Friendship Medical Center, Ltd. And T.R.M. Howard v. The Chicago Board of Health

reasoning in those would-be But the controlling in diversity is not cases CENTER, FRIENDSHIP MEDICAL LTD. cases, where dif- Amendment Eleventh Howard, and T.R.M. Plaintiffs- policy come into considerations Appellants, ferent Holdings Corp. play. Ruben- v. In Blair v. rejected plain- stein, supra, the court OF HEALTH CHICAGO BOARD logical extension contention tiff’s al., Defendants-Appellees. et persons” are rule “stateless No. 74-1070. jurisdiction diversity subject not Appeals, United States Court require of the Elev- construction Seventh Circuit. permitting “stateless enth Amendment Sept. 11, Argued 1974. persons” state in federal court. to sue a Decided Oct. 1974. said: The court Denied March 1975. Certiorari recog fails to contention [Plaintiff’s] 95 S.Ct. 1438. See sovereign difference between nize the immunity jurisdiction founded

diversity. A literal construction Amendment would have Eleventh con to the fundamental

done violence

cept the nature inherent that ‘it is sovereignty to be amenable to not an individual

the suit of ‘exemption, as and that consent’ sovereignty, is the attributes of

one of government enjoyed ev now

ery v. Hans State the Union.’ state in page supra, Louisiana,

13, 10 page S.Ct. omitted). (footnote F.Supp. 502 analysis fully consistent think this

We interpretation tradition- the liberal with

ally Amendment. Eleventh afforded

Ill Elev- conclusion, we hold that

In mon- bars this suit for

enth Amendment damages,12

ey and that neither 28 U.S.C. plaintiff-Tribe’s similari- 1362 nor § person” exempts

ty to a “stateless jurisdictional bar.

from this concerned, therefore, Moreover, recognize per authority proposition substantial number of cases there is some injunctive declaratory re bar mitted suits for Amendment would not the Eleventh against suing lief officials in their official ca where the tribe a state official pacity. parte Young, remedy injunctive declaratory sought Ex (1908) ; monetary damages. Edelman v. S.Ct. L.Ed. 714 relief rather than See Jordan, 1347; Council, Inc. v. Great Lakes Inter-Tribal Wyman, Voigt, (W.D.Wis.1970); F.Supp. F.2d Rothstein 236- (2d 1972), denied, Sohappy (D. Smith, F.Supp. cf. Cir. cert. 411 U. Ore.1969). S. L.Ed.2d Julian B. Wilkins Robert L. Gra-

ham, Chicago, 111., plaintiffs-appel- lants. Corp. Curry,

Richard L. Counsel and Corp. Ann Acker, Counsel, Asst. Chica- go, 111., defendants-appellees. SWYGERT, Before Judge, Chief SPRECHER, FAIRCHILD and Circuit Judges. granted. Judge. Friendship Center, SPRECHER; Medical Circuit Chicago Health, Ltd. v. Board of 367 F. question presented is whether the Supp. 594, (N.D.Ill.1973).2 promul- of Health Board urge appeal gate de- on this and enforce conditions, (a) they that: lenge to chal- detail scribe in substantial equipment, that medical the abortion and grounds comply regulations offering must the unconstitu- regard tionally patient’s rights with, restrict to the trimester to personal privacy; (b) and the marital involved. regulations an invalid and are infringing overbroad enactment unrea- I upon sonably fundamental be- Center, Friendship Ltd. Medical cause of their to failure exclude organized pursuant corporation medical trimester; (c) they and are invalid Illinois, and owns laws stringent sweeping because of their and facility offers operates a medical legitimately which are not Plaintiff pregnant women. abortions to recognized Friendship, president of Howard is objectives protect maternal health.2 directors, a its board a member of The defendants contend that not shareholder, physician who well as a do the standing, lack but also through practices the facilities which abor- Court’s recent operates. Friendship The defendants proscribe attempts tion decisions do not Chicago of Health and are the Board governments impose state or local members of that Board. safety regulations reasonably that are alleged brought for this suit Plaintiffs protecting related to their interest 1 seeking violations 42 U.S.C. § seeking the health of those abortions. against injunction enforcement, and regulations pro- January 22, On a declaration that 1973 the United mulgated by unconsti- States the defendant are Court rendered its land appeal Plaintiffs-appellants mark decisions on Wade, Roe tutional. abortion. court of the district 35 L. the decision denying assert as one Ed.2d 147 them Doe v. grounds invalidating reg- (1973). Shortly May ulations a woman’s fundamental thereafter Regulations privacy, granting adopted the de- and the order defendants City fendant’s to dismiss for failure Abortion motion Services for the Chicago.4 to state a which relief could claim plaintiff 1. 42 reads as moot plied had in fact com- § U.S.C. follows: because Every who, any person regulations. stat- under color of with the The ute, regulation, custom, regulations ordinance, or had “a con- court found that subjects, usage, any Territory, tinuing plaintiffs” regulatory on State effect rejected subjected, citizen and thus the mootness claim. causes E.Supp. jurisdictional the United within As States or other 601. with jurisdiction deprivation claim, have abandoned thereof defendants argument rights, privileges, appeal. se- or immunities on laws, cured and shall Constitution disposition Because of our party injured be liable to in an action appel- unnecessary have found it to consider law, equity, proper suit or other regula- arguments lants’ the abortion proceeding for redress. deny process procedural tions due and unduly vague. 2. The determined that it had district court jurisdiction pursuant as an have been set out over the cause opinion. appendix E.Supp. 598-599, to the district court’s U.S.C. § Chicago point Center, pressed Friendship the defendants have not Medical Ltd. appeal. rejected Health, F.Supp. 608-621 district also Board of court (N.D.Ill.1973). the defendants' contention that the case was shock, arrest, require abor- that an cardiac and other emer- gencies. physi- Regulations, supra, Abortion a licensed tion be VI, VIII, facility (c). complies sections IX cian and Each abortion facility required required provisions. service Each have facilities for regard keep registration, the admis- medical evaluation and ex- records post-operative discharge patients, amination, recovery of tests, sion and furnishings histories, suitable services results of social accommoda- tions, including waiting dressing patient progress offered other notes. Chicago Regulations Regulations, rooms. Abortion Board Health Services, IV(a), IX, sections XII. section [here- Regulations]. inafter cited as Abortion every non-hospital In addition abor- prepare monthly reports It must also tion service must have a written affilia- pa- which are to include the number of agreement tion with a licensed requested, tients that and were either hospital allowing the use of its laborato- given abortions, or denied and the name ry providing facilities and for the treat- patients developed and address of who patients requiring emergen- ment of its complications following the and cy care. The abortion service must have description complications. a of such immediately organized available trans- Regulations, supra, Abortion IV(b). section portation capable transport- of ing patients hospital to the affiliated Regu- within fifteen equipment supplies All minutes. Abortion and must lations, supra, 1(d), VII, proper working order, sections X. maintained in and require necessary solutions, drugs also that an and medica- supervised by phy- abortion service be a tions must be available. There must be qualified sician who either a a knee or foot obstetri- controlled sink immediate- surgeon; ly adjacent cian or that there least the room where the abor- registered professional one performed, tion nurse with an elevator that can post graduate experience in obstetric or if accommodate a stretcher gynecological nursing duty ground at all level, service is located above an- times while the abortion is in equipment esthesia service and such other as is use necessary and that there be a service hemorrhage, social treat completion approved qualified quali- evidence an of The terms and obstetrician residency gynecology. surgeon in obstetrics and fied : are defined as follows Surgeon Qualified means: Qualified Obstetrician means: (1) (1) physician Diplómate physician diplómate A licensed who is a A licensed who is Surgery, of the American Board of or the American Board of Obstetrics Chicago Gynecology; who and submits evi- submits evidence or who training Chicago and Board of Health that his dence to the Board of Health experience qualify training experience qualify him for admission his and by ; by him the examination such Board or for admission to the examination (2) physician Board; A a Fellow of such licensed who is (2) College Surgeons; A licensed is a Fellow of American who College Surgeons Osteopathy a li- in the Doctor of who holds the American specialty practice Surgery Gynecology; in the State and cense to of Obstetrics by College or The American of Obstetrics Illinois and who certified Gynecology. College Osteopathic and tire American (3) Osteopathy Surgeons, li- A Doctor who holds a evidence who submits practice Chicago cense to medicine in the State Board of Health that his by training experience qualify of Illinois and is certified him who and College Osteopathic American admission Obste- examination sucli Gynecologists, tricians and sub- or who Board or who submits evidence of com- Chicago jdetion approved residency mits evidence Board of experience training surgery. Health that his and qualify Regulations, supra, 1(f), him for admission to the exami- Abortion sections (g). Board, submits nation such or who procedural patients ulations on substantive of the available unit process equal protection supra, Regulations, due grounds, service. Abortion them to attack XIII(b), allow XIV(b), refused to sections XV. regulations as violative of a woman’s of Health Finally, the Board delineated in Roe history complete requires Center, Friendship and Doe. Medical including pelvic be obtained supra our at 600. In view district following examination, labo- but also plaintiffs’ chal- court viewed lenge ratory every patient: hemato- tests the Board Health’s urinalysis factor, complete crit, Rh narrowly. too Regulations, grouping. Abortion blood determining inquiry if The initial XVI(c). also re- There is section requisite have the stand- quired least twen- an interval of at ing to maintain this action is whether ty-four exami- the initial hours between alleged personal such a stake so as preg- nation and termination controversy in the outcome laboratory nancy permit review of all ad- assure that there exists “concrete encourage permit thor- tests “and to ough sharpens presenta- verseness which a firm decision consideration tion of so issues court regarding patient termination largely depends of diffi- for illumination Regulations, pregnancy.” su- questions.” cult constitutional Baker v. pra, XVI(e). section Carr, 186, 204, 691, 7 provide regulations themselves (1962). present The In the case closing any of abortion service for the it clear that both individual and the which, register if or corporate plaintiff that either fails to in- have a sufficient operation inbe vi- it proceed continued terest at stake them to to allow any Health’s allege of of Board of plaintiffs olation the with this action. Both Regulations, regulations. su- regulations, Abortion that the are aimed di- pra, certain of rectly them, In addition section XIX. to restrict their defendants, relating as well as other the named treat to abor- medical matters employees have allegation fairly the defendant Board of read tions. This can be given police powers” charge as well Regulations been “full the Abortion “right any individual deprive as the to arrest”- his asserted Dr. Howard of provisions comply right that does not with to offer abortions without substan- Municipal of the health code.6 Code tial restrictions the first trimes- Chicago, defendants, ch. 5. § ter. In the instant case Regulations, pursuant to the Abortion II power deny have the authorization seeking operate allowing an abortion those district court while facility power challenge Reg- order plaintiffs as well as the Abortion operate (a) person Chicago Municipal or or No shall maintain 9-5 of the Code Section oper- present maintaining or himself states: ating has unless he Abortion Service president health, of the board registered service with such president board of assistant Registration Chicago Board of Health. health, secretary health, the board of by the shall on forms furnished be made physi- health, all the commissioner of Chicago and shall con- Health Board of cians, employes inspectors who or required therein. tain the information designated have of health shall board Health has The Board of police powers full and shall have the any register that does service refusal any to arrest or cause to be arrested regulations comply with the provisions who the health violates change Any in own- Abortion Service. this code. physi- charge, ership, physician staff op- cians, qualifications, extent of staff Regulations, II section hospital erations, affiliate location provides: Chicago reported Board shall be Requirements Registration, of Health. and Standards: closing any facility plaintiffs deems in fact instant case the complied have regulations.8 compliance not in with with the subject depriva approval operate Surely, to such and have received those through their tions clinic from the Board of the use agree power interest to Health. cannot have a sufficient We prosecution threat insufficient this of action. See Asso so maintain deprive standing. Processing plaintiffs ciation of Data Service Or While ganizations present Camp, is true that the immediate S. ; (1970) the prosecution are safe from sort of Ct. 25 L.Ed.2d 184 Barlow compliance Collins, because of their 397 U.S. Regulations, with the Abortion L.Ed.2d FCC v. Sanders these continuing Station, have a It effect. Brothers Radio continuing precisely restrictive 84 L.Ed. 869 placed plaintiffs by effect defendants, pursuant In addition the regulations which is the basis of Chicago, Municipal Code complaint. In Poe, unlike powers power police full and the to ar- dealing recently enacted ordi- supra. pro- rest. See note 6 Whether potentially very nances that have real ceedings brought under this section are criminal sanctions.9 Doe v. quasicriminal, characterized as as the 35 L.Ed.2d 201 argument, defendants at oral asserted (1973), very physi- makes it clear that nature, criminal in it is clear that liability cians faced with criminal liberty. deprivation involve a performance illegal of an plaintiffs in their action are the ones challenge do have a sufficient interest to subject deprivation to this and accord- validity of the state’s law. ingly requisite have a attack- validity challenged regula- conclude, however, physi- that the tions. Georgia-li- cian-appellants, who are by pregnant position censed doctors consulted The defendant takes the women, present justiciable also con- the Ullman, in v. Court’s decision Poe troversy standing despite 1752, 497, and do 81 S.Ct. U.S. grant- the precludes the record does not dis- (1961), L.Ed.2d 989 ing the fact standing close one them has been of to an individual who is of prosecuted, prose- prosecution, or merely threatened with threatened with cution, for especially violation of the State’s that this in is so where as the Ullman, 497, Regulations, v. [In Poe 81 S.Ct. XIX U.S. 8. Abortion. section 1752, (1961) sharply provides: 6 L.Ed.2d 989 divid ] appeal Closing ed Court dismissed an from a state Abortion Service: ground presented inspection court the no an on an determines Whenever controversy adjudication justifying register real the in Abortion Service lias failed to challenged 11(a) of a constitutional But issue. the accordance with of these Section statute, prohibit operation Connecticut deemed to of such or continued giving of medical advice or the use of con an be found to be Abortion Service 1879, and, traceptives, had been enacted in in of the sections of the violation of single apparently exception, regulations, with a no one the Board Service prosecuted liad ever under it. Geor been Health direct the Commissioner gia’s statute, contrast, op- in is recent and not Health to order the discontinuance Furthermore, reg- moribund. is the successor is erations until the Abortion Service Georgia under another statute istered until Board of Health is which, told, physicians prose corrected, we are were satisfied that the violations are present case, therefore, writing per- Tlie is closer cuted. such order shall be served in Epperson Arkansas, 97, sonally, upon v. in 393 U.S. S. the owner or (1968), 266, charge. 21 L.Ed .2d 228 where Ct. recognized the of a school teach Court though charged criminally, er, yet not As the in Doe v. said challenge 179, 739, statute. her State’s anti-evolution 35 L.Ed.2d U.S. 93 S.Ct. 188-189, (1973) : 93 S.Ct. respect uals physician with state statute is abortion statutes. forbidding contraceptives. against use criminal whom these the one Baird, Similarly, in Eisenstadt v. operate the event directly in statutes 1029, not U.S. 92 S.Ct. procures that does he physician (1972), exceptions found standing statutory and con- meet the requisite had the rights to assert the physician-appellants, ditions. persons sufficiently denied ac unmarried therefore, direct assert a Admittedly, contraceptives. They cess to both personal detriment. threat of rely part Griswold and Eisenstadt required to await should not he undergo prosecution fact that actual criminal convictions as the a criminal fact, were seeking does involved. sole means of relief. present not remove the case their (empha- at 745 Although mold. not in this case does added). sis present prosecution, volve a criminal contend, however, that de- Defendants our view the fact challeng- spite plaintiffs’ operate di aimed and assert as regulation, cannot rectly plaintiffs, and are of a grounds invalidity that one regulations continuing potentially very nature, with woman’s violate a consequences real criminal is sufficient deciding abort a whether to rights to allow to assert the relying pregnancy. The district court patients. Scott, Doe 321 F. Ullman, on Tileston 318 U.S. Supp. 1385, (N.D.Ill.1971) 1387-1388 agreed (1943) L.Ed. 603 (three-judge court) on other vacated In Tileston this contention. grounds, Court held that a L.Ed.2d 683 enridge, v. Breck Crossen was to assert (6th 446 F.2d 839-840 Cir. patients his in an to de- action 1971). clare statute a state anti-birth control Griswold and Eisenstadt are based unconstitutional. The Court said: part relationship that ex- constitutional attack sole plaintiff isted between the indi- under Amend- statutes the Fourteenth seeking rights he whose is to as- vidual deprivation ment confined to their sert. In the Su- abortion context obviously appellant’s but life— recognized preme need for Court has allegation patients’. his There no attending patients to consult with their proof appellant’s life in dan- Wade, physician. Roe v. ger. patients parties His are not 147. As 35 L.Ed.2d proceeding and there is no basis such, attending integral- physician is say on standing we he which can has ly in it- involved the abortion decision adjudication to secure an of not, therefore, a self. is This case patients’ right his life, constitutional party to raise the where one seeks not which do their assert rights only of another with whom he has own behalf. marginal as the involvement. Rather 46, 318 atU.S. 63 S.Ct. at 494. recognized rights Court Griswold being Supreme “likely on Court has a asserted were to be diluted distinguished rights adversely number of occasions affected those unless holding. involving In are suit Tileston Griswold v. Con considered in a those 1678, necticut, 479, who U.S. have kind of confidential rela- 381 85 S.Ct. 14 rights (1965), L.Ed.2d a tion to [the 510 was one whose standing 481, found to have . assert .” 381 85 raised]. U.S. rights by a constitutional of married at 1680.10 The individ- S.Ct. assertion relationship Similarly, between Baird And so here the Court Eisenstadt rights Baird, 438, 1029, he seeks assert 405 U.S. L.Ed. those whose 92 S.Ct. simply (1972) 2d between distributor is said: not foregoing rights appro- reasons we For all of the party of another’s third princi- believe the district court erred when a new priate is not circumstances plaintiffs Jackson, ruled that the could not attack U.S. ple. Barrows In validity Regulations (1953), of 1031, 249, L.Ed. 1586 73 S.Ct. right privacy es- on the basis of of a seller allowed poused damages the Roe decision. action for land to defend racially covenant restrictive breach of grounds the covenant violat- Ill rights pro- equal protection ed the Having plaintiffs do decided that purchasers. spective non-Caucasian claim the Abortion Court said: Regulations infringe unduly upon the peculiar circumstances patients, Under nec- next the reasons which essary regula- believe to consider whether denying standing to light our rule underlie tions can stand in rights, which is raise another’s Wade, Court’s decisions Roe v. outweighed by practice, are rule of 705, U.S. 35 L.Ed.2d 147 S.Ct protect the fundamental (1973) need to and Doe v. rights by per- which would be denied (1973). L.Ed.2d mitting damages action In Roe the Court un- struck down as maintained. constitutional a Texas statute 1035. See procure attempt made it a crime to Society Sisters, also Pierce v. 268 U. except purpose an abortion for the S. 69 L.Ed. 1070 saving the life of the mother. Raich, Truax v. holding Court based its aon woman’s 60 L.Ed. 131 right privacy. fundamental It stat- It is not at all inconceivable that wom- ed: en who seek abortions will dissuaded right privacy, whether it be challenging restrictions on their founded in the Fourteenth Amend- right one concept personal liberty ment’s and will instead enter action, restrictions as we comply regu- with the Board of Health’s is, or, feel it as the District de- lations. This then leave unchal- termined, in the Ninth Amendment's lenged, except for the efforts of these rights reservation people, plaintiffs, allegedly impermissible enough encompass broad a woman’s pregnant restrictions woman’s decision whether or not terminate privacy. pregnancy. her Finally, why there is another reason (empha- U.S. at 93 S.Ct. at 727 per- we believe that added). should be sis pregnant mitted to assert say, The Court went however: women. To the extent that a woman’s right, nonetheless, [T]hat to an abortion subject absolute and is to some limita- one, is a fundamental it would tions, point some the state wholly be a undesirable situation for protection health, interests as to of physicians placed position to be in the of standards, prenatal life, medical and guessing liability at the risk of criminal become dominant. they give whether could ef- honor right. fect to that at U.S. 93 S.Ct. at 728.11 potential distributees, regard but that be- 11. In same the Court said: per- tween an advocate above, of the As we have intimated is reason- contraceptives sons to obtain appropriate and those able and for a State to decide doing desirous of so. point that at some in another inter- time est, that of health of the mother or that opinion that we have of its in the course The Court quite previously exten are prior summarized very to the end that clear made applicable any place or sive and are con- first trimester of the facility are respect health maternal cern with regard performed12 to the overcome sufficient could be following preg- For the involved. decide to abort woman’s nancy. foregoing reading of the reasons our language compels us to that conclude impor- respect State’s With Regulations adopted by the legitimate in the tant and stand. Board of Health cannot “compelling” mother, the health point, notwith- contend defendants that light present language, that since the above approximately knowledge, is at reasonably are end trimester. legitimate protecting state interests — that, this It follows after safety of the mother— the health and may regulate point, the abor- a State not run afoul that therefore do procedure that the the extent tion They prohibition. constitutional regulation reasonably relates Supreme found concede protection preservation mater- procedure, at least the abortion permissible Examples of nal health. more was no the first regulation are re- this area dangerous Roe, than normal childbirth. quirements qualifications as to the They supra, ar- at 725. perform the abortion; who is to gue, Supreme of that as to the licensure only that it was used fact to hold person; facility which the as to the great all, prohibiting or the state laws is, procedure performed, long- majority no of abortions could may hospital or whether it must be a justified by health consid- er maternal place of be a clinic or some other less-than-hospital Thus, they conclude erations. status; the li- as to passed no and Doe Court Roe censing facility; like. and the judgment question whether means, hand, that, the other governmental in- there was a sufficient prior period place trimester to terest attending “compelling” point, require- safety reasonable health and pa- physician, his in consultation procedure. do ments on the tient, determine, without language Court’s free not view regulation State, that, in his narrowly. as patient’s preg- judgment, the medical nancy and under It is that a state true should be terminated. If govern authorization, appropriate local judgment reached, decision is powers es mental units have broad an abortion free effectuated ofn for the tablish and enforce standards purpose by the State. interference protecting of its the health Regents, Barsky v. Board citizens. (empha- at 731 442, 449, 650, 98 L.Ed. added). sis 1(a) disagree potential signifi- assertion. Section life, with their human becomes place “a cantly privacy an “Abortion defines Service” The woman’s involved. performed,” facility longer any right in which abortions no sole 11(e) possesses states: and section she measured accord- must be ingly. shall be An abortion in an Abortion Service . . 93 S.Ct. at 730. provisions operated with the in accordance regulations. argument of these 12. Defendants at oral contended 11(c). Regulations, section regulations applicable Abortion that the not be practitioner’s an office. We individual 1150 regulations analysis, (1954). traditional could Under missible state include 829 only power police specialty qualifi- need exercise of the as the relationship person perform to a le- cations of is to some rational the who

bear abortion,13 gitimate type facility Wil- the interest. where the might Inc., types Optical, performed it Lee 348 U.S. liamson v. and similar 461, regulations. 483, supra, 488-91, Roe, L.Ed. 563 75 99 410 at S.Ct. U.S. quite conceivable that un- It is 163, S.Ct. That 93 at 731-732. the Court Regula- referring safety der the this standard was to health and although upheld, regulations, by supported tions would be sec- is another there is no basis opinion. record this court before tion of its regulations determining for whether the legitimate a The State has interest reasonably to a even valid seeing abortion, any to it that like state concern. procedure, performed other is under "insure maxi- circumstances that Court, safety patient. mum the This in- has determined where fundamental that obviously terest extends least to the at regulations limiting are involved performing physician staff, and his rights may only by a these be sustained involved, the availabil- “compelling state interest.” Kramer ity after-care, pro- adequate and to District, 395 Union Free School U.S. any complication vision for or emer- 621, 627-28, 1886, 23 L.Ed.2d S.Ct. gency might preva- arise. The (1969); Shapiro Thompson, high illegal mortality lence rates at 22 L.Ed.2d U.S. strengthens, “abortion mills” rather goals (1969). Despite the laudable weakens, than State’s interest Board of Health in at regulating the conditions under which tempting comprehensive safety to set performed. Moreover, abortions are procedures, standards all abortion risk to the woman increases her Roe will not allow these Thus, continues. the State language stand. Court’s makes protect- retains a abundantly definite clear is not until ing the woman’s own health and “from safe- and after” the first trimester ty proposed when an abortion a regulate may by that a state abortions stage pregnancy. late regulations “reasonably relate[d] preservation protection (empha- of maternal S.Ct. at Roe, added). health.” sis S.Ct. In Doe v. If was there doubt (1973), as to whether declaring Georgia Court Court was broad decided that statute safety requiring health and for first that abortions hospital trimester impermissible, accredited the Joint Com- up by descrip- Hospitals was cleared mission Court’s Accreditation permissible (JCAH) tion of what became could not withstand constitu- after period. scrutiny. holding It tional was After after “com- pelling point” per- JCAH requirement said accreditation was precise language required perform 13. The is “re- all abortions. quirements qualifications through- supported as to view is the fact person opinion phy- perform who is out abortion.” the Court considers the Roe, supra playing integral sician as role in U.S. at at 732. might interpret possible While it decision. Furthermore the Court language say, mean that went on to state cannot re- reference quire physician perform . . an abortion involved that “[t]he may proscribe any the first believe who language supra physician. Roe, better view is to effect ...” that after the state S.Ct. at require specialty that a with a Gerstein, reasonably purposes Id. at 4. See also Coe v. related to the (S.D.Fla. Aug. 1973). F.Supp. was found the Court Act in which it stated: appellees escape The seek man- Georgia may contending say by date of Roe and Doe that that is not to premised were on state interference not, and

not or should after right trimester, adopt privacy, with a woman’s at least end the first licensing in the decide first to abort facilities all standards challenged pregnancy, and so that abortions be where regulations legitimate- in the case do not af- long instant as those standards disa- objective fect the “abortion decision.” We ly the State gree. regulations very by their na- The accomplish. seeks to and ture restrict abortion decision (em- 194-95, at 410 U.S. at S.Ct. in an affect whether and what manner phasis added).14 place. abortion The decision will take are not the first court pregnancy whether or not to abort a right of that the fundamental conclude cannot made in re- be a vacuum gard Doe is perform operation, described in Roe and who will enough expansive to include within it where under what conditions will governmental regulations purview that performed, procedure be and what will regulate dur seek facilities be All involved in followed. these are precisely the first trimester. In Word abortion decision and it (8th Poelker, Feb. 495 F.2d 1349 Cir. these elements of the decision that striking 20, 1974), Eighth regulations Circuit seek to con- here language down a Louis ordinance similar St. trol. The Roe Doe very the one involved here said: makes clear that after de- even mental reflects mensurate (cid:127)X* city no ^[*] ordinance restrictions on state action. recognition involved # of the funda- question -X* the com- -X- here the State.” cision to abort a decision an abortion free of interference must Roe, supra be pregnancy able to 410 U.S. at be “effectuated is made that city compel Roe We hold that Louis ordi- and Doe us to con St. pri is, nance No. 56579 reason of its clude fundamental vacy during includes, failure exclude the first trimester at least first pregnancy, pregnancy, invalid over- trimester of infringing regulations free from broad enactment unreason- ably rights. have an decision.15 fundamental effect on the abortion part imposed 14. There least Doe one on abortion and that facilities opinion might allowing implication be read as limit- more di- flies the face of the offering controlling language ed health rect that we opinion. abortions the first trimester. set out in our said: compelled agree reg- appellants We feel Court’s conclusion the State must show than it must be more ulations trimester prove essentially requiring has order full a licensed limited to hospital, escaped resources licensed rather criticism. has not appropriately than those of li- some other causes more wom- The fact that childbirth institution, satisfy censed in- these health en to than do first-trimester die hospital obviously terests. We hold that re- does not warrant Court’s quirement Georgia law, first- because over conclusion that state controls fails must exclude physician, requiring .. is also invalid. a licensed limited to (emphasis limit- must be or indeed that such controls added). gov- exist ed to whatever language generally. erning practice We find best For only implies regulations may very early that health abor- is conceivable that even 1152 challenged regula- trimester look was within woman’s One privacy,

tions, previously, show summarized has been held to be regulate during Roe, supra they fundamental. first 410 U.S. things 727, 155, accord, Stanley precisely 93 v. Su- S.Ct. at regulat- Georgia, 564, preme 557, cannot has said be Court U.S. 1243, “compelling point.” (1969). after ed until Where involved, fundamental are another reason as There is impermissible differently to treat two Chicago why Board of Health’s well classes which do not on differ stand. The district cannot ground purpose of the opinion that: court in its stated Bolton, challenged statute. Doe v. [P]hysicians performing abortions 179, 194, 739, U.S. 35 L.Ed.2d profession to their are selected from Baird, Eisenstadt v. regulations; subject special but be U.S. 31 L.Ed.2d 349 is not unlawful such discrimination (1972). Supreme Given the Court’s ac- when, arbi- as it is not ceptance of the medical fact trary, unrelated unreasonable mortality receiving legal rate of women governmental involved. interests abortions is “as low as or lower than the F.Supp. at childbirth,” Roe, supra rates for normal reasoning disagree of the with this We 93 S.Ct. at there court. justification district would seem to be little more regula- extensive It is clear that: tions, purportedly based on health con- Equal The Clause Protection siderations, procedure for one than the does, deny pow- to States the Hospital, other. Doe v. Hale 500 F.2d legislate er treatment different (1st 1974). Cir. persons placed be accorded to statute into different classes Chicago The Board of Health’s Rules wholly basis of unrelated to criteria regulate on compre- Abortion Services objective statute. A clas- hensively physicians perform who abor- reasonable, tions, sification “must not ar- leaving while at the same time oth- bitrary, and must rest some procedures, er medical often much more ground having complex fair dangerous difference terms object patient’s and substantial relation to the up good judg- health, legislation, persons physician. so all ment of The similarly circumstanced shall treat- equipment describe what Royster ed supplies alike.” Guano Co. v. Vir- available, must be what medical ginia, 412, 415, performed, must tests a minimal time (1920). 64 L.Ed. 989 interval between initial examination and termination of the and what Reed, 71, 75-76, Reed v. S. post-operative care shall be rendered. 253-254, (1971). Ct. 30 L.Ed.2d 225 Roe Municipal established that decision Code section pregnancy during dispensaries16 regulate abort on does not oth- particular category Law, tions would in some Process Life and 87 Ilarv.L.Rev. pose cases and distinctive risks substantial specified to maternal life or health unless procedures complied long dispensa- were with. 16. We use So the local ordinances comparison purposes procedural opposed as defended ries as hospitals (Municipal terms of health not used as a subter- the ordinance on are Code fuge 137) early Chicago, to forbid other cli. because the grounds, argument clearly reg- imposition has for their decided that justify requiring hospitalization per- compelling enough law seems ulation for the promulgation formance an abortion enforcement. Tribe, impermissible. Doe Term— Foreward: Toward In Due 93 S.Ct. at 739. a Model of Roles extensively; childbirth. are referred to no oth- er medical single surgical procedure er where matters to leaves these instead required “prove up” physician. Board doctors discretion sufficiently their overall fitness as are here. no has offered Health justify differ- compelling reason to supra Poelker, 6,17 Word 495 F.2d reasoning Similar ence treatment. at 1351. by employed was Thus, because the defendant treats Georgia provi- down the when it struck differently compelling without a reason requiring concurrence two-doctor sion procedures medical which in terms of be authorized. abortion could before an health risks are distinguishable not and said: because this difference af- treatment sur- voluntary medical or other [N]o adversely rights, fects fundamental Georgia gical re- procedure for which challenged regulations cannot allowed be phy- quires two confirmation other to remain in effect. phy- been cited us. If a sicians has State, he is is licensed sician recognized by IV capable as State given We determined have that exercising judg- acceptable clinical right” the “fundamental status of a wom this, professional If he fails ment. an to terminate her deprivation of his license and censure trimester, the first that in no circum remedies. are available regula stances could we allow stand S. Doe v. tions, purporting promote maternal 35 L.Ed.2d Ct. health, expansive that are more than Eighth Recently, the Circuit when deal applied that are to other ing regulations that were similar with procedures medical of the same risk and challenged here to the one’s said: complexity. nothing There is to indicate myriad require- think that We in this that the Board of unduly physi- ments is regulate any restrictive of a Health seeks to other medi right judg- general cians’s to administer procedure except his cal the most operation to an ment that now Furthermore, any proposed of terms.18 regulation, be, established to within the first applied universally even if pregnancy, trimester safer than procedures, all similar medical because dispensaries, apply generally. From the definition it to medical facilities requirements agree. seems clear or- [Citations omitted.] Under Roe and applicable may dinance would be clin- Doe, regulate abortion if North Carolina Municipal Chicago, ics. performance § Code of ch. first-trimester noted, however, may 1.1. should all, only It do so the extent provisions dispensary purport regulates relatively cov- do tonsillectomies other er a doctor’s office. Id. 1.2. operations. § minor . . . Doctors placed perform restrictive including other medical — dispensaries requirement surgery are: a com- delivery, minor and obstetrical plete kept, 6; dangerous records Id. is considered more than first- % reporting contagious, epidemic, away all omitted] [footnote abortion — diseases, 7; general hospitals, communicable and a § from a transfer neither requirement “Every agreement privileges. that: conduct- nor staff [Ci- active operating dispensary keep ordinarily a shall That the state is tation omitted.] equipment, rooms, apparatus profes- willing of such to leave matters to the such dispensary sanitary judgment attending clean condi- sional regu- tion.” Id. suggests program § 8. strongly thinly disguised lating clinics Similarly, three-judge district court Doe. effort to evade Roe and said: Department Human Hallmark Clinic v. regulation [requiring Plaintiffs assail Resources, (E.D.N.Cal. F.Supp. hospital grounds. affiliation] several 1974). leading argument Their is that Roe Doe exempted 16, supra. first-trimester facilities 18. See note any licensing requirements that do not set the first have standards we of woman of the fundamental pregnancy, we declare them trimester of procure an abortion compel- invalid. meet a have to requirement. ling governmental judgment We reverse the of the dis- general Thus, health trict court and remand with directions apply to first which would to enter an order consistent with this limited so as abortions would have opinion granting plaintiffs’ requested give fundamental effect relief.19 Doe-, Roe as established Judge (concur- on a woman’s FAIRCHILD, not be burdensome Circuit pregnancy. By ring) to decide to abort a nothing probability mean that all agree I general requirements as to than broader challenge regula the Board Health sanitary maintaining infringing upon patients’ tions as meeting general as right agree language privacy. I that building standards would minimal code Wade, 113, in Roe v. 410 U.S. 93 S.Ct. permissible. be 705, (1973) 35 L.Ed.2d 147 v. Doe not, however, completely rule Bolton, We do L. possibility out the there exist some (1973) regu Ed.2d 147 must mean that proce- aspects inherent type involved, lations of the here exclu unique sively dure from other applicable which make to abortion substantially procedures of the applicable medical whether or not an abor aspects, same For such the Board trimester, risk. tion is within the first violate right able to a privacy. Health be show that respectfully the I dis regulation narrowly agree, health drawn is propositions with two compelling. Again point we should out opin set forth in IV of Part this court’s heavy the a state will bear burden ion. justifying any regulation, in such both First, majority indicates, appar- the showing respect the existence of ently dictum, general any regula- as unique complication a medical and with tion of a broad class of medical and sur- respect showing problem the gical procedures within which abortion beyond of such a as to the nature be fall, satisfy “compelling would must general scope professional doctor’s requirement” interest be- judgment. applied fore it can be to abortions dur- challenged ing Because it is clear that the first trimester and therefore regulations interpreted here, if probably even in general a would be limited to manner, sanitary limited could not meet and structural I codes. do not 19. From and after the first trimester accord- 25 L.Ed.2d 491 McG Roe, Supreme Maryland, in state 420, 425-26, to the Court owan v. 366 U.S. legitimate in (1961), has a interest maternal health be it must procedure “may regulate remembered the end of first regulation reasonably completely the extent re- a woman does not lose preservation protection privacy. supra. lates to the her See note maternal health.” 410 U.S. held in Roe that at that challenged regulations point legitimate at 732. Even if the in interest only interpreted applying Thus, here were health of the mother accrues. period trimester, regulation dealing there is after the first with maternal after health no basis in this court the record which the end of the first trimester must not reasonably pur could make a as to which of determination to a related valid health regulations reasonably pose, appropriate regard these related to were but must have existing valid state interest. the still relationship Exactly While under a rational mother. where this balance is to municipal pursuant test a to its ordinance struck will have to decided on a case police powers deference, given great will be case basis. Dandridge Williams, difficulty requires and confusion Roe such a result. believe that probably exception by recognizing result from such that abortion While majority, however, construction. normal as safe as rejecting saving-by-construction in special interest childbirth and that State patient there in protecting course asserts is no basis from an inher- ently dangerous surgical procedure the record for a determination as to has regulations, largely disappeared pe- which of the even lim- if so thus ited, reasonably riod, to a that: valid noted places State interest. This the burden course, important state inter- “Of establishing constitutionality ests the areas of health and In on the State. do remain. The State has a standards case, however, legitimate seeing to it that period after when abortion, proce- other medical like “compelling State has a interest” dure, circum- under regulation procedure, of the abortion safety stances that insure maximum Wade, Roe patient. This interest ob- regulations are, my S.Ct. 705 such viously per- extends at least opinion, presumptive validity, entitled to forming physician staff, and his establishing and the burden of lack of involved, the facilities to the availabil- relationship permissible reasonable adequate ity after-care, pro- and to charg- objectives left should be with the any complication vision for or emer- party. Compare, Morales might gency arise.” Roe v. (7th Schmidt, 494 F.2d Cir. Wade, supra, 149-150, 93 1974) (Stevens, concurring). J., exception is- With above language believe, indicates, I Judge sues, Sprecher’s I concur regulation special expressly aimed or in thoughtful opinion. including abortions, those con- fact trimester, ducted such impermissibly present

as in the patient’s

limits the constitutional burdensome, privacy by imposing layer

extra a sur-

gical indistinguishable process deemed procedures.

from similar medical Nev- ertheless, regulation safety of all BOWERS, Helen Ann Plaintiff- incidentally including procedures, these Appellant, through abortions, impo- first regula- generally applicable sition of al., et Defendants- D. C. CAMPBELL tions, would seem to a valid exercise Appellees. protecting State’s No. 72-1273. only satisfy health and need the tradi- judicial scrutiny imposed tional tests of Appeals, United States Court Barsky this area. v. Board Re- Ninth Circuit. gents, 442, 449, Oct. (1954).1 L.Ed. 829 agree Second, inap- I it is while propriate to save the under construing

consideration here them excluding do first I so because reasonably scope, gen to relate goes saying, fail 1. It such presented safety including erally applicable regulation concerns procedure, fail. within

Case Details

Case Name: Friendship Medical Center, Ltd. And T.R.M. Howard v. The Chicago Board of Health

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 24, 1975

Citation: 505 F.2d 1141

Docket Number: 74-1070

Court Abbreviation: 7th Cir.