# Appendix — Murphy v. Ragsdale > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2044%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1992 - **Citation:** 502 U.S. 1035 ## Text ro —~ © eee +. , 9i- (0g [fn z a te No. HOY 18 i991 te a Ds 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! A . i oe \ deal a — _ i : - a : — td ee ed —_ a - mt: oy —. -_ tials : . —' 4 _ - = q ; ow ‘ 4 at 7 7 a = a - 7 mate = a 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..... eee weee eee eetuae 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 -ij- eee eee ee eee eee ee eee eee eee eee ee eee *eee eee CORO ee eee Oe 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 = 4 \ / 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 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 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 II. Reg. , effective August 15, 1990) Section 205.760 Reports (Repealed) A- 103 ert a faertity ve ne aa re re panen — report shatt-be-submrittedto the Department: , effective August 15, (Source: Repealed at 14 Ilil_Reg. 1940) Section 205.1380 Diagnostic Facilities woe oa Pa ae Ne a — senior : a) Radiographic suite, if radiography is provided in the center, shall contain the following: 1) film processing area 2) viewing and administration area 3) film storage facilities 4) toilet room with handwashing facilities, directly accessible from each fluoroscopy room without en- tering the general corrider area. 5) dressing area with convenient access to toilets b) If laboratory testing is performed in the center which or a ee er ete een ‘s Clinical Lal ‘es Code (77 Ill C 50) the laboratory area of the center baboratory-surte shal! contain the following minimum facilities: 1) Laboratory work counter with sink and vacuum, and electnc services A-104 2) Lavatory or counter sink equipped for handwash- ing. 3) Storage cabinet or closet for any necessary labora- PT ne ope yep my“ bined with of} nth ¥-Bpec Heetion—faci+; nr tortet-endinvatory- 4) & Blood collection facilities shall have space fora chair and work counter. (Source: Amended at 14 IIl.Reg. , effective August 15, 1990) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2044%3A2. Public record. Not legal advice.