent is informed and freely given and is not the result of coercion; and

(3) After the consent of her parents is secured and certified in writing.

If one of the parents has died, has deserted his or her family, or is not available, consent by the remaining parent is sufficient. If both parents have died, have deserted their family, or are not available, consent of the minor's guardian or other person standing in loco parentis is sufficient.

If such consent is refused or cannot be obtained, consent may be obtained by order of a judge of the circuit court upon a finding, after such hearing as the judge deems necessary, that the pregnant minor fully understands the consequences of an abortion to her and her unborn child. Such a hearing will not require the appointment of a guardian for the minor. Notice of such

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