Village of Oak Lawn v. Marcowitz

MR. JUSTICE SIMON, dissenting:

As the majority acknowleges, the overwhelming weight of authority invalidates waiting periods. In fact, the majority does not point to a single reviewing court, Federal or State, which accepts its position. Only one Federal circuit court opinion has ever sustained a waiting period (Wolfe v. Schroering (6th Cir. 1976), 541 F.2d 523 ), and it did so on the ground that no burden on the abortion decision was asserted. Since the same circuit later struck down a 24-hour waiting period (Akron Center for Reproductive Health, Inc. v. City of Akron (6th Cir. 1981), 651 F.2d 1198 ), the earlier result seems to prove only that it turned on a defect in pleading. The few Federal district court decisions upholding waiting periods have been reversed. The law on this subject can conservatively be described as well settled.

The majority does not pretend that the unanimous view of the Federal courts on this question is clearly or intolerably wrong, and concedes that the concerns motivating that view are “very real,” and the decisions worthy of respect. Nor does this court base its disagreement on any fresh or improved idea, anything that might contribute to the discussion of the issue. The court simply leans upon a theory that has been squarely considered and rejected by other courts. Resolving issues that were inherently difficult and therefore uncertain when they first arose is precisely what precedent is supposed to accomplish. The lower Federal courts’ views are not binding on this court, but I believe they are entitled to more deference than the majority gives them. We are not confronting a question of first impression, and should not dispose of it as if we were. The majority seems to feel that when it comes to abortion, there is no law until the United States Supreme Court forces it upon us. The Supreme Court should not be obliged to spend its time putting the magic stamp of approval on well-understood law so as to make it formally binding on courts in other jurisdictions.

This court’s departure from the settled Federal view of the matter is especially mischievous in view of the concurrent jurisdiction of the Illinois and Federal courts. The latter can enjoin enforcement of the Oak Lawn ordinance and similar laws. Indeed, because Charles v. Carey (7th Cir. 1980), 627 F.2d 772 , is binding precedent in every Federal court in Illinois, any Federal court in this State (and probably also in the United States) would issue an injunction against the 24-hour waiting period upon application. The result of the majority’s decision is that, for the indefinite future, cases will turn on which side gets to which courthouse first. That is not the kind of law the public can understand or respect. In our plural system of coexisting Federal and State jurisdictions, complete harmony between decisions of the parallel systems can be neither achieved nor expected. But that pluralistic system can be accommodated more prudently and wisely by striving for consistency between Federal and State decisions unless a strong reason for an opposite result is evident. In the interest of uniformity, the prudent thing for this court to do is to go along with the Federal courts, because there is no strong reason not to.

Apart from the force of precedent, I disagree with the majority on the merits. They explain how the 24-hour waiting period creates a legally significant burden on the decision to abort, which the United States Supreme Court has held to be a fundamental right (Roe v. Wade (1973), 410 U.S. 113 , 35 L. Ed. 2d 147 , 93 S. Ct. 705 ), and correctly recite that it is therefore presumptively unconstitutional and can be upheld only if the village demonstrates that the waiting period is necessary to serve a compelling village interest. The majority justifies the waiting period by finding a compelling interest in assuring that the abortion decision is informed and considered. I do not find that justification compelling. In fact, I doubt it could survive even a test of reasonableness.

First, the ordinance itself tells us what the waiting period is for. It is not to give time for reflection, but for laboratory reports. The village, of course, has offered no evidence that 24 hours is needed for that purpose, and it seems unlikely, even if new lab reports are needed. Many patients will already have lab reports from their own doctors, and so will not need new ones. But the waiting period needlessly applies even to them. When the ordinance expressly states the purpose for the waiting period, I see no call for this court to invent others.

Second, even if the State interest the majority relies on is compelling, the 24-hour rule is not necessary for the purpose. “[O] ther courts have consistently found *** that virtually all women have given considerable thought to their decision to have an abortion long before they actually seek one.” (Planned Parenthood League v. Bellotti (1st Cir. 1981), 641 F.2d 1006, 1015 .) The village does not suggest that Dr. Marcowitz’s patients are unusually impetuous.

Third, the majority’s idea is that women should think more carefully about abortion than other surgery (for which the ordinance provides no waiting period) because the consequences are so serious and irrevocable. But are they, medically? A woman who aborts one child can have another. Many types of surgery involve greater risk of complications. The waiting period cannot be justified on the basis of the village’s interest in protecting health and safety, which is what the whole ordinance is supposedly about.

A decision to abort can no doubt have long-term personal and social consequences. But it is not obvious, and the village has not shown, that a vasectomy or sterilization or many other surgical procedures, for which no waiting period is required by the ordinance, do not also have serious and irrevocable consequences.

The real difference with abortion — what is serious and irrevocable — is the moral aspect. The waiting period gives women time to think again before deciding to go through with an abortion, because abortion, while a fundamental constitutional right, may be a moral wrong. But neither the village nor this court is willing to espouse this justification for the waiting period openly, and, in any event, I do not believe it would be constitutionally sufficient. It is too much like a straightforward attempt to discourage abortion; i.t cuts too far into the basic constitutional decision that abortion is permissible. Could a State require a waiting period before one exercises other fundamental rights the morality of which some might question, such as publishing a scurrilous newspaper, buying contraceptives, or attending a lewd movie? Obviously not, and I therefore do not see how the waiting period for abortion can be constitutionally justified by the importance or nature of the decision.

I conclude that the waiting period is unconstitutional. I have problems with some other sections of the ordinance as well. For example, Dr. Marcowitz must pay a fee of $5,000 initially and $2,000 annually; the size of the initial fee in relation to the annual fee appears suspect. Then, the requirement for hospital staff membership may preclude abortion clinics if no nearby hospital will grant staff privileges to a physician who performs abortions. But there is little point in elaborating. If one views the ordinance as a whole, including the peculiar definition which the court has correctly stricken down, the laboratory tests required for abortion and nothing else, and the waiting period required for abortion and nothing else, even though the patient may already have all laboratory tests, the ordinance “comes into focus” (Planned Parenthood v. Danforth (1976), 428 U.S. 52, 79 , 49 L. Ed. 2d 788, 810 , 96 S. Ct. 2831, 2845 ) as unmistakably anti-abortion, and therefore invalid. I would affirm the circuit court.