Wynn v. Scott

• Decision Date: 12 April 1978
• Docket Number: No. 75 C 3975 and 75 C 3981.,75 C 3975 and 75 C 3981.
• Citation: 449 F. Supp. 1302
• Parties: Ralph M. WYNN, M.D., et al., Plaintiffs, v. William J. SCOTT et al., Defendants. John S. LONG, M.D., et al., Plaintiffs, v. William J. SCOTT et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

449 F. Supp. 1302

Ralph M. WYNN, M.D., et al., Plaintiffs, v. William J. SCOTT et al., Defendants.

John S. LONG, M.D., et al., Plaintiffs, v. William J. SCOTT et al., Defendants.

Nos. 75 C 3975 and 75 C 3981.

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

April 12, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Merle L. Royce, II, Sidley & Austin, David A. Goldberger, Lois Lipton Kraft, Roger Baldwin Foundation of the American Civil Liberties Union, Inc., R. Peter Carey, Mandel, Lipton & Stevenson Limited, Chicago, Ill., for plaintiffs in No. 75 C 3975.

William J. Scott, Atty. Gen. of the State of Illinois, Fred F. Herzog, Dean of the John Marshall Law School, Herbert Lee Caplan, Asst. Atty. Gen., Chicago, Ill., for defendants Scott and Lashof.

Bernard Carey, State's Atty., Lorence H. Slutzky, Thomas D. Rafter, Asst. State's Attys., Chicago, Ill., for defendant Carey.

Nina G. Stillman, Rosemarie J. Guadnolo, Chicago, Ill., for amicus curiae.

Ralph E. Brown, Leon E. Lindenbaum, Maureen T. Healey, Whitman H. Brisky, Walsh, Case & Coale, Chicago, Ill., for plaintiffs in No. 75 C 3981.

Dennis J. Horan, Jerome A. Frazel, Jr., Chicago, Ill., for intervenor.

Before TONE, Circuit Judge and MARSHALL and KIRKLAND, District Judges.

MARSHALL, District Judge.

These consolidated cases challenge the constitutionality of the Illinois Abortion Act of 1975 (the Act). Plaintiffs seek a declaratory judgment holding the Act unconstitutional pursuant to 28 U.S.C. §§ 2201 and 2202, and an injunction restraining the enforcement of the Act pursuant to 28 U.S.C. §§ 2281 (repealed by Pub.L. 94-381, 90 Stat. 1119, but applicable to any action commenced on or before August 12, 1976) and 2284. The action is brought under 42 U.S.C. § 1983 and jurisdiction is present under 28 U.S.C. § 1343.

The Act was enacted on November 20, 1975. A temporary restraining order barring enforcement of it was issued on November 22, 1975. A three judge court was convened and on December 2, 1975, plaintiffs' motion for a preliminary injunction against the enforcement was granted. On December 19, 1975, these actions were certified as class actions under Rule 23(b)(1) and (b)(2).¹

Thereafter plaintiffs moved for summary judgment. After that motion was fully briefed, the Supreme Court decided Planned Parenthood Association of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), an abortion case with several issues similar to the issues presented in these cases. Supplemental briefs analyzing the impact of Danforth were filed.

Three motions other than plaintiffs' motion for summary judgment are also pending. First, defendants have filed two motions to modify the preliminary injunction. The arguments presented in the first motion amount to an update of their memoranda in opposition to plaintiffs' motion for summary judgment. All parties agreed that the first motion to modify does not require additional briefing, and the arguments therein have been taken into account in our consideration of plaintiffs' motion for summary judgment. A second motion to modify the preliminary injunction has been fully briefed. In addition, plaintiffs have filed a motion to strike defendants' affidavits filed in support of their motions. We have determined that the contested portions of defendants' affidavits contain no facts which are material to the issues presented and we have not considered them in ruling on plaintiffs' motion.

It must be noted that defendants contend that there are genuine issues of material fact which must be tried. On that basis, they oppose the entry of summary judgment. We have concluded that there are no genuine issues of material fact. We have also concluded that portions but not all of the Act are unconstitutional. Accordingly, plaintiffs' motion for summary judgment is granted in part and denied in part and a summary judgment for defendants is granted with respect to those portions of the Act which are held constitutional. See 6 Moore's Federal Practice ¶ 56.12 (2d ed. 1976). The Act is reprinted as an appendix to this memorandum. The unconstitutional and hence unenforceable portions are italicized. They are § 2(6), the definition of criminal abortion; §§ 3(2)(a) and 3(2)(b), portions of the informed consent requirement; § 3(3), spousal consent; § 3(4), parental consent; § 5(2), second clause, two-doctor concurrence; §§ 7 and 8, termination of parental rights; § 9, ban on saline abortions; § 10, insofar as it incorporates the Vital Records Act; and § 11(a), criminal abortion.

The parties in these actions consist of the following persons. In Wynn v. Scott, the representative plaintiffs are four male physicians and two women, who were pregnant at the time the actions were filed. Each physician offers and performs abortions upon women who request them. Dr. Jerzy Jozef (George) Biezenski and Dr. Allan G. Charles have conducted research concerning pregnancy, and Dr. Charles has published articles on amniocentesis and other subjects. Plaintiff Dr. Yolanda Adler is a woman who was in the second trimester of pregnancy at the time the complaint was filed. She wished to undergo a surgical procedure to determine whether her fetus was genetically defective. If it proved defective, it was her desire to obtain an abortion. Plaintiff Mary Zoe is a woman who was also in the second trimester of pregnancy when the action was filed. She wished to obtain an abortion without the consent of her husband, from whom she had been separated for over three years. In Long v. Scott, plaintiffs are two Illinois not-for-profit corporations which perform abortion services for women, and a physician who regularly performs abortions.

Defendants in both actions consist of state officials charged with implementing and enforcing the Act. They are the Attorney General of Illinois, the Director of the Illinois Department of Public Health, and the State's Attorney of Cook County, who is sued in his official capacity and as the representative of a class of all other State's Attorneys in Illinois. In addition, Dr. Eugene Diamond has sought and obtained leave to intervene as a party defendant. Dr. Diamond presents arguments on behalf of parents of minor pregnant girls, husbands, viable and nonviable unborn fetuses and aborted fetuses who survive the abortion.

Our scrutiny of the Act is based on the three leading substantive Supreme Court decisions on abortions, 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); Planned Parenthood Association of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). Before addressing the merits of the complex issues presented, it will be helpful to restate briefly the general principles established by the Court, and some implications of those principles.

Wade and Bolton established that the constitutionally protected right of privacy encompasses a woman's decision to terminate her pregnancy, but that her right is not absolute. The extent to which a state may regulate or even override the woman's right increases throughout the three stages of pregnancy. During the first trimester, the abortion decision must be left to the woman and the medical judgment of her attending physician. During the second trimester the state may impose regulations which are rationally related to the legitimate state interest in the woman's health. After fetus viability, the state interest in fetal life becomes compelling and the state may prohibit abortions except when necessary to preserve the life or health of the woman. Wade, supra, 410 U.S., at 164, 93 S.Ct. 705.

Plaintiffs rely on a number of decisions holding that certain abortion regulations are unconstitutional because they apply to all trimesters of pregnancy and because they impose an extra layer of regulation on abortions. These decisions, in turn, rest on language to that effect in Wade and Bolton. See, e. g., Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975) aff'd, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976); Friendship Medical Center Ltd. v. Chicago Board of Health, 505 F.2d 1141 (7th Cir. 1974), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975); Word v. Poelker, 495 F.2d 1349 (8th Cir. 1974); Doe v. Zimmerman, 405 F.Supp. 534 (M.D.Pa.1975); Planned Parenthood Association v. Fitzpatrick, 401 F.Supp. 554 (E.D.Pa.1975), aff'd sub nom., Franklin v. Fitzpatrick, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976); Hallmark Clinic v. North Carolina Department of Human Resources, 380 F.Supp. 1153 (E.D.N.C.1974); Doe v. Rampton, 366 F.Supp. 189 (D.Utah 1973). In Danforth, however, the Court laid these arguments to rest, and observed that not all abortion regulations that apply to the first trimester are unconstitutional, and that regulations dealing with abortions are not unconstitutional merely because the state does not impose similar burdens on other medical procedures. Abortion, unlike other medical procedures, involves the termination of a potential human life. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 2386, 53 L.Ed.2d 484 (1977).

In analyzing the specific provisions of the Act, our task is twofold. If the provision is identical or similar to a provision before the Supreme Court in one of its abortion cases, the holding of the Court is directly applicable and it is unnecessary and, indeed, inappropriate, for us to reanalyze the underlying constitutional principles. Examples of provisions in the Act which fall into this category include § 3(3), spousal consent, § 3(4), parental consent, § 2(2), the definition of viability, and § 9, the ban on saline abortions. On the other hand, if the provision, or the issue raised with respect to that provision, is not significantly similar to one passed on by the Court, it is necessary for us to analyze and apply the relevant constitutional principles to the provision. Here the controlling principle is that regulations...