Appendix — Murphy v. Ragsdale

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In The GAICE OF THE CLERK

Supreme Court of the United Sta

October Term, 1891

RITAELLEN M. MURPHY, R.N.., et al.,

Petitioners,

RICHARD M. RAGSDALE, M.D.., et al.,

Respondents.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

APPENDIX TO CERTIORARI PETITION

CRAIG H. GREENWOOD

Attorney at Law

4100 Lindley

LAWRENCE J. JOYCE Downers Grove, IL 60515

Attorney at Law (708) 968-4468

4100 Lindley Counsel of Record for

Downers Grove, IL 60515 Petitioners-Appellants

(708) 968-4468

Of Counsel!

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INDEX TO APPENDIX

A-Slip Opinion of the United States District

Court of Appeals for the Seventh Circuit,

PE THEE BP A isis sh i sccchsiasdbapedinidiebicbvanccesecoseresed A-1

B- Judgment of the United States Court of

Appeals for the Seventh Circuit,

FA Fata asiatc chbarsnanpiadacssacsatenstess

C-Memorandum Opinion of the United States

District Court for the Northern District of

Illinois Approving the Settlement Proposal

and Denying the Petition to Reconsider the

Denial of the Invention of Petitioners, Reed

and Aughenbaugh, March 22, 1990............

D- Judgment of the District Court for the

Northern District of Illinois, March 22, 1990

E-Order of the District Court for the Northern

District of Illinois Denying the Intervention

of Petitioners, Reed and Aughenbaugh,

i _EERS RIS Pane ee pt

F-Order of the District Court for the Northern

District of Illinois Granting, in Part, the

Rule 52(a) Relief Requested by Petitioners,

Murphy and Greenwood, April 19, 1990.........

G-Notice of Appeal of Petitioners, Reed and

Aughenbaugh, April 20, 1990..........0000.0.....

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A-66

H-Notice of Appeal of Petitioners, Murphy and

Gerpomnwranndl,, Baal TB, Tien viicciisnstosarstictcdossssonssosss

I- Notice of Appeal of Petitioners, Reed and

Aughenbaugh, May 18, 1990

J-Notice of Appeal of Petitioners, Murphy and

Greenwood, May 18, 1990

K- Order of the United States Court of Appeals

for the Seventh Circuit Consolidating the

April 20, 1990 of Petitioners, Reed, Murphy,

Aughenbaugh and Greenwood, May 21, 1990

L- Order of the United States Court of Appeals

for the Seventh Circuit Consolidating both the

April 20, 1990 Appzals and the May 18, 1990

Appeals of Petitioners, Reed, Aughenbaugh,

Murphy and Greenwood, June 7, 1990

M- Order of the District Court for the Northern

District of Illinois Denying the Request to

Supplement the Record with the over 1200

Telegrams, Models, Letters, and Other

Papers Considered by the District Court

Prior to Entering the March 22, 1990

Memorandum Opinion, July 9, 1990

N-Order of the United States Court of Appeals

for the Seventh Circuit Denying the Suggestion

for Hearing En Banc, August 20, 1990

O-August 15, 1990 Amendments to Ambulatory

Surgical Treatment Center Licensing Require-

ments, 77 Il].Adm.Code, Ch. 1, Sec. 205

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In The

Supreme Court of the United States

October Term, 1991

RITAELLEN M. MURPHY, R.N.., et al.,

Petitioners,

VS.

RICHARD M. RAGSDALE, M.D.. et al..

Respondents.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

APPENDIX TO CERTIORARI PETITION

APPENDIX A

(ARGUED DECEMBER 4, 1990—DecipED AuGust 20, 1991)

IN THE UNITED STATES COURT OF APPPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS

Nos. 90-1907, 90-1908, 90-2122 and 90-2123

RICHARD M. RAGSDALE, M.D., et al.,

Plaintiffs,

Wii

BERNARD J. TURNOCK, et al.,

Defendants.

Appeal from the United States District Court

for the Northern District of Illinois

No. 85 C 6011 - John A. Nordberg, Judge

Before POSNER and FLauM, Circuit Judges, and

FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge. The party class rep-

resentatives 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 agree-

ment, 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.

A-]

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 ser-

vices. 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 Depart-

ment of Registration and Education, and the State’s At-

torney 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 chal-

lenged three Illinois statutes and numerous regulations.

They originally asked the district court “‘to enjoin defen-

dants from enforcing, in derogation of a physician’s night

to perform, and a woman’s right to obtain, first and early

second trimester abortions, three Illinois statutes: (1) Sec-

tion 16(1) of the Illinois Medical Practice Act (“MPA”), II.

Rev. Stat. ch. 111, para. 4433(1) [now para. 4400-21(1Xa)-

(e)}; (2) the Ambulatory Surgical Treatment Center Act

of Illinois (“ASTCA”), Ill. Rev. Stat. ch. 111%, para.

157-8.1-157-8.16, and the regulations promulgated there-

under: and (3) the Illinois Health Facilities Planning Act

(“HFPA”’), Ill. Rev. Stat. ch. 111%, para. 1151-1168, and

the regulations promulgated thereunder.”’ Ragsdale v.

Turnock, 625 F. Supp. 1212, 1215 (N.D. Ill. 19885).

“Essentially, section 16(1) {of the MPA] prohibits physi-

cians from performing even one abortion in their offices,

and requires physicians who wish to provide abortion ser-

vices in non-hospital environments to comply with the

ASTCA and the HFPA.”’ Jd. 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.’’ Jd. The HFPA requires all

ASTCs to obtain a certificate of need. Jd.

Upon finding that plaintiffs had established the burden-

some nature of the scheme as a whole, and that defen-

dants had failed to establish a compelling basis for it, the

district court enjoined defendants, pendente lite, ‘from en-

forcing the challenged statutes and regulations against any

plaintiff offerinz, performing, or desiring to offer or per-

form a first or early second trimester abortion.” Jd. at

1231. :

This court affirmed (by a divided panel) with one ex-

ception. The portion of the injunction against enforcement

of the “‘second trimester hospitalization requirenient”’ 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 Su-

preme Court decisions and is therefore not enforced.” Jd.

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 af-

firm the district court’s injunction of the scheme as a

whole.” In response to a request for severance of uncon-

Stitutional portions, the court indicated its inability to un-

tangle the constitutional from the unconstitutional provi-

sions. Jd. 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 (1989). Oral argument was scheduled for Decem-

ber 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, 110 S. Ct. 532

(December 1, 1989).

The consent decree, unlike the preliminary injunction,

is not a blanket prohibition of enforcement of the statutes

A-3

at issue; it allows some regulation affecting abortions per-

formed 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 Rags-

dale 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 out-

patient surgical facilities to the extent they perform

abortions. Prior to the entry of the decree, the IDPH

had been enjoined from exercising its statutory au-

thority to license, regulate, and inspect such facilities.

Clearly, the decree furthers the IDPH’s interests in

easuring that surgical procedures, including abortions,

yo? 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 sub-

mit their responses by February 138, 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 inter-

vene, but allowed the proposed intervenors to submit

briefs as amici cunae.

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

A-4

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 Green-

wood plaintiff class members and the proposed intervenors

was allowed to speak. All of the objections argued on ap-

peal 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 ac-

tion of baby Reed and baby Aughenbaugh’”’ was filed Feb-

ruary 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 preg-

nant, but did not allege any threat of abortion. The gesta-

tional age was not alleged, although that fact was material

to any impact the consent decree could have on them. The

petition invoked Rule 24(aX2) of the Federal Rules of Civil

Procedure, but was not, as required by Rule 24(c), ‘‘ac-

companied 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 Nord-

berg orally denied the petition but granted Mr. Reed and

Mr. Aughenbaugh leave to appear as amici cunae. His

principal reason was that the objectors had not shown that

the state had not adequately protected the interest of the

fetuses. Ragsdale, 734 F. Supp. at 1459 n.4. The author

c* this opinion agrees that the petition failed to make this

showing.

Rule 24 also requires that the application be timely. Time-

liness requires a consideration of all the circumstances of

a case and not just the point to which the suit has pro-

gressed. NAACP v. New York, 413 U.S. 345, 365-66

(1973). This court has required that in determining timeli-

ness under the totality of the circumstances, four factors

should be considered:

(1) the length of time the intervenor knew or should

have known of his or her interest in this case, (2)

the prejudice to the original party caused by the

delay, (3) the resulting prejudice to the intervenor

if the motion is denied, and (4) any unusual circum-

stances.

South v. Rowe, 759 F.2d 610, 612 (7th Cir. 1985).

The prejudice to the present parties of a grant of inter-

vention (factor 2) is obvious and substantial. After pur-

suit of litigation for several years, they expended great

effort in working out a settlement to which the proposed

intervenors are opposed. Once parties have invested time

and effort into settling a case it would be prejudicial to

allow intervention. Farmland Dairies v. Commissioner of

the New York State Dept. of Agriculture and Markets,

847 F.2d 1038, 1044 (2d Cir. 1988); City of Bloomington

v. Westinghouse Electric Corp., 824 F.2d 531, 535 (7th Cir.

1987) (“intervention at this time would render worthless

all of the parties’ painstaking negotiations because negotia-

tions would have to begin again and [the intervenor] would

have to agree to any proposed consent decree’); Jones

v. Caddo Parish School Bd., 735 F.2d 923, 935 (Sth Cir.

1984). A case may never be resolved if another person

is allowed to intervene each time the parties approach

a resolution of it. United States v. City of Chicago, 908

F.2d 197. 199 (7th Cir. 1990), cert. denied, 111 S. Ct. 783

(1991). This court has held that once complex settlement

negotiations that are well publicized begin parties may

not be allowed to intervene. City of Bloomington, 824

F.2d at 535.

Prejudice to the intervenors (or other members of the

A-6

proposed class) if intervention is denied (factor 3) is prob-

lematic at best. The existing preliminary injunction would

presumably remain in effect if intervention were ted,

and the litigation would presumably continue before the

Supreme Court'to resolve the reserved question of juris-

diction and the merits of the preliminary injunction if

jurisdiction were found. The intervenors (and the class

member appellants) apparently believe that this case is

one in deciding which the Supreme Court might overrule

Roe v. Wade, 410 U.S. 113 (1973), and thus permit greater

state regulation (or prohibition) of abortions. That this

hope is precarious is emphasized by the fact that the

Supreme Court initially postponed consideration of its own

jurisdiction of this case and later granted the motion of

the parties to defer proceedings pending submission of the

proposed consent decree to the district court for approval.

The motion to intervene does not demonstrate the length

of time Mr. Reed or Mr. Aughenbaugh knew of their

wives’ pregnancies, of this action, or of the proposed con-

sent decree (factor 1). This action was begun in 1985. The

Attorney General’s willingness to compromise became

public knowledge by November 22, 1989.

We see no unusual circumstances (factor 4) significant-

ly supporting intervention. The state officers who are de-

fendants vigorously defended against the challenges within

the bounds of existing law and court decisions. They

began to work out a settlement by consent decree only

after the district court granted a preliminary injunction

finding a likelihood, if not certainty, that plaintiffs’ chal-

lenges would succeed, and this court affirmed (except

for a portion as to which the case was deemed moot be-

cause enforcement was withheld in recognition of unconsti-

tutionality). Although the courts recognized that the issue

at the preliminary injunction stage pertinent to constitu-

tionality was whether plaintiffs. have shown a better than

negligible likelihood of success, Ragsdale, 841 F.2d at 1366

n.6; Ragsdale, 625 F. Supp. at 1224, the language of both

the district court opinion and the majority opinion in this

court seems to indicate conviction that the statutes are

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unconstitutional if fully applied.

The General Assembly is left free to enact new statutes

or to amend the present statutes at any time and for any

reason. Ragsdale, 734 F. Supp. at 1461 nn.10 & 11. Also,

the consent decree provides for changes in regulations

based upon changes in medical or scientific knowledge and

for the right to ask the court to modify the gestational

age upon which certain provisions of the consent decree

depend based upon further development of medical or

scientific knowledge. Jd. at 1469-70.

_ The author of this opinion concludes the application for

intervention was not timely and would affirm for that

reason as well. Additionally, Judge Posner (post at 19)

may be correct in reliance on Diamond v. Charles, 476

U.S. 54 (1986), as establishing that denial of intervention

should be affirmed because the proposed intervenors lack

standing, although Diamond dealt with a physician's con-

scientious objection to abortion, and the case was in a

somewhat different procedural posture.

OBJECTORS MURPHY AND GREENWOOD

All four appellants appeared by one counsel and filed

a single brief. No distinction is made between arguments

raised on behalf of proposed intervenors, Reed and Augh-

enbaugh, and those on behalf of members of the plaintiff

class, Murphy and Greenwood (Illinois women of child

1 We see nothing in recent Supreme Court opinions thought to

limit the doctrine of Roe v. Wade. 410 U.S. 113 (1973). affecting

the statutes challenged in this case. Rust v. Sullivan, 59 U.S.L.W.

4451 (U.S. May 23. 1991) (government may constitutionally pro-

hibit dissemination of information concerning abortion at clinics

which accept government funds); Hodgson v. Minnesota. 110 S.

Ct. 2926 (1990) (parental notification statute partially constitutional

and partially unconstitutional); Ohw v. Akron Central for Repro-

ductive Health, 110 S. Ct. 2972 (1990) (parental notification statute

constitutional): Webster v. Reproductive Health Services. 492 U.S.

490 (1989) (restriction on abortions in public facilities and viability

testing requirement are constitutional).

A-s

bearing age who desire or may desire an abortion some-

time in the future). -

Most of the arguments in the brief attack the doctrine

of Roe v. Wade, 410 U.S. 113 (1973), and are consistent

with the position urged by the proposed intervenors on

behalf of unborn children. These arguments, and others

which concern only the interests of unborn children, are

not properly before us and will not be addressed.

Appellants Murphy and Greenwood also make some ar-

guments that are at least facially grounded on a woman’s

interest in protection of her health if she sought to have

an abortion. One portion of appellants’ brief argues, “The

medical health of the women of child bearing age of the

State of Illinois has been compromised . . . .”” Appellants’

Brief at pp. 46-48.

This is an argument that the consent decree is too favor-

able to the plaintiffs because it goes too far in enjoining

enforcement of portions of the statutes and regulations.

Appellants Murphy and Greenwood may individually be-

lieve in this argument, but they have no standing to make

it in their capacity as members of the plaintiff class.

There are other arguments in the bricf challenging the

propriety of the consent decree, i.e., that when the con-

stitutionality of a state statute is an issue, it is improper

for a federal court to issue a consent derree against en-

forcement upon the consent of the Attor.ey General and

other members of the executive department, and that de-

fendants have, in effect, re-written the statutes. It is suf-

ficiently clear that these arguments are offered in sup-

port of the claim that the decree is too favorable to plain-

tiffs, and appellants Murphy and Greenwood therefore

have no standing to make them as members of the piain-

tiff class.

Thus, there is no party before this court with standing

to challenge questions of propriety of the settlement.

Accordingly, we AFFIRM the district court’s dermal of

intervention, and Dismiss the appeals of the proposed in-

tervenors and appellants Murphy and Greenwood.

A-9

POSNER, Circuit Judge, concurring in the opinion in

part, and in the judgment. Judge Flaum is rightly con-

cerned with the district court’s failure to probe the ade-

quacy of the settlement embodied in the consent decree

that the court approved. But Judge Fairchild and I believe

that there is no one before us who is entitled to challenge

the consent decree, because the denial of the motion to

intervene by the two fathers of fetuses must be affirmed

and the women’s appeal from the consent decree must

be dismissed because they lack standing to appeal even

though they were parties in the district court. the first

issue, however—the propriety of the denial of interven-

tion to the hihate—tuden Fairchild’s and my grounds

differ, while on the second (with which I shall begin) I

write in amplification of his discussion.

The female appellants, being Illinois women of child-

bearing age, are members of the plaintiff class because

it is defined as “all Illinois women of child-bearing age

who desire or may desire an abortion. sometime in the

future’ (emphasis added). Members of a class whose rights

will by operation of res judicata be extinguished by the

settlement of the class action of course have standing to

object to the settlement and to press their objections on

appeal, but like other litigants they must show that the

order to which they object actually harms them. Ordinar-

ly the harm arises from the fact that the settlement does

not provide the class with as much relief as the object-

ing member had wanted. He claims that the named plain-

tiffs prematurely and excessively bargained away his

rights. That is not the objection of the female appellants

in our case. Their objection is the opposite: that the set-

tlement is too favorable to the plaintiff class. Like the

would-be intervenors, these women oppose abortion and

want the statute enforced a outrance. To object to a

settlement on the ground that vou shouldn’t have done

as well in the settlement as vou did identifies vou as an

ideological litigant: and an affront to one’s ideology is not

an interest that will support standing to sue. Diamond

A-10

v. Charles, 476 U.S. 54, 66-67 (1986); Valley Forge Chris-

tian College v. Americans United for Separation of Church

& State, Inc., 454 U.S. 464, 473 (1982); United States v.

SCRAP, 412 U.S. 669, 687 (1973).

Maybe the class was misdefined, and women who, though

of child-bearing age, are opposed to the availability of in-

expensive abortions should not have been included because

they lack the relevant community of interest with women

who consider themselves harmed by the statute. If the

female appellants had not been members of the class they

would have had to seek leave to intervene in the lawsuit,

like the men, Jn re Fine Paper Antitrust Litigation, 695

F.2d 494, 499 (3d Cir. 1982), and their claim to intervene

would have fared no better than the men’s. But even if

the class was properly defined to include these women,

which would make them parties in the district court with-

out their having to intervene, a member of a class does

not have standing to challenge a settlement that favors

him in a tangible sense, though it offends him in an ideo-

logical sense. No one has such standing.

Because the women lack standing to maintain this ap-

peal even though by virtue of being class members they

were entitled to the rights of parties in the district court,

it is critical to the maintenance of the appeal to decide

whether the men should have been allowed to intervene

in the district court either to represent the interests of

the fetuses affected by the consent decree or to repre-

sent their own interests us fathers cf such fetuses. Judge

Fairchild believes that these would-be intervenors had failed

to show that the State of Illinois is an inadequate repre-

sentative of the fetuses who will be affected by the con-

sent decree and therefore had failed to satisfy an essential

requirement of Rule 24(aX2) of the Federal Rules of Civil

Procedure for intervention as a matter of right. I have

my doubts, as I also do about Judge Fairchild’s alternative

ground for upholding the denial of intervention—that the

motion to intervene was untimely. On November 22, 19839,

the named plaintiffs and the Illinois attorney general joint-

ly requested the Supreme Court to postpone oral argu-

A-1]

ment pending the submission of a proposed consent decree

to the district court. The district judge fixed February

13, 1990, as the deadline for submitting objections to the

decree. The motion to intervene was filed that day. The

timing is suspicious. It may well indicate a desire to

disrupt the schedule that the judge had set for considera-

tion of the proposed decree. Yet the motion was filed only

three months or so after the movants first learned (some-

time in November) that the attorney general had decided

in effect to throw in the towel. It is true that this was

years after the suit had been brought. But a motion for

intervention filed back then would have been dismissed

out of hand. There was every reason to expect the Attor-

ney General of Illinois to defend the statute as vigorous-

ly as he could. It was not until November of 1989 that

this expectation was shattered. The petition .or interven-

tion was filed shortly afterward. It may still have been

untimely (a question on which we usually defer to the dis-

trict judge, United States v. City of Chicago, 897 ~.2d

243 (7th Cir. 1990)), but I find Judge Fairchild’s ana. ysis

of the point unconvincing because he focuses on the delay

from the inception of the suit, and that is the wrong focus.

United States v. City of Chicago, 870 F.2d 1256, 1263 (7th

Cir. 1989). See also United States v. South Bend Com-

munity School Corp., 710 F.2d 394, 396 (7th Cir. 1983).

The proposition that the attorney general is an adequate

representative of the fetuses that will be aborted if the

consent decree is approved fictionalizes the notion of ‘‘ade-

quacy”’ of representation, and I am not a fan of legal

fictions. The consent decree guts a statute that was (to

speak realistically) designed to limit the number of abor-

tions performed in Illinois by making abortion more ex-

pensive. The statute imposed onerous requirements. in the

name of health, on abortion providers. In invalidating it

this court found the health rationale less than persuasive,

sO that the statute stood exposed as an attempted end

run around Roe v. Wade. Ragsdale v. Turnock, $41 F.2d

1358, 1371-75 (7th Cir. 1988). The statute’s basic require-

ments are that abortions may not be performed in doctors’

A-12

offices and that abortion clinics have to be so well equip-

ped to deal with possible medical emergencies as to be

the equivalent of small hospitals. The joint effect of these

requirements, had they not been enjoined from the outset,

would have been to increase the cost of abortion in IIli-

nois substantiaily, because few public hospitals are will-

ing to perform abortions.

The consent decree preserves very little of the statute.

Ragsdale v. Turnock, 734 F. Supp. 1457 (N.D. Ill. 1990).

The “small hospital’ requirements are confined essentially

to facilities that perform abortions after the eighteenth

week of pregnancy. So first-trimester abortions—the vast

majority (more than 90 percent nationwide, though I don’t

have figures for Illinois—are unaffected by the statute.

And the decree abandons the statute’s ban on abortions

performed in a physician’s office.

The Attorney General of Illinois thus knuckled under

to this court's divided pane! decision even though the Su-

preme Court had scheduled the case for oral argument

of his appeal, and by doing so he doomed the first-tri-

mester fetuses who would have been saved if the statute

had been saved. He traded these fetal interests for other

goods, such as an end to a costly lawsuit that he feared

losing, or more likely (for he might well have won the

case in the Supreme Court) for political advantage. But

traded them he has. Perhaps the beneficiaries of the trade

include a few second- or third-trimester fetuses, but

almost all abortions are performed by the eighteenth week

of pregnancy.

I know the government is presumed to be an adequate

representative of a proposed intervenor when it is ‘“‘charged

by law with representing [the proposed intervenor’s} inter-

ests.”” American National Bank & Trust Co. v. City of

Chicago, 865 F.2d 144, 148 (7th Cir. 1989); United States

uv. South Bend Community School Corp., 692 F.2d 623,

627 (7th Cir. 1982); see '/nited States v. Hooker Chemicals

& Plastics Corp., 749 ¥.2d 968, 984-90 (2d Cir. 1984)

(Friendly, J.). And since the case law treats the state as

A-13

the guardian of the interests of fetuses carried in the

wombs of women in the state, Roe v. Wade, 410 U.S. 113,

150 (1973), it is an easy step to the conclusion that the

State is a presumptively adequate representative of those

interests. The step was taken in Keith v. Daley, 764 F.2d

1265, 1270 (7th Cir. 1985), and Roe v. Casey, 623 F.2d

829, 832 n.7 (3d Cir. 1980). But a real presumption is

rebuttable (‘‘conclusive presumption” is an oxymoron), and

if this one is not, why did the court in Keith bother to

point out that the attorney general was defending the

abortion statute at issue in that case adequately? 764 F.2d

at 1270. In negotiating the consent decree in the present

case, the attorney general pretty much abandoned the

fetuses to the abortionist’s knife.

To speak in this dramatic fashion is of course to treat

fetuses as people—as holders of interests—rathHer than as

inanimate objects: and the status of fetuses is controver-

Sial, to say the least. But for many purposes the law does

treat them as people. In Illinois, if you shoot a pregnant

woman in the abdomen and kill the fetus, you are guilty

of the crime of intentional homicide of an unborn child,

and the penalty is almosi as severe as for first-degree

murder: the only difference is that the death penalty may

not be imposed. II]. Rev. Stat. ch. 38, § 9-1.2. This is true

regardless of the age of the fetus. Illinois has also ex-

tended its tort statute for wrongful death of a human be-

ing so that it covers fetuses from the moment of concep-

tion. Ill. Rev. Stat. ch. 70, §¢ 2.2. No one suggests that

in extending to first-trimester fetuses legal protections

originally designed for children, the state is violating Roe

vu. Wade. so long as it doesn’t try to use these legal pro-

tections to interfere with abortions privileged by that

decision—in other words, so long as it protects fetuses

against third persons but not against mothers upon whom

Roe v. Wade confers a constitutional mght of abortion, or

against their agent, the abortionist. It follows. I should

think, that fetuses are (in Illinois anvway) persons for pur-

poses of a decision on what weight to give their interests

in applications for intervention made under Rule 24(aX2).

A-14

That rule doesn’t create or define interests; it takes those

interests as it finds them in state law or other sources of

legally protected rights. A fetus’s father is not entitled

under existing law to prevent the mother from having an

abortion, Planned Parenthood of Central Missouri v. Dan-

forth, 428 U.S. 52, 70-71 (1976), but who is better fitted

to represent the fetus if the state’s attorney general aban-

dons the protective responsibility that law places on him?

‘‘Abandonment”’ of fetal interests is a fair description of

the attorney general’s action in negotiating this consent

decree.

Judges have a natural inclination to fictionalize ‘‘ade-

quacy” of representation in order to prevent the courts

from being swamped by multiparty litigation. (In this case

intervention would lead to the nullification of the consent

negotiations and the restoration of the case to the Supreme

Court’s docket, since a case can’t be settled without the

consent of all the named parties and these would-be in-

tervenors are not prone to compromise.) If a state in

defending an environmental statute gave less weight to

preserving forests than to preserving wetlands, it would

not follow that arborealists should be permitted to in-

tervene to present evidence on behalf of their beloved

trees. This is the sense of such decisions as United States

v. Hooker Chemicals & Plastics Co., supra, and of our

own United States v. 36.96 Acres of Land, 754 F.2d 855

(7th Cir. 1985). More than docket pressures are at work

in these cases. Environmental litigation involves tradeoffs

among human health, aesthetic and ecological concerns,

and commercial values, and the government agencies

charged with administering these statutes should not be

presumed to be incompetent to balance the competing con-

siderations in a reasonable way. This case, too, could be

thought to involve tradeoffs between ‘‘statistical lives’’

(i.e., low probabilities of illness or death) and other valu-

able goods, inasmuch as the abortion statute does not for-

bid abortions but merely makes them more costly. That

is one way to look at the case but another is that a

government official has decided to allow a class of what

A-15

for purposes of this suit we must treat as human beings

to die because the official lacks the stomach, political or

otherwise, to litigate the case in the Supreme Court. In

such a case the presumption that he is representing the

class adequately might be thought rebutted.

I need not pursue the question. Intervention was prop-

erly denied, regardless of adequacy of representation, sim-

ply because to be allowed to intervene as a party you

must have standing to litigate and these movants do not.

It is true that Diamond v. Charles is noncommittal on

the question whether an intervenor must have standing.

476 U.S. at 69; see also id. at 73-74 (concurring opinion);

Chiles v. Thornburgh, 865 F.2d 1197, 1212 (11th Cir. 1989)

(reviewing split in the courts of appeals). But this court

has held that he must. Keith v. Daley, supra, 764 F.2d

at 1268. He wants to be a party, in major part so that

he can litigate if the other parties with whom he is

aligned fall out of the case, which is just what has hap-

pened here. The state has dropped the torch; the fathers

of potentially affected fetuses want to pick it up. They

must therefore demonstrate that they have standing to

litigate this case as plaintiffs and appellants.

They do have standing in the barebones Article III

sense. As fathers of unborn children (as the State of IIli-

nois chooses to regard fetuses from the moment of con-

ception), they are harmed, albeit in merely a probabilistic

sense—but that is enough for standing, North Shore Gas

Co. v. EPA, 930 F.2d 1239, 1242 (7th Cir. 1991), and cases

cited there—by a consent decree that by reducing the cost

of abortions makes it more likely (though not highly likely)

that their unborn children will be aborted. They are also

the natural representatives of a group of inarticulate and

helpless persons whose lives are at stake, and the extinc-

tion of those lives is the sort of tangible injury that is

the stuff of actual cases in the Article III sense.

But there are other criteria of standing besides whether

the plaintiff or persons represented by him have suffered

an actual injury, which is the Article III cmterion. The

A-16

pertinent one here is whether the person seeking party

Status 1S someone upon whom the statute confers a right

of enforcement. North Shore Gas Co. v. EPA, supra, 930

F.2d at 1243. The movants want to intervene in order

that the abortion statute may be enforced in its pristine

form, uncontaminated by the attorney general’s comprom-

ises. But it is a regulatory statute, and in general and

also in regard to this particular statute private persons

have no right (in our legal system, unlike for example the

British) to enforce criminal or other regulatory statutes,

unless of course the statutes also create private rights

of action, which this one does not. Private persons can

complain to the enforcement authorities and badger them

to bring enforcement actions but they cannot force them

to do so or stand in their place and bring the actions

themselves. Some regulatory statutes, it is true, are inter-

preted to create implied private nights of action, but no

one argues that the Illinois abortion statute should be so

interpreted. And while I can imagine an argument that

a woman who suffers a medical injury as a result of the

failure of an abortion clinic to comply with the statute

should be able to use the violation to establish medical

malpractice, the argument is not made and anyway is not

available to these intervenors; they are not within the

hypothetically protected class. (The female appellants are,

and their party status—as members of the plaintiff class—

is unquestioned. But they have as I said earlier no stand-

ing to appeal a settlement on the ground that it gives

them more than they. want or are entitled to. Nor have

they asked that they be realigned as parties defendant—in

which event their lack of standing would rest on the same

ground as the fathers’.) The would-be intervenors are per-

sons distressed by the attorney general's refusal to en-

force a regulatory statute to the hilt. Such persons have

no standing to sue, and therefore they have no standing

to intervene in this suit to prevent adoption of a consent

decree that will disable the attorney general from enforc-

ing the statute effectively.

A-17

Any doubt is dispelled by the Supreme Court’s decision

in Diamond v. Charles, supra. Diamond was a physician

who supported another Illinois abortion statute held un-

constitutional by this court. He had been permitted (right-

ly or wrongly we need not decide today) to intervene in

the lower-court proceedings in order to defend the statute,

and he tried to appeal the case to the Supreme Court,

the state attorney general having acquiesced in our deci-

sion and refused to appeal. The Supreme Court held that

Diamond lacked standing to maintain the appeal. A

private citizen lacks a legally protected interest in the

prosecution of another person. 476 U.S. at 64-65. See also

Linda R.S. v. Richard D., 419 U.S. 614, 619 (1973); Board

of Trade v. SEC, 883 F.2d 5235, 529 (7th Cir. 1989). Hence

no individual may “assert any constitutional rights of the

unborn fetus. Only the State may invoke regulatory meas-

ures to protect that interest, and only the State may in-

voke the power of the courts when those regulatory meas-

ures < - subject to challenge.’”’ Diamond v. Charles,

supra, 476 U.S. at 67.

Any other conclusion would interfere with the separa-

tion of powers within state government, and that separa-

tion is not a proper matter of federal judic.al concern.

Risser v. Thompson, 930 F.2d 549, 552 (7th Cir. 1991).

Illinois has given its attorney general the exclusive re-

sponsibility to enforce the abortion statute. It has not

parceled out that responsibility between him and a host

of self-appointed private attorneys general. It is his deci-

sion to make whether and how vigorously to enforce the

abortion statute, cf. Heckler v. Chaney, 470 U.S. 821, 831

(1985), and part of this decisional responsibility is deciding

how vigorously to defend the statute in suits challenging

its constitutionality. ““The concerns for state autonomy

that deny private individuals the mght to compel a State

to enforce its laws apply with even greater force to an

attempt by a private individual to compel a State to cre-

ate and retain the legal framework within which individual

enforcement decisions are made.’ Diamond v. Charles.

supra, 476 U.S. at 65. We may not use Rule 24(aX2) to

A-18

subvert the state’s separation of powers by preventing

the Attorney General of Illinois from exercising the re-

sponsibilities that the state has assigned to him, and to

him alone.

Concern has been expressed that state or federal offi-

cials might use federal consent decrees to tie the hands

of their successors or to disrupt the allocation of power

between branches of state government. Frank H. Easter-

brook, “Justice and Contract in Consent Decrees,’’ 1987

U. Chi. Legal Forum 19; Michael W. McConnell, ‘““Why

Hold Elections? Using Consent Decrees to Insulate Policies

From Political Change,’’ id. at 295. A lame-duck state at-

torney general might agree to embody in a federal con-

sent decree restrictions on the operation of the attorney

general’s office that might cripple his successor, or (as

charged in this case) that might gut an arguably constitu-

tional statute that had been duly enacted by the state

legislature. By asserting that no one has standing to ap-

peal the consent decree in this case, I may seem to be

placing such gambits beyond possibility of appellate correc-

tion. That would be paradoxical, since one of my grounds

for denying that any of the appellants has standing was

that permitting the appeal would interfere with the in-

ternal state allocation of governmental powers. Concern

with such interference has been held a proper ground for

declining to approve a consent decree. Kasper v. Board

of Election Commissioners, 814 F.2d 332 (7th Cir. 1987).

The paradox is dispelled by reflection that if Attorney

General Hartigan’s successor should seek to enforce the

statute in defiance of the consent decree and be met with

a charge that he is violating the decree, he will be able

to challenge its lawfulness on appeal, since the fact that

the decree could not have been appealed by the usual

route would make that a proper form of collateral attack.

Cf. Martin v. Wilks, 490 U.S. 755, 768 (1989). Or should

the state legislature condition appropriations for the at-

torney general’s office on his enforcing the statute not-

withstanding the decree and the condition be challenged

A-19

as a violation of the decree, the legislature can by this .

route, and for the same reason, obtain appellate review.

(And in federal court, notwithstanding the intragovern-

mental character of such a suit. Cf. Coleman v. Miller,

307 U.S. 433, 438 (1939); Risser v. Thompson, supra. 930

F.2d at 550-51.) The llants before us cannot obtain

appellate review only use the decree has not done

them the type of harm that the law requires as a predi-

cate for mounting a legal challenge, whether in a trial or

in an appellate court. They are the wrong appellants.

FLAUM, Circuit Judge, concurring in part and dissent-

ing in part. Judge Fairchild and Judge rahe each iden-

tify reasons to bar the class members and proposed inter-

venors from challenging the settlement in this case. Be-

cause I believe that certain of the individuals before us

can appropriately challenge that settlement, and because

I question the process by which that settlement was ar-

rived at, I find myself unable to join either of my col-

leagues’ opinions.

[

On the question of whether Messrs. Reed and Augen-

baugh should have been permitted to intervene under

Fed. R. Civ. Pro. 24, I agree with Judge Posner's view

that the proper focus on the timing of their intervention

looks to the date upon which the proposed settlement was

first revealed to the world. See ante at 12-13. Until that

date, as Judge Posner notes, these proposed intervenors

had little incentive to seek to join this suit, because they

believed they could rely on the Illinois Attorney General

to defend the statutes challenged by the plaintiffs in this

case. 1 also agree with Judge Posner that Mr. Reed and

Mr. Augenbaugh lack standing to assert their claims be-

fore this court because they fall outside the range of in-

terests the vanous Illinois statutes at issue in this case

are intended to protect. :

I differ with both my colleagues. however, on the ques-

tion of whether Mrs. Greenwood and Mrs. Murphy, who

like all other Illinois women of childbearing years are

members of the plaintiff class. lack standing to challenge

the consent decree. My difference with my brothers is one

of characterization: they see the two class members as

objecting to the settlement arrived at on the ground that

it was too favorable to them. I view them as challenging

both the result of the settlement and the process by

which that result was reached, a process which, as discuss-

ed more fully below, left much to be desired.

Rule 23(e) requires district courts to approve a settle-

ment in a class action before the settlement may bind ab-

sent class members. See 2 H. Newberg, Class Actions

§ 11.23 (2d ed. 1985). Particularly in public-law litigation,

where consent decrees and settlements often approach the

specificity of regulatory codes, various class members may

find any number of reasons to challenge the final decree

or agreement. Because of the broad range of interests

class members may have in the nature and scope of relief

a settlement or consent decree provides, I fear that Judge

Posner may over-simplify the standing question when he

writes that ‘‘a member of a class does not have standing

to challenge a settlement that favors him in a tangible

sense, though it offends him in an ideological sense.”’ Ante

at 12. Perhaps the objecting class members in this case

would not be satisfied with any settlement that continues

to permit legal abortion in Illinois, but their appeal, at

least in part, focused more narrowly on the question of

whether the settlement they contest was arrived at through

arms-length negotiations and was approved after a careful

examination by the district court.

It may well be that plaintiffs who seek to challenge the

settlement reached in a class action solely on ideological!

grounds have no standing. | take the view, however. that

any member of a plaintiff class may appeal the settlement

of a class action on the ground that the district court’s

inquiry into the fairness of the settlement was inadequate

and that the settlement was therefore impaired. Any

A-2]

other position, it seems to me, mocks the words this court

and others have used in advising trial judges of their duty

to ensure that consent decrees are “not illegal, a product

of collusion, or contrary to the public interest.”’ South v.

Rowe, 759 F.2d 610, 613 n.3 (7th Cir. 1985).

Our instruction to district courts to ensure that class

action settlements and consent decrees are not the prod-

uct of collusion reeognizes that the settlement in a class

action, typically arrived at through the active involvement

of a small fraction of the class members, may not match

the expectations of the plaintiff class as a whole. Our

scrutiny of these decrees is thus intended to protect

“those who did not participate in negotiating the com-

promise.’ United States v. Oregon, 913 F.2d 576, 581 (9th

Cir. 1990). We remind district courts to scrutinize the

legality of settlements and consent decrees and their ef-

fect on the public interest because we recognize that, es-

pecially in public-law litigation, these effects may reach

far beyond even the nominal parties to the suit, let alone

those who participated in resolving it. Ironically, however,

under Judge Posner’s approach it is only those who are

satisfied with the settlement who would be able to chal-

lenge the fairness of the process that led to its adoption.

Those who are dissatisfied with the process, for any rea-

son except that they received “too little.” are barred from

challenging the fairness of that process on appeal. In prac-

tice, of course, those who were involved in the negotia-

tion of a settlement or consent decree will rarely challenge

the fairness of a process in which they actively partici-

pated. That task will be left to those who for one reason

or another are dissatisfied with that process. and perhaps

with the outcome it led to as well.

The remedy Judge Posner holds out for today’s objec-

tors is the possibility of subsequent suits challenging the

settlement or consent decree, instituted by parties who

later become aggrieved by its terms. In my view, how-

ever, we only prolong the injury caused by a consent de-

cree arrived at through an unfair process by failing to

invalidate it sooner rather than later. If the decree in this

A-22

— eer ee. ~

a

case is, as the objectors allege, the product of inadequate

or incomplete representation, the agreement will not in-

crease in legitimacy through the passage of time. Equally

important, in approving this decree the district court as-

sumed a continuing duty to monitor the parties’ compli-

ance with its terms. In fulfilling this responsibility, the

federal courts will be called upon to enforce the result

of an arguably flawed process, at least until the day when

Judge Posner’s hypothetical future challenger materializes.

Finally, even those who benefit most from a given con-

sent decree are harmed when courts cluse their doors to

dissatisfied non-participants until some future time, be-

cause until the grievances of these non-participants are

addressed, the decree remains suspect. Certainly the named

plaintiffs and defendants in this case would be happier

with a ringing affirmance of the district court’s approval

of the decree than with Judge Posner’s nod to future IIli-

nois attorneys general and legislators.

Unlike Judge Posner, I am unwilling to await some

future litigant. I would instead preserve the right of ap-

peal for class members who, for one reason or another,

believe that the process that led to the adoption of the

settlement or decree—which will preclude them from as-

serting their legal rights in the future, see Supreme Tribe

of Ben-Hur v. Cauble, 255 U.S. 356, 367 (1921)—was

tainted. In some cases they may be right, and an appellate

court will be able to prevent an unfair or unlawful settle-

ment or consent decree from taking effect. In all cases

we will satisfy the objecting class members that they have

received justice rather than leaving them to walk down

the courthouse steps feeling twice spurned by the judi-

cial system, first by a settlement reached and approved

through inadequate procedures, and second by a rule of

standing that denies them the right to challenge that set-

tlement. So long as challenges to the procedure leading

to a settlement are brought by class members, appeals

courts should remain open to hear them.

Because I conclude that two of the four individuals ob-

jecting to the fairness of the consent decree arnved at

in this case have standing to do so. I turn to the substan-

A-23

tive issue presented in this appeal: whether the decree

in this case is “fair, reasonable and equitable, and does

not violate the law or public policy.” Sierra Club v. Elec.

Controls Design, 909 F.2d 1350, 1355 (9th Cir. 1990). In

my view, the district court’s examination of the trouble-

some issues raised by the decree renders us incapable,

on this record at least, of answering this question. The

district court in this case yielded to the view that con-

sent decrees are essentially contracts between the liti-

gants, with the district court’s role limited to “‘signling]

on the line provided by the parties.” United States v.

Miami, 664 F.2d 435, 441 (5th Cir. 1981) (en banc) (opin-

ion of Rubin, J.). It chose not to examine, in any but the

most preliminary fashion, the lawfulness of the decree

under the federal constitution or its fidelity to Illinois law

and public policy. And it did so despite the unique cir-

cumstances that gave rise to the settlement of this suit.

circumstances which made a deeper inquiry particularly

appropriate.

Il.

In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court

ruled that “the Fourteenth Amendment’s concept of per-

sonal liberty . . . is broad enough to encompass 4 woman's

decision whether or not to terminate her pregnancy.” Jd.

at 153. The Court held that, at least in the first trimester.

this liberty interest was sufficient to require that if the

pregnant woman decided to terminate her pregnancy, ‘the

judgment may be effectuated by an abortion free of inter-

ference by the state.”’ Jd. at 163. See also Akron v. Akron

Center for Reproductive Health, 462 U.S. 416, 429-430

(1983). This preference for the woman's liberty interest

over the government’s interest in regulating abortion was

the law when the district court granted a preliminary in-

junction to the plaintiffs in this case. See Ragsdale v. Tur-

nock, 625 F. Supp. 1212, 1229-30 (N.D. Ill. 1985) (“{Ajny

regulation, even a general regulation, which burdens u

woman's right to choose to terminate her pregnancy dur-

ing the first trimester. would have to meet the compelling

A 24

governmental interest requirement.’’). It remained the law

when this Court affirmed that decision. See Ragsdale v.

Turnock, $41 F.2d 1358, 1368 (7th Cir. 1988) (“Where

first trimester abortions are involved, not only must the

impact of the challenged regulation be insignificant in

terms of the woman’s exercise of her right, but also [ |

the reguiation must be justified by important state health

objectives.’’). But it may well have ceased to be the law

on July 3, 1989, when the Supreme Court announced its

decision in Webster v. Reproductive Health Servs., 492

U.S. 490.

Writing for three members of the Court in Webster,

Chief Justice Rehnquist dispensed with the limits Roe

placed on first-trmester abortions, »bserving that he could

not see “why the State’s interest in protecting potential

human life should come into existence only at the point

of viability, and that there should therefore be a mgid line

allowing state regulation after viability but prohibiting it

before viability.”” 492 U.S. at 519. For his part, Justice

Scalia explicitly called for Roe to be overruled. J/d., 492

U.S. at 532, 537 (Scalia, J., concurring in part and con-

curring in the judgment). And Justice O’Connor, while

foreswearing any desire “to reexaminé Roe,” 492 U.S. at

526 (O’Connor, J., concurring in part and concurring in

the judgment), nevertheless voted to uphold a Missouri

Statute that limited the discretion of physicians in per-

forming abortions in the second trimester for reasons en-

tirely unrelated to the welfare of the mother. As Justice

Blackynun pointed out in dissent, this statute would have

been unconstitutional under Roe’s trimester framework

because Roe does not permit regulation “‘in the interest

of potential life .. . until the third trimester.’’ Webster.

492 U.S. at 541 (Blackmun, J., concurring in part and dis-

senting in part). See also Roe, 410 U.S. at 164 (limiting

second-trimester regulation to measures ‘reasonably

related to maternal nealth.”); Akron, 462 U.S. at 416.

Webster is a plurality opinion. and admittedly does not

announce Roe’s demise. The fact remains, however, that

in Webster five members of the Court agreed that the

balance Roe struck between a woman’s interest in ter-

minating her unwanted pregnancy and the state’s interest

in ensuring the safety of the abortion procedure and pro-

tecting fetal life no longer reflected its interpretation of

the Fourteenth Amendment’s due process clause. Neither

the litigants in this case nor the district court needed to

resort to tea leaves to divine that Webster had altered

the constitutional landscape upon which this case would

be contested if it were allowed to continue in the Supreme

Court. Indeed, the Illinois Public Health Director and his

codefendants relied on Webster in their brief to the Su-

preme Court in this case, arguing that. like the Missouri

restrictions on abortions in state hospitals upheld in Web-

ster, the sanitary regulations imposed on clinics by the

Illinois statutes at issue in this case ‘“‘do not unduly bur-

den the abortion decision.” Brief for Appellant at *29,

Turnock v. Ragsdale, No. 88-790, August 31, 1989 (avail-

able on LEXIS, GENFED library, BRIEFS file).

Nevertheless, when those who objected to the proposed

consent decree sought to rely on Webster in contesting

the lawfulness of the decree, the district court rejected

this argument, summarily labelling it “unavailing” because

the precise regulatory measures at issue in Webster were

different in kind from the Illinois statutes challenged in

this case. Ragsdale v. Turnock, 734 F. Supp. 1457, 1460

(N.D. Ill. 1990). Like the district court, Judge Fairchild

takes only passing note of Webster's impact on this case.

writing in a footnote that he “‘see{s] nothing”’ in Webster

or more recent abortion decisions that ‘‘affect{[s] the stat-

utes challenged in this case.’’ Ante at 8. n.1. Judge Posner's

opinion recognizes that the state ‘might well have won

the case in the Supreme Court,” ante at 14, tacitly rec-

ognizing that the jurisprudence of abortion had, at a mini-

mum, shifted to permit greater state regulation when

Webster was handed down.

] am unable to agree that the question of Webster's im-

pact on the legal issues in this case could be resolved in

the manner adopted by the district court. Though Justice

A 2 ©

Scalia was moved to write in Webster that the limited

scope of the decision would require ‘‘the mansion of con-

stitutionalized abortion law . . . [to] be disassembled door-

jamb by doorjamb,” 492 U.S. at 537, it is nonetheless true

that ever since July 3, 1989, the integrity of that struc-

ture has been open to question. The district court’s terse

rejection of the argument that Webster might be relevant

in examining the lawfulness of the proposed consent de-

cree was, in my view, an insufficient response to the ques-

tions that decision raises about the lawfulness and consis-

tency with Illinois public policy of the consent decree in

this case.

III.

Of course, Webster leaves states like Illinois free to reg-

ulate or not regulate abortion, and even, perhaps, to enact

statutes embodying precisely the provisions contained in

the consent decree the district court approved. Moreover,

the fact that the consent decree permits less state regula-

tion of abortion than might be constitutional in the wake

of Webster is itself not a reason to reject the decree: a

consent decree may provide relief beyond that allowed by

the statute under which the plaintiff brought suit. See

Firefighters Local 93 v. Cleveland, 478 U.S. 501, 522-23

(1986) (consent decree resolving employment discrimina-

tion case can provide relief that goes beyond “the limita-

tions Congress placed . . . on the power of the federal

courts to impose obligations on employers or unions to

remedy violations of Title VII... .’’); Kasper v. Board

of Election Comm'rs, 814 F.2d 332, 338 (7th Cir. 1987).

In this case, however, approving a consent decree that

limits the state’s power to regulate abortions more than

is required by Webster carries with it the risk of enjoin-

ing the enforcement of valid Illinois statutes and regula-

tions. Because over-enforcing the due process clause in

this case may have led the district court effectively to

repeal constitutional state statutes, it had a responsibil-

ity, growing out of the duty of federal courts to preserve

the allocation of powers between the states and the fed-

eral government, to inquire into the possible lawfulness

of the challenged state enactments.

A O°?

A-27

In entering a consent decree, a district court employs

a remedy of the flexibility that has typically character-

ized equitable relief. See S. Symons, 1 Pomeroy’s Equity

Jurisprudence (5th ed. 1941), § 109 at 141; Donovan v.

Robbins, 752 F.2d 1170, 1176 (7th Cir. 1984) (consent

decree “‘virtually by definition will contain equitable pro-

visions’). While federal courts have broad equitable

powers, these powers are not unlimited. One restriction

on their scope is the concept “that federal courts of equity

should exercise their discretionary power with proper re-

gard for the rightful independence of state governments

in carrying out their domestic policy.”’ Pennsylvania v.

Williams, 294 U.S. 176, 185 (1935). More recently, the

Court restated this proposition in Rizzo v. Goode, 423 U.S.

362 (1976), writing there that “{wJhere . . . the exercise

of authority by state officials is attacked, federal courts

must be constantly mindful of the ‘special delicacy of the

adjustment to be preserved between federal equitable

power and State administration of its own law.’ ”’ 423 U.S.

at 378 (quoting Stefanelli v. Minard, 342 U.S. 117, 120

(1951)).

Courts differ on the question of whether the consent

of the state to a proposed settlement or decree relieves

a district court of its responsibility to inquire into the fed-

eralism concerns the decree raises. Compare, e.g., Allen

Cir. 1987) with Kasper, 814 F.2d at 340-41. See generally,

Note, Federalism and Federal Consent Decrees Against

State Governmental Entities (hereinafter, ‘‘Federal Con-

sent Decrees’’), 88 Colum. L. Rev. 1796;-1801 & nn. 31-32

(1988) (collecting cases). | believe the better view is the

one we took in Kasper. regardless of the state’s consent,

‘‘(a] federal court must preserve the appropriate relation

between state and national power.”’ 814 F.2d at 340. See

also Lelsz v. Kavanagh, 807 F.2d 1243, 1253 (Sth Cir.

1987) (vacating consent decree that created ‘federal court

remedy unfounded in federal law {which] intrudes into the

governance of matters otherwise presided over by the

state.’’).}

When we enjoin the enforcement of a state statute on

federal constitutional grounds, the views of democratically

elected state legislators are supplanted by those of un-

elected federal judges. This outcome is warranted when

the challenged state statute violates mghts guaranteed

by the federal constitution or encroaches upon some other

aspect of federal law. To my mind, however, “the appro-

priate relation between state and national power” we in-

structed district courts to be mindful of in Kasper is one

in which federal judges employ their equitable powers to

enjoin the enforcement of state statutes only after they

have determined that these statutes contain some constitu-

tional deficiency. See General Bldg. Contractors v. Penn-

sylvania, 458 U.S. 375, 399 (1982) (federal remedial powers

“could be exercised only on the basis of a violation of the

law and could extend no farther than required by the na-

ture and extent of the violation.’’); Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16 (1971) (“In

seeking to define . . . how far’’ equitable power to order

school desegregation extends, “‘it is important to remember

that judicial powers may be exercised only on the basis of

a constitutional violation.”’); Jenkins by Agyei v. Missour,

807 F.2d 657, 666 (8th Cir. 1986) (en banc) (‘Federal

courts may not invoke their equitable power to fashion

a remedy to correct a condition unless it currently offends

1 Indeed, Rizzo v. Goode, 423 U.S. 362 (1976), may well compel

the view that the state’s consent to a decree does not eliminate

the limits federalism umposes on the district court’s power to enter

the decree. Though Rizzo involved an injunction rather than a con-

sent decree, the remedy adopted by the district court “resembled

a consent decree in several respects.’’ Federal Consent Decrees

at 1804 n.48. The defendants in COPPAR v. Tate. the distnct

court action reviewed in Rizzo, plaved a significant role in draft-

ing portions of the injunction, see 60 F.R.D. 615, 616 (E.D. Pa. -

1973), and as Justice Blackmun observed in his Rizzo dissent,

{t]he remedy was one evolved with the defendant officials’ con-

sent, and it was one that the police department concededly could

live with.” 423 U.S. at 381 (Blackmun, J., dissenting).

A-29

the constitution.”’). These cases compel the conclusion that,

when a proposed consent decree would enjoin the enforce-

ment of state statutes, a district court evaluating the

decree must satisfy itself that these statutes suffer from

some infirmity that would allow the court to enjoin them

absent the state’s agreement.

In this case, due regard for the legislative judgment of

the people of Illinois required the district court to evalu-

ate, in light of Webster, the constitutignality of the vari-

ous state statutes governing health facilities and medical

practice whose enforcement the decree will bar. The Su-

preme Court’s holding in Firefighters that consent decrees

can provide relief beyond what the plaintiffs could have

obtained at trial does not obviate the need for this in-

quiry. Unlike the situation in that case (a Title VII suit

against a municipal employer) if the consent decree in this

case provides relief beyond that required by the Four-

teenth Amendment, it will permanently enjoin the enforce-

ment of state statutes that in no way conflict with any

provision of federal law, constitutional or statutory.

The statutes enjoined in this decree represent the de-

cisions of the people of Illinois, speaking through their

elected representatives. The plaintiffs contend that the

legislature’s unspoken aim in enacting these provisions

was to limit the availability of low-cost clinic abortions.

If so, these statutes are consistent with other statements

of the popular will in Illinois, most notably the Human

Life Act, Ill. Ann. Stat. ch. 38, 4 81-21 (Smith-Hurd Supp.

1991), which declares “the longstanding policy of this

State, that the unborn child is a human being from the

time of conception and is, therefore, a legal person for

purposes of the unborn child’s right to life,” as well as

the various statutes Judge Posner relies upon in conclud-

ing, see ante at 1d, that Illinois regards:fetuses as per-

sons. Before approving a decree that upsets these legis-

lative choices, the district court had a duty to explore

whether the challenged enactments offend the constitu-

tion. So far as the district court’s opinion reveals, this

inquiry never occurred.

A-30

IV.

The district court apparently decided that a deeper in-

quiry into the lawfulness of the challenged Illinois statutes

was unnecessary in part because the consent decree it was

called upon to approve was the product of bargaining from

which neither side emerged wholly victorious. See Rags-

dale, 734 F. Supp. at 1460. The settlement reached by

the parties, the district court wrote, had allowed “ ‘{eJach

side [to] gain[{ ] 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.’ ”’ Id. (quoting EEOC v. Hiram Walker & Sons,

768 F.2d 884, 889 (7th Cir. 1985)). I agree as a general

matter that one factor that might justifiably lead a district

court to limit its scrutiny of a proposed consent decree

is the fact that ‘‘the [] decree embodies as much of [the

parties’] opposing purposes as the respective parties have

the bargaining power and skill to achieve.”” United States

v. Armour & Co., 402 U.S. 673, 681-82 (1971). Indeed,

adversity between the parties to the negotiations that lead

to the proposed decree will tend to ameliorate the federal-

ism concerns discussed above, because when the state be-

lieves it will win on the question of the constitutionality

of a state statute should the case go to trial, it has little

incentive to enter into a consent decree enjoining the stat-

ute’s enforcement.

This assumes, however, that the persons negotiating for

the state set as their goal the enforcement of the will of

the state’s legislators, and by extension, the people who

put them in office. Students of the use of consent decrees

in public-interest litigation have noted, however, that the

assumption that state defendants entering into a decree

represent all the state’s interests in the litigation is fre-

quently mistaken. Rather, it is not uncommon for consent

decrees to be entered into on terms favorable to those

challenging governmental action because of rifts within

the bureaucracy or between the executive and legislative

branches. See, e.g., Horowitz, Decreeing Organizational

Change: Judicial Supervision of Public Institutrons, 1983

A-31

Duke L.J. 1265, 1292, 1294-95 (1983) (discussing phenomenon

of ‘{nJominal defendants [who] are sometimes happy to

be sued and happier still to lose.’’); see also Easterbrook,

Justice and Contract in Consent Judgments, 1987 U. Chi.

L. Forum 19, 30-37 (1987); McConnell, Why Hold Elec-

tions? Using Consent Decrees to Insulate Policies From

Political Change, 1987 U. Chi. L. Forum 295, 301 (noting

that ‘tone of the evils to be guarded against is the col-

lusive settlement—government lawyers settling a suit on

favorable terms to the opposing party precisely because

they expect that successive administrations may be less

sympathetic to its cause.”); Federal Consent Decrees at

1805-06. Courts, too, have been alert to the possibility that

state defendants in public-interest litigation may have in-

terests that depart from those of the government they

serve. See Rhodes v. Chapman, 452 U.S. 337, 360 (1981)

(Brennan, J., concurring) (noting that “{e]ven prison of-

ficials have acknowledged that judicial intervention has

helped them to obtain support for needed reform.”’’);

Kasper, 814 F.2d at 340 (‘district judges should be on

the lookout for attempts to use consent decrees to make

end runs around the legislature .. . .””); Dunn v. Carey,

808 F.2d 555, 560 (7th Cir. 1986) (“A court must be alert

to the possibility that a consent decree is a ploy in some

other struggle.’’).

When confronted with allegations that a government

agent with control over the decision to negotiate and enter

into a consent decree may have interests that differ from

those of other segments of the government, a district

judge’s scrutiny of the decree must necessarily increase.

One can accept Judge Posner’s statement that ‘‘the sep-

aration of powers within state government”’ is not ‘‘a

proper matter of federal judicial concern,” ante at 19, but

still conclude that the choice of which private agreements

merit the approval—and continuing enforcement power—of-

a federa! court is a matter of federal judicial concern. See

Kasper, 814 F.2d at 340-341. One circumstance that might

give a federai district court pause as it decides whether

to approve the parties’ proposed decree is a charge that

the officer who negotiated the decree on the state’s behalf

had ‘‘shattered” any expectation that he or she would vig-

orously defend state statutes. See ante at 13 (Posner, J.,

concurring). This is nothing more than a specific example

of the heightened scrutiny this Court employs in passing

upon settlements in which it appears that the interests

of the litigants are in danger of being sacrificed for the

benefit of their lawyers. See, e.g., Armstrong v. Board

of School Directors, 616 F.2d 305, 313 (7th Cir. 1980) (dis-

cussing risk that ‘“‘class counsel may be persuaded by the

prospect of a substantial fee to accept a settlement pro-

posal which leaves the class with less relief than could

have been procured through more vigorous negotiation.”’);

Hiram Walker & Sons, 768 F.2d at 890-91 (heightened

scrutiny of consent decree appropriate where there is an

allegation that ‘‘the attorneys involved have sacrificed

their clients’ interests to assure themselves of receiving

sizable attorneys’ fees.’’).

The alleged conflict of interest in this case was of a dif-

ferent sort. According to those who objected to the settie-

ment, the Illinois Attorney General, who on behalf of the

defendants directed the course of this litigation and the

negotiations that led to the proposed decree, had ‘“‘failed

to defend the statutes and regulations which constitute

the body of Illinois law”’ by agreeing to a decree more

favorable to the plaintiffs than they would have received

had the case proceeded in the Supreme Court. Fairness

Hearing Transcript at 48. See also id. at 57, 83. These

allegations were accompanied by news accounts in which

both critics and supporters of the settlement speculated

that the Attorney General had been eager to resolve this

dispute because it had become politically disadvantageous

to allow the high court to decide it. See, e.g., Karwath &

Brotman, Illinois Abortion Case Settled, Chicago Tribune,

Nov. 23, 1989 at 1.

Knowing of these allegations, the district court had a

“fiduciary duty’ to the litigants, Stewart v. General

Motors, 756 F.2d 1285, 1293 (7th Cir. 1985), to examine

carefully the proposed consent decree to insure that the

A-35

state had not paid too high a price for a settlement which,

as Judge Posner writes, ‘‘preserves very little” of the

challenged statutes. Ante at 14. Webster made the need

for this inquiry particularly acute: by improving the state’s

chances in the Supreme Court, it heightened concerns as

to what prompted its chief legal officer to forego an op-

portunity to have the legislature’s decision to regulate

abortion vindicated. According to the objectors, in the

wake of Webster the state’s choice to agree to a settle-

ment on terms highly favorable to the plaintiffs began to

look like the kind of agreement that arms-length bargain-

ing would not have produced.

Despite this contention, nothing in the district court’s

opinion suggests that it examined the proposed decree to

determine whether it reflected the product of bargaining

between genuinely adverse parties, that it was, in other

words, within the range of fair settlements. Rather, the

district court relied on the purported adversity between

the Attorney General and the named plaintiffs, despite

allegations that their interests at the time they negotiated

the decree were not materially opposed. In fairness to

both the Attorney General and the objectors, a more com-

prehensive inquiry could have addressed these allegations.

ve

As we wrote in Donovan v. Robbins, 752 F.2d 1170 (7th

Cir. 1984), “‘how deeply the [district] judge must inquire”

into the fairness of a proposed consent decree, ‘‘what fac-

tors he must take into account, and what weight he should

give the settling parties’ desires will vary with the cir-

cumstances.”’ Jd. at 1177. In this case, the district court

was faced with a changing body of law concerning per-

missible regulation of abortion and a state officer whose

motivations in settling this case were ‘questioned at the

fairness hearing and elsewhere. These circumstances de-

manded a more searching examination of the fairness of

the consent decree the parties arrived at than the district

court provided. I respectfully dissent.

A-34

APPENDIX B

(Entered August 20, 1991)

IN THE UNITED STATES COURT OF APPPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS

Nos. 90-1907, 90-1908, 90-2122 and 90-2123

RICHARD M. RAGSDALE, M.D., et al.,

Plaintiffs,

Vv.

BERNARD J. TURNOCK, et al.,

Defendants.

Appeal from the United States District Court

for the Northern District of Illinois

No. 85 C 6011 - John A. Nordberg, Judge

Final Judgment: Affirmed as to the District Court's

denial of intervention and dismissed as to the proposed

intervenors and appellants, Murphy and Greenwood,

with costs.

Dated: August 20, 1991

APPENDIX C

(Entered March 22, 1990)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD M. RAGSDALE, M_D., et al.,

Plaintiffs,

Vv.

BERNARD J. TURNOCK, et al.,

Defendants.

No. 85 C 6011 - Judge Nordberg

MEMORANDUM OPINION AND ORDER

Before the court is the parties’ joint motion under

Rule 23(e) of the Federal Rules of Civil Procedure for ap-

proval of a proposed settlement and consent decree. For the

reasons stated below, the court grants the motion and enters

the consent decree.

BACKGROUND

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,

Ii}. Rev. Stat.ch. 111,Sections 4433(1 Xa)-(e) (ater recodified

as Sections 4400-22 (1) (a) - (e)), the Ambulatory Surgical

A 36

Treatment Center Act, Ill. Rev. Stat. ch. 111 1/2, Sections

157-8.1 et seq., and regulations promulgated thereunder,

and the Health Facilities Planning Act, Ill. Rev. Stat.ch. 111

1/2, Sections 1152 et seq.

Plaintiffs challenged the constitutionality of these

statutes and regulations, contending that they form ascheme

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 nights 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 injunc-

tion.! 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.”

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 jursdiction until

the hearing onthe ments. Before the date scheduled for oral

argument, the parties negotiated the proposed consent de-

cree now before this court. The decree seeks to resolve all

claims for declaratory and injunctive relief brought by plain-

tiffs 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.

'The court's opinien is published at 625 F. Supp. 1212: N D_ Iii

1985)

?The decision of the Court of Appeals is published a: -i1 F.2d

1358 (7th Cir. 1988)

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.’ The court al-

lowed any class members objecting to the proposed settle-

ment 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 settle-

ment; afterward, the court heard objections from amici who

had filed briefs with the court.‘ Finally, the court permitted

*The parties gave notice by mail to all facilities which, at the time

the complaint was filed, were licensed ASTCs (Ambulatory Surgical

Treatment Centers) and offered abortions; by publication in the Chicago

Tribune and the Chicago Sun-Times to all presently licensed ASTCs

which offer abortions; and by mail to all members of the defendant class

of state’s attorneys. All methods of notice were completed by January 29,

1990.

As required, the notice also informed class members of the

fairness hearing to be conducted on February 23, 1990. For this and other

aspects of the settlement process, the court was guided by the procedures

set forth in the Manual for Complex Litigation, Second, Sections 30.4-30.47

(1985).

‘Among the amici were certain members of the Illinois General

Assembly and an individual attorney from Chicago. There were other

objectors who filed materials with the court, but did not style themselves

“amici.” The court heard their comments as well. The court also heard

objections from some of the state’s attorneys of the defendant class, who

had submitted briefs to the court.

Two objectors, Kenneth M. Reed and Mark I. Aughenbaugh,

sought leave to intervene on behalf of “a class consisting of all Illinois

unborn babies.” Any interest in protecting the fetus is for the state to

assert, however. The objectors brought no evidence showing “gross

negligence or bad faith” committed by the state in representing the

interests implicated by this litigation. Without sucha showing, the state's

A- 38

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 hearing’, the court makes the

following findings of fact and conclusions of law.

DISCUSSION

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 negotia-

ted compromise between the parties. A district court should

representation must be presumed adequate. United States v. Sou

Comm’ nitv Schoo] Corporetion, 692 F.2d 623 (7th Cir. 1962). Accord-

ingly, the court denied the objectors’ petition but granted leave to file

written objections and appear as amici, which they did. Their Petition to

Reconsider Petition to Intervene and to Maintain Class Action of Baby

Reed and Baby Aughenbaugh, filed March 15, 1990, is likewise denied.

See United States v. Citv of Chicago, 897 F.2d 243 (7th Cir. 1990) (“inter-

vention to take an appeal is permissible only if the onginal partes’

decision to discontinue the battle reflects gross negligence or bad faith’).

*One notable submission to the court is the Draft Order Approv-

ing and Entering Consent Decree, filed jointly by plaintiffs and defen-

dantson March 16, 1990. It reflects the parties’ stipulations as totindings

of fact and conclusions of law in this case. As such it can more properly

be charactenzed as a Stipulation, which 1s how the court will hereinafter

refer toit. While declining to incorporate the entire Stipulation into this

opinion, the court enters it into the record as evidence to be weighed 1n

evaluating the proposed consent decree

A-39Y

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 en-

forcement of certain statutory provisions challenged by

plaintiffs. Foremost among them are Section 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 tocomport with physical plant

specifications and other restrictions which “in effect...require

ASTCs to be the functional equivalent of small hospitals.”® It

was this statutory scheme that plaintiffs regarded as in-

fringing on the constitutional nght 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 abor-

tions 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

“Ragsdale v. Turnock, 625 F. Supp. at 1216. Together with the

appellate court’s opinion, that decision contains exhaustive discussions of

the statutes in question and plaintiffs’ challenge tothem. The court's task

here isnot torehash that matenal, but rather toask whether the proposed

consent decree fairly addresses the concerns expressed on both sides of the

dispute. Since the findings of fact set forth in the Ragsdale decisions are

relevant to that inquiry, the court incorporates them in today’s opinion

A-40

required to comply with a new set of regulations tailored to

those facilities.’

This scheme is neither unfair, unreasonable, or inad-

equate. Ascounsel for both parties noted during the fairness

hearing, the settlement addresses each side’s principal con-

cern. To plaintiffs’ satisfaction, the decree preserves their

constitutional nght to have or provide abortiuns; to defen-

dants’ 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 vic-

tory.” 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 ifit uses general anesthesia. “That

provision,” says FPA, “permits theimposition of burdensome

and medically unnecessary regulations that would imper-

missibly infringe on the mghts of the physician class to

provide abortion services...” FPA brief, p. 2.

FPA’s argumentis unavailing. General anesthesiais

more hazardous than local anesthesia, a fact to which

Doctors Ragsdale and Hern, plaintiff and plaintiffs’ expert,

"The decree does not require a separate license for physicians

whose offices are not primanly devoted to pronding surgical services, and

it does not affect the provision of abortions in hospitals.

respectively, testified. State Defendants’ Response, p. 8.

Indeed, the Abortion Standards and Guidelines of Planned

Parenthood Federation of America, Inc. provide that

“(gleneral 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 (1989), requires disapproval of

the settlement. Webster concerned the use of public facili-

ties 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, “(t]he 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.’ In deciding

whether to approve a settlement, “t]he district court should

refrain from resolving the merits of the controversy or

making a precise determination of the parties’ respective

legal nghts.” Hiram Walker, 768 F.2d at 889. Settlement

proceedings are not an appropniate occasion for resolving the

merits of undecided legal issues. The court declines the in-

*To say the Supreme Court might uphold the challenged provi-

sions1s doubly speculative. Not only is the substantive law unsettled, but

the Court reserved the issue of yunsdiction and may not have reached the

ments in this case.

A-42

vitation of some objectors to do so.

Other objectors insist that the consent decree en-

dangers 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 women

the opportunity to exercise their constitutional! rights. To-

ward that end, the parties consulted with obstetricians,

gynecologists, and other medical and public health experts

in drafting the terms of the settlement.®

Far from leaving women unprotected, the settlement

creates a network of statutes and rules regulating the

provision of abortion services. Facilities that provide abor-

tions beyond 18 weeks gestational age or use general anes-

thesia mustcomply withthe Ambulatory Surgical Treatment

Center Licensing Requirements. Facilities that offer abor-

tion services within 18 weeks gestational age, using loca!

anesthesia, must abide by the requirements set forth under

subpart G of the ASTCA, “Limited Procedure Specialty

Centers.” Like any other provider of medical services, abortion

providers must comply with standards of conduct generally

applicable to the medical profession.'® Finally, the Clinical

*Among those consulted were the Amencan College of Obstetn-

cians and Gynecologists, Planned Parenthood Federation of America, the

National Abortion Federation, and other professional societies. The

parties also renewed Williams Obstetncs and other respected medical

texts and publications. Stipulation, p. 18.

Some objectors complain that the decree puts physicians wholly

outside the regulatory powers of the state, but that objection misses the

mark. No less than the clinics regulated by the ASTCA, physicians may

not violate accepted standards of medical practice when performirg abor-

A-43

Laboratory Act — and any other presentor future legislation

not contrary to the consent decree — may be applied to

providers of abortion services.!!

Taken together, these statutes and regulations pro-

vide the state with ample authority to safeguard the health

and safety of women seeking abortions. That is certainly the

view of the Department of Public Health, which is charged

with regulating health care in the State of Illinois: “it is the

judgment of the medical doctors with the Department of

Public Health that the remaining regulations provide a

sufficient mechanism by which the Department can regu-

late and inspect these facilities in order to minimize the risk

of harm to patients undergoing surgery at these facilities.

This judgment, as well as the goal of regaining regulatory

authority is consistent with the stated purpose of the ASTC

Act to promote safe and adequate treatment.” State Defen-

dants’ Response, p. 7 (citation omitted).

There remain two objections to the proposed consent

decree worth discussing. A handful of state’s attorneys

contend that the defendant class to which they belong was

not adequately represented during settlement negotiations.

In support of this charge, the objectors refer obliquely to

“information” culled from their review of the settlement

proceedings which they regard as evidence of inadequate re-

presentation. They consider the behavior of their class

tions.

Moreover, the decree leaves the Legislature free to amend the

Medical Practice Act or to enact legislation specifically regulating physi-

cians’ offices.

''The consent decree does not, as some objectors contend, purport

to bind future actions of the General Assembly. The decree specifically

applies only to the challenged statutes as presently enacted. If those

statutes are amended or new statutes passed, the decree does not affect

their enforcement.

A-44

representative so suspect that, even if it does not require

rejection of the proposed settlement, it warrants further

discovery.

Their charge is without ment. On November 8, 1989,

this court ordered the State’s Attorney of Cook County, or his

representative, to participate in settlement negotiations.

Assistant State’s Attorney Harold E. McKee, III, was as-

signed to the case. At the fairness hearing, plaintiffs and

defendants alike attested to the vigor and frequency of Mr.

McKee’s participation in the negotiations. He “attend/ed]

and participate(d] in all settlement negotiations...partici-

pated in drafting the proposed settlement and consent de-

cree, represented the class interest in maintaining the

ability to prosecute future violations under the settled acts,

and also participated in the briefings held for the benefit of

the news media...” State’s Attorney Partee’s Response, p. 4.

The court finds his representation adequate and denies the

Motion for Leave to Take Discovery brought by Dennis

Schumacher, Greg McClintock, Samuel Naylor, and Stephen

L. Reed, state’s attorneys for Ogle, Warren, Hancock, and

Henderson counties, respectively.

Finally, some objectors challenge the consent decree

because it would expose defendants toa claim for attorney's

fees. But the consent decree expressly reserves the issue of

attorney's fees for resolution at a later date:

The plaintiffs’ entitlement to, andthe amount

of, any counsel fees and reimbursement of

disbursements and expenses to be paid by the

defendants shall be determined by the District

Court upon proper application by the plaintiffs

after the entry of the Consent Decree and

final judgment.

ia

wo

t

>

Y

Settlement Agreement, p. 5. Any objections regarding fees

made at this time are premature.

The parties’ Stipulation discusses this and nearly

every other aspect of these settlement proceedings. Al-

though far too detailed for full discussion here, some elements

of the Stipulation deserve mention. Beginning with page 7,

for instance, the Stipulation comprehensively reviews the

procedural history behind the consent decree. The court

incorporates that review in this opinion. Further, the

Stipulation identifies several factors which may be used to

decide whether asettlement is fair, including the strength of

plaintiffs’ case versus the settlement offer; the complexity

and expense of further litigation; the reaction of class mem-

bers to the settlement; the opinion of competent counsel; and

the stage of proceedings and amount of discovery completed.

Stipulation, p. 27.

Without launching into full analysis of these factors

here, the court notes that it considered them all in reaching

its holding today. The consent decree offers plaintiffs, by

their own admission, “permanentinjunctive reliefsimilar...to

that which they sought in this litigation...” (Stipulation, p.

28); further litigation could prove lengthy and expensive;

few class members objected to the settlement; counsel were

clearly well-informed and represented their clients zeal-

ously; and the settlement agreement arose late in the pro-

ceedings, after thorough discovery had been completed.

These and other factors considered by the court are more

fully explained by the parties in the Stipulation.

For the foregoing reasons, the court finds the proposed

consent decree lawful, fair, reasonable, and adequate. Ac-

cordingly, the court grants the parties’ joint motion for

approval of the settlement, and enters the consent decree

herewith.

A-46

ENTER: /s/.'olin A. Nordberg

United States District Judge

Dated: March 22, 1990

CONSENT DECREE

I. HISTORY OF THE LITIGATION

This class action litigation was commenced as a civil

rights case on June 28, 1985, by named Plaintiffs Richard M.

Ragsdale, M.D., Margaret Moe, R.N., the Northern Illinois

Women’s Center, Sarah Roe and Jane Doe, under 42 U.S.C.

sections 1983 and 1988, and 28 U.S.C. sections 2201 et seq.

Plaintiffs claimed that the challenged Illinois statutes and

regulations, which included (1) the Medical Practice Act,

("MPA”) Ill. Rev. Stat. ch. 111 section 4433 (a)-(e) (since

recodified at Ill Rev. Stat. ch. 111 section 4400-22(1)), (2) the

Ambulatory Surgical Treatment Center Act (“ASTC Act”),

Ill. Rev. Stat. ch. 111 1/2 sections 157-8.1 to 157-8.16 and

regulations promulgated thereunder, and (3) the Health

Facilities Planning Act (“HFP Act”), Ill. Rev. Stat. ch. 111

1/2 sections 1151 to 1168, impermissibly restricted the

performance of first and second trimester abortions and thus

allegedly violated rights secured by the First, Fourth, Fifth,

Ninth and Fourteenth Amendments to the United States

Constitution.

A. Parties

1. Plaintiffs

Plaintiff Richard M. Ragsdale, M.D., 1s a physician,

licensed to practice in Illinois, who is the Director of the

Northern Illinois Women’s Center. At the time the com-

plaint was filed and at the present, Dr. Ragsdale performs

abortions for his women patients who seek such medical

A-47

care. Plaintiff Margaret Moe is a registered nurse and the

sole owner and executive director of a medical facility in

Cook County, Illinois. Ms. Moe employs licensed physicians

and she sought to offer abortion services at her facility.

Plaintiffs Sarah Roe and Jane Doe are patients of Dr.

Ragsdale who had sought and received an abortion from Dr.

Ragsdale and who may need or desire another abortion in

the future.

The named plaintiffs brought this lawsuit on their

own behalf, on behalf of a class of physicians who perform or

desire to perform abortions in the State of Illinois, and on

behalf of a class of Illinois women who desire abortion

services. In orders issued on November 27, 1985 and on

December 11, 1985, this Court certified the following plain-

tiff classes pursuant to Rule 23(b) of the Federal Rules of

Civil Procedure:

(a) A plaintiff class consisting of all phy-

sicians and surgeons who perform or desire to

perform abortions in the State of Illinois;

[and]

(b) Aplaintiffclass consisting ofall Illinois

women of child-bearnng age who desire or may

desire an abortion sometime in the future|.|

2. Defendants

Defendant Bernard J. Turnock, M.D., is the Director

of the Department of Public Health of the State of Illinois

and was sued in his official capacity. He is responsible for the

enforcement of the ASTC Act and for the promulgation and

enforcement of regulations under that Act, and has certain

administrative responsibilities under the HFP Act.

A-48

Defendant Neil F Hart’ gan, Attorney General of the

State of Illinois, was sued in his official capacity, in which he

is charged with the defense of challenges to the MPA, the

ASTC Actand the HFP Act, and their respective regulations,

throughout the State of Illinois. In addition, as chief legal

officer of the state, the Attorney General represents the

directors of state agencies in their enforcement activities,

and upon referral by these agencies, has certain enforce-

ment responsibilities on behalf of these agencies.

Defendant Gary L. Clayton was sued in his official

capacity as the Director of the Illinois Department of Regis-

tration and Education. As such Mr. Clayton, and his succes-

sor in office at the successor agency, Robert C. Thompson,

the Acting Director of the Department of Professional Regu-

lation, is empowered to implement, administer, and enforce

the MPA.

Defendant Richard M. Daley was sued in his official

capacity as State’s Attorney of Cook County, and as the

representative of the defendant class of all state's attorneys

of the 102 counties of the State of Illinois. Under the ASTC

Act, the Director of the Department of Public Heaith may,

through the State’s Attorney of the county in which the

violation occurs, seek injunctions to restrain violations of the

ASTC Actor its regulations, or enjoin future operation of any

ambulatory surgical treatment center (“ASTC”) violating

the ASTC Act or its regulations. Under the HFP Act, state's

attorneys may prosecute persons in violation of the Act for

committing a business offense.

In orders issued on November 27, 1985 and on De-

cember 11, 1985, this Court certified the following defendant

class pursuant to Rule 23(b)(1) of the Federal Rules of Civil

Procedure:

“A defendant class consisting of all State’s

Attorneys in the State of Illinois.”

Richard M. Daley, as the State’s Attorney of Cook County,

was named as representative of this defendant class. Rich-

ard M. Daley has been succeeded in office by Cecil A. Partee,

who pursuant to Rule 25(d), F.R.Civ.P., has been automati-

cally substituted as the named defendant state’s attorney

and as representative of the defendant class of state’s at-

torneys.

B. Jurisdiction

This Court concludes that it has jurisdiction of this

action under 28 U.S.C. section 1343. Venue is proper in the

United States District Court for the Northern District of

Illinois pursuant to 28 U.S.C. section 1391.

C. The Claims

In their Complaint, plaintiffs alleged that the chal-

lenged statutes and regulations impermissibly restricted

the ability of physicians to perform and the ability of women

to secure first and second trimester abortions. Plaintiffs

claimed that the laws singled out abortions for a discnimina-

tory level of regulation and, further, required that all

abortions performed in Illinois be performed in a hospital, or

its functional equivalent—an ASTC. Plaintiffs thus alleged

thatthe laws violated plaintiffs’ night of pnvacy as guaranteed

by the First, Fourth, Fifth, Ninth, and Fourteenth Amend-

ments to the Constitution and the penumbra of the Bill of

Rights. Plaintiffs alsoalleged that the challenged provisions

deprived Dr. Ragsdale and other physicians of their asserted

nght to practice medicine free from vague, arbitrary, irra-

tional and burdensome regulations, in violation of the equal

protection clause of the Fourteenth Amendments to the Uni-

A-50

ted States Constitution, and that the provisions similarly

prevented Margaret Moe from operating her facility free

from vague, arbitrary, irrational and burdensome regula-

tions, in violation of the equal protection clause of the

Fourteenth Amendment. Plaintiffs sought declaratory and

injunctive relief from the enforcement of the challenged

provisions.

Defendants filed an Answer which denied each and

every allegation of the Complaint, except as otherwise re-

sponded to. Defendants specifically denied each and every

allegation that the laws, as written or as enforced, violated

any of plaintiffs’ rights guaranteed by the First, Fourth,

Fifth, Ninth and Fourteenth Amendments to the United

States Constitution. Defendants argued that thechallenged

statutes and regulations reflected accepted medical, health,

safety, and construction standards for outpatient surgical

facilities. In addition, defendants contended that the chal-

lenged provisions appropriately furthered the State’s inter-

ests in protecting the health, safety and welfare of women

who choose to have abortions in such facilities

D. The Preliminary Injunction

Following an evidentiary hearing and a review of the

pleadings and other written evidence submitted by the

parties, this Court granted plaintiffs’ Motion for a Prelimi-

nary Injunction in orders issued on November 27, 1985 and

on December 11, 1985. The Court enjoined the defendant

class members and the individual defendants Bernard J.

Turnock, Neil F. Hartigan, and Gary Clayton (hereafter

collectively referred to as “defendants”), in their official

capacities, and defendants’ successors, officers, agents, ser-

vants, employees and attorneys and those persons 1n active

concert or participation with them, from enforcing section

4433 (1) (a)-(e) (now section 22 (1) (a)-(e)) of the MPA, the

A-51

ASTC Act and any rules and regulations promulgated there-

under, or the HFP Act, against any person or facility to the

extent such person or facility offers or performs, or desires to

offer or perform first or early second trimester abortions or

other abortion-related gynecological procedures, such as a

dilation and curettage.

On March 10, 1988, the United States Court of

Appeals for the Seventh Circuit upheld the Preliminary

Injunction, except insofar as the challenge to one provision

was determined to be moot. The Court of Appeals subse-

quently denied defendants’ petition for rehearing and sug-

gestion for rehearing en banc on August 12, 1988.

Thereafter, defendants Turnock, Hartigan, and

Stephen Selcke, then-director of the Department of Profes-

sional Regulation and successor to defendant Clayton, filed

a Notice of Appeal, seeking review by the Supreme Court of

the United States.

II. RESOLUTION OF DISPUTED ISSUES

This Consent Decree is the result of negotiation and

settlement. Defendants deny the allegations in the Com-

plaint and specifically deny that the challenged provisions

and their enforcement of them violates the constitutional or

other legal rights of the plaintiff classes. Nothing herein

shall be considered an admission of fault of any kind by the

defendants, ncr shall anything herein be considered a reflec-

tion of any weakness of proof by the plaintiffs.

The parties are desirous of avoiding further protracted

and costly litigation and therefore have agreed that this

controversy should by resolved by settlement and without

further evidentiary hearings. In addition, the defendants

desire to expeditiously regain the State’s authonty tolicense

A-52

and regulate outpatient surgical facilities in which abor-

tions are performed and to implement and enforce regula-

tions as to such facilities. Accordingly, as indicated by the

signatures below, the parties have agreed to the entry of this

Consent Decree.

This Consent Decree and judgment shall constitute a

final resolution of all of the claims for declaratory and

injunctive’ relief asserted in the complaint, with the reser-

vation of plaintiffs’ claims for attorney’s fees, costs, and

expenses, and shall be binding upon the parties to the action,

the - officers, agents, servants, employees, and attorneys,

and upon those persons in active concert or participation

with them, including: the defendants, their agents and

employees, and their successors in office, the defendant class

of state’s attorneys, and upon the named plaintiffs and al!

persons in the classes they represent. The plaintiffs’ en-

titlement to, and the amount of, any counsel fees and

reimbursement of costs and expenses shall be determined by

the Court upon proper application by the plaintiffs after

entry of this Decree. Defendants retain their nght to object

to such application submitted by plaintiffs. The parties also

may resolve the plaintiffs’ claim to fees, costs and expenses

by agreement.

Plaintiffs and defendants agree to the dissolution of

the Preliminary Injunction and to the entry of this Consent

Decree as a Permanent Injunction.

Il]. FINDING OF FAIRNESS AND ADEQUACY

The Court, having held a hearing pursuant to court-

ordered notice to the plaintiff and defendant classes in

accordance with Rule 23(e) of the Federal Rules of Civil

Procedure, hereby finds that the terms of this Consent

Decree provide for a fair, adequate, and reasonable settle-

A-33

ment of the claims for declaratory and injunctive relief

asserted in the complaint, with the exception of plaintiffs’

claims for attorney’s fees, costs and expenses. The Court

thereby dissolves the Preliminary Injunction and enters this

Consent Decree as a Permanent Injunction, the injunctive

terms of which are set forth in section IV.

IV. JUDGMENT AND PERMANENT INJUNCTION

NOW, THEREFORE, upon the consent of the parties

and approval of this Court, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED:

(SEE ATTACHMENT A FOR THE INJUNCTIVE

PORTION OF THIS CONSENT DECREE]

V. COMPLIANCE

Class members shall be given at least 6 months from

the date of approval of this Consent Decree © bring their

facility intocompliance with the terms of the Consent Decree

or any new regulations promulgated by the Department of

Health, pursuant to this decree, governing the provision of

abortion services.

ORDERED THIS 22 day of March, 1990.

ENTER:/s/ John A. Nordberg

United States District Judge

Approved:

One of the Attorneys for

the Plaintiff Class:

/s/ Colleen K. Connell

A-54

Bernard J. Turnock, M.D.,

Director, Illinois

Department of Public Health

Defendant Neil F. Hartigan

Attorney General of Illinois

One of the Attorneys for

Cecil A. Partee State’s Attorney

of Cook County and the defendant

class of State’s Attorneys

Kevin K. Wright,

Director, Illinois

Department of Professional

Regulation

ATTACHMENT A

INJUNCTION PORTION OF

CONSENT DECREE

1. Defendants, in their official capacities, their suc-

cessors in office, their officers, agents, servants, contractors,

employees and attorneys, and those people in active concert

and participation with them, are hereby enjoinea from

initiating any prosecution, including but not limited to

criminal, civil and administrative proceedings, or imposing

any sanction for violation of, or enforcing in any way, anv of

the statutes set forth in subparagraphs (A) and (B) below

against any person or facility offering or performing abortions:

A. Section 157-8.3(A) (section 3) of the Ambulatory

Surgical Treatment Center Act ("ASTC Act”), Ill. Rev. Stat.

ch. 111-1/2, pars. 157-8.3(A), to the extent that Ambulatory

Surgical Treatment Center is defined as any facility in

which a medical or surgical procedure is utilized to termin-

ate a pregnancy.

B. Section 22(1)(a)-(e) of the Medical Practice Act.

Ill. Rev. Stat. ch. 111.

2. Defendants, in their official capacities, their suc-

cessors in office, their officers, agents, servants, contractors,

employees and attorneys. and those people in active

concert and participation with them, are nereby enjoined

from initiating any prosecution, including but not limited

to criminal, civil and administrative proceedings, or im-

posing any sanction for violation of, or enforcing in any way,

against any licensed Ambulatory Surgical Treatment

Center (“ASTC"), the following provisions of the Ambulatory

Surgical Treatment Center Licensing Requirements, 77 III.

Admin. Code, Section 205, subchap. b: (1) 205.710, (2)

205.720,(3)205.730aX3) and (b),(4)205.740, and(5) 205.760,

and, if such facility provides only abortions and related

gynecological procedures, (6) 205.120(b)(5)-(7), and (7)

205.125(b)(5)-(7), to the extent that, provided that all infor-

mation required under said sections is maintained at the

ASTC, the application required by said sections need only

include the name, address or telephone number of the

owner(s), administrator(s) and medical director(s) of the

ASTC.

3. Defendants, in their official capacities, their suc-

cessors in office, their officers, agents, servants, contractors,

employees and attorneys, and those people in active concert

and participation with them, are hereby enjoined from

initiating any prosecution, including but not limited tocni-

A-56

minal, civil and administrative proceedings, or imposing

any sanction for violation of, or enforcing in any way, any

of the statutes or regulations set forth in subparagraphs (A)

and (B) below against any person or facility offering or

performing abortions within 18 weeks assessed gestational

age, with only local, and not general, epidural, or spinal

anesthesia, without incisions or other techniques which

expose a person to risk of infection from airborne bacteria,

and gynecological procedures related to such abortions, in

an ASTC whose surgical procedures are limited to the

performance of such abortions and gynecological procedures

related to such abortions:

A. Sections 1152-1168 of the Health Facilities Plan-

ning Act, Ill. Rev. Stat. ch. 111-1/2, pars. 1152-1168.

B. The following provisions of the Ambulatory Sur-

gical Treatment Center Licensing Requirements, 77 I)1.

Admin. Code, Section 205, subchap. b:

(1) 205.120(bX5)-(7) - Licensure, enjoined to the ex-

tent that, provided that all information required under said

section is maintained at the ASTC, the application need only

include the name, address or telephone number of the

owner(s), administrator{s) and medical director(s) of the

ASTC.

~ (2) 205.125(bx5)-(7) - Application for Licen

newal, enjoined tothe extent that, provided that all informa-

tion required under said section is maintained at the ASTC,

the application need only include the name, address or

telephone number of the owners), administrator(s) and

medical director(s) of the ASTC.

(3) 205.520(c) - Preoperative Care, enjoined to the

extent said section requires tests to be performed by a quali-

fied laboratory technician. (Relevant legal requirements

regarding laboratory tests are found in the Clinical Labora-

tory Act, Ill. Rev. Stat. ch. 111-1/2, Sections 621-103 et seq.)

(4) 205.330 - Nursing Personnel, enjoined to the ex-

tent that “surgical experience” as used in said section may be

interpreted to exclude experience gained in aciinical facility

providing abortion procedures.

(5) 205.410(c) - Equipment, enjoined to the extent

that said section requires an ASTC that does not use inha-

lation anesthetic or medical gas to have written procedures

to insure the safety in use or storage of such substances,

provided that if intravenous sedation is used in accordance

with the ASTC’s program narrative, mechanical ventilation

devices and intubation equipment must be available on site.

(6) 205.540(cX1)-(3) - Post Operative Care, enjoined

to the extent the requirements of said section would apply in

circumstances where (1) no licensed hossital within 15

minutes from the ASTC (“nearby hospital”) will allow

admitting or practice privileges to abortion providers and (2)

either the ASTC has a transfer agreement with a nearby

hospital, or a physician practicing at the ASTC or the

medical director of the ASTC has a professional working

relationship or agreement, maintained in writing at the

ASTC and verifiable by IDPH, with a physician who does

have admitting or practice privileges at a nearby hospital, so

as to assure availability of patient care in the event of

medical complications ensuing from an abortion or a gyne-

cological procedure related to an abortion.

(7) 205.710 - Abortions, enjoined.

(8) 205.720 - Personnel, enjoined.

A-58

(9) 205.730 - General Patient Care, 730(aX1), en-

joined to the extent that said section requires any examina-

tion beyond a determination of the patient’s blood Rh factor;

73aX3), enjoined; and 730(b), enjoined.

(10) 205.740 - Pre-operative Requirements, en-

joined.

(11) 205.760 - Reports, enjoined.

(12) 205.1310(a) - Plant and Service Requirements,

enjoined to the extent that said section requires that a

proposed ASTC meet any requirements enjoined or not

permitted pursuant to the provisions of this decree.

(13) 205.1320 (aX) - General Considerations, en-

joined to the extent that said section requires any physical

marking that denotes the facility as an ASTC.

(14) 205.1350 - Admission Department and Public

Areas, enjoined, provided that the ASTC complies with all

applicable federal and state handicap access laws, includ-

ing, without limitation, the Illinois Environmental Barriers

Act, Ill. Rev. Stat. ch. 111-1/2, Section 3711.

(15) 205.1360 - Clinical Facilities, 1360(ax1) [ex-

amination room], enjoined to the extent said section would

require that the examination room (which need not be

separate from the procedure room) be larger than minimally

adequate to accommodate the equipment required for the

examination, to facilitate the examination safely, and to

allow unobstructed ingress and egress to and from the room

through the door that, if locked, can be opened from within

the room;

.1360(b)(1) [procedure room], enjoined to the extent said sec-

tion would require a room larger than 120 square feet with

a minimum dimension of at least 10 feet unless the ASTC

demonstrates that a smaller room size is minimally ad-

equate te accommodate all equipment required for the pro-

cedures, to perform the procedures safely, and to protect

patients and staff in the event of fire or other emergency;

.1360(b\2) [communication system], enjoined;

.1360(cX2) [recovery room], enjoined to the extent said

section would require a room larger than is necessary to

accommodate the recovery beds or lounge cnairs in the room,

with a minimum of three feet between each bed or chair and

an unobstructed passageway of a minimum of four feet

clearance at one end each bed or chair;

.1360(c3) {drug distribution station, hand washing facility,

charting facility, nurses’ station and storage space for sup-

plies and equipment], enjoined except that the ASTC must

provide for direct visual supervision of the patients’ recovery

area;

.1360(cX 4) [toilet specifications], enjoined to the extent said

section would require the inclusion of a toilet, a gray

diverter valve or a fluid waste disposal in the recovery room

ifa toilet is reserved for only patient use and does not require

recovery room patients to enter public areas or other patient

care areas to access the toilet; and

.1360(cX7)(minimum of four recovery beds or lounge chairs],

enjoined to the extent said section would require the

inclusion of more than three recovery beds or lounge chairs

foreach procedure room unless the ASTC’s narrative program

provides that no more than two Procedures per hour will be

performed per procedure room, in which case a minimum

of two recovery beds or lounge chairs for each procedure

A-60

room is required.

(16) 205.1370 - Support Services,

.1370(a) [control station], enjoined;

.1370(d) {scrub stations], enjoined to the extent said section

requires a separate scrub station outside of the procedure

room, provided that the procedure room contains a sink with

handwashing capabilities;

.1370(e) [soiled workroom], enjoined to the extent that the

section requires more than closed clean storage which pre-

vents contamination by soiled materials and for separate

storage ard handling of soiled materials;

.1370(f) [fluid waste disposal], enjoined to the extent said

section requires more than a toilet with a gray diverter

valve, a sink exclusively used for fluid waste disposal, or a

separate fluid waste disposal unit;

.1370(g) [workroom or supply room], enjoined to the« scent

said section requires more than facilities for closed c ean

storage;

.1370(h) [anesthesia storage], enjoined;

.1370(i) {medical gas storage], enjoined;

.1370(k)'!chenging areas -- staff], enjoined totne extent that

the section recuires more than minimally adequate space for

any changing or gowr. ng required by the specific procedures

that are being performed in accordance with the ASTC’s

narrative program;

.1370(1) [changing areas -- patients], enjoined; and

_ Aol

_1370(n) [janitor’s closet], enjoined to the extent that the

section requires more than minimally adequate space for

storage of cleaning supplies.

(17) 205.1380(bX3) and (4) - Diagnostic Facilities,

enjoined.

(18) 205.1400 - Details and Finishes,

.1400(a\(1) [minimum corridor width], enjoined to the ex-

tent said section would require that the width of corridors

in an ASTC exceed five feet;

.1400{b){3) [minimum door width], enjoined to the extent

said section would require that the width of any doors in an

ASTC exceed three feet;

.1400(d)[thresholds flush], enjoined, provided that the ASTC

complies with all applicable federal and state handicap

access laws, including, without limitation, the Illinois Envi-

ronmental Barriers Act, Ill. Rev. Stat. ch. 111-1/2 Section

3711;

.1400(n) [ceiling .finish], enjoined to the extent said section

requires ceilings to be readily washable and without crev-

ices, if ceilings are otherwise cleanable;

(19) 205.1410(dx 1) - Construction, Including Fire-

Resistive Requirements, enjoined, provided that the ASTC

complies with all applicable federal and state handicap

access laws, including, without limitation, the !llinois

Environmental Barriers Act, II]. Rev. Stat. ch. 111-1/2 Sec-

tion 3711

(20) 205. 1540(a)- -(q) and Table A = Air conditioning,

in Ve in , enjoined to the extent

A-62

that said section requires more than that temperature be

maintained between 68° and 80° Fahrenheit.

(21) 205.1750(b) - Receptacles, enjoined.

4. Following the entry of the Consent Decree, (1)

defendants may enforce those specific portions of the Medi-

cal Practice Act (“MPA”), the Health Facilities Planning Act

(“HFPA”), and the Ambulatory Surgical Treatment Center

Act (*ASTCA”) not enjoined herein; (2) defendants shall not

enforce Section 22(1Xa)-(e) of the MPA as presently codified;

(3) defendants’ enforcement and non-enforcement of Sec-

tions 1152-1168 of .-¢ HFPA as presently codified shall be

consistent with the injunctions set forth in paragraphs 1

through 3 above; and(4) defendants’ future regulation under

and enforcement and non-enforcement of the present provi-

sions of the ASTCA shall be consistent with the injunctions

and specifications in paragraphs 1 through 3 above, and

further shall be limited as follows:

(A) With respect to any person or facility that offers

or performs abortions in any ASTC described in paragraphs

2 and 3 above, defendants may promulgate and enforce

regulations implementing the requirements of paragraphs 2

and 3 above (“implementing regulations”);

(B) With respect to any person or facility that offers

or performs abortions in any ASTC described in paragraph

3 above, defendants may promulgate, implement and en-

force future regulations under the ASTCA, which are differ-

ent from and additional to the requirements in paragraph 3

and the implementing regulations (“paragraph 3 future

regulations”) only when a change in medical or scientific

knowledge requires paragraph 3 future regulations in order

to insure against a significant health or safety msk to .1¢

welfare of a woman undergoing an abortion as permitted in

such ASTC, and further provided that no paragraph 3 future

regulations shail (i) restrict access to the procedure, either

by materially increasing the cost of the procedure or mate-

rially reducing the number of facilities without resulting in

more than a marginal increase in safety; (ii) interfere with

the safety of the procedure as determined by accepted

medical practice; or (iii) prevent a physician from exercising

medical discretion, within accepted medical practice and

within the scope of the facility, to provide a patient with

appropriate care given the unique circumstances presented

by her health situation; and

(C) With respect to any person or facility performing

an abortion in any ASTC described in paragraph 2 above,

defendants may promulgate, implement and enforce future

regulations which govern all such ASTCs (“paragraph 2

future regulations”), however, if any paragraph 2 future

regulations are specifically directed at the abortion proce-

dure, as opposed to all procedures done in such facility,

defendants may promulgate, implement and enforce such

paragraph 2 regulations only when a change in medical or

scientific knowledge requires paragraph 2 future regula-

tions in order tc insure against a significant health or safety

risk to the welfare of a woman undergoing an abortion as

permitted in such ASTC, and further provided that no

paragraph 2 future regulations shall (i) restrict access tothe

procedure, either by materially increasing the cost of the

procedure or materially reducing the number of facilities

without resulting in more than a marginal increase in

safety; (ii) interfere with the safety of the procedure as

determined by accepted medical practice; or (iii) prevent a

physician from exercising medica! discretion, within ac-

cepted medical practice and within the scope of the facility

to provide a patient with appropriate care given the unique

circumstances presented by her health situation

A-64

5. With respect to the number of weeks assessed

gestational age set forth in paragraph 3 and 4 above, the

parties stipulate that said figure has been determined by the

Illinois Department of Public Health and is based on an

assessment of risk to the health and safety of women as

evidenced by available published data, present surgical and

medical procedures commonly used and constituting accept-

able medical practice, and the standards and guidelines of

professional medical and health organizations. Follo’ :ng

the entry of this Consent Decree, the plaintiffs ar. the

Director of the IDPH expressly reserve the right to seek

modification by the Court of said figure upon a showing that

the further development of medical or scientific knowledge,

including the basis of assessment set forth above, evidences

that abortions and related gynecological procedures may be

or should be performed within a different number of weeks

in the facilities defined in paragraph 3, on the basis that such

a change would not pose or will eliminate a significant risk

to the health or safety of women obtaining such services.

6. The Court retains jurisdiction to enforce compli-

ance with the provisions of this Consent Decree.

A-65

APPENDIX D

(Entered March 22, 1990)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD M. RAGSDALE, M.D., et al.,

Plaintiffs,

v.

BERNARD J. TURNOCK, et al.,

Defendants.

No. 85 C 6011 - Judge Nordberg

JUDGMENT

Judgment is entered as follows: Enter memorandum

opinion and order finding the proposed consent decree lawful,

fair, reasonable and adequate. Accordingly, the court grants

the parties’ joint motion for approval of the settlement, and

enters the consent decree herewith. (For further detail see

order attached to the original minute order form).

ENTER: /s/ John A. Nordberg

United States Distnct Judge

Dated: March 22, 1990

A 66

APPENDIX E

(Entered March 5, 1990)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD M. RAGSDALE, M_D., et al.,

Plaintiffs,

V.

BERNARD J. TURNOCK, ey al.,

Defendants.

No. 85 C 6011 - Judge Nordberg

ORDER

Court denies Petition to Intervene and to maintain

Class Action of Baby Reed and Baby Aughenbaugh but

grants Kenneth Reed and Mark Aughenbaugh leave to

appear as Amicus Cunae and grants Craig H. Greenwood

leave to file his appearance as their counsel, nunc pro tunc

to February 22, 1990.

ENTER: /s/ John A. Nordberg

United States Distnct Judge

Dated: March 5, 1990

A-67

APPENDIX F

(Entered April 19, 1990)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD M. RAGSDALE, M.D., et al.,

Plaintiffs,

v.

BERNARD J. TURNOCK, et al.,

Defendants.

No. 85 C 6011 - Judge Nordberg

ORDER

Hearing held on Craig H. Greenwood, attorney for

Ritaellen M. Murphy and Penny R. Greenwood's petition to

clarify. Per ora! ruling court denies Craig H. Greenwood's

petition to file his appearance. Court supplements the

memorandum opinion and order stating that additional

time to February 13, 1990 was given to file objections.

ENTER: /s/ John A. Nordberg

United States Distnct Judge

Dated: Apn! 19, 1990

A-68

APPENDIX G

(Filed Apnl 20, 1990)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD M. RAGSDALE, M_D., et al.,

Plaintiffs,

v.

BERNARD J. TURNOCK, et al.,

Defendants.

No. 85 C 6011 - Judge Nordberg

NOTICE OF APPEAL

Notice is hereby given that KENNETH M. REED, as

Expectant Father and Next Friend of BABY REED, and

MARK I. AUGHENBAUGH, as Expectant Father and Next

Fnend of BABY AUGHENBAUGH, proposed Intervenors

as of right, hereby appeal to the United States Court of

Appeals for the Seventh Circuit from the MINUTE ORDER

dated and entered in this action on the 5th day of March,

1990, and MEMORANDUM OPINION AND ORDER dated

and entered in this action on the 22nd day of March, 1990.

Respectfully submitted,

/s/ Kenneth M. Reed

/s/ Mark I. Aughenbaugh

A-69

APPENDIX H

(Filed April 20, 1990)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD M. RAGSDALE, M.D., et al.,

Plaintiffs,

Vv.

BERNARD J. TURNOCK, et al.,

Defendants.

No. 85 C 6011 - Judge Nordberg

NOTICE OF APPEAL

Notice is hereby given that 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 sumetime in the future,

hereby appeal to the United States Court of Appeals for the

Seventh Circuit from the MEMORANDUM OPINION AND

ORDER dated and entered in this action on the 22nd day of

March, 1990.

Respectfully submitted,

/s/ Ritaellen M. Murphy

/s/ Penny R. Greenwood

A-70

APPENDIX I

(Filed May 18, 1990)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD M. RAGSDALE, M.D., et al.,

Plaintiffs,

v.

BERNARD J. TURNOCK, et al.,

Defendants.

No. 85 C 6011 - Judge Nordberg

NOTICE OF APPEAL

Notice is hereby given that KENNETH M. REED, as

Expectant Father and Next Friend of BABY REED, and

MARK I. AUGHENBAUGH, as Expectant Father and Next

Friend of BABY AUGHENBAUGH, proposed Intervenors

as Of right, hereby appeal to the United States Court of

Appeals for the Seventh Circuit from the MINUTE ORDER

dated and entered in this action on the 5th day of March,

1990, MEMORANDUM OPINION AND ORDER dated and

entered in this action on the 22nd day of March, 1990, and

the minute order entered on the 19th day of April, 1990.

Respectfully submitted,

/s/ Kenneth M. Reed

/s/ Mark I. Aughenbaugh

APPENDIX J

(Filed May 18, 1990)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD M. RAGSDALE, M.D., et al.,

Plaintiffs,

Vv.

BERNARD J. TURNOCK, et al.,

Defendants.

No. 85 C 6011 - Judge Nordberg

NOTICE OF APPEAL

Notice is hereby given that 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 sumetime in the future,

hereby appeal to the United States Court of Appeals for the

Seventh Circuit from the MEMORANDUM OPINION AND

ORDER dated and entered in this action on the 22nd day of

March, 1990, and the minute order entered on the 19th day

of April, 1990.

Respectfully submitted,

/s/ Ritaellen M. Murphy

/s/ Penny R. Greenwood

A-72

APPENDIX K

(Entered May 21, 1990)

IN THE UNITED STATES COURT OF APPPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS

Nos. 90-1907 and 90-1908

RICHARD M. RAGSDALE, M.D., et al.,

Plaintiffs,

Vv.

BERNARD J. TURNOCK, et al.,

Defendants.

Appeal from the United States District Court

for the Northern District of Illinois

No. 85 C 6011 - John A. Nordberg, Judge

ORDER

The court, on its own motion, orders that these

appeals are CONSOLIDATED for purposes of bnefing and

disposition.

Counsel for all parties are ordered to meet with the

court's Senior Staff Attorney, Donald J. Wall, in the court's

Auxiliary Courtroom at 9:00 a.m. on May 31, 1990 to discuss

coordinating the briefing in order to avoid burdening the

court with duplicative briefs.

Briefing on the merits shall be HELD IN ABEY-

ANCE pending further court order of this court.

A-74

APPENDIX L

(Entered June 7, 1990)

IN THE UNITED STATES COURT OF APPPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS

Nos. 90-1907, 90-1908, 90-2122 and 90-2123

RICHARD M. RAGSDALE, M.D., et al.,

Plaintiffs,

V.

BERNARD J. TURNOCK, et al.,

Defendants.

Appeal from the United States District Court

for the Northern District of Illinois

No. 85 C 6011 - John A. Nordberg, Judge

ORDER

The court, on its own motion, orders that these

appeals are CONSOLIDATED for purposes of briefing and

disposition.

On May 31, 1990, the parties to these appeals had a

conference with DonaldJ. Wall, Senior Staff Attorney forthe

Court; a telephone conference call with the same parties was

helden June 4, 1990. Asaresult, the following matters were

agreed to, and IT IS SO ORDERED:

A-75

The briefing schedule is as follows:

1. The appellants shall file their joint consolidated

brief and required short appendix on or before July 9, 1990.

2. The appellees shall filed their respective consoli-

dated briefs on or before August 15, 1990.

3. The appellants shall file their joint consolidated

reply brief, if any, on or before September 5, 1990.

Counsel for appellees are encouraged to avoid un-

necessary duplication by filing a joint brief or a joint appen-

dix or by adopting parts of a co-appellee’s brief. Duplicative

briefing will be striken and may result in disciplinary

sanctions against counsel.

NOTE: The parties are advised that Federal Rule of Appel-

late Procedure 26ic), which allows for three addi-

tional days after service by mail, does not apply

when the due dates of briefs are set by order of this

court. All briefs are due by the dates ordered

A-76

APPENDIX M

(Entered July 9, 1990)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD M. RAGSDALE, M.D., et al.,

Plaintiffs,

.

BERNARD J. TURNOCK, et al.,

Defendants.

No. 85 C 6011 - Judge Nordberg

ORDER

Hearing held on Craig Greenwood's motion for leave

to supplement the record on appeal. Per oral ruling, court

denies motion to supplement the record.

APPENDIX N

(Entered August 20, 1990)

(Corrected August 22, 1990)

IN THE UNITED STATES COURT OF APPPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS

Nos. 90-1907, 90-1908, 90-2122 and 90-2123

RICHARD M. RAGSDALE, M_D., et al.,

Plaintiffs,

Vv.

BERNARD J. TURNOCK, et al.,

Defendants.

Appeal from the United States District Court

for the Northern District of Illinois

No. 85 C 6011 - John A. Nordberg, Judge

ORDER

Before Hon. WILLIAM J. BAUER, ChiefJudge, Hon.

WALTER J. CUMMINGS, Circuit Judge, Hon.

HARLINGTON WOOD, JR., Circuit Judge, Hon. RICHARD

D. CUDAHY, Circuit Judge, Hon. RICHARD A. POSNER,

Circuit Judge, Hon. JOHN L. COFFEY, Circuit Judge, Hon.

JOEL M. FLAUM, Circuit Judge, Hon. FRANK H.

EASTERBROOK, CircuitJudge, Hon. DANIELA. MANION,

Circuit Judge, Hon. MICHAELS. KANNE, Circuit Judge.

A-75

This matter comes before the court for its consider-

ation of the "SUGGESTION FOR HEARING EN BANC"

filed herein on August 1, 1990, by counsel for the appellants.

Upon consideration by the active members of this court.*

IT IS ORDERED that the Suggestion for Hearing En

Banc is DENIED.

* Judge Ripple took no part in this matter.

A-79

APPENDIX O

August 15, 1990 Amendments to

Ambulatory Surgical Treatment Center

Licensing Requirements,

77 Ill.Adm.Code, Ch. 1, Sec. 205

DEPARTMENT OF PUBLIC HEALTH

NOTICE OF ADOPTED AMENDMENTS

TITLE 77: PUBLIC HEALTH

CHAPTER |: DEPARTMENT OF PUBLIC HEALTH

SUBCHAPTER b: HOSPITAL AND AMBULATORY

CARE FACILITIES

PART 205

AMBULATORY SURGICAL TREATMENT CENTER

LICENSING REQUIREMENTS

SUBPART A: GENERAL

Section

205.110 Definitions

205.115 Incorporated and Referenced Materiais

205.118 Conditions of Licensure

205.120 Application for Initial Licensure

205.125 Application for License Renewa!

205.130 Approval of Surgical Procedures

SUBPART B: OWNERSHIP AND MANAGEMENT

Section

205.210

Ownership, Control and Management

A-80

205.220

205.230

205.240

Section

205.310

205.320

205.330

205.340

205.350

Section

205.410

205.420

Organizational Plan

Standards of Professional Work

Policies and Procedures Manual

SUBPART C: PERSONNEL

Personne! Policies

Presence of Qualified Physician

Nursing Personnel

Basic Life Support

Lal Serv; bes! oe

Freatment-Center

SUBPART D: EQUIPMENT, SUPPLIES,

AND FACILITY MAINTENANCE

Equipment

Sanitary Facility

SUBPART E: GENERAL PATIENT CARE

Section

205.510

205.520

205.530

205.540

Section

205.610

205.620

Emergency Care

Preoperative Care

Operative Care

Postoperative Care

SUBPART F: RECORDS AND REPORTS

Clinical Records

Statistical Data

A-81

SUBPART G: LIMITED P DURE

SPECIALTY CENTERS

ABBTHONAL REGQUREMENFS FORFACHHTFES

EN-WHHECH-OBSFEFRICATL/GYNEC OLOGICAL

PROCEDURES ARE PERFORMED

Section

205.710 ination § ialty Center:

Abortions

205.720 Personnel (Repealed)

205.730 General Patient Care (Repealed)

205.740 Preoperative Requirements (Repealed)

205.750 Postoperative Requirements (Repealed)

205.760 Reports (Reoealed)

SUBPART H: PROCEDURES FOR

INVESTIGATION OF COMPLAINTS

Section

205.810 Complaints

205.820 Acknowledgement of Complaint

205.830 Investigation

205.840 Prompt Investigation

205.850 Methods

205.860 Notification of Results

SUBPART |: BUILDING DESIGN,

CONSTRUCTION STANDARDS,

AND PHYSICAL REQUIREMENTS

Section

205.1310 P!ant and Service Requirements

205.1320 General Considerations

205.1330 New Construction, Additions and Major

Alterations

205.1340 Minor Alterations and Remodeling Changes

A-82

205.1350

205.1360

205.1370

205.1380

205.1390

205.1400

205.1410

Secticn

205.1510

205.1520

205.1530

205.1540

Section

205.1610

205.1620

205.1630

205.1640

205.1650

Section

205.1710

205.1720

205.1730

205.1740

205.1750

Administration Department and Public Areas

Clinical Facilities

Support Service Areas

Diagnostic Facilities

Other Building Services

Details and Finishes

Construction, Including Fire Resistive

Requirements

SUBPART J: MECHANICAL

General

Thermal and Acoustical Insulation

Steam and Hot Water Systems

Air Condition'ng, Heating and Ventilating

Systems

SUBPART K: PLUMBING AND

OTHER PIPING SYSTEMS

General

Plumbing Fixtures

Water System

Drainage Systems

Identification

SUBPART L: ELECTRICAL

General!

Switchboards and Power Panels

Panelboards

Lighting

Receptacles (Convenience Outlets)

A-83

205.1760 Grounding

205.1770 Equipment Installation in Special Areas

205.1780 Emergency Electric Service

205.1790 Fire Alarm System

205.TABLE A

AUTHORITY:

SOURCE:

General Pressure Relationships and

Ventilation Rates of Ambulatory Surgery

Area

Implementing and authorized by the

Ambulatory Surgical Treatment Center

Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par.

157-8.1 et seq.)

Amended July 18, 1974; emergency

amendment at 3 Ill. Reg. 10. p. 43. effec-

tive February 23, 1979, for a maximum of

150 days; amended at 3 IIl. Reg. 30, p.

371, effective July 23, 1979; amended at

5 Ill. Reg. 12756, effective November 4,

1981; amended at 6 II]. Reg. 6220, 6225,

and 6226, effective May 17, 1982;

amended at 6 II]. Reg. 10974, effective

August 30, 1982; amended at 6 Ill. Reg.

13337, effective October 20. 1982;

amended at 7 II]. Reg. 7640, effective

June 14, 1983; codified at 8 Ill. Reg.

9367; amended at 9 Ill. Reg. 12014,

effective July 23. 1985; amended at 10 II].

Reg. 8806, effective June 1, 1986;

amended at 10 Ill. Reg. 21906, effective

January 15, 1987; amended at 11 II!. Reg

14786, effective October 1, 1987;

amended at 12 II]. Reg. 3743. effective

February 15, 1988; amended at 12 II].

Reg. 15573, effective October 1, 1988;

A-584

amended at 13 Ill. Reg. 16025. effective

November 1, 1989; emergency amended

at 14 Ill. Reg. 5596, effective March 26,

1990, for a maximum of 150 days;

amended at 14 Ill. Reg. ___, effective

August 15, 1990.

NOTE: Capitalization denotes statutory lan-

guage.

SUBPART A: GENERAL

Section 205.120 Application for Initial Licensure

a) AN APPLICATION FOR LICENSE SHALL BE MADE

TO THE DEPARTMENT ON FORMS PROVIDED BY THE

DEPARTMENT (Section 5 of the Act). The application shall

be submitted not less than sixty days prior to the date of

intended operation and shall contain the information re-

quired under the Act and this Part.

b) The initial application shall include the fo!lowing infor-

mation:

1) The names and addresses of all persons who own

the facility, any names under which any of these

persons do business. and the type of ownership of the

facility (for example, individual, partnership, corpo-

ration, or association). In addition, a corporation

shall submit:

A) A copy of its certificate of incorporation.

B) Alist ofthe title, name and address of each

of its corporate officers.

A-5S5D

C) Alist ofthe name and address of each ofits

shareholders holding more than five percent

of the shares.

2) The names and addresses of all persons under

contract to manage or operate the facility.

3) The location of the facility.

4) Information regarding any conviction of the appli-

cant, or if the applicant is a firm, partnership or

association, of any of its members, or if the applicant

is a corporation, of any of its officers or directors, or

of the person designated to manage or supervise the

facility, of a felony, or of two or more misdemeanors

involving moral turpitude in the last five years.

5) The name, address, telephone number, education,

experience, credentials and any professional licensure

or certification of the following persons:

A) Administrator.

B) Medica! Director.

C) Supervising Nurse.

6) Alistof the medical staffincluding name, address:

tetephone number, specialty and license number.

7) A list of all staff personnel including name,

address-tetephone number, position, education. ex-

perience, and any professional licensure or certifi-

cation.

8) A narrative descnption of the facility including

but not limited to interviewing, examination. surgi-

A- 86

cal and recovery room facilities.

9) A description of services to be provided by the

facility including a list of surgical procedures to be

performed subject to approval in accordance with the

requirements of Section 205.130.

10) Documentation of compliance with Section

205.350 of this Part. Frename-address-edteatten-;

ws ase ; 44 : sr tote ediea

therequtrediaboratory-procedures-

11) Acopy of the transfer agreement with a !icensed

hospital within approximately 15 minutes travel

time of the facility or other documentation demon-

strating compliance with Section 205.540(d) te of this

Part.

12) A copy of the organizational plan of the facility

(see Section 205.220).

13) Schematic architectural plans.

14) Documentation of a permit as required by the

Illinois Health Facilities Planning Act (Ill. Rev. Stat.

1987, ch. 111 1/2, par. 1151 et seq.)

15) Documentation of compliance with all applicable

local building, utility, and safety codes.

c) THE APPLICATION SHALL BE SIGNED BY THE

APPLICANT AND SHALL INCLUDE A VERIFICATION

form acknowledging the application to be true and complete

A-57

and certifying that the applicant has knowledge of and

understands the action required to comply with the Act and

licensing requirements. THE FORM SHALL BE VERI.-

FIED by a notary public. (Section 5 of the Act)

d) THE LICENSE APPLICATION SHALL BE ACCOMPA.

NIED BY A LICENSE FEE OF $500. (Section 5 of the Act)

(Source: Amended at 14 III. Reg.

1990)

, effective August 15,

Section 205.125 Application for License Renewal

a) Application for license renewal shall be submitted on

forms provided by the Department. Application for license

renewal shall be submitted to the Department not less than

30 days prior to the expiration date.

b) An application for license renewal shall include the

following information:

1) The names and addresses of all persons who own

the facility, any names under which any- of these

persons do business, and the type of ownership of the

facility (for example, individual, partnership, corpo-

ration, or association). In addition, a corporation

shall submit:

A) Alistofthe title, name and address of each

of its corporate officers.

B) A list of the name and address of each ofits

shareholders holding more than five percent

of tha shares.

2) The names and addresses of all persons under

A-88

contract to manage or operate the facility.

3) The location of the facility.

4) Information regarding any conviction of the appli-

cant, or if the applicant is a firm, partnership or

association, of any of its members, or if the applicant

is a corporation, of any of its officers or directors, or

of the person designated to manage or supervise the

facility, of a felony, or of two or more misdemeanors

involving moral turpitude during the previous year.

5) The name, address, and telephone number of the

administrator, medical director, and supervising

nurse. In addition. the education, experience, cre-

dentials and any professional licensure or certifica-

tion of these individuals must also be submitted if

this information was not submitted with the initial

application or a prior renewal application or if this

information has changed since the prior submission.

6) Alist of the medical staff including name, address;

tetephone-number; specialty and license number.

7) A lst of all staff personnel including name,

address;tetepnone number; position, education, ex-

perience, and any professional licensure or certifica-

tion.

8) A list of surgical procedures being performed at

the facility. Any new procedures which are included

in this list must be identified and are subject to

approval in accordance with the requirements of

Section 205.130.

c) THE APPLICATION SHALL BE SIGNED BY THE

A-89Y9

APPLICANT AND SHALL INCLUDE A VERIFICATION

form acknowledging the application to be true and complete

and certifying that the applicant has knowledge of and

understands the action required to comply with the Act and

licensing requirements. THE FORM SHALLBE VERIFIED

by a notary public. (Section 5 of the Act)

d) The license renewal application shall be accompanied by

A LICENSE RENEWALFEE OF $300. (Section 6 of the Act)

(Source: Amended at 14 Ill. Reg.___, effective August 15,

1990)

SUBPART C: PERSONNEL

Section 205.350 Laboratory Services. Armbutatory Surg cat

Freatment Center

Each ambulatory surgical treatment center shall meet each

have-one of the following requirements:

a) ; . “

| - sna pe nem - rinrrdadiret ae va

b) Have a“ written agreement with a laboratory. heensed

bythe Department under the Department's rules Ilinors

Clihical Laboratones Code {77 111. Adm. Code 450), t

perform any required laboratory procedures which are not

A-9YO

(Source: Amended at 14 Ill. Reg. , effective August 15,

1990)

SUBPART E: GENERAL PATIENT CARE

Section 205.520 Preoperative Care

a) Where medical evaluation, examination, and referral are

made from a private physician's office, hospital, or clinic,

pertinent records thereof shall be available and made part of

the patient’s clinical record at the time the patient is regis-

tered and admitted to the ambulatory surgical treatment

center.

b) A complete medical history shall be obtained and the

physical examination shall be complete. A preanesthetic

evaluation shall be completed specifically identifying any

patient sensitivity or contraindications to anesthesia.

c) Ahemoglobin or hematocrit and examination of the urine

for sugar, protein, and acetone shall be performed by-2

quahfedinaboratery-techmreran prior to the following proce-

dures:

1) those performed with general anesthesia,

2) those performed with intravenous sedation,

3) those performed with spinal or epidural anesthe-

sia,

4) those performed with any other specific anesthe-

sia technique designated by the consulting commit-

tee, and

5) those performed to terminate pregnancy

A-Y1

‘ent’s blood Rh f hall be d iol

¢) A written statement indicating informed consent and a

signed authorization by the patient for the performance of

the specific surgical procedure shall be procured and made

part of the patient's clinical record.

fe Surgical procedures shall not be performed on patient's

having medical, surgical, or psychiatric conditions or com-

plications as specified by the consulting committee in the

facility's written policies.

g) Prior to admission to the facility for a surgical procedure

the patient shall be informed of the following:

1) Patients who receive general anesthesia, intrave-

nous sedation, spinal or epidural anesthesia, or any

other specific anesthesia technique designated by

the consulting committee, must not attempt to drive

a motor vehicle immediately upon discharge from the

facility

2) Patients must make arrangements pnor toadmis-

sion for safe transportation from the facility upon

discharge to return to home or to a similar environ-

ment.

(Source: Amended at 14 111. Reg. __, effective August 15

1990)

Section 205.540 Postoperative Care

a) Patients shall be observed in the facility for a pernod of

A-YG2

ba

time sufficient to ensure that the patient is awake, physi-

ologically stable, manifests no immediate postoperative

complications, and is ready to return to home or to a similar

environment. No patient shall be required to leave the

center in less than one (1) hou- following the procedures.

¢) & Patients in v’-hom a complication is known or suspected

to have oceurea occurred during or after the performance of

a surgical procedure, shall be informed of such condition and

arrangements nade for treatment of the complication. In

the event of admission to an inpatient facility a summary of

care given in the ambulatory surgical treatment center

concerning the suspected complication shall accompany the

patient.

d) e To insure availability of follow-up care at a licensed

hospital, the ambulatory surgical treatment center shal!

provide written documentation of one of the following:

1) A transfer agreement with a licensed hospital

within approximately fifteen (15) minutes travel

time of the facility.

2) A statement that t»xe medical director of the

facility has full admitting privileges at a licensed

hospital within approximately fifteen (15) minutes

travel time and that he/she will assume responsibil-

ity for all facility patients requiring such follow-up

care.

3) Astatement that each staff physician, dentist, or

A-9S

podiatrist has admitting privileges in a licensed

hospital within fifteen (15) minutes travel time of the

facility.

e) # Written instructions shall be issued to all patients in

accordance with the standards approved by the consulting

committee of the ambulatory surgical treatment center and

shall include the following:

1) Symptoms of complications associated with pro-

cedures performed.

2) Limitations and/or restrictions of activities of the

patient.

3) Specific telephone number to be used by the

patient at anytime should any complication or ques-

tion anse.

4) A date for follow-up or return visit after the

performance of the surgical procedure which shall be

scheduled within six weeks.

f) e Patients shall be discharged only on the written signed

order of a physician. The name, or relationship to the

patient, of the person accompanying the patient upon dis-

charge from the facility shall be noted in the patients

medical record.

ients consent. {; * plannin

A-94

(Source: Amended at 14 Ill. Reg. , effective August

15,

1990)

SUBPART G: LIMITED

a) A facility will be considered a pregnancy termination

specialty center if it meets each of the following conditions:

1) Procedures performed at the facility are limited to

procedures to terminate pregnancy performed within

18 weeks assessed gestational age (beginning on the

first day of the last menstrual period), and other

gynecoligic procedures related to the termination of

pregnancy. Assessed gestational age may be deter-

mined by patient histery or by clinical assessment.

2) The center does not use general, epitural, or spinal

anesthesia for any of the procedures performed. If

intravenous sedation is used, mechanical ventilation

devices and intubation equipment must be available

on site.

3) The program narrative and policies of the facility

are limited to the performance of procedures to ter-

A-G5

minate pregnancy and other procedures related to

the termination of pregnancy.

b) The following exceptions and modification of the require-

ments of this Part apply to pregnancy termination specialty

centers.

Pregnancy termination specialty centers shal! comply with

each of the requirements of this Part, unless specifically

excepted or modified by the provisions of this subsection.

1) The initial and renewal application need only

include the name, address, and telephone number of

all owners, administrators, and medical directors of

the center {in lieu of compliance with Section

205.120(b)(5) through (7) and Section 205.125(bx5)

through (7)). However, the other information re-

quired in these provisions shall be maintained at the

center and be available for inspection by the Depart-

ment. The information shall include the original or

notarized copies of credentials of all licensed or cer-

tified personnel.

2) Compliance with Section 205.540d) is not re-

quired, if the medical director or a physician practic-

ing at the facility has a professional working relation-

ship or agreement, maintained in wniting at the

facility and verifiable by the Department, with a

physician who does have admitting or practice pnvi-

leges at a licensed hospital within 15 minutes from

the facility and who will assume responsibility for all

facility patients requiring such follow-up care.

3) The administrative and public areas of the facility

are not required to comply with Section 205.1350.

A-96

4) A separate examination room is not required;

however, adequate space shall be provided to accom-

modate any equipment necessary for examination, to

perform examinations safely, and to allow

unobstructed ingress and egress to and from the

examination area (in lieu of compliance with Section

205.1360aX1)).

5) Each room in which procedures to terminate

pregnancy are performed shall be at least 120 square

feet in size with a minimum dimension of at least 10

least. Exceptions will be made when the center

demonstrates that the room size is adequate to ac-

commodate the equipment required for the proce-

dures, to facilitate the performance of the procedures

safely, and to protect the patients and staff in the

event of fire or otheremergency (in lieu of compliance

with Section 205.1360(b\ 1)].

6) A communications system between the control

station and each procedure room is not required |in

lieu of compliance with Section 205.1360(b x 2)).

7) Not less than three recovery beds or lounge chairs

shall be required for each procedure room. However,

if the facility's narrative program provides that no

more than two procedures per hour will be performed

per procedure room, then only two recovery beds or

lounger chairs will be required for each procedure

room. A minmum of three feet shall be provided

between each recovery bed or lounge chair and an

unobstructed passageway of a minimum of four feet

shall be provided at one end of each bed or chair |in

lieu of compliance with Section 205.1360(c)\(2) and

(cX7)).

8) The recovery area is not required to include a

A-97

ion, or stor fors | i ntyin

ie with ion é ow-

vision of very area for all patients,

il n in the recov

r Ww ire lent

r f r s in

r i r Vv rea. A gra

iV valve is n ilet in th

recov if id w isposal i

r withi n in he

lance with ion Oc) 4) an

205.137

10) A control station for the operating suite is not

r ir in |i with i

205.137 a)L.

1 A_scr ion_is n ir utside th

r rer if the pr m_ contains

ink wi washin iit in lieu of com-

hance wi ion 205.137

2 iled wor required

howev i | los lean

r w Vv i ‘ soiled ma-

n her soi rials. Thes dures shall

be described inthe center's narrative program |in lieu

f compliance with ion 205.1370(e) and (g)|.

13) Anesthesia and medical gas storage facilities are

not required {in leu of complance with Section

205. 1370(h) and (1).

A-9YS

14 ne-w 1 n

r for

n r gowning w h

7; aieied ver ioiend i

wi h nter’ ive pr m |i

i li ‘th Section 205.1370

i in |i

of compliance with Section 205.1370).

16) / —- for t! iia

4 for

r Vv n

apply,

ili Vv rooms m

i | r r washable lin

hi f han ith ion 14 ]

20) The requirements for elevators in Sejction

205.141 1 apply

21) Ventilation, air change, and air filter require-

A-99Y

ments do not apply; however, temperature shall be

maintainedinth ili ween nd S

Fahrenheit jin leu of compliance with Section

205.1540 an l

22) The requirement for one duplex receptacle for

each wall does not apply [in leu of compliance with

Section 205.1750(b)|.

(Source: Section repealed, new Section adopted at 14 Il.Reg.

, effective August 15, 1990)

Section 205.720 Personnel (Repealed)

(Source: Repealed at 14 IIl.Reg. , effective August 15,

1990)

Section 205.730 General Patient Care (Repealed)

A- 100

a ale eS ee gle ah <alianee

oT Counsenng Sstrratcinermde a drscusstoT UTartweris

Ta

al.

G

4. —_wooorw— al Pw

TIVES, UCort rptron UV ask sineceanaagaie) to DO Perrurine

.

stim | “a

An lal = ale >

TTavivery. XITtUU v coursennge Tray Lea . disicr eaaraseag iii

= ee Oe a ee me ¥

Q2auTvUrulr vu 2 TUTViUMuUal CoOUuTrsenneg: 242i patrents

Se ~ . a oo | = ee | ee oe ak ct ha,

CTINTCar TeCoTad Sita Mere cecumrentatror: Or tire

4 Hs

AGENCY NOTE a ~Irthe-opintor-ofthe Ambutatory

o

én =

Parredrty SIrourTU DIGanhe TOeSCTSTUITTUTING: Tititp, vite v* 2, oo

|

GU

seein p—- aon le aetna hear a IO scanty

TC MT ATTY AtMIVSpPTIere Pree TTOTH COCTCUUIT VT Oe

i

—— a ES

TU tary ttecrsttyn W¥iliiv-

~aerw nen:

(Source: Repealed at 14 IIl-Reg. effective August 15,

1990)

Section 205.740 Preoperative Requirements (Repealed)

Ss Sere os } -, Fe oe 1 } l oA a

TYVOT CTUOTTS Tita \ 1 o.o PEerrurii PU Tit atl ATTITVIUT aA LUT - ut pt

ator —_— ~~ pe | res ow ant ate

ary © mm @ @ ove 0 000 a8 284 CII Uli Wily LIIyOoU Parrerire Witil

a eer i. ——

TUUTIT a4 Le WRECKS COMTIITETICG TR

oe oe

pestatron up tty ait iriv

ss

s

‘. ] 4 aw os ade L

witli CVUTATTOY Tacirer titati computed on ne VasTs Vi

A- 102

(Source: Repealed at 14 Ill. Reg. , effective August 15,

1990)

Section 205.750 Postoperative Requirements (Repealed)

(Source: Repealed at 14 I

This text is long and has been trimmed here. Open the source document for the complete record.