Richard M. Ragsdale v. Bernard J. Turnock, Director of the Illinois Department of Public Health

uрon a claim states III Count on whether Lauritzen, F.2d v. Secretary part.” de- what granted, or can be relief J., which Cir.1987) (Easterbrook, (7th 1529, 1542 Rail- to the be available then would fenses was Here, Wilson whether concurring). reinstated Count have that we Now road. employment his scope of within again need will court II, district indicated. clearly not is accident time determining discretion exercise ques- decide must Therefore, jury to amend. leave grant Wilson whether tion. With Instruc- and Remanded Reversed D. tions. court’s district appeals also Wilson amend. leave motion of his denial com- III a Count sought to add Wilson superior claim respondeat law mon proposed Railroad. against driver, Barnes, the alleged that amendment employment of his scope within was al., RAGSDALE, if Wilson even et M. occurred the accident Richard when proposed Plaintiffs-Appellees, held The court not. was upon claima to state III failed Count v. rea- The court granted. could relief TURNOCK, Director J. Bernard con- II Count disposition that its soned Health, Department Public Illinois presented counts both trolled because Defendants-Appellants. al., et issues. legal same 85-3242. No. based was action in this Jurisdiction notes Wilson jurisdiction. question federal Appeals, Court States United party real that the his brief in a footnote Circuit. Seventh Railroad, Line the Soo now is interest 22, 1986. Argued Oct. Railroad, and bankrupt successor diverse is now March this successor Decided concedes apparently Wilson Wilson. 13, 1988. April As Amended citizenship between diversity no there alleg- Railroad, he although Wilson successor. diversity with es there jurisdiction, pendent the doctrine Under not other- jurisdiction claim where where i.e., law claim state wise exist — atoon be added diversity may no there is — plaintiff of action where cause federal try them expected to ordinarily be "would United proceeding....” judicial inall one 715, 725, Gibbs, U.S. Mine Workers (1966). 16 L.Ed.2d 86 S.Ct. here exist did jurisdiction pendent But because dismissed II Count after I is unrelated.

Count prop- is a Line Railroad the Soo Whether the nature depends on er defendant law, and substantive and the

right asserted court the district upon passed

should dismissed judge the district first. Once dismissing II, correct he was Count opinion express an do not III. We Count Judge, BAUER, Chief Before Judge, and

COFFEY, Circuit Judge. ESCHBACH, Circuit Senior Judge. ESCHBACH, Circuit Senior duly all of a class consist Plaintiffs perform surgeons physicians licensed pregnancy perform desire ing or who all class of and a in Illinois terminations of child-bear Illinois of the State in women an abor may or desire desire ing age who Defend future. sometime tion at of Attorneys of the State’s a class are ants Illinois,1 of the State counties of the all Department Illinois of the Director Attorney Gener Health, the Illinois Public Depart Illinois al, Director and the Education. Registration ment 1983 42 U.S.C. § sued under Plaintiffs declaratory 2201-02, seeking 28 U.S.C. §§ that three to the effect injunctive relief there and the Illinois statutes right constitutional violate under abortion, estab specifically privacy, Wade, 113, 93 Roe U.S. 410 lished in (1973), and subse 147 35 L.Ed.2d S.Ct. This case cases. Supreme quent Court from the district appeal us on comes for motion plaintiffs’ grant of court’s F.Supp. injunction. preliminary certain we believe Because (N.D.Ill.1985). part. moot, we vacate claims however, we affirm respects, In most injunction. preliminary I Provisions Regulatory Statutory A. regulatory scheme statutory and The Therefore, we set complex. somewhat 16(1) Section detail. out some Kreisel, Atty. Kathleen T. Ill. Gen. Of- MPA”), Ill. (“the Practice Act Medical fice, Ill., Chicago, defendants-appel- 4433(1), for revocation allows Rev.Stat. If lants. physician any license of suspension any “elective abortion” performs who Connell, Colleen K. American Civil Liber- Ambulatory a licensed than place other Union, Gilbert, ties Alan S. Lorie A. Chaiten (“ASTC”), Center Surgical Treatment Kornfield, and Susan Sonnenschein, M. state or by the facility run hospital, or Carlin, Rosenthal, Ill., Nath Chicago, & Ambulatory The gоvernments.2 federal plaintiffs-appellees. Act 16(1) Practice Medical 2. Section the defendant both as to certification 1. Class reads, part: pertinent challenged below. plaintiff classes revoke, place suspend, may Department F.Supp. certification. granted court district status, any dis- probationary take challenged on ruling 1219-24. That at Department deem as the ciplinary action appeal. regard ... to the license proper with Act, Surgical Treatment Center corporation operating Ill. an ASTC pri- devoted IIIV2 157-8.1, (the Rev.Stat. et seq. “ASTCA” Ml marily providing facilities for abortion to “Act”), provides or the for the licensure of have on its board of physician directors a ASTCs, “any all which it defines as ... who is practice licensed to medicine all of place ... primarily per- devoted to ... its branches and is actively engaged in the surgical formance procedures or any practice of medicine at the ASTC. Pars. facility in surgical which a medical or pro- 157-8.5 and generally provide 8.6 for licens- cedure is to terminate a pregnancy, utilized ing with an initial fee of and an $500 annu- irrespective of whether the facility is devot- al renewal fee of Additionally, $300. those primarily purpose....” ed to this IIIV2 require sections that a licensed 157-8.3(A). addition, Ill.Rev.Stat. In Í! under the supervision of one or physi- more plaintiffs challenged have those sections of cians and least one physician have Act, Planning Health Facilities IIIV2 admitting privileges at an Illi- ¶¶ 1151, seq. (“HFPA”), Ill.Rev.Stat. et nois hospital. Pars. and 157-8.7a 8.7b re- require anyone which seeking open to an quire statements regarding ownership the to ASTC a obtain certificate of need for the of and financial condition the facility. of facility Department from the of Public requires Par. 157-8.8 Department approval public hearing Health after a 120-day and of, of of, construction alterations or addi- period. review See Ill.Rev.Stat. IIIV2 facility. tions to a provides Par. 157-8.9 1155-1160.3 MI for inspections quarterly of facilities and The plaintiffs’ specific bulk of chal- provides for confidentiality of information lenges, however, are directed at the AST- by Department. received the regulations CA and the promulgated there- under, application, MPA, and their remedial via sections of provide the the Act physicians desiring perform to array an first and of enforcement mechanisms. Par. early second trimester abortions. Accord- provides 157-8.9a facility that a may be ingly, we set forth the ASTCA and its by closed administrative order if its contin- accompanying regulations in some detail.4 operation ued constitutes an imminent and serious menace to the or safety health of The Act largely procedural itself is patients the if operator or the operation thereof has grants Department of been convicted of a par. violation Public of 157-8.- authority promulgate Health 12. Par. specific regulations provides 157-8.12 for governing a fine of ASTCs. $10,000 ¶ per However, day for operating Ill.Rev.Stat. facility 157-8.10. a IIIV2 specific certain provisions of without a the statute license or violating otherwise prescribe also requirements for Act. ASTCs. Par. 157-8.13 makes operation of Section 6.1 requires ASTCA any facility a in violation of regula- the Act or person practice ... in this state to medicine application ... When permit an for a is ini- upon any following grounds: ... tially by recognized reviewed a areawide (1) Performance of an elective abortion in planning organization health Depart- or [the any place ... other than: ment [they] of Public ... Health] shall afford (a) facility pursuant a licensed to the “Am- opportunity public an hearing for a within a bulatory Surgical ...; Treatment Center Act" receipt reasonable time after complete (b) hospital]; [a licensed application_ hearing Such shall be con- (c) ambulatory surgical an treatment center ducted community area or where the hospitalization or facility or care maintained proposed occur, project is to shall be for by any ...; or agency State thereof purpose allowing the applicant and (d) ambulatory surgical centers, treatment person present interested public testimony hospitalization or care facilities maintained denial, concerning approval, renewal or by Government, the Federal or permit.... revocation The State Board (e) ambulatory surgical centers, treatment promulgate shall regula- reasonable rules and hospitalization or care facilities maintained governing procedure tions and conduct of by any university college or established under hearings. such supported laws of principal- this State and ly by public funds raised taxation.... regulations 4. Selected that are discussed in de- 3. Section Planning the Health analysis Facilities tail in our are set text forth infra reads, pertinent part: Act Appendix opinion. in an to this more. percent five interest injunc- subject to nuisance public a tions 205.120. § tion. include requirements general Other terms, in broad provides, 157-8.15 Par. is available plan which organizational provisions severability of the proce- information, policies a public Act. poli- personnel manual, written dures the AST- under regulations general 205.310. descriptions. job § including cies Admin- the Illinois CA, in Title found fol- required have are All facilities govern Code, are detailed istrative opera- during present lowing personnel an ASTC. aspects of many pa- for all period post-operative tive profession- registered a physician, specific quite tients: there example, For education post-graduate require: with al nurse plant physical per- nursing, and a experience sq. ft. for at least of 250 size (1) minimum by the Support” Life “Basic certified in ones son additional (any room one Sections Association. Heart ft.) American sq. than smaller no must be Additionally, each 205.320-40. for examinations sq. ft. minimum techni- certified medical have either “identifiably must (2) an ASTC rooms; a licensed agreement or a written cian facilities other medical separate laboratory required perform laboratory to station” a “control functions”; (3) that consulting com- A 205.350. procedures. § of traf- surveillance visual allow located develop stan- established must be mittee suite; (4) that operating entering the fic physician a and professional work of dards lockers, sepa- lounge, including a facilities medical director serve as must changing for space toilets, a and rate facility. 250.230. § female male and for provided be clothes closet janitorial (5) separate a facilities equipment, all personnel; to regard With “diagnostic suite; (6) a monitoring equipment, surgical for the have required to are tests pul- evaluation cardiac pre-admission oxygen, and facility” if apparatus, suction (7) minimum cor- equipment. and performed; to resuscitation monary are be on whether depending procedures (5' 8' written or ridor Additional 205.410. § (3' use, or used) care, door steriliza- govern to be required are stretchers are Also, materials, disposal of all 3'8") tion, storage 205.1310-1390. widths. § heating, and medi- of all air-conditioning, storage and use govern and to elaborate specific procedures for provide written Id. Additional system cations. ventilation relationships refuse remov- garbage and and airflow for required efficiencies are filter control, mainte- 205.1540 required. al, rodent § is rooms insect between utility ser- heating, ventilation A. nance of and Table 205.420. vice. § for a provides regulation The licensure re- a regulations include care Patient including identification applicаtion detailed proce- “emergency” of a written facility, quirement operators of of the owners fire, explosion, or “other in case dure and architectural location, description a prep- emergency,” and non-patient medical with compliance plans, documentation emergencies normal- manage the codes, description of aration a safety building and surgical procedures with ly list of associated performed, and services be “complete physi- A 205.510. performed. A § qualifications. their personnel and all re- tests are specified required and is change in cal” for required application is new qualified labo- by performed be quired to facility, remodel- ownership, location of per- procedures any for technician ratory programs. or of services ing, or addition anesthesia, local an- general under given of formed must be Department Notice to sedation, any pregnancy or staff, esthesia with administrative change in the any informed signed, A written supervis- termination. director, physicians, staff to be main- is procedure any surgical consent nurse, deletion ing addition records. patient’s clinical tained change any shareholder procedures, or All 205.520. removed procedure tissues are each provided § “on forms by [the examined consulting pathologist. Department].” Additionally, regula- 205.530. prohibit tions § an ASTC from performing patients abortions on gestational with a Post-operative regulations provide care age exceeding twelve weeks. 205.740. § any patient general who has had anes- thesia, sedation, local anesthesia with B. Enforcement Policies pregnancy termination required to be Not provisions all of the challenged period observed for a of time sufficient to statutes are being en detect immediate post-operative compli- forced. Since the Act regula cations, patient and that no required tions been applied only have to facilities leave in less than one hour. 205.540. § which primarily are per devoted to the Additionally, written documentation is re- formance of surgical procedures (including quired agreement of a transfer with a li- abortions). This policy enforcement hospital censed within fifteen minutes of adopted response to Village Oak facility, or that the medical director of Marcowitz, Lawn v. 86 Ill.2d 55 Ill. (or physician ASTC each staff Dec. (1981), 427 N.E.2d 36 which re ASTC) has admitting privileges at such a enforce, fused to in a criminal proceeding, hospital. 205.540. § portion of a local ordinance in Detailed clinical records are required also corporated the ASTCA definition of an to be maintained. 205.610. Additionally, § ASTC which “any covered facility where a required facilities to make annual sta- medical or reports tistical that include the number and for the termination of pregnancy, regard type procedures performed, the number less of whether the facility is primarily and type of complications reported, devoted to purpose.” The defendants patients requiring number transfer to a also contend that the MPA’s revocation or hospital complications, due to the number suspension sanction performing abor patients returning for follow-up, and the tions outside an is similarly ASTC not be of number deaths. ing enforced, but the evidence on point this regulations The equivocal. also have an abortion- specific subpart requires: (1) which at least The defendants also contend pro that the registered professional one nurse with performance hibition on of second trimes post-graduate education or experience in ter abortions is not being ASTCs en obstetrical or gynecological nursing, sec- forced because it was considered enjoined 205.720; (2) tion testing rеporting and of by the IDPH, Poe v. order Paula No. patient results to the of blood Rh factor (N.D.Ill.1982). 78-04126 case, In that en diagnosis and pregnancy, section 205.- forcement of section 4 of the Illinois Abor 730(a); (3) counseling by spe- someone 1975, tion Law 81-24, 38 Ill.Rev.Stat. H cifically give trained to it and has no who required which all second trimester abor financial patient’s decision, interest in the tions to be hospital, along counseling which must include a discussion “any with regulation” related enjoined was alternatives, description proce- of the pending decision of Supreme three Court performed, dure to be explanation and an cases involving a second hospital trimester possible complications, risks and section requirement. ization Akron v. Akron Cen 205.730(b). Contraceptive information Health, Inc., ter Reproductive 462 U.S. for provided post-operatively, and shall be 416, 2481, 103 (1983); S.Ct. 76 L.Ed.2d 687 provided if by patient. Id. desired Association, Planned Parenthood Inc. v. Counseling place must take in a sepa- room Ashcroft, 476, 2517, 462 U.S. 103 S.Ct. 76 procedure room, rate and a record (1983); L.Ed.2d 733 Simopoulos v. counseling given of the is to be included in Virginia, 462 U.S. 103 S.Ct. patient’s clinical record. Id. The sub- (1983). L.Ed.2d 755 An internal memoran part contains its reporting own require- dum of Department of Public Health ment requires monthly which reporting of following the decisions in those cases case had been than compliance” tial the unconstitu- they confirmed opined re- particularly with facility, prior his hospital- with trimester second tionality requirements. architectural spect Illinois statutes in the requirement ization building facility Repre- of either Ex. The cost Deft. See regulations. regula- comply with renovating testified one to the defendants sentatives be- currently plaintiff at by the is not requirement estimated tions that the was trial Be- per patient. reason. and $47.66 being enforced $25.21 tween a location inability to find his cause of section contend also Defendants AST- comply with the renovated can be 1975, an Law of Abortion the Illinois physical CA, the structural particularly requirement, reporting abortion-specific at a regulations, requirements plant in Charles Judge Kocoras enjoined cost, Ragsdale will close Dr. reasonable (N.D.Ill.1983), F.Supp. 464 Carey, 579 v. enjoined. statute NIWC unless part on rev’d in part, aff'd F.2d 452 Daley, 749 v. grounds Charles II), Margaret Moe appeal dis (Charles Cir.1984) Individual Plaintiff D. (7th Charles, 476 Diamond sub nom. missed who registered nurse Moe is Margaret 90 L.Ed.2d S.Ct. U.S. medical facilities currently operates two report abortion-specific (1986), that the offer The facilities Illinois. the State regulations ASTC ing requirement care and medical planning education family that time. enforced since not has been contracep- prescription of that includes are not policies non-enforcement These care, delivery tives, assistance prenatal inquire of stated, who persons but publicly receive Her clinics women. pregnant in- agencies are enforcement the various requests for abortions sixty approximately of them. formed like to offer abor- She each week. clinics, has and she at her tion services Ragsdale Plaintiff Dr. C. Individual competently physicians who staff was re- plaintiff physician such abor- willing perform individual trained practice, North- his quired to relocate However, do com- facilities not her tions. NIWC”), (“the Center ern Illinois Women's requirements structural ply is, (that its kind only facility of which is the renovat- cannot be Act and ser- clinic) offering abortion non-hospital cost. prohibitive comply ed to so without Illi- northwestern large area of in a vices servic- offer such Accordingly, she does refused renew his landlord nois because es. he had been lease. his compliance with not in full operating was II was none- regulations, but the ASTCA certain first consider whether We comply- “substantially as theless licensed mooted havе been challenges plaintiffs’ sought he another ing” When with them. of non- non-publicizedpolicy by the State’s through the certifi- location, go had to he that established It well enforcement.5 required proceedings. cate-of-need illegal putatively voluntary cessation degener- hearing application on the public contro ordinarily not moot a will conduct “pro- shouting between ated into a match adjudication by a its versy prevent pub- “pro-life” members choice” and v. Alad City Mesquite court. federal prospective lic, the doctor’s after which 283, n. Castle, Inc., & U.S. 289 455 din’s commitment. his lease landlord withdrew 10, 1070, 1074 L.Ed.2d 10, 102 & n. 71 S.Ct. addition, charged with enforc- officials In Angeles v. (1982); Los they County 152 him that regulations told ing the 1379, 631, 625, Davis, 99 S.Ct. 440 U.S. “considerably more require substan- Nonetheless, statutory we are under argue scheme. that did note that the defendants 5. We jurisdiction, reply we own duty until their to determine our portions brief, the case were moot if arguing question brief that even in their initial of mootness consider the must plain- policy that the meant party properly non-enforcement it. no raises being irreparably by the harmed were not tiffs

1365 1383, (1979); United States began 59 L.Ed.2d 642 performing that time he early sec- Co., v. 629, 632-33, W.T. Grant 345 U.S. 73 ond trimester abortions at his facility. 894, 897, (1953); see S.Ct. 97 L.Ed. 1303 Analogous assurances of discontin Daley, also Charles v. 452, 749 F.2d 456-58 challenged uance conduct have been (7th Cir.1984) (Charles II), appeal dis- challenges held to render moot in other nom., Charles, missed sub Diamond v. in McCrary example, cases. For Poy 54, 1697, 476 U.S. 106 S.Ct. 90 L.Ed.2d 48 thress, (5th Cir.), 638 F.2d 1308 cert. de (1986). However, such cessation does ren- nied, 865, 454 325, U.S. 102 S.Ct. 70 L.Ed. controversy der a moot where there is no (1981), 2d 165 election officials conceded expectation the putatively reasonable they had by attempting erred to com illegal repeated, conduct will be and there pel political candidate to file certain fi remaining are no alleged effects of the nancial reports disclosure and wrote the Davis, violation. 440 U.S. at 99 S.Ct. abandoning candidate request their Grant, 1383; W.T. at 345 at U.S. 73 reports. This, such according court, to the at 897. heavy S.Ct. Defendants bear a challenge mooted the to the officials’ action persuading burden of the court that a con- “Appellant presented because ‘has no evi troversy is moot. United States v. Phos- creating dence expectation a reasonable phate Association, Inc., Export 393 U.S. repeat pur will [Commission] 199, 203, 361, 364, 89 S.Ct. 21 L.Ed.2d 344 portedly unauthorized actions subse Grant, (1968); W.T. 345 U.S. at quent Appellant’s elections. conclusory as II, 897; 457; Charles S.Ct. at 749 F.2d at sertions that capable actions are Edgar, Sanchez v. 710 F.2d 1294-95 repetition are not sufficient....’” Id. (7th Cir.1983). 1 (quoting Illinois State Board & n. additionally We note that cessation of the Elections v. Party, Socialist Workers allegedly illegal by government conduct of- 173, 187, 983, 992, U.S. 99 S.Ct. ficials has treated been with more solici- (1979)). L.Ed.2d 230 Virginia Northern In by tude courts than similar action Batch, Women’s Medical Center v. private parties. According to one commen- (4th Cir.1980), F.2d 1045 an even more tator, provides such self-correction a secure questionable assurance of discontinuance foundation for a dismissal based on moot- There, was held to controversy. moot the long appears genuine. ness so as it See prosecuting a local attorney’s policy of not Wright, Cooper 13A Miller & Federal enforcing a trespass against state statute Practice and Procedure 3533.7, at 353 § protestors anti-abortion unlawfully who en (2d 1984). ed. tered and blocked access to an abortion challenged

clinic Equal as a denial of A. Protection. prose The court held that the argument cutor’s assertion at oral that the application We believe that of these policy non-enforcement had been aban general principles present to the circum doned, coupled prosecu with the fact that stances mandatеs a plain conclusion that tions had in during pend- fact occurred challenge tiffs’ to the second trimester hos ency litigation, rendered the chal pitalization requirement is moot. As we lenge According court, moot. above, have noted the defendants have con “[sjince good representa the faith of this ceded, at least since require that this questioned, tion is not we conclude that the ment is governing unconstitutional under controversy between the Center and the Supreme Court decisions and is therefore attorney commonwealth is moot and now not enforced. attempt Plaintiffs have not to be revived.” Id. likely that it is not ed to showing counter the defendants’ on point, this nor they do we believe could. plaintiff Ragsdale individual Dr. testi pub- We believe that the defendants’ now fied that he by was informed policy a State in lic hospi- of non-enforcement of the spector hospitalization that the require requirement, particularly talization in view (i.e., being ment was not enforced and that after of the reasons therefor that enforce- C. by Supreme clear Court ment is barred to any challenge that moots precedent), application to of challenge the plaintiffs’ share requirement. we While to first trimes the ASTCA to has not acted that the State concern similarly not is moot. While abortions ter regula- longer statute apparently remove or amend the no requirement is the tions, authority by provid we applied which the “occasional” abortion know of no we er, it is maintain that the State continues do The most we could require it to so. can pro apply the ASTCA to abortion us, free to request of is to do, plaintiffs and all practice “primarily devoted whose viders Federal courts enjoin their enforcement. performing surgery, if that “sur even to” not, rule, which has enjoin conduct do as exclusively of first trimester gery” consists prospect real with no discontinued been is in the situation fac This fact abortions. Accordingly, the repeated. that will be plaintiffs, named Dr. ing at least one the hospital- challenge to second trimester the Ragsdale. dis- requirement should have been ization Additionally, regarding the evidence the portion vacate the missed. Therefore we the suspension/revocation sanction in MPA it. pertains that injunction the was, noted, A ambiguous. we have merely representative Department B. any complaint regarding this testified that the provision by would be “examined Gen- However, not believe that the we do for determination of eral Counsel’s office requirement of challenge reporting there would be enforcement whether Al regulations is moot. the ASTCA and He pursuant taken to that section.” action re though that this defendants testified additionally “to best of testified that the longer being enforced in quirement is no knowledge” Department the [his] F.Supp. 464 Carey, light of Charles While we admit not enforce the section. (N.D.Ill.1983), have reviewed that deci we Depart- anomalous that it would be anything in it which and cannot find sion position ment to take the that “occasional” remotely supports the conclusion that providers but need not be licensed challenge here was en requirement under such could performance abortions only reporting requirement ad joined. The subject of their physicians revocation 11(d) section dressed that decision was medicine, Depart- practice licenses to Act, required of the Illinois Abortion sufficiently murky position ment’s Department of the reporting to the severe, sufficiently that we the sanctions having any patient diagnosed as name of regarding controversy a live exists believe complications from abortion. The more not requirement. Doctors should have this differ general requirements quite professional here are risk loss their licеnses explore the of the asserted non- representations of non-en contours ent. Unlike its position. sections, enforcement forcement of the other State produced pre-existing no documentation Ill the district court’s policy. We share merits,6 position on the State’s this must consider wheth- concern On the we statutory litigation. requirements of only in er the provision is asserted merits, likelihood pub- of success on appeal, of the defendants and ami- 6. On various lic proper- interest. We confine our ci contend that the district court did discussion to the merits, is, likelihood of ly weigh are nor- success on the various the factors which governing legal mally preliminary issuing relationship standards considered in in- and their to the facts First, junction. presentation found below We note that the for two related reasons. balancing exclusively typi- case below focused almost constitutionality factors is cally statutory reviewed on vel an "abuse of non scheme discretion stan- abuse, second, dard” and we see no find component parts. However, we or its the district insufficient merit to of the defendants* or the thorough court undertook a examination of the amicus’ belated assertions this or that factor governing granting traditional factors pre- the of given weight was i.e., insufficient to relief, add to al- liminary adequate the lack of an rem- ready lengthy opinion. law, harm, edy harms, irreparable at balance of

1367 right pri- hospital scheme violate must be a regulatory may the be a clinic or (and abortion) vacy in place as Roe some less-than-hospital established other Wade, 113, 705, 710, status; licensing v. 410 U.S. 93 35 S.Ct. as of the facility; (1973), progeny. L.Ed.2d 147 and its In and the like.

Roe, the set Court first out the now famil- means, hand, that, This on the ‍‌‌​‌‌‌‌‌​​‌​‌‌‌​​​‌​‌​​​​‌‌‌‌‌‌‌​​‌‌‌‌​​‌​‌​‌‌​​‍other approach: iar “trimester” for the period pregnancy prior to this

(a) stage prior approximate- For “compelling” point, the attending the physi- trimester, cian, ly the end of the first in the patient, consultation with his determine, abortion decision and its effectuation free to regulation by without judgment State, that, must be left to the medical the in judgment, his medical pregnant attending the physi- patient’s woman’s pregnancy should be termi- reached, cian. nated. If that decision is judgment may be (b) by effectuated an stage subsequent For the abor- ap- tion by free interference the State. proximately the end of the first trimes- ter, State, promoting in in interest 163, Id. at 93 S.Ct. at 731-32. mother, may, the health of if it choos- es, regulate procedure the abortion in Roe, Court, along Since with the low ways reasonably that are related to ma- courts, er federal on numerous has occa ternal health. sions clarified constitutional standards (c) stage For the subsequent to viabili- apply which aimed at both ty, promoting the State in in its interest first and second trimester abortions. Few potentiality may, of human life if it on first trimester abortions restrictions chooses, regulate, proscribe and even upheld. example, have been For the Court except necessary, abortion where in upheld requirement that all abortions be appropriate judgment, for the performed by physician. a licensed Con preservation of the life or health of the Menillo, 9, necticut 423 v. U.S. 96 S.Ct. mother. 170, (1975) curiam). 46 (per L.Ed.2d 152 requirement, apart being This en 164-65, at 732. 410 U.S. at 93 S.Ct. Roe, upheld dorsed in dictum be cause State retains an interest in en “the elaborating approach, In on this suring validity assump of Roe’s factual Court noted that the State’s interest first tion that trimester abortion as ‘the [is] compelling: health mother becomes safe for a as normal at woman childbirth light present medical knowl- term,’ assumption that ‘holds true edge, at approximately ... the end of the medically if by the abortion is first trimester. This is so because competent personnel under in conditions fact, now-established medical ... suring safety maximum of the wom ” the end of until the first trimester mor- Repro an.’ Akron v. Akron Center for tality in abortion than Health, Inc., 416, less mor- n. ductive 462 U.S. 430 tality in normal childbirth. It 2481, follows 103 2492 n. 76 S.Ct. L.Ed.2d that, from and after this point, a State Menillo, (quoting U.S. may regulate the procedure 171). S.Ct. at regulation the extent that the reasonably preservation protection

relates to the Likewise, upheld the Court a state-re Examples maternal permis- health. quired pathology examination which re regulation sible state quired abortion, this area are by tissues removed like all requirements qualifications as to the tissues, removed to be examined person perform who is to pathologist. abor- Planned Parenthood Associ tion; as to the person; licensure ation, of that Ashcroft, Inc. U.S. to the facility 2517, 76 (1983). S.Ct. L.Ed.2d 733 This was performed, is, is to be whether it because such an examination was con- 1368 necessary” important objectives”); state health Ash- “absolutely from

sidered “ at 103 S.Ct. at 2523 standpoint croft, 462 U.S. and ‘abnormalities medical serious, possibly (pathology requirement upheld examination may the tissue warn ” 487-89, “absolutely necessary” at 103 from a S.Ct. because fatal disorders.’ Id. Court, Additionally, According standpoint). cer- medical it is at to 2523-24. transcript from a regulations of even first trimester clear review the tain “ significant impact experts ‘have no when the below testified that a abortions right “medically requirement exercise of her not neces- on the woman’s was [to may permissible sary,” they by have an be meant that term that it had abortion] by important safety state health justified relationship no real to or health. where ” 489-90, 103 at objectives.’ See, (testimony S.Ct. I e.g., Id. at R. Vol. at 112 of Dr. Akron, 430, 103 (quoting (certain 462 U.S. at provisions medically 2524 Ragsdale) not Court)). (alterations by the S.Ct. at 2492-93 necessary “any rela- because without real tionship particular circumstances” of clearly quoted language indi abortions). performing physician Accord- that, first trimester abortions cates where ing testimony, the minimum size involved, impact only not must rooms, pro- requirements for examination regulation insignificant challenged rooms, rooms, recovery cedure corridors exercise of her in terms of the woman’s doors, example, only not were not right, regulation but also that the must be “medically necessary,” do but not enhance “justified by important objec state health safety the abortion “in our This is consistent with own tives.” way” “any or did not have regu once such case law to the effect that (testimo- justification.” I R. Vol. at 263-72 to have more than a de lations are shown Hern); ny I of Dr. see also R. Vol. at 154 decision, impact on the abortion minimus Ragsdale) (large of Dr. (testimony proce- compelling government must show only medically unnecessary dure room “not law, i.e., is basis that the burden medically poor”). The but district court unjustifiable. not undue Charles found, record, support from with full (7th Cir.1980) Carey, F.2d 777 627 plant physical requirements that the of the remand, (Charles I), F.Supp. on 464 regulations required ASTCs to be “the (N.D.Ill.1983).7 equivalent hospitals,” functional small Appellants contend that the district F.Supp. require- at that these application necessity” of a “medical court’s “may medically ments detrimental.” Id. First, disagree. standard error. We at 1230 n. 23. necessity” a “medical stan- we believe that dard, question at least as the term was used in the We note as well that the below, testimony entirely requirements all is consonant with whether some or applied regulations regulations standards to be the statute and could be consti regarding applied early trimester tutionally first abortions. See second trimester Akron, one, at 2492- 462 U.S. 103 S.Ct. at abortions is more nettlesome but it is (such by “justified question restrictions must be which we need not decide.8 The Appellants suggest inquiry 7. make much of the fact that that the second was unneces- parts sary, appellants’ pur- district court connected the two reliance it for that pose misplaced. dictum "and” "that Charles I rather than is is,” claiming applied that the district court thus regulations improper may standard. See 625 8. A number of the involved F.2d at pass stringent This claim is meritless. Charles I in fact reit- well muster under the less stan- applied regulation Supreme erated the standard enunciated dard of review to state Court, justify regulation that the state must second trimester abortions. That standard al- compelling regulate with a interest and show that the lows the state to second trimester abor- only regulation regulation narrowly express drawn tions the extent that the "reason- Scrutiny ably preservation protection that interest. See F.2d at 776-78. relates to the health,” (1) always "adopt questions: abor- of such laws involves two of maternal but is, important accepted depart how (2) the asserted state interest tion medi- Akron, 430-31, regulation practice." how well the drawn to achieve 462 U.S. at cal experts hear- that interest. Charles I did not intend S.Ct. 2493. The who testified at

1369 distinguish regulations marily surgery, statute and do not devoted to we must review Indeed, written, them under a different the two. due standard between than if they singled had out (now unenforced) abortions. We dis- to the second trimester agree. Defendants have cited us to no hospitalization requirement, they originally cases, none, and we have found which applied only to first trimester abortions. justify fact, such a distinction. In cases, Accordingly, in as we have we Friendship dictum, suggests, albeit ex- apply legal applicable standards to re actly opposite. 1153-54; 505 F.2d at strictions on first trimester abortions. See Centers, see also Birth Control Inc. v. I, 782; Friendship Charles 627 F.2d at Reizen, 352, (6th Cir.1984) 743 F.2d 361-62 Center, Chicago Medical Ltd. v. Board of (applying scrutiny strict notwithstanding Health, 1141, (7th Cir.1974), F.2d 1149 505 general applicability regulations). denied, cert. 997, 1438, 420 U.S. 43 S.Ct. Friend- We adhere to the statement (1975). simply are L.Ed.2d 680 We not at ship First, for several reasons. we cannot liberty “except to insert the words ignore the fact that the ASTCA was enact- regard to first trimester abortions” into primarily ed with abortion clinics in mind regulations. the statute or the either To only applied outpatient surgical clin- in a do so would result scheme with little generally ics in an effort to save the stat- resemblance to that enacted the Illinois See Pf. Ex. ute unconstitutionality. from legislature Department or the of Public (minutes 22-24 Licensing of ASTC Board Thornburgh See v. American Health. meetings). cannot, Secondly, the State Obstetricians, College 747, 476 U.S. merely by applying expedient and con- 2169, 2181, (1986). S.Ct. 90 L.Ed.2d 779 clusory “surgery” proce- label to a medical that, suggest dure, Defendants because requirements apply which would be regulations apply pri- to all necessary major surgical procedures facilities ing many requirements relationship performance described of the early as "con- little to safe accepted practice.” sistent with medical While second trimester abortions as well as first tri- true, found, it is as the district court that "[t]his mester abortions. This should come as little equivalent showing is not sity,” to a of medical neces- surprise, procedures since the medical utilized showing required regula- such a is not quite are similar if not identical. We remind apply only tions which to the second trimester. Supreme the State of the Court’s admonition in Supreme We note that the Court stated in Roe Akron that: that the state’s interest in maternal health dur- appears during por- it [I]f a substantial ing the second trimester extends to “the regula- tion of the second trimester the State's performed, in which the is to be ”depart[s] accepted prac- tion tice,” from is, hospital may whether it must be a be a 2493, S.Ct.], supra regulation [103 place less-than-hospital clinic of some other may upheld simply may not be because it status; licensing facility; as to the and the like.” remaining portion reasonable for the 163, Further, 410 U.S. at 93 S.Ct. at 732. Rather, obligated trimester. the State is Simopoulos Virginia, 462 U.S. S.Ct. mаke a reasonable effort to limit the effect of (1983), rejected 76 L.Ed.2d 755 the Court regulations period its in the trimester conviction, upholding an attack on a criminal against during which its health interest will be fur- charge invalidity of facial a statute thered. requiring all second trimester abortions to be 462 U.S. at S.Ct. at performed “hospital,” in a where that term was Thus, approach while the trimester remains defined include facilities which were not full- Thus, fledged hospitals. appears applicable legal weighing acute care framework for licensing perform- least some competing cision, that at of facilities interests involved in the abortion de- ing permis- second trimester abortions would be necessarily it does not follow all However, sible. we caution that the Court in regulations keyed state of abortion which are Simopoulos specifically noted that "[w]e need Instead, it are reasonable. the state should en- Virginia’s regulations not consider whether are regulations designed deavor to draw to fur- every particular_ [Appel- constitutional medically ther maternal health in relevant being lant has not attacked them as insufficient- (for example, requirements terms certain of the ly protecting related to the State's interest in of the statute involved here well make Also, health.” Id. at Simopoulos, 103 S.Ct. at 2539. sense for late second trimester abortions which case, present unlike the involved a anesthetic, general under a but performed using second late trimester abortion simple not for "dilation and evaculation” abor- saline instillation method. trimester). performed early tions in the second testimony Much of the below was to the effect requirements that the bore they location that could be for lack of a suitable context where would be the abortion comply It a vice with them.9 Addition- wholly inappropriate. is as much renovated pro- regu- similarly found that the ally, to dissimilar the district court to treat abortion plaintiff differently prevented from individual Moe it is to treat it lations cedures as case, at her analogous offering In either im- abortion services clinic procedures. requirements compliance prohibi- position of burdensome the cost of because completely unnecessary perform- findings say are these are tive. We cannot attempted. A of safe abortions is clearly ance erroneous. problem the prime example of this is fact Ragsdale testified that he esti Dr. require- physical plant many of the regulations compliance with the mated regulations designed of ments per-patient a cost of would entail between general under procedures to be point While the defendants $40.10 $25 mind, although testimony in anesthesia out, great is correctly, that this not a deal clearly that first in this established case pathology than the cost of the exami more early second trimester abortions they upheld Ashcroft, seem to nation usually per- are not type at issue here import missed the of that case. The have that, using formed such anesthesia impact did not that the was so Court hold fact, general anesthetic in- of a use required was not small that state major compli- risk of death and creases the that, justify merely during held at all. It procedures. such cations from trimester, requirements even the first hav enunciated above in With the standards insignificant impact on ing an the abortion

mind, to evaluation of the we now turn justi decision were constitutional “where challenged constitutionality statutes of the by important objectives.” health fied State regulations. Thus, here, at issue greater impact than that in have financial IV Ashcroft, justified by must at least sim ilar A. state interests. Additionally, although per- initially contends that the financial

The State patient compliance might seem their threshold cost of not plaintiffs have not met overwhelming, it not showing impact on the abor is burden an burden reject must this conten which must be considered. The lack of tion decision. We availability reg up- found that the abortions caused tion. district court substantially difficulty obtaining cost a com- issue do burden front ulations at possi- plying facility have least real and of the decision to an at the effectuation bly seeking more Specifically, the lower court burdensome women abortion. Furthermore, regulations raised the cost abortions. there was testi- found that the per psychological abortions, by mony of the burdens which for abortions $25-$40 clinic, and, undergo having more would from an Ragsdale’s at Dr. result formed hospital-like facility they would limit the avail abortion when importantly, that that, regu psychologically comforting setting unless the more ability of abortions just the clinic close doctor’s office would serve as well enjoined, were lations injury satisfy Legal III Life Defense a sufficient both to Article United for 9. The Americans curiae, that, Fund, grant injunctive contends because as amicus to warrant relief. Ragsdale plaintiff Dr. would have individual regardless regu- to relocate his clinic had place emphasis 10. Defendants considerable (due ostensibly to an unrelated business lations allegedly Rags- erroneous admission of Dr. landlord), plaintiffs have of his decision need not dale’s handwritten cost estimates. We injury flowing presented no direct from the decide whether these constituted inadmissible However, challenged government conduct. however, hearsay, Ragsdale because Dr. testified regu- point argument the critical that the misses length, objection, to the sub- without difficult, impossible, if not make lations Therefore, of the estimates. the admis- stance existing practice relocation themselves, if sion of the written estimates er- such, one. we commencement of new As ror, surely harmless. plaintiffs have established little doubt that have argument. 462 at 429 U.S. n. 103 S.Ct. say cannot standpoint. We a medical from 11. The basically at 2492 n. State fact minimus.” these are “de burdens Cf. prevent concedes that it cannot doctors (“direct I, interfer 627 F.2d at 777 Charles performing at least some abortions in de impact is not shown where ence” is offices. re their regulation imposes minimus where exist”). already “that did strictions To the extent that there is basis for Therefore, by impor they justified must be occa- distinguishing between a doctor who objectives. state health tant performs in his sionally an abortion office primarily practice and one whose devoted B. regulations appear procedures, the to such consider of the scheme we The first facet All contrary policy. to sound health to run perform- that facilities requirement expert testimony is the in the record is in licensed at ing abortions be per- first trimester agreement physician who particularly may not seem a this many general all. While in will have forms abortions Supreme note requirement, we onerous safe- expertise and therefore a better more only that a li- suggests precedent regulate attempt Court to ty record. The State’s in may permissible censing requirement safer, be physi- experienced, and therefore in The Court stated cians, the second trimester. heavily than the occasional more in maternal the state’s interest appears, Roe that the dis- provider thus extends during the second trimester noted, health lack a reasonable trict court even procedure is to facility in which the to “the basis. is, must a whether it be performed, that

be upheld a We realize that the Sixth Circuit may clinic of some other hospital or be a licensing in general requirement similar status; less-than-hospital as to the place of so, However, doing the court Reizen. like.” 410 licensing facility; and the of the challengе on the not address a based did contrast, By at 732. at 93 S.Ct. U.S. abortion, right rather but constitutional during the first tri- stated that the Court challenge upon Equal Protection based attending physician, in consul- “the mester physician’s right practice. Accord- the determine, patient, is free to his tation with applied highly deferential ingly, the court State, that, by in his regulation the without of review. 743 “rational basis” standard patient’s pregnancy judgment, the held, already F.2d at 358-59. As we have If decision is terminated. should be appropri- review is not such a standard of reached, may effectuated judgment the be the Additionally, none of ate in this case. by by an abortion interference free from type above was evidence of the mentioned added). (emphasis Id. the State.” There, the present in Reizen. apparently private physician quot district court found that realize that the last While we over likely more to have direct control qualified by the was statement has been ed (that is, the absence procedures, but that subsequent decisions staff Court “clin- might characterize a a of this control “interference” does not have where case. findings are absent this impact important ic.” Such significant and furthers concerns), be we nonetheless health state language plain Purely as a matter Thus, force here. we it retains lieve scheme, statutory regulatory in this case that the State persuaded falls, licensing requirement once the of facilities require separate licensure not fall with it requirements remainder performing abortions. primarily devoted to (or, inapplicable). The properly, are more requirements are specific substantive persuades us is primary A factor which requirement (leaving unenforced aside the way in no shown that the State has in an in that all abortions must trimester abortions performance of first abortions, se, ASTC) per but reg- applicable to heavily offices rather than physicians’ alternative, how- In the to ASTCs. any way undermines rather ulated ASTCs ever, analyze specific substantive we those operation. further note safety We regulations focused on aspects reject such an itself seems to Akron second test. For possibly conduct a unconstitu- render the scheme trial which I, as in Charles provision same reasons tional as a whole.11 in this is invalid. case C. counseling requirements too The defects. Section abortion-specific subpart from constitutional suffer The 205.730(b)(3) pre attempts prescribe particular is of concern. counseling in of such mandato requirements forth in that cise content Many of set regu all pri- applicable to cases. The contrary ry to either terms subpart clearly seem counseling “shall include lation states that Supreme precedent our own Court alternatives, description of that section a discussion particular, In we note cases. explanation performed, 205.730(a)(2) requires physi apparently complications.” possible also of the risks and perform the abortion to cian who is provision, particularly believe that perform patient test on We pregnancy requirement a “discussion of alterna testing pre had regardless of whether such under the Su physician. tives” is unconstitutional viously done another been recent decision in Thorn preme a similar “same Court’s previously invalidated We College burgh v. American Obstetri an Illinois statute. requirement doctor” cians, I, U.S. 106 S.Ct. F.2d at See Charles is, (1986). requirement “that regulation if in the instant L.Ed.2d requirement specific body given in justi of information be burdensome and less anything, more there, cases, particular irrespective all of the fied than the one we invalidated patient, the performing upon needs of the intrudes only that the required which pregnant physi true of the woman’s patient the with “a discretion physician provide tеst, imposes thereby rather to the ‘undesired pregnancy of than cian copy” her right. particular provi no real burden at all on the abortion We decide whether do not Requirements may category specifically in of not men which fall this sions the would, alone, standing might provisions relating pass general to include the tioned in the text gov- particular, pathol personnel procedures the and administrative muster. In constitutional ASTCs, by general regula erning calling a writ- ogy required such as those for examination the manual, policies consulting nearly upheld procedures that in ten identical to tions seems committee, requirement organization plan, personnel poli- reporting the does Also Ashcroft. onerous, cies, appear particularly sanitary facility. nor does it of and maintenance a appear Similarly, operative of post-operative raise the fear harass calculated to the care and by by patients raising physicians regulations may accepted the ment be in care accord with public of spectre practice. Ragsdale objected Section 205.760 of disclosure. to medical many Dr. requires report regulations merely each a of requirements "stating the obvi- of these as the However, aware, procedure performed an within ten in ASTC ous.” so far as we are there reports days, made in such a "stating and that such be no bar to the obvious" constitutional at time as not to avoid manner and such so procedures are even where abortion concerned. complications. compli reporting If accurate of abortion-specific regulations, the as Fewer of ASTC, to is re text, cations known it become is evident from our discussion in the fall report. supplemental quired to Sec However, submit a testimony category. there was 205.620, non-abortion-specific reporting tion a qualification require- below counselor requires reporting requirement, merely of the 205.730(b)(2) ments of section were consistent type performed, procedures number and Additionally, accepted practice. complications reported, type number and (1) merely regulation subsection requires, of the same hospi patients requiring number of tals, transfer to terms, general counseling that some returning patients fol the number of for given prior performance abor- be of an low-up, re and the number deaths. These (and separate tion occur in room appear quirements be consistent with room). infra, As noted in the text Association, Dan Inc. v. Planned Parenthood counseling requirements aspects other 52, 2831, 2846-47, 79-81, forth, 428 U.S. 96 S.Ct. Also, suffer defects. section from constitutional (1976). requirements are 49 L.Ed.2d 788 merely provides be 205.710 that “Abortions shall previous considerably stringent those less than public provided to the with the same standards particular, ly enjoined. In the name of the effectiveness, regard patients safety of rights way patient required is in no disclosed any health service." as other the State. course, we not and do not decide the Of need require- constitutionality Additionally, general other ultimate number though requirements they place seem ments mentioned above. as ” medicine, straitjaeket’ the state relies on physician’s uncomfortable Id. 106 S.Ct. at 2179 rejected. professional obligations Court has ethical pre- (quoting Planned Parenthood Associa- clouding vent his “financial interest” from tion, 52, 8, Danforth, Inc. v. 428 U.S. 67 n. perspective his pa- to the detriment of his 788). 96 S.Ct. 2840 n. 49 L.Ed.2d may merely tient. It not do otherwise be- requirements reg- The informational cause an abortion decision is involved. See certainly ulation are not as intrusive or as Bolton, Doe v. 179, 197-200, 410 U.S. specific previously by as those stricken 739, 750-51, (1973). S.Ct. 35 L.Ed.2d 201 Court, they just but as inflexible. Dr. Doe, In require- the Court struck down Ragsdale some of the tеstified below that approved ments that an by abortion be information, particularly the “discussion of hospital by committee and two might appropriate alternatives” not be physicians independent of the wom- patients. agree pa- some We “for consulting because, in- physician an’s own life-threatening pregnancy, tient with a alia, ter requiredsuch the state additional very ‘information’ rendition approval voluntary for “no other medical or ” physi- cruel as well destructive of surgical procedure.... According to the Thornburgh, Court: cian-patient relationship.” that, 106 S.Ct. at 2180. We bear mind physician State, If a is licensed he least, during the second trimester at “the recognized by capable the State as validity require- informed consent exercising acceptable judgment. clinical ment ... rests on the State’s interest this, professional If he fails in censure protecting pregnant the health of the wom- deprivation of his license are avail- Akron, an.” Id. at 2179 (quoting 462 U.S. Required acquiescence able remedies. 2499). at at in this S.Ct. Viewed by co-practitioners has no rational con- light, provision may, at issue here like patient’s nection unduly with a needs and Thornburgh, “require[ that in the dissem- ] infringes right physician’s prac- on the ination of information that is not relevant tice. consent, thus, to such it advances no Id. 93 S.Ct. at 751. Id. at 2180. legitimate state interest.” principles equally We believe those are aspect counseling Another of the applicable Accordingly, here. we hold that requirements troubling. is Section 205.- requirement counseling the that be con- 730(b)(2)(D)requires that “counselors shall ducted one who has no “financial inter- patient’s have no financial interest patient’s in est” the decision is unconstitu- impossible decision.” We find it to read tional. provision this in way such a that it does not, cases, preclude at least in some the

performing physician providing from the D. This, believe, counseling. we fundamen requirements applicable Of the tally emphasis placed at odds with the generally, physical plant equip ASTCs the by Roe patient-physician relationship the staffing requirements, particu ment in progeny. desiring and its The woman an lar, totally unjustified seem from a medical abortion, cases, according to those is to standpoint. regarding many testimony The reach that decision consultation with plant physical requirements of the makes Roe, responsible physician.” “her 410 U.S. they justifica clear that have “no medical 727; Akron, at 93 S.Ct. at 462 U.S. cf. applied tion to first and whatsoever” when (striking at 103 S.Ct. at 2502 down a early second trimester abortions of the requirement attending physician, that type involved in this case. must professionals, pro rather than other According testimony, requisite counseling). to the the minimum vide The state rooms, preclude requirements size for dialogue, cannot that examination demand rooms, rooms, recovery cor- party merely procedure that others be a to it because physician only has a “financial interest” in and doors not are not “medical- ridors In ly necessary,” the woman’s decision. all other areas of but do not enhance the safe- for the need as to expert testified tectural way” any “in ty of the This witness requirements. justifica- ventilation “any medical have not do sizes, al- room regarding Dr. similarly (testimony testified I 263-72 at R.Yol. tion.” requirements (testimony that stated though I. he Hern); at also R.Vol. see involving procedures room (large procedure drafted Ragsdale) were Dr. point, medi- mind. At one unnecessary but medically anesthesia general “not physician require- on the relies agree that he cally poor”). We testified he first and what performing facility to determine that ASTCs operating ments abortion(s) “the Dept, be at Linder early medically required. second trimester hospitals” of small equivalent functional staffing structural, equipment, The by “important justified sufficiently are not quite are regulations requirements sustained. objectives” to state health Reizen. See to those invalidated similar require- ventilation Additionally, re- They bear a also 364-65. F.2d at require which regulations, ‍‌‌​‌‌‌‌‌​​‌​‌‌‌​​​‌​‌​​​​‌‌‌‌‌‌‌​​‌‌‌‌​​‌​‌​‌‌​​‍ments abortion-spe- resemblance markable relationships between pressure specific air Friendship. invalidated scheme we cific are change ratios specific air rooms indicated in Reizen evidence While the early first and safety of unrelated considerably increase cost per-patient purpose The abortions. trimester second (Friendship case that in this than greater infection prevent is to requirements of such esti- cost particularized not did consider of the medical All bacteria. from airborne here, there, as mates), defendants’, testified including experts, up-front required considerable have rele- simply is not bacteria that airborne noted Also, have as we expenditures. involved procedures vant to cost is not above, financial per-patient not involve do procedures case, because little have trou- We only relevant burden. the ef- testimony to sole an incision. requirements, these concluding that ble might advis- requirements such fect that are a substantial burden impose which architectural the State’s able came un- objectives, by health justified believed apparently who expert, constitutional. scarcely be It can required. incision any ex- lacks a witness that such doubted E. opinion form an him to to enable pertise “certifi justification the medical also believe regarding We requirement of requirement.12 proceeding particular cate of need” Planning isAct uncon Facilities the Health the defend- perhaps, importantly, More only interest stitutional. all of evidence failed to adduce ants keep is the desire articulated has State physical justification “cost-plus” disburse under the down costs Although the defend- requirements. plant time used was at one which method ment ex- plaintiffs’ that appeal on protest ants care health making certain in by the State to the lack medical as testified who perts Apart from the for residents. payments con- building and not were justification longer be exists no this interest fact that is relevant test experts, struction of this use discontinued has the State cause by “justified are the standards whether made such method, has never State It objectives.” health state important Furthermore, the abortions. payments can experts that medical clear to us seems in compelling to be cannot said standard, interest testimony relevant offer some may have a state While event. with- those whether questionable it is duplication wasteful preventing interest As we can. background care out a health way give must resources, interest archi- above, only defendants’ noted have procedures at issue Barton, experience relevant expert, Dr. Defendants’ medical case, properly accorded district court performing first experience in this significant lacked per- weight. similar- testimony Defendants he did little Those his abortions. trimester general heavily this court. rely under generally on it ly not do form were setting. lack Due to his hospital in a anesthetic

1375 Smith, Scheinberg (quoting rights 1545 659 of constitutional the exercise where 476, (5th Cir.1981)). Here, uncon- Certainly it would be F.2d where is concerned. any- require for a state to dealing licensing stitutional with a we are scheme and desiring publish newspaper demon- one provision separate licensure is itself publication, though it “need” for the strate invalid, can none of the other scarcely gainsaid that at least some can given provisions “be effect without the in- duplication. Where few involve wasteful provisions,” licensing provi- but the valid rights is con- the exercise of constitutional certainly integral part” sion is “an cerned, government may play no role Additionally, scheme as a whole. in nei- determining for their exer- whether outlets ther Zbaraz nor Charles I was the scheme are “needed.” cise already exceptions resulting so riddled with unconstitutionality of the “certifi- judicial from decisions and non-enforce- applied proceedings of need” policies unintelligible. cate ment as to be In perform that wish to abortions circumstances, ASTCs simply such we “cannot un- by the failure of the State to exacerbated tangle constitutional from the unconsti- becoming essen- prevent process from Mahoning Wom- provisions_” tutional tially public veto of the ASTCs’ existence. Hunter, 456, en’s Center v. 610 F.2d above, proceedings attend- As we noted grounds, vacated on other (6th Cir.1979), plaintiff physician ed individual 100 S.Ct. 65 L.Ed.2d U.S. degenerate shouting into a allowed to (1980). abortion foes and advocates match between written, originally As the statute and unwillingness of free choice. State’s coherent, regulations represented at least a proceedings inability to confine the to its unconstitutional, regulated if whole which legitimate goals arguably bolsters our even aspects practice all of abortion in Illinois. requirement cannot conclusion However, judicial as a result of various justified by any stand because it is not decisions, change and the defendants’ legitimate interest. State them, policies response enforcement long the scheme has since lost that coher- V regulations as ence. The statute and writ- above, While, as have noted we very way ten little resemblance to the bear there well be facets of the statute and they currently enforced. As clear individually pass which would opinion, portions of our we have at muster, supra constitutional nn. 8 & we difficulty times encountered considerable are constrained to affirm the district discerning just in Illinois what law is. injunction of the scheme as a whole. court’s Yet, expects physicians, pain the State Defendants, citing Haritgan, Zbaraz v. including professional (possibly censure 1532, 1545(7th Cir.1985), aff’d, F.2d — licenses) $10,000 day and a loss of their 479, 98 U.S. —, (1987) 108 S.Ct. L.Ed.2d 478 fine, to divine the contours of the rules I, 627 Charles F.2d urge spe that we they operate. under which must cifically analyze provision each and sever circumstances, fully we Under these portions those which are unconstitutional. agree with the Sixth decision Circuit’s However, in neither Zbaraz nor I Charles There, in in- Mahoning Women’s Center. comprehensive were we confronted with a validating, entirety, local ordinance its a applied depend which either or not scheme required equivalent “the of that functional ing licensing requirement on whether a abortions, hospital” first trimester Zbaraz, stand. In could we noted that situation, not the court held this we do “[i]n severability applies only “any provisions be served purpose believe a useful given can the which effect without inval provi- attempting the minor by to rewrite provisions,” id and that im “severance is in order to make sions of the ordinance proper provision if is the unconstitutional We 610 F.2d at 461. integral part statutory them constitutional.” ‘an of the enact ” agree entirety.’ ment viewed in its 763 F.2d at could not more. unconstitu of Act it deemed provisions the exception of the the Accordingly with constitutional. that were from those regarding the sec- tional injunction of the portion the AST- down Thus, majority strikes the requirement, hospitalization trimester ond [statutory] that “the baldly asserts preliminary and the CA As is Vacated Moot, which lost ... coherence.” long since has scheme is injunction decision, majority’s Unfortunately, it is the Affirmed. scheme, legislative Illinois than the rather that I convinced am that lacks coherence.1 dissenting. Judge, COFFEY, Circuit progeny that the individ Roe and under Supreme ago the and A decade one-half that authority to ensure the have ual states right person “that the Court announced including first-tri procedures, surgical all decision, the abortion privacy includes al abortions, performed “under are mester unqualified and right is not but that safety for insuring maximum conditions important state against must considered Menillo, 423 v. the woman.” Connecticut Wade, 410 Roe regulation.” interests 170, 171,46 L.Ed.2d 9,11, 96 S.Ct. U.S. 35 L.Ed.2d 113, 154, 93 S.Ct. U.S. curiam). Certainly have states (1975) (per pro guise Today, under the (1973). duty, to authority, if not the power the privacy constitutional the tecting woman’s licensing abor standards to apply the same the State holds that majority rights, the applied to facilities those facilities as tion scheme, statutory health services Illinois’ I surgical procedures.2 performing similar regulate the ever- attempt to in an enacted contrary. of no know law care without of medical escalating costs Moreover, majority ignores decision the safety, health sacrificing its citizens’ con- historical legislative intent the some the now Specifically, unconstitutional. challenged the enactment, majority text of the enactment the after its years 16(1) the Medical provisions: Surgical Treat section Ambulatory the declares “MPA”), (the Ill.Rev.Stat. Act Practice Act, 157- Ill.Rev.Stat. II ment Center IIIV2 Surgical Treat- 4433(1); Ambulatory or the I (the “ASTC seq. “ASTCA” 8.1 et Act, 157- Ill.Rev.Stat. llUA HI ment Center promulgated regulations Act”) promul- regulations 8.1, seq., unconstitutional, holding et thereunder thereunder; Illinois Health and the gated of facil require licensure may not the State Act, Planning lllVk Ill.Rev.Stat. Facilities performing semi- primarily ities devoted II1151, seq., particularly II1155-1160. including et (minor) surgery, complicated legisla- Illinois that the Research reveals an alternative As first-trimester abortions. intending 16(1)of the MPA3 enacted ture and carves majority § chooses approach, the only performance abortions among to limit few ASTC out a select ambulatory treatment validity, and to licensed others, discusses their various centers, hospitals, or similar facilities regula those to invalidate proceeds then requiring licen- by expressed such intention apply to ASTC Act tory of the sections or Illinois, “any facility in which medical sure facilities first-trimester abortion is utilized to terminate surgical procedure unable to sever those it was stating demonstrated, significant infra, most holding confusing. 2. As majority’s precise 1.The abor- undisputed tion, record is that an hand, fact majority the dis- affirms On one it is regardless of the trimester only injunction which preliminary trict court’s surgical procedure, performed, is considered regulating ASTCs to enjoined Illinois from accompanied surgical procedure, a minor albeit performing were abor- those facilities extent medical, phys- by frequently concomitant all too hand, majority appar- On the other tions. ical, complications. psychological MPA, 16(1) of the ently § strikes down not well, stating it IHFPA as but ASTCAand 16(1) majority, MPA by § noted 3. As "untangle constitutional from could unconstitutional," suspension li- for revocation "allows spe- asserts that further performs an physician who ''elective cense reg- aspects of the statutes and any place cific than a licensed substantive abortion' (ASTC), Ambulatory Surgical and "render Center Treatment unconstitutional ulations facility the state hospital, run as a whole." or scheme unconstitutional added.) (Emphasis governments.” federal proce- (surgical) simply because abortion fa- the irrespective of whether pregnancy, majority’s The involved. dures purpose,” this primarily cility is devoted to holding ultimately protects 11157-8.3(A)).4 misdirected ASTCA, (definitions section— pro- interests of abortion the financial only purpose However, primary legislature’s the viders, Ragsdale, than fol- Dr. rather like Ambulatory Surgical enacting the limited man- lowing Supreme Court’s the Act regulate to Center Treatment pa- protecting at the Roe aimed date rapidly devel- safeguards for the рrescribe If the ma- rights. we allow privacy tient’s ambulatory cost-effective oping trend of stand, surgeons, as “reasoning” to jority’s majority services. surgical medical operators whose facili- as other ASTC well pur- disregards primary unfortunately this perform- to primarily the ties are devoted impetus for the provided the pose which abortions, oper- to will be allowed ance of through mere ASTCA and enactment of the regulation while ASTCs those ate without solely that the ASTCA speculation holds of minor performing types other primarily Further, in its deter- an abortion statute. regulated procedures will remain duly enacted away to do with the mination merely decision (assuming majority’s the dis- majority completely legislation, the preliminary in- district court’s affirms the severability clauses regards statute’s having facilities junction). Thus treated exist, stating could not they if didn’t primarily to abortions differently devoted from the un- “untangle the constitutional primarily devoted to from those facilities give to thus refuses constitutional” majority surgical procedures, Rather than challenged acts.5 effect to the exception” to the out an “abortionist carves true intent recognize and effectuate reasonably reg- can general rule that states en- of the acts and legitimate purpose provided to medical services are ulate how might im- provisions join those Ultimately, majority its citizens. right to termi- woman’s limited pinge on a legal for the non- creates a vehicle effect MPA, (§ 16(1) of the its pregnancy nate her performing other primarily abortionists 11157-8.3(A) and companion clause challenge the AST- surgical procedures regula- 205.730(b)(2)(D) of the ASTCA § grounds; for what equal protection CA on tions), over-expansive lan- majority, regulating ambula- basis exists rational declares, not believe guage, do “‘[W]e differently than those tory surgical centers by at- served purpose would be useful facilities, enter- Ragsdale’s like minor tempting provisions rewrite primarily to termination prise, devoted statutes and this case the ordinance [in pregnancies? them consti- regulations] in order to make ” court, im- holding, majority reviewing contrary In so tutional.’ The task of a is, course, for that judgment reasoning, its “of properly majority's substitutes to the the statute legislature which the issue constitutional of the enacted ... to resolve safety measurement, predilec- for the free of emotion its concern because of Wade, end, tion.” Roe v. majority decision U.S. citizens. In Supreme aside) (or the state’s at 709. Consistent severely casts S.Ct. limits directive, neither our decision must schemes ability implement cost-effective Court senti- nor pro choice anti-abortion developing and mod- reflect regulate rapidly issue, spe- legislation at ment. The Illinois services providing ern methods ambulatory without charged in an condition provides: 4. 157-8.3 1f being danger continued well "(A) 'Ambulatory surgical treatment center’ hospital.” institution, to a building patients or be transferred place de- shall or means oper- highlight includ- primarily (Emphasis clause voted maintenance added performance availability sur- restricting of an ation facilities for ed in the ASTCA abortion.) any facility gical procedures in which a surgical procedure is medical terminate utilized ASTCA, MPA, irrespective pregnancy, whether severability clauses 5. primarily pur- facility to this is devoted respectively at 111 are found and the IHFPA provide beds or pose. shall not Such ¶4458, Ill.Rev.Stat. Ill.Rev.Stat. 1111/- stay overnight for the other accommodations 157-8.15, Ill.Rev.Stat. and UVA ¶ H patients be dis- patients. shall Individual 1378 nor right pregnancy, to terminate her the ASTCA, fundamentally dif-

cifically is the regulate right rationally to modem state’s Illinois abortion-related ferent from reflective, protection of its medical services for the thorough, legislation and merits Thus, I adversely affected. citizens is enjoin I separate consideration. would and order en- the district court’s would reverse 16(1) sever and further of the MPA and § laws, except 157~8.3(A) ¶ joining Illinois’ health services in enjoin companion clause its 16(1) enjoined of the “any to the extent requiring licensure of § of the ASTCA Act, companion surgical pro- its clause Medical Practice facility in a medical ASTCA, ¶ 157-8.3(A) pregnancy, the to terminate cedure utilized regula- 205.730(b)(2)(D) is devot- the ASTCA irrespective of whether § these primarily purpose” to this because ed tions. per-

provisions prevent physician I in his or forming a first-trimester progeny this and its her office. Under Roe properly notes that majority The decision considered may very well be prohibition “statutory regulatory scheme that the I am convinced unconstitutional. complex,” proceeds then somewhat but Illinois, regu- states, are free to including challenged acts and further confuse centers, ambulatory surgical treatment late completely interrelationships, dis- their abortions, performing including those regarding regarding legislature’s intent singled out from long are not as abortions legisla- The record of the the various acts. other, subject surgical procedures, similar 16(1) history tive reveals § rational basis test to the well-known MPA, 4433(1), 111 Ill.Rev.Stat. § legislation. governing and economic social Ambulatory Surgical Act Treatment Center test the ASTCA the rational basis Under ¶¶ (ASTCA), 157-8.1, et 111% Ill.Rev.Stat. IHFPA are constitutional. Consistent initially companion seq., were bills analysis, I further evaluate the with this comprehensive Illinois Abortion Act initial sections remaining abortion-specific statute ¶¶ 81-11, (IAA), seq.8 38 Ill.Rev.Stat. et thereunder regulations6 promulgated IAA, 16(1) MPA, and the § scrutiny test articulated under the strict (S.B.) 1049, ASTCA, were Bills Senate progeny7 and would hold all Roe and its 1050, 1051, legisla- respectively. The these constitutional because but one of history further reveals that S.B. 1049 tive statutory sections and these related; integrally 1050were their and S.B. nor its the abortion decision neither burden in Illi- purpose regulate abortions effectuation, impor- justified and are with of, comply light attempt and in an nois in mind. objectives health tant with, Supreme Court’s then-recent Roe by majori- “tripartite” legislative decisions. As noted alleged Doe When 16(1) provided for analyzed, ty, neither a woman’s of the MPA scheme is thus § Law, 81-11, example, the ASTCA re- 8.The initial Illinois Abortion et ¶¶ 6. For 157-8.6-1 of f 19, 1973, any corporation operating ASTC quires seq., July effective but was became primarily providing facilities "devoted subsequently repealed by the Abortion Law of physician who is must have a licensed abortion” “actively engaged effective October The Abortion 1979. practice of medicine at challenged Law of has been on more than 1975 Center, as a condi- on the board of directors See, Carey, e.g., one occasion. Charles v. Additionally, subpart G of tion of licensure.” (N.D.Ill.1983), F.Supp. part, revd aff’d 77 of Administrative Code con- Title tains the Illinois grounds, Daley, part 749 F.2d on other (7th Charles regulations. validity abortion-specific Cir.1984), appeal dismissed sub nom. provisions is demonstrat- of all but one of these Charles, S.Ct. Diamond v. 476 U.S. ed, infra. (1986). The initial IAA had a 90 L.Ed.2d 48 completely purpose than the ASTCA different majority challenge that the I concur with the However, majority and IHFPA. confuses hospitalization require- to the second-trimester majority purposes of the ASTCA appears of the IAAfrom that ment effortlessly is moot. It IHFPA, severability applied doing ability utilized and and in so clouds hospi- regulations. clause of the Act to the second-trimester analyze challenged statutes and analytical ability requirement, tal but lost this respect challenged provisions. the other and promote ade- safe knowledge, will of license suspension “revocation in such individuals of treatment quate abor- ‘elective performs who any physician centers.” surgical treatment licensed ambulatory than any plаce in tions’ Center Surgical Treatment Ambulatory Further, 111%, ch. 11157-8.2. Ill.Rev.Stat. by facility run the hospital, (ASTC),a the regulate to intended was ASTCA the Apparent- governments.” or federal state developing ambu rapidly and cost-effective were legislature of the Illinois ly, members services. medical surgical latory outpatient eventually the State that concerned 7,1974, Ambula of the March minutes The abortions cost of for the responsible Licensing Treatment Center Surgical tory toso hospitals, in indigents historical relevant meeting provide Board anticipated abortion the State’s reduce the AST-C of the enactment to relating facts were facilities costs, ASTC less-expensive A:9 locations approved list of included the of a member 1971 ... July “In termi- pregnancy of performance for the board, appointed licensing was hospital time the same theAt procedures. nation to appointed of a committee chairman of regulation debating the legislature was facilities for those formulate coming into just abortions, were ASTCs Con- unlicensable. presently were that Thus, regulated. thus not and existence large number given to a was sideration regula- independent health S.B. actually there were and of classifications ASTCs, regulating creating and tory bill listed.... facilities types of health abortion companion bill the made a was (after draft the final July On bills. drafts) proposed were of standards four assertions, the majority’s the Contrary to Licensing Hospital the submitted 16(1)of the ASTCA, the IAA § unlike member August 16 [a Board.... [0]n for the enacted MPA, primarily was not regula- proposed sent these of the Board] The regulating abortions. of purpose liai- legislation the forward [to tions history reveal legislative record August 1972 [the About son].... Illinois law in became Act the ASTC more get involved began to Board] insuring of express policy the 1973 with became abortions which question of the procedures, medical in all safety maximum target for discussion.” primary the providing: minutes these Board of significance The public the of protection the better “for 1971 a state early as that as lies the fact development, estab- through the health regu- proposed the began preparing agency standards of lishment, enforcement changing needs response to the lations in ambula- of individuals (1) for care Cost-ef- services. practices (2) centers, and surgical treatment tory surgi- ambulatory “[fjree-standing fective op- construction, maintenance for (FASCs) independent enti- are cal centers surgical treatment ambulatory eration in 1970.... opened first advancing ties which which, light of centers, Courts, Posner, p. 279 Federal poses," on the ASTC majority improperly relies 9. The (1985), post-enactment statements legislative in- than rather for the Licensing minutes Board intent, 7, 1974, particularly legislative minutes when regarding act. The March tent of the specif- legis- legislation was written not even made that "the are statements conclude ically those performance of abor- regulation received court The district lators involved. licensing “First, states, basis, majority On this only tions.” we the limited minutes board the ASTCAwas ignore the fact cannot establishing state the Board’s purpose of in mind primarily with clinics enacted procedures. regarding enforcement mind outpatient clinics only applied to However, de- regarding facts historical statute save the generally unconstitutionality.” effort to in an regula- legislation and velopment ASTC Initially point I out material, reliable, relevant are tions reject- properly specifically and court district context understanding the historical minutes request admit the plaintiff’s ed Thus, make I limited enacted. ASTCAwas legis- meeting proof licensing board meeting of the Board to the minutes reference court’s at 616. district Tr. intent. lature’s facts the historical attention to draw court “a evidentiary ruling proper because therein. contained pur- legislature’s enacting should adhere hospital-sponsored free- pendent fill were conceived [Tjhese facilities standing ambulatory surgery programs. and the office gap doctor’s between Freestanding surgical procedures According to the Ambula- hospital for minor Note, (FASA), overnight hospitalization.” tory Surgical Association there requiring Regu- independent free- Emergency approximately Centers: Freestanding centers, Reimbursement, ambulatory surgery standing 11 AmJ.L. & lation and Ac- FASA. 105, (1985).10 “The first success- of which are members Med. 118 FASA, keep- has been surgery cording cen- ambulatory freestanding ful 1974, since Surgicenter], ing on members statistics (FASC), as known ter [well 94,499 Phoenix, ambu- membership performed February 1970 opened in was surgery procedures Gabel, latory Ermann and J. D. Arizona.” percent 6 over the number Care, increase of Health Changing Face American figure can performed in This 1980. Emergency Cen- System, Multi-Hospital ambulatory sur- compared to 3.2 million Centers, 23 Medical ters, Surgery by hospitals gical procedures performed 1985). early as As (May Care 406 offering ambulatory surgery 1980.” observed: one commentator 1976 Develop- view, Burns, Surgery, perhaps Ambulatory L. point of “From a societal Programs, Managing ing and impetus the ambula- greatest behind Successful (1984). Lastly, I observe that pp. 11-12 potential for is its tory surgery concept freestanding ambulatory centers po- This reducing the cost of services. regu- subject to licensure and properly are freestanding and applies to tential both (as majority of medical lation are the vast facilities, major the two hospital-based throughout performing surgeries) facilities By ambulatory surgery. prototypes for country, in Illinois. One not stays, overnight hospital ex- eliminating pointed out writer that: hospital inpa- for services penditures care, account for “a FASC must obtain a state CON which now [Cer- tient health in order to build the total national tificate of percent 40 our about Need] facility. FASCs In states must may reduced di- some expenditure, health Illinois, In also seek accreditation. dramatically, at least on a rectly and regulated by FASCs are licensed and focusing By on reduc- basis. short-term Department of Public Health. In State (accounting for 60 inpatient surgery ing Minnesota, surgical centers covered hospital expenditures and percent of all by licensing They rules. must be staffed percent total health care about surgical proce- equipped to handle ambulatory surgery expenditures), dures, anesthesia, post-surgical costs.” further reduce care.” O’Donovan,Ambulatory Surgical Cen- T. Centers, Note, Emergency Freestanding p. ters, Management, Development and Reimbursement, 11 Am.J. Regulation and (1976). Further, by 1984 ASTC (1985). L. Med. & established: trend was well Obviously Legislature center the Illinois of the Phoenix “The success regarding this information type privy a new to all rapid growth of precipitated ambulatory surgical centers in delivery ambulatory treatment enacted the ASTCA. freestanding, independent, at the time surgery, the it However, stated, legis- I record and that ambulatory surgery center. Since legislature history a mod- lative time, Surgicenter has become reveal fast devel- aware of the new and increasing number of both inde- was well el for an (1981); ry D. Er- regarding America trends in Health Services in Much has been written services, Gabel, including ambulatory Changing ambula- Face Amer- mann and J. generally tory surgical O'Donovan, Care, T. See (May treatment centers. Care 401 ican Health Medical Centers, Surgical Ambulatory Devel- Pavarini, 1985); Setting Up Operating Am- Burns, (1976); Management Am- opment L. bulatory Competitive Environ- Centers in a Care Managing Developing Suc- bulatory Surgery, (1985). ment, 29 St. Louis U.L.J. 747 Roemer, (1984); Programs Ambulato- M. cessful closely thing regulated would be rather outpatient ambulato- oping medical trend inspected.” regulate sought to specifically ry care and debates, state Sena- During the added). it. Senate (Emphasis Another state senator 1051 as fol- S.B. tor Wooten summarized pointed out that: further lows: good is a bill. It’s not related “This bill any way It’s sponsored abortions. of those bills “This is one another Medical There's Association. ways. in all kinds of lines

cuts across nothing wrong ambulatory medical with asked Society Medical The Illinois State services.” in a series presented it be Thus, spec- contrary majority’s 1049 and S.B. mere previous two bills [S.B. assertions, legislative history relating to 1050], changing the law ulative one unequivocally supports the clearly and abortion, changing the Medical the other was not enact- proposition that the ASTCA has a rela- Act. Practices While abortions, regulate but primarily ed abortion, actually goes tionship to semi-compli- regulation of all rather for pro- It beyond that. much [S.B. 1051] surgical procedures per- (minor) cated and licens- establishment vides for rapidly developing formed in the ambulato- mi- perform can which ing of facilities surgical Finally, I ry treatment centers. things like This would be surgery. nor prior to the ASTCA’s just observe hernias, would be tonsilectomy, abortions enactment, specifically Senator Wooten included, plastic surgery surgery, facial “The thrust stated: main 1051] of[S.B. procedures other words so on. In and money by getting some try to to save overnight require an would not which surgical treatment out the hos- minor ambulatory sur- stay. And these indeed expensive hideously it is and pital where to are forbidden gical centers treatment added). (Emphasis into a clinic.” However, overnight. those keep patients legislative history and the The record kept to medical close you who have Facil- that the Health further reveal Illinois things can know that untoward practices (IHFPA) Planning Act was enacted ities time, provision so any occur at 16(1) year after the enactment one § who made in here that doctors function clearly and the ASTCA and was the MPA must also be licensed such a in center legislative scheme part “tripartite” nearby so that hospital practice in to availability The of abortions. to limit the they can complications occur if the IHFPA reveals legislative history of place. patient to that quickly move the abortions, nor re- mentions that it neither Now, explain I out an outline handed them, for nor it enacted ferred work, things would you how these The regulating abortions. purposes of license, definitions, get a some must they prob- intended to IHFPA was address open regula- things left as to of these under- overexpanded and expensive, lem Department would like tions. underuti- populated medical facilities something in This is take a hand that. in State of equipment lized medical urging us to do have doctors been legislator, the In the words of a Illinois. now, ambulatory years couple of IHFPA was to are ... centers surgical treatment planning proper a means “provide they is that The idea out west. effect making input and with local decision patient. One saving to a great be a can empty hospital to cut down facili- hospital, you if big in a costs facilities, ties, nursing sheltered home like a it’s kind of hotel remember ambulatory and ... facilities care ... need you if don’t special has services surgical facilities.” great overnight stay, you can save added). (Emphasis great sav- money. there’s a deal of So acts Thus, history of the legislative needs patient ings possible for the who legisla- that the premise supports the valid one-day treatment. this kind of when regulate abortions abortion, every- ture intended It does include legal stan- apply fails to the correct thus It also Illinois Abortion Act. enacted the the different acts and dard to 16(1) MPA and section of the appears that preliminary injunction. affirms the 11157-8.3(A) companion clause Thus, effec- majority limits and fails to prevent probably enacted ASTC were legislative purposes legitimate be- tuate the being performed physi- in a abortions As a noted commentator hind the ASTCA. contrary, there is no cian’s office. On observed, limiting scope legis- of a has either the ASTCA record that proof judi- constitutes undesirable primarily to lature’s intent enacted the IHFPA were as a decision constru- abortions; rather, cial activism as much these were regulate laws scope. beyond its intended ing a statute delivery of medical regulate the adopted to Posner, Interpretation, Statutory attempt to See and to to its citizens services Courtroom, the further unneces- the Classroom and control prevent (1983). majori- medical fa- U.Chii.Rev. overexpansion of Illinois' sary give full effect to the real ty’s failure to initially a That the ASTCA was cilities. regulate legitimate legislative intent to is more to the abortion bills companion bill my is the basis of dissent. ASTCs by politi- relished coincidence of a historical case, who, appar- in this opportunists cal Recently, this court observed: advantage. ently fully utilized it to their Immigration “In and Naturalization licensing minutes re- board As the Chadha, 919, 103 462 U.S. Service flect, their worth: “Without for whatever (1983), 77 L.Ed.2d S.Ct. abortions, we would public interest Supreme that unconstitu- Court stated present legislation.” any of the not have provisions in shall be tional a statute legislators say the state That is to legislature appears the severed if it parties primarily interested who were other provi- would have enacted constitutional ambulatory medi- regulating interested independently sions of the statute of not have been able to cal services would (cit- provisions. 103 at 2774 those S.Ct. legislation the statewide the without enact Valeo, 108, 1, 424 96 ing Buckley v. U.S. interest in the abor- and even nationwide (1976)).” 612, 677, 46 L.Ed.2d S.Ct. 659 question the time. tion at 1532, Hartigan, v. 763 F.2d 1545 Zbaraz — reasoning majority, acting and as if The —, (7th Cir.1985), aff'd, U.S. living in a social and economic vacuum (1987). The Illi S.Ct. 98 L.Ed.2d 478 (overlooking developing the nationwide question nois laws in all have their own ASTCs), ignores purpose the dual trend of thus, severability provisions; it is clear that issue, legislative presently scheme at of the legislature the Illinois intended that the carving regulatory selectively out the mo- provisions constitutional of the acts should support its of the ASTCA abortion tive given provisions effect even if other Thus, majority theory of enactment. Accordingly, unconstitutional. I were held written, originally “As the statute states: analyze challenged regula statutes and regulations rep- recognizing assume tions is im “severance ASTCA] [I coherent, if unconstitu- proper provi resented at least if [only] the unconstitutional tional, regulated aspects all integral part statutory whole which sion ‘an of the ” Having ig- practice in Illinois.” entirety.’ enactment viewed its Id. Smith, at nored or least overlooked the State’s (quoting Scheinberg 659 F.2d v. regulate legitimate (5th Cir.1981)). intent to the new and On the other developing ambulatory rapidly hand, trend sur- challenged provision which bur services, gical majority treats right privacy den a woman’s regulations promul- and the long provisions ASTCA severed as as the severed gated pro- thereunder as “minor” abortion purposes do not affect “the essential Further, majority rejects visions. act.” Id. principle severability basic when inter- II

preting duly adopted the construction of a abortionist, legislative Rags- give enactment which should ef- The Dr. Richard M. dale, legitimate pre- at purposes; plaintiff-appellee, fect to the State’s testified pur- to that alleged facility primarily devoted hearing that the injunction liminary ” [affecting a wom- major pose.’ burden “[f]irst pregnancy] is her right to terminate an’s holds, agree, I that Illi- majority independent requirement for simply the policy alleged nonenforcement does nois’ This provider.” an abortion licensure not render the issues moot. any applicable to requirement, licensing justices per Although several have perform an abor- wishes physician who argued that Roe v. Wade and its suasively ASTC, or hospital, an outside of a tion progeny an “unworkable scheme articulate facility, regardless of the regulated other constitutionalizing regulation of fetus, embryo or period of gestational Thornburgh American Col abortion.” legislature enacted created when Obstetricians, 476 U.S. 747, 814, lege companion 16(1) and its the MPA § (1986) 2169, 2207, As 90 L.Ed.2d 779 definitions section. 106 S.Ct. in the ASTC clause “[sjection O’Connor, by majority, (Justice dissenting), represent or previously noted Act ... allows 16(1) Medical Practice fundamentally misguided a “venture ... license suspension of the for revocation Id. inception,” at 106 S.Ct. at since its an ‘elective performs any physician who White, (Justice dissenting), this court than a licensed any place abortion’ by Roe and its progeny. should be bound Surgical Treatment Center Ambulatory Thornburgh Supreme recent Court’s ..., run the state hospital, or a principles laid decision “reaffirm[ed] following governments.” The federal in Roe and Akron.” Id. down ¶ 157-8.3(A) of is the the ASTCA clause Thus, analyze at 2178. we the abor S.Ct. MPA, 16(1) companion clause § licensing requirement created when tion surgeons wished to brought all who 16(1) legislature enacted the Illinois § licens- under the ASTCA perform abortions companion provision con the MPA and its regulatory scheme: ing and in the ASTC definition of ambulato tained “ ‘Ambulatory Surgical Treatment Cen- center, 11157-8.3(A), surgical treatment ry facility in ter’ means ... Roe articulated under the standards surgical procedure is utilized medical or progeny. irrespective of pregnancy, a to terminate Wade, “In Roe v. held that the Court primarily facility is devoted whether ‘right privacy, founded in the of ... purpose....” to this concept of the Fourteenth Amendment’s defendant-appellant, Significantly, liberty upon restrictions personal Illinois, longer asserts that it no State of action, enough en- is broad to state ... 16(1) Additionally, MPA. enforces § compass a decision whether woman’s alleges Illinois majority observes that pregnancy.’ her ... not to terminate 11157-8.3(A) in is no the clause above that ****** enforced, noting longer being that: regula act and “Since the [ASTC] recognized, has because The Court also applied to facilities tions have been procedure, a medical that the abortion is per primarily are devoted which funda- full vindication of the woman’s (includ procedures of formance right requires necessarily mental abortions). policy ing This enforcement he physician given ‘the room her Village response adopted in to judg- make his best medical needs to Marcowitz, Lawn v. 86 Ill.2d Oak ment.’ ... (1981), 916], 427 Ill.Dec. N.E.2d [55 time, Roe the Court At the same enforce, refused in a criminal to funda- acknowledged that the woman’s portion local ordi proceeding, that unqualified and Hs not right mental incorporated the ASTCA nance which important against must be considered ‘any which covered definition of an ASTC in abortion.’ But state interests ... surgical pro a medical or where right to regulation of restrictive state performed for the termination cedure is abortion, with other fundamen- choose pregnancy, regardless of whether the particular sec- attempt to ban a State’s searching judicial subject to rights tal procedure, where abortion supported a ond trimester examination, must be interest_ the cost have Su- would increased the ban compelling state [The availability inter- of abortions recognized such two and limited preme Court] regulation of important state health ben- may justify promoting ests that without licensing requires ... a State abortions. efits. If perform- regulate the or undertakes ‘important and First, an a state has period, during this abortions ance po- protecting interest in legitimate ’ adopted must be standаrds the health Although ... tentiality human life. objective the related to the ‘legitimately ‘throughout exists interest ” accomplish.’ it state seeks pregnancy,’ ... woman’s course of the viability, only at compelling becomes Repro- v. Akron Center City Akron capabili- ‘has the fetus point at which the 426-31, Health, 462 U.S. ductive the moth- meaningful life outside ty of (1983) 2490-93, L.Ed.2d 687 S.Ct. ... er’s womb.’ added). omitted) (citations (emphasis legit- Second, has a State because Initially one observes that the abortion wom- the health concern with imate pursuant requirement exists licensing as it abortions, ‘a undergo State en who 16(1) the MPA the ASTCA § important inter- may properly assert definition, distinguish first between fails health safeguarding ests [and] thus, abortions; and second trimester ’ standards. ... maintaining medical performance of first-trimester prohibits the Roe, held in how- Court further] [The offices. The physicians’ abortions ever, health interest does that this qualified that a record reveals woman’s ‘approximately until compelling become pregnan- right her under Roe terminate preg- the first trimester’ of the end of probably impermissibly burdened cy very time, pregnant nancy. ... Until surgeons otherwise who because permitted, consulta- must woman out of perform first-trimester abortions to decide have physician, her tion with doing precluded from so. their offices deci- to effectuate that a board- Ragsdale, an abortionist and Dr. by the State.’ ‘free of sion interference tes- gynecologist, certified obstetrician nev- mean that State This does not abortions, outpatient whether tified that touching on regulation er enact a clinic, physician’s in a office or right during the the woman’s abortion performed in a as safe as an abortion were reg- pregnancy. Certain weeks first setting. hospital im- significant no ulations have al- additionally another Plaintiffs called her exercise pact on the woman’s of expert, Martin leged Dr. Warren abortion justi- where right may permissible Hern, general practitioner a doctor and objec- state health by important fied specialty in certification the without board tives. ... gynecology. Hera testi- of obstetrics the the end of approximately From abortions, per- fied first-trimester that pregnancy, State first trimester of the the last eight six to weeks from formed procedure to ‘may regulate the abortion “probably the safest period are menstrual regulation reasonably that the extent being in the surgical procedure performed protection preservation relates to the category proce- of in this United States dis- maternal ... State’s of health.’ 11 testified that Dr. Hem further dures.” not, regulate on this basis does cretion first-trimes- of method safest however, reg- permit adopt toit abortion aspiration” was the “vacuum ter abortion accepted from medi- depart that ulations basically “a suc- procedure is rejected method. This a practice. Court cal has] [The of a "procedures invasion proce- that category dures” involve of as 11. Hern “in this Dr. defined offices; given the tions in their defendant’s the uterine contents.”12 removal of tion 16(1) regarding policy of nonenforcement § J. expert, Dr. John of Illinois’ The State companion in the MPA and its clause of Barton, specialist a board-certified ¶ 157-8.3(A), ASTC, requiring the licensure also gynecology, obstetrics fields of performing any facility even one abor- per- abortions that first-trimester testified tion; evaluating the evidence after (such phy- outpatient facilities formed during preliminary injunction presented ASTCs) great- present no offices or sicians’ hearing established that which first-trimes- complication risks and than the er risk performed in a controlled out- ter abortions hospitals. performed in of abortions rates setting, including physician’s patient of- testimony, it experts’ medical Based fice, probably were аs safe as abortions probable that first-trimester abor- appears hospitals, selectively I performed in would in the sur- safely performed tions could 16(1) enjoin the enforcement § 16(1) Thus, appears that geon’s office. § companion MPA and clause the AST- ¶ 157-8.3(A) companion clause and its destroying the entire CA definition without availability of limit the ASTCA would likely it is more than not that act because performance by precluding abortions plaintiffs prevail on the merits in would physician/surgeon’s office. in a abortions light present Supreme precedent. Court noted that Supreme Court In Akron holding, agree In so I with the Illinois the cost law “increased where the Supreme Village decision in Court Oak abortions,” availability of and limited the Marcowitz, 86 Ill.2d Ill. Lawn v. probably interfere with such a law would (1981), N.E.2d 36 Dec. which also decision to have an abortion the woman’s held that the ASTCA definition was consti Akron, 103 as its effectuation. as well incorporated in local tutionally invalid as Further, although dic- at 2492-93. S.Ct. “closely ordinance resemble[d] “that the tum, Supreme Court noted implementing regula act and state [ASTC] suggests ap- until evidence that medical adopted by Department tions trimester, the first proximately the end of 918, 427 Health.” 55 Ill.Dec. at N.E.2d Id. health interest maternal the state’s The local ordinance also re at 38. ASTC by regulations that not be served would $5,000,plus quired an “initial license fee of the manner in which restrict abortions $2,000.” annual fees of Id. renewal at physician.” a licensed Id. performed 427 N.E.2d at 39. In Mar- Ill.Dec. further observed Court n. court, foreshadowing Illinois cowitz the generally “uncomplicated abortions Akron, stated: caveat physician’s in a office may be licensing fee re- “Given the substantial up clinic to 14 weeks outpatient regulation in- quired and the detailed period.” day of the last menstrual the first volved, it seems inevitable (American College of Obstetricians Id. might per- practitioners who otherwise (ACOG), Gynecologists for Ob- Standards regular patients, (5th form abortions for their ed. stetric-Gynecologic Services 54 primarily facilities were not 1982)). light Supreme but whose In Court’s surgery, choose not to noting probability devoted to Akron caveat in right qualify ordinance. The under the physicians perform can first-trimester abor- ilarly, body cavity major organ stated that he consulted of some kind.” Hern laparoscopic colleague informed him that who fatality for abor- Dr. Hern noted that the 12. rate per surgery death rate of resulted two million, whereas, per five one tion about was 100,000. "Laparoscopic surgery testified: Hern delivery fatality rate for term the case laparoscope into introduction of a involves the 100,000 births, per meant 11 live about which tube, cavity. laparoscope is A abdominal approximately term 25 that risk of birth tube, something and is a metal that is hollow greater than times in terms of risk of death through physician permits look that to compared Dr. Hern sur- abortion. abortion through cavity is introduced into the umbilicus, gery to the risk of other risk factors factors operating instru- or without outpatient surgery. types He testified that ments.” indicate "some estimates ... tonsillectomies dangerous twice as Sim- at least abortions.” 1386 Thus, (1955). 466, I would 99 L.Ed. 563 considering first-trimester

of a woman relation” test to the apply services the “rational advice and seek the abortion to obstetrician, or other gynecologist, neutral” ASTCA. now “abortion of her has trust she physician in whom however, disagrees and majority, drastically so may not be confidence scrutiny relying test apply the strict would curbed.” Friendship Medical mere dictum 922, at 42. 427 N.E.2d 55 Ill.Dec. Id. Health, Chicago Ltd. v. Board Center 16(1) MPA and the Further, Cir.1974), denied, (7th both cert. 505 F.2d § in the AST- clause impermissible definition L.Ed.2d 420 U.S. 95 S.Ct. re from their CA,13 easily be severed can (1975). observed: There the court legisla affecting the spective without acts “Furthermore, regulation, any proposed the acts’ purpоses” for “essential ture’s universally similar applied if to all even Zbaraz, 1545. 768 F.2d at enactments. See of the fun- procedures, because capa virtually unaffected MPA is procure to right a woman damental independently of being enforced ble of trimester, would during first to be used 16(1) will continue and as such § compelling governmental to meet a have suspend a malfeas- to revoke or inter alia Thus, any general requirement. interest Similarly, the AST- physician’s ant license. apply health which once the neutral” “abortion CA becomes would have to first-trimester abortions from the defini clause is removed invalid give effect to the limited so as to See, Village Oak e.g. tion of an ASTC. rights by as established Roe fundamental Marcowitz, Ill.Dec. at Lawn v. is, Doe; on a not be burdensome construed, the ASTCA 42.14 So N.E.2d at preg- right to abort a to decide woman’s primary legislature’s fully effectuates the prob- that in all nancy. By this mean we enactment, i.e., regulate purpose for its nothing general re- ability broader than trend of cost-effec rapidly developing maintaining of quirements as to the sani- surgical medical units. ambulatory tive general requirements tary facilities and free to Thus, remains of Illinois the State meeting building code as to minimal stan- facility pursuant to “abor license permissible.” would be dards primarily “devoted ASTCA tion neutral” at 1153-54. Id. operation of facilities the maintenance and Fairchild, Judge Initially, point I out that procedures,” surgical performance of Friendship majori- concurring, rejected the facility, like Dr. including an abortion dictum, ty’s stating: per primarily to the Ragsdale’s, devoted “Nevertheless, safety regulation of the As with of abortions.15 formance incidentally procedures, in- of all these legislation, the test tra and economic social abortions, through cluding first-trimester not the law ditionally applied is whether or generally applicable regula- imposition of to a valid state relation” has a “rational tions, to be a valid exercise would seem Optical v. Lee objective. See Williamson protecting interest 483, 491, of the state’s 75 S.Ct. Company, 348 U.S. 40,000 157-8.3(A) Ragsdale performed abortions some clause of ¶[ 13. The unconstitutional Up reads as follows: until the Illinois of the ASTCAto be severed between 1973 and 1985. Depart in Poe v. Illinois any facility court’s 1982 decision a medical "or Health, (N.D.Ill. pregnan- terminate a No. is utilized to Public 78-C-4126 ment of irrespective de- cy, 1982), of whether the hospi the second-trimester which found purpose.” primarily unconstitutional, Ragsdale voted requirement lim tal performance practice of first-tri ited his discuss, infra, abortion-specific As I However, Ragsdale testified mester abortions. 157-8.6-1, reg- abortion-specific as well as ¶ Poe, began performing subsequent he severable; however, ulations, all but are also obviously This second-trimester abortions. provisions stan- survive the strict one of these physician since the had economic sense makes Roe. dard articulated in only lose ASTCand would the available licensed Rags- majority baldly that Dr. asserts 15. The refusing perform second-trimester income exclusively practice first-tri- dale’s consists abortions. though reveals even the record mester abortions early that an satisfy per- the tradi- testified abortion—one only need health and judicial eight formed six to weeks test from the last tional basis] [rational imposed period in this area.” menstrual the safest scrutiny surgical —“is being performed.” procedure Tr. at 241 (Fairchild, J., concurring). Be- Id. at Likewise, and 260. it was Dr. Barton’s contrary Friendship’s dictum to the cause expert opinion that an abortion constitut- adversary by the fires of not refined “was Tr. at operation, ed an and abortions fully measured not a presentation,” it “was surgical proce- classified as minor “are “not au- and thus judicial pronouncement,” Tr. Dr. Hern further dures.” at 467. stаt- Crawley, United States thoritative.” surgical procedure is a (7th Cir.1988). ed that an abortion This cave- 837 F.2d categorized as a “that applicable here where we particularly involve[s] legislative regulating body cavity major organ act of a or a construing a invasion services, including reaching of medical kind.” Tr. at 241. In field of some broad surgical procedures. applied “expe- minor that the state conclusion ” conclusory ‘surgery’ dient label to an reasons, unsup- gives majority The two abortion, majority again once dis- record, relying on the ported by this regards strays the record and far afield “First, ig- we cannot Friendship dictum: legal competence from its area of enacted that the ASTCA was nore the fact pronounce- judgments makes medical in mind and clinics primarily with abortion properly ments that are more reserved to surgical clinics applied outpatient expertly trained in the medical scien- to save the statute those generally in an effort However, surgeons, physicians, as I tific fields such as unconstitutionality.” nurses, technicians, I, his- part legislative etc. demonstrated contrary; primary tory establishes Further, I observe that the courts have regulate the of the ASTCAwas to purpose consistently surgi- alluded to abortions semi- which cost-effective ASTCs new Roe, procedure. example, In Jus- cal per- (minor) surgery was complicated “protection of tice noted that the Stewart majority puts the In effect the formed. safety of a woman” was a the health and rests its the horse because it cart before legitimate objective, amply sufficient “to quagmire of on the analysis of the ASTCA regulate as it permit a state to abortions Friendship forth in legal dictum set procedures.” surgical Roe v. does other analysis ultimately and confuses its clouds Wade, 170, 93 at 735 410 U.S. at S.Ct. the ASTCA. (Justice Stewart, concurring). Still more states: majority further recently, Supreme Court ob- Akron cannot, merely by “Secondly, state the district court had found served that conclusory expedient and applying generally is considered “an abortion ” procedure, Akron, ‘surgery’ procedure.’ to a medical surgical label ‘minor Thus, nec- requirements which would be apply at 2500 n. 35. U.S. at S.Ct. surgical procedures in essary major an abortion is the evidence establishes that they would context where semi-compli- the abortion surgical procedure, albeit a much a inappropriate. It is as wholly (minor) surgical procedure. Signifi- cated similarly to dissimi- to treat abortion regu- vice cantly, the ASTCA was intended as it is to treat it differ- procedures lar procedures, includ- late all minor analogous procedures.” ently from per- ing types procedures all of abortive ASTC; majority fails in an this the formed conclusory is in- majority’s statement apply recognize. There is no reason all, light record. First of credible in There is no scrutiny in this situation. strict experts plaintiff’s own medical testified Supreme decisions language in the Court’s surgical procedure that an abortion was a speculative and upholding majority’s (regardless type of abortion method implicit theory that the Court intended used). Ragsdale direct examination On legislation economic strike down social and surgi- that an “is a minor stated or a ASTCAin the name Roe 420. Dr. Hern also such as the procedure.” cal Tr. at 1388 denied, cert. J., dissenting), 1982) ‍‌‌​‌‌‌‌‌​​‌​‌‌‌​​​‌​‌​​​​‌‌‌‌‌‌‌​​‌‌‌‌​​‌​‌​‌‌​​‍(Coffey, her terminate right limited

woman’s 194, 863, 170 78 L.Ed.2d 104 S.Ct. 464 U.S. pregnancy. specifically (1983). Supreme Court The Lawson, F.2d Further, Hodgson v. 542 stated: curiam), the court Cir.1976) (per (8th 1350 a state has that broad “It is elemental a state of whether the issue addressed enforce power to establish and standards decision, even subject the abortion could relative to its of conduct within borders trimester, first during the everyone there. It is a vital health, the health state by the board promulgated police power. Thе state’s part of a licensing requirements. including in that field discretion extends state’s concluded: Eighth Circuit regulation profes- of all naturally to the regula- impose the same can “A state with health.” sions concerned per- clinic, specifically built tions on a trimester, first during the form abortions 442, Regents, 347 U.S. Barsky v. Board of clinics that on other imposed that (1954). 650, 654, 449, 98 L.Ed. 829 74 S.Ct. requiring surgical procedures perform Thus, logic Judge by the persuaded I am degree of skill same approximately Friendship, concurrence Fairchild’s first-tri- performance care as and specu- unsupported and than rather regula- long as the As abortions. mester majority, as well lative conclusions are the clinics applying to abortion tions Eighth reasoning First as the clinics applied to other those same as under Roe Circuits, progeny its a surgical procedures, performing similar authority, power only state has impermissible to make not be regulate duty, to all medical but also the applicable to abortion specifically them facilities, particularly any where clinics.” (in- any surgical procedures are Id. at 1358. abortions) valid cluding as a first-trimester protecting exercise of interest Department in Baird v. Moreover, of its citizens health and welfare while (1st Cir.1979), Health, F.2d 1098 Public 599 provide ensuring the facilities will upheld state licensure statute court medical, insuring safety maximum “conditions providing any clinic applicable to decided to terminate restorative, hy the woman” who has dental, or mental surgical, Menillo, v. Connecticut services, offering pregnancy. her including facilities giene 11, 423 U.S. at 96 S.Ct. at 171. services. The only first-trimester under held: “There room First Circuit regulations promul- and the ASTCA licensing same apply states Boe just gated were intended to thereunder do they to abortion standards facilities citizens, that, protect safety of its performing medi apply to like facilities enough to and is reason sufficient sustain procedures.” Id. at 1102 cally analogous validity many As in of the statute. added). See also Westchester (emphasis surgical procedures, are a vari- there Whalen, v. Organization Health Women’s ety physical risks of similar (S.D.N.Y.1979); F.Supp. 739-40 475 having Depending involved an abortion. Michigan Depart v. Abortion Coalition upon particular woman’s characteristics Health, F.Supp. Public 426 ment of development, psychologi- medical and Clinic v. Hallmark (E.D.Mich.1977); 477 during problems may very well arise cal Human Department Carolina North experi- the abortion Resources, (E.D.N.C.1974), F.Supp. 1157 welhtrained, enced, board-certified obstetri- grounds, on other F.2d aff 'd recog- capable of gynecologist cian and (4th Cir.1975). Thus, Illinois’ laws effectively treating in nizing properly proper. licensing regulating ASTCs are constructed, designed, equipped, main- tained, managed medically approved very clear that state has The law is gestational Depending upon the protection facility. legislation for right enact fetus, such com- Quilici Village embryo duration See of its citizens. to, include, not limited Grove, (7th plications but are Cir. Morton 695 F.2d trauma, permanent damage organs, to vital high-volume attention on businesses; sure- dysfunction respi- of the cardiovascular or ly this constitutes a rational relation to a ratory system requiring cardio-pulmonary permissible end. resuscitation, bleeding internal or hemor- majority’s treatment of the ASTCA wall, rhaging of uterine the cervical lacera- and the IHFPA under the strict scrutiny tions, perforation, uterine embolism of the test just is way another the majority cir- vessels, allergic blood reaction to medi- cumvents and fails to pur- effectuate the anesthesia, administered, cation or if pose ASTCA, i.e., regulate permanent even impairment the repro- changes provision of medical servic- organs. ductive Other medical factors that es. Essentially, the majority substitutes making must be considered in аn informed judgment its for that the legislature; type decision include the of abor- truly this is unfortunate in this case since (dilation tion to be and curet- courts should defer above all legisla- to a tage, aspiration, dilation and vacuum dila- judgment ture’s on social and economic evacuation, tion and hysterotomy, hys- matters. Dandridge Williams, See terectomy), the woman’s history, medical 471, U.S. 90 S.Ct. 25 L.Ed.2d 491 her previous surgical proce- reaction to (1970). Lawyers who judges are now dures, her medications, tolerance to certain neither experienced trained nor in the medi- the RH-negative chance that she is an fe- cal disciplines possibly related to abortion male, contracting the likelihoodof a uterine procedures, e.g., obstetrics, gynecology, infection, the placenta chance that the psychiatry, pathology, general surgery, or removed, fetus completely will not be the emergency medicine. Nor are judges

potential for future in bearing difficulties versed in the practices nuances of the children, possibility and also the of sexual techniques of the profession medical sterility. It defies reason to allow the state ill-equipped thus are to license an substitute performing ASTC their hernia sur- views gery, regarding removals, cataract what repairs medically ade- of a quate, retina, proper, antiseptic. torn or detached permit but not “As recently the state to stated primarily Supreme Court, license the perform- ASTCs ‘there cer- ing tainly abortions many when there are is no similar reason to think judges are risks in myriad types involved qualified of abor- better appropriate than profes- ” procedures. tive making sionals in such decisions.’ St. Mary Dep’t Nazareth v. Health & Lastly, majority asserts that it is Services, Human (7th 698 F.2d regulate irrational for the state to the full- Cir.1983) (quoting Romeo, Youngberg v. provider (those time of abortions primarily 307, 323, 457 U.S. 102 S.Ct. performing abortions) heavily more than (1982)). However, L.Ed.2d 28 this majority provider. occasional While may it be replete decision is with such medical asser- true that the full-time may abortionist con- example, states, tions. For majority sider himself or herself “more skilled” and “The testimony regarding many theoretically so regulation, need less physical plant requirements majority make overlooks that a clear state with limited they may resources have ‘no rationally justification choose to direct energies applied its whatsoever’ improving when to first early lot of the greatest second number. For trimester example, type if abortions in- state, proper However, after the volved in this case.” legisla- enactment of the ASTCA tion, regulate chooses regulate was intended to ASTCs and surgi- reduce all minor (as the risk of surgery procedures, minor cal legislature well as its is free cost) 100,000 citizens, legislation. to enact and more reasonable Under regulation instrusive circumstances, provid- light occasional these of the real help ers only 2,000, risks accompany state proce- minor very properly 100,000 dures, deal abortions, with the including dangerous first. it is Further, regulation the cost of per patient majority judgment substitute its will be lower if the state concentrates its necessary to what constitutes and/or unworthy judgment, der such a would be Although regulations. ASTC

appropriate station, it unmindful of con- of its could Dandridge Supreme Court was programs, obligations solemn which that station assistance cerned with welfare applicable following imposes. slight implica- admonition is as not on But then: today vague conjecture, legis- as it was that the tion and pronounced is to to have tran- today lature decide “We do not [Illi- wise, powers, that it ful- scended its and its acts to be regulation is best nois] opposition considered as void. be- and economic ob- fills the relevant social might ideally es- tweеn the constitution and the law jectives that [Illinois] sys- pouse, or that a more judge be such that should [reasonable] feels Conflicting tem could not be devised. strong clear and conviction their in- intelligence morality and are claims of compatibility each other.” proponents by opponents and raised Peck, (6 Cranch) 85, Fletcher v. 10 U.S. measure, certainly includ- every almost (1810) added). 128, (emphasis 3 L.Ed. 162 But the intracta- ing the one before us. “ ‘Every possible presumption is in fa- ... economic, philo- ble social and even statute, validity vor of a and this problems presented by [regu- sophical contrary continues until the is shown be- lating are not medical services] ” Powell v. Penn- yond a rational doubt.’ business Constitu- [c]ourt. 678, 684, 992, sylvania, 127 U.S. 8 S.Ct. procedural may impose certain safe- tion In re 995, (1887) (quoting 32 L.Ed. 253 regulatory] system.... guards upon [the Cases, (9 Otto) 700, Sinking Fund 99 U.S. empower But the does not Constitution 718, 496, (1879)). See also 25 L.Ed. 504 second-guess state this [c]ourt offi- Johnson, Kelley v. 238, 247, 425 U.S. 96 respon- charged cials with the difficult 1440, 1445-46, (1976) 47 S.Ct. L.Ed.2d 708 sibility [guaranteeing its citizens ad- (Justice Justice, Rehnquist, now Chief stat- equate, safe, but cost-effective regarding leg- ed that state decisions social services.]" islation are “entitled to the same sort of 487, Id. 397 U.S. at 90 S.Ct. at 1162-63 presumption legislative validity as are (citations omitted) added). See (emphasis designed state promote choices High also In re ex rel. Missouri State U.S. cognizance aims within the of the State’s School, etc., 682 F.2d 147 (8th Cir.1982) police power.”). Supreme As the Court (“Once exists, relationship a rational and it Pension Benefit recently observed here, judicial scrutiny exists must cease. Co., Guaranty Corp. Gray v. R.A. & 467 Whether the rule is wise or creates undue 717, 729, 2709, 2717, U.S. 104 S.Ct. 81 hardship policy individual decisions bet- (1984): L.Ed.2d 601 legislative ter left and administrative “ legis- ‘It is now well established that bodies”). adjusting lative Acts the burdens and Lastly, because the courts “have re- benefits of economic life come to the original propo- to the turned constitutional presumption Court with a of constitution- sition that courts do not substitute their ality, and that the is on burden one com- judg- for the social and economic beliefs plaining process of a due violation to bodies,” Ferguson v. legislative ment of legislature establish that the has acted in Skrupa, 372 726, 730, 1028, 83 U.S. S.Ct. way. See, arbitrary an and irrational 1031, (1963), 10 L.Ed.2d 93 the “abortion e.g., Ferguson Skrupa, 726, v. 372 U.S. presumptive neutral” ASTCA is entitled to (1963); Wil- 83 S.Ct. 10 L.Ed.2d 93 well-recognized validity. principle It is a Co., Optical liamson v. Lee 348 U.S. 483, 487-488, 461, 464, 75 S.Ct. 99 L.Ed. question, “The whether a law be void ” (1955).’ constitution, repugnancy is, for its to the times, Usery question (quoting Mining v. Turner Elkhom delicacy, at all much Co., seldom, ever, ought 2882, 2892, if decid- U.S. 96 S.Ct. affirmative, (1976)). Rhinebarger See also ed in the a doubtful case. L.Ed.2d 752 Orr, court, impelled (7th by duty Cir.1988) when to ren- 839 F.2d ¶ (Chief Judge companion 157-8.3(A) is well Bauer observed: “It clause congressional legislation very established ASTCA well could be considered un ‘adjusting the burdens and benefits of eco- constitutional and therefore should be en presumed Thus, nomic life’ are constitutional and joined. the licensure of facilities al complaining burden is on one that ‘the legedly primarily perform devoted process due violation to that the establish ance of abortions does not limit the avail legislature arbitrary has acted and ability of abortions many since other sur ”). Here, way.’ plaintiffs-ap- irrational geons, they choose, if perform so could pellees have not demonstrated that the Illi- first-trimester abortions in their offices.16 legislature arbitrary nois acted in an Thus, the ASTCA cannot be said limit way enacting irrational when the ASTCA availability Further, of abortions. Thus, parame- IHFPA. within the possibility Ragsdale’s might pos clinic Roe, ters of I am convinced that the state sibly significantly, all, close does not if at regulate is free to abortions the same affect the availability of abortions. The regulates proce- extent it similar surgical plaintiffs stated that “there are approxi- I majori- dures. fail to understand how the 65,860 matley performed abortions Illi ty Supreme holds since the otherwise Court annually.” Turnock, nois Ragsdale v. 625 has never held that Roe holds to the con- F.Supp. (N.D.Ill.1985). Of Thus, trary. I these, would reverse the district Ragsdale performs 3,400 some to preliminarily enjoining court’s order 3,500 the annually, or percent. some 5 Addi and the ASTCA IHFPA. tionally, are some 42 there ASTCs

Illinois and “approximately half of these provide However, abortions services.” Id. Ill the district Ragsdale court found that was However, progeny even if Roe and its only available abortionist in his area. apply were ASTCA and IHFPA as The Ragsdale record reveals that initially by majority, asserted the Act would testified “only provider” that he was the constitutionally still holding be valid. The abortions in his Subsequently, area. he progeny of Roe and its qualified testimony, stating his he was not mean may “does that a state never and, “primarily, many ways, regulation touching enact a on the wom- provider” However, in the area. right during an’s abortion the first weeks Ragsdale concluded, stating: “To the best pregnancy. regulations Certain that my knowledge, no one else intends” to significant no impact have on the wom- perform abortions area. These right an’s exercise of her permis- statements, contrary to the district court’s justified by important sible where state finding Ragsdale “only” that was the abor objectives.” provider, tion do not establish that abor Akron, tions would be U.S. at unavailable if at area S.Ct. Ragsdale plaintiffs (because The to close asserted had his that the ASTCA he substantially purchase failed to IHFPA lease or burdened the wom- new facili right ty). Inferring an’s high terminate her from the pregnancy in volume of ways: (1) by performed clinic, three limiting Ragsdale’s abortions availability it abortions; (2) by apparent increasing efficiency the cost of that the of the clinic abortion; (3) by requiring scale,” had pro- “economy that of an reached vider to fulfill making the certificate need re- physi uneconomical for other quirements subjecting the to a cians abortionist to enter the abortion market in the “public veto of However, his services.” As area. assuming arguendo, that [abortion] noted, I previously 16(1)of MPA anywhere § abortionists receive $250 Supreme 16. In Akron the Court reaffirmed second-trimester abortions be in an Thus, approach. trimester I am convinced that plaintiffs’ experts ASTC. Even testified that constitutionally the state could require that all justi- construction standards neering and that an- abortion,17 unlikely it is per $400 impact that financial the de minimis (like fied Ragsdale) operator regulations places on compliance with in the event in the area perform abortions majority inac- an abortion. physician- the cost of closed. Ragsdale’s business Ragsdale “Dr. testi- ignore curately that could not asserts entrepreneur surgeon compliance with the gross estimated potential annual fied that he Ragsdale’s apparent alone, per-patient cost entail a approximate- regulations would from abortions income re- $875,000($250 3500 abor- The record per abortion ly $25 $40.” of between X finding court’s that he Ragsdale district Dr. per year). The testified tions veals that Ragsdale’s complying clinic would closing of the added costs estimated specu- is mere unavailable and above the make abortions over with the clearly erroneous. his cur- required simply lation to relocate costs a manner as he practice in such rent the second bur- court found The district needs, as appropriate his deemed her right to terminate den on a woman’s 400-01). (Ragsdale Tr. per patient. $25.21 licensing by the ASTCA pregnancy created certainly cannot cost of $25.21 This added licensing require- requirement significantly more than considered as “by $25 of an abortion ment raised the cost difference) (less in- than $19.40 $5 Rags- performed at for abortions $40 per abortion for tissue examination crease argue that The defendants clinic.” dale’s Supreme upheld Court erroneously relied court the district Ashcroft light “in of the substantial bene- because findings of its hearsay for the basis factual pathologist’s can fits examination I cost. couldn’t regarding increased have, clearly justified.” small cost is objected more the defendants agree since More- at 103 S.Ct. at 2524. 462 U.S. relevancy hearing the throughout the to over, pointed out that the it should be alleged admissibility Ragsdale’s cost herein, to unlike the increased cost testified alleged cost sheets consisted sheets. only Ashcroft, best one allegedly dis- musings after Ragsdale’s temporary and not one would remain that cussing plans to move his tentative Ragsdale Dr. admitted that ad Rags- and other vendors. with contractors infinitum. the would be retired after “much of debt dale, surgeon, no more physician and a Thus, years years.” after two two to five accounting, contracting, expert in cost an to $10.90 the fee increase would reduced etc., architecture, respective ex- than the years per patient, and after five to a mere knowledgeable are perts in areas these I the per patient. am convinced that surgery $3.40 problems practice the about engineering and construction de- minimum Thus, majori- just as the and/or medicine. issue, sign allegedly at requirements ex- ty rejected defendant’s architectural the surgical procedures that all ensure testimony regarding medical pert’s ASTCs, including performed in first-trimes- requirements,” so “need for the ventilation clean, abortions, performed sani- balance, ter majority, proper on too should the tary, a substantial and safe structures are Ragsdale’s compliance esti- reject cost safety patients, health and benefit to the mates. impact financial referred miniscule hand, assuming arguendo, On the other justified. clearly to is de minimis and testimony Ragsdale’s cost-related was that evidence, the cost respecting am con- One last observation properly received I record, searching the important state of an After that the health ob- abortion. vinced cost-effective, establishing safe, I the cost of jective insuring yet found no evidence engi- performed in doctor’s office. by requiring minimum an abortion a medical service substantially hospital to 4 times abortion rise fee was 2.5 the risks of an greater performed second trimester. of an than cost abortion (including physician’s outpatient facility a in an office). during closing argu- 17. Plaintiffs stated counsel counsel, Thus, according plaintiff’s to district the fee ment before the charged court outpatient $400. $250 abortion costs to an $1,000 hospital in a for an abortion was However, Ragsdale Ragsdale plaintiffs during counsel because failed to refer argument patients closing hospital. Ragsdale before the district court to the applied Illinois, per- the costs of an pursuant stated that abortion to the State of ($1,000) hospital 2.5 IHFPA, formed in a was ASTCA and for a license for his costly performed times as as that of one facility. investigation new After a full surgeon’s outpatient a office or in an clinic. subsequent holding public hearings, figures outpatient These reflect that abor- agency state found that there was in fact costs, including performed tion those in a Ragsdale’s need medical services. At office, physician’s range from to $400 public hearing $250 number citizens Thus, each. cost of an abortion protested against $250 stating abortions their ASTC, Ragsdale’s op- even if pro-life positions. imagina It stretches the Act, erating compliance in full tion that one would write that the exercise represent in fact end of low rights one’s First Amendment object price. proposition abortion market This to an issue creating be treated sоmehow as supports my Rags- earlier observation that right burden on a woman’s to an abor clinic, efficiency, dale’s because of its domi- majority, however, tion. The asserts that Further, assuming nated the local market. unwillingness “the state’s inability Ragsdale’s per increased cost proceedings confine the public hear [the $25.21, percentage increase is in ings Ragsdale’s CON for his ASTC] range percent, certainly 6 to 10 de arguably legitimate goals even bolster price if minimis. It not as of an our conclusion requirement [that CON] $500, signifi- abortion went from $250 cannot stand.” This statement flies in the cant burden. face of the fact that the state after due and considerate deliberations absent emotion or brings alleg- This us to the third burden hysteria objectively analyzed and in fact edly impinging upon qualified a woman’s found that need Ragsdale’s existed for i.e., right to terminate pregnancy, her Cer- Although previ services. I (CON) have Ragsdale’s tificate of Need ously expressed individual, that an includ public hearing ASTC and the related re- ing abortionist, should quired pursuant be free from to the IHFPA.18 The ma- picketing private home, in front jority unbelievably of his holds the certificate of see (7th requirement Frisby, Schultz v. 807 F.2d need unconstitutional for the reason, alia, Cir.1986) J., (Coffey, dissenting), public hearing reh’g inter that the accompanying granted vacated, a certificate of need created and decision 818 F.2d (7th Cir.1987), public qualified a veto of 1284 right by a woman’s equally divid aff'd (7th to an F.Supp. abortion. The record establishes un- ed vote 619 822 F.2d 642 — equivocally Ragsdale’s landlord, Cir.1987), U.S. —, a granted, hos- cert. pital, (1988), wished to terminate its lease with S.Ct. public L.Ed.2d 644 IHFPA, 18. impact Pursuant to 1155-1160 of the expendi- and ed on ¶¶ the total health care by majority, "anyone seeking as noted (3) facility community, tures in the and open an ASTC obtain safeguards provided a certificate of [must] are which assure that the facility Department establishment, need for the from the of construction or modification public hearing Public Health after a day and a 120- facility of the health care is consistent with period.” granted interest, review A CON is (4) if the public proposed and that the State Board finds establishment, construction or is modification "(1) fit, orderly consistent with the applicant and economic de- willing, that the is and able velopment such provide proper and is in accord a standard of health care of facilities standards, criteria, plans with community need particular service for the with re- of adopted gard approved pursuant provi- qualification, background and and (2) applicant, sions Section 12 character of the this Act for such facili- that economic of of demonstrated, comprehensive feasibility ties health care in the com- in terms on of effect area, existing munity, projected operating budget and State served such facili- applicant facility; and the health care ties.” in applicant’s added). ability (emphasis terms of the 111 Ill.Rev.Stat. establish Vi In ¶ operate attempted and such in accordance this manner the state has to reduce regulations promulgated per- skyrocketing licensure by limiting under health care costs laws; project- expansion tinent state unnecessary and in terms of the medical facilities. locations 1510), appropriate in insulation Public matter. hearings are a different ceiling height 205.1520), a minimum (§ and citi- where all open forum hearings an are exceptions appropriate in right eight to be heard feet with should have zens rooms, storage rooms in our democratic such as manner for certain organized an open some fo- has 205.1400). that the state government. That I believe (§ form “degen- interest, sometimes and in compelling just rums or demonstrations more than nothing shouting match” interest, ensuring erate into overriding in an fact has much less speech, free right of to our new рerforming ASTCs any and all and or- justice system to our national including first-trimes- surgical procedures, comprehend I fail to liberty. dered abortions, designed and constructed are ter contrary view. majority’s engineering standards to meet basic fairly in order that all case establish- medical facilities Further, the record this question procedures are con- sophisticated medical ASTCA es that the a woman’s the max- ensuring whatsoever “under conditions place no burden ducted pregnancy patient. her safety” decision to terminate Connecticut imum nothing they reflect Menillo, because at first trimester 423 U.S. at S.Ct. approved common, and accepted, but expert Hern, alleged plaintiff's Dr. proce- and practice of medical standards trial, “90 to 95 testified that witness experts. by the as testified dure procedures first-trimester percent ... of all regu- ASTC 205.240 of the example, For § performed by vac country ... are in this management or owner requires lations kind,” technique of some aspiration uum policies written to formulate of an ASTC surgical procedure[s] “the safest and are Ragsdale Dr. manual. procedures and a record estab performed.” The also now as standard requirement described procedures, such that other abortion lished Other practice. administrative medical and saline, urea, tech as the installation regula- organizational administrative inserting into the niques a needle (involving requiring written safe- tions, those such as fluid, in withdrawing cavity, amniotic 205.510), qual- appointment of (§ ty plans stalling within the amniot a saline solution medical di- consulting committee ified being performed cavity) ic were also personnel 205.230), (§ and written rector procedures These abortion have ASTCs. requir- 205.310), those as as policies (§ well complication fatality rate than higher 205.420) (§ sanitary conditions ing procedures, such the vac other abortion from the disposal all proper materials aspiration and dilation and uum evacuation and maintenance complicated in more methods. Since (§ 205.- order equipment good working require procedures volved abortion universally 410) merely enunciations are regulation supervision, close control perform- practice for recognized standard ASTCs, per I am also outpatient ing surgical procedures in can, should, the state and must suaded that on di- Ragsdale conceded facility. Dr. As might in it regulate its order that ASTCs examination, regulations most of the rect possible serious protect its citizens from obvious” simply “stated the type of this very easily problems medical which could upon impinged a woman’s way in no and Illinois, through its The of arise. State decision, right, her to an abor- much less legislators, authority, if so deter has the it design Moreover, building and tion. mines, require higher a standard requirements contained construction clinics, including operation of attend these engineer- proper regulations reflect ASTC personnel, building ing supervising and medical design practice from a ing and design, as main specifications as well accepted mini- point of view and service tenance, might protect that it its Ex- order facilities. for medical mum standards citizens, has just as State Wisconsin testing requirements for amples include higher authority require standards ventilation, heating, and air balancing Georgia prisons its the State they conditioning systems to ensure that if Wis. (§ protect its it so wishes. working 205.- inmates proper condition are Cf. seq. et clinic, Administrative Code HHS tions out (in of her §§ now light free Georgia 42-5-50, et Code Annotated probable § unconstitutionality seq. Similarly, 16(1) the State of Illinois can of the MPA and its § companion pass legislation mandating more all-inclu- definition) clause the ASTC to do so as requirements sive immunization long for school- clinic is not primarily devoted age required children than those by procedures. If Moе chooses to State of Missouri. incorporate Illinois Revised she, her clinic as an ASTC, Cf. ¶ Chapter 111.5, Statute trouble, 22.11 and Illinois without any will be able to a retain Administrative Code Tit. surgeon 696.10 with performing § abortions at her clinic Missouri Revised Statute 167.181. to serve on her § ASTC board of directors. requirement This neither limits the avail- legislature The Illinois has determined ability nor increases the cost of an abortion IHFPA, that the ASTCA and by their performed at an ASTC and in fact serves very enactment, very important social important state in protecting interest and economic laws for the betterment and ¶ the health Thus, itsof citizens. 157-8.6-1 protection of its citizens. Neither the AST- is constitutional. nor the qual- CA IHFPA burden a woman’s right ified pregnancy, to terminate a Further, the record reveals that those both Acts impor- further serve the state’s regulations addressing operative care do tant interest in the health and welfare of not burden a right woman’s to an abortion. citizens; thus, its Roe even under 205.530(c) Section the ASTC progeny the ASTCA and IHFPA must be requires all tissues during removed held constitutional. surgery be by qualified examined a consult ing pathologist. Supreme up Court Finally, turning abortion-specific to those an held regulation almost identical in Ash regulations; I ASTCA would hold that all The Court held reg that a Missouri but of these abortion-specific regula- one croft. ulation requiring all surgically tissues re survive Roe’s tions scrutiny. Initially, I (including ¶ moved tissue during removed would hold that properly 157-8.6-119 re- abortions) first-trimester quires physician actively engaged examined prac- pathologist “reasonably general tice an related to at ASTC be on the board of di- ly accepted medical rectors of ASTC standards and ‘fur primarily “devoted providing important facilities for health-related con thers] abortions” as a con- state ” cerns.’ dition of licensure. U.S. at Supreme Since S.Ct. at 2523 Akron, Menillo, City (quoting Court’s decision in Connecticut 462 U.S. at 2493). it been has clear S.Ct. require that states can Court “As stated: rule, physicians perform accepted practice Il- abortions. submit all tissue to the requirement linois’ additional practic- that a examination ing physician/surgeon pathologist. be on the board of This is particularly important primarily ASTC providing following abortion, involved in questions because re simply guarantees abortion services that a main as long-range complications physician be involved in the business deci- and their subsequent effect on pregnan (exclusive sions of the board of directors 487-88, 103 cies.” 462 U.S. at S.Ct. at 2523 the patient-doctor decision) (emphasis original). Further, the infor thus ensure procedures safe medical knowledge mation gained practices. Further, Ragsdale Dr. testified aggregated pathological testing and re 157-8.6-1 did If ports burden the wom- will aid women in the future. right an’s to an abortion. Additionally, requirement pathological report Margaret Moe, who desired to offer any abor- on abnormalities in the in ques- tissue Paragraph provides: 19. 157-8.6-1 physician, must have a who is to licensed physicians practice “Abortions—Licensed medicine in all of its branches and is Notwithstanding 6.1 any provision § actively engaged other practice of medicine at Act, any corporation of this operating Center, an Am- on the board of as a directors bulatory Surgical Treatment Center devoted to condition licensure of the Center." primarily providing to facilities for abortion Thus, these laboratory tests. propriate light of constitutional proper is tion upon way impinge a wom- in no provisions Ashcroft. because to have an abortion decision an’s the ASTC 205.760 Section medical the standard they merely state by the provided report, on forms requires a abortion. necessary perform a safe to tests Health, of each abor Public Department of more offensive they are no respect, In this with in an ASTC pеrformed procedure tion right an abor- to on a woman’s or intrusive month which following the days in ten “Abor- which states: 205.710 tion than § If doctor performed. the abortion was public with to the provided tions shall be later discovers performed the abortion who safety, effective- standards the same hemorrhaging, then complication,such as rights as ness, patients[’] regard for supplemental file a required he or she is Rags- As Dr. service.” v. Dan health In Parenthood report.20 Planned trial, 2831, concededly stated at at 96 S.Ct. dale’s counsel forth, U.S. Supreme agrees stat with that (1975), Ragsdale Court Dr. “Obviously, L.Ed.2d 788 that, I and sus- agree with ed: We statement. require- agrees with that reporting everyone in this room pect “Recordkeeping and reasonably directed to the that are statement.” ments that health and maternal preservation of majori- agree with the Finally, I do not patient’s confidentiali- properly respect a counseling require- that the ty’s conclusion permissible.... privacy are ty and 205.730(b)run afoul of the Su- ments of § kind, if not abused Recordkeeping of ruling Thornburgh preme Court’s overdone, useful to the state’s can be Obstetricians, 476 College American of its protecting the health interest in 90 L.Ed.2d 779 106 S.Ct. U.S. citizens, may be a resource female (1986). Thornburgh In the Court found involving to decisions that is relevant state provisions of the unconstitutional judgment.... experience and medical in- required a to be woman statute legally signifi- see no regarded, we As so characteristics, fetal the avail- formed of abor- consequence impact cant assistance, ability financial detrimental tion decision.” effects, psychological and all physical and (footnote 80-81, S.Ct. at Id. at 759-765, particular medical risks. Id. at Hern, Further, omitted). one of the Dr. the Court held 106 S.Ct. at 2178-81. But specifi- experts, alleged testified plaintiffs’ exceeded the that this detailed information statistics “is cally reporting describing general state’s interest health evaluation.” public essential con- subject matter relevant informed Thus, requirements at issue reporting “is not information sent medical because holding in the Court’s with are consistent always relevant the woman’s constitutional. and are Danforth serve to confuse decision and it abortion-specific regulations re- Other heighten anxiety her punish her and to factor quire a of blood RH determination accepted practice.” Id. contrary pro- of an obstetrical prior performance 106 S.Ct. at 2179. (§ cedure, including an abortion 205.- contrast, counseling requirements In 730(a)(1)) hemoglobin and hematocrit 205.730(b) description include per- analysis § examinations before and urine explanation performed, to be abortion, procedures forming an as well as and a possible complications, of risks and general or local anesthesia with require- These 205.520(b)). of alternatives. (§ At discussion sedation anesthesia with significantly intrusive than trial, ments less Ragsdale ‍‌‌​‌‌‌‌‌​​‌​‌‌‌​​​‌​‌​​​​‌‌‌‌‌‌‌​​‌‌‌‌​​‌​‌​‌‌​​‍admitted that he had no Dr. ap- Thornburgh, disagreement perform need to the ones invalidated patients reported, regulation complications companion not abor- number In a requires complica- specific, requiring hospital ASTC to 205.620 each to a due to § tion submit annual transfer Department tions, patients returning data statistical for fol- number of data is to contact, of Public This include Health. lowup of deaths. and the number procedures performed type number and the through Dr. Hern’s uals ... abortion decision raises the record establishes witness, questions that are often influenced testimony expert an coun- as sincere, deep-rooted religious beliefs, seling indispensable part a thor- is an principles, and prepara- moral ough pre-operative convictions.... evaluation any surgical procedure, procedure. patient tion a for an abortion [J]ust [a explanation is to an appropriate entitled Dr. Hern testified that counsel- woman] the alter- reasonable alternatives to ing should include a discussion of abor- dealing pregnancy.21 tion....” natives for with As Supreme repeatedly recog- Court has firmly I am convinced that Illinois can re- nized, is an “The decision to abort ... quire provide a counselor to a woman with one, important, it is and often stressful description procedure per- of the to be imperative desirable and that it be made formed, explanation possi- of risks and knowledge with full of its nature and con- complications, ble and a discussion of alter- sequences.” Danforth, 428 U.S. at so natives the woman can make a Akron, City 2840. S.Ct. at See also responsible enlightened light choice 442-43, at 2499.22 This is U.S. at 103 S.Ct. procedure fact that no other medical inherently differ- true since “[a]bortion purposeful “involves the termination of a procedures, ent other medical because potential McRae, life.” Harris v. 448 U.S. procedure purposeful no other involves the Further, 100 S.Ct. at 2692. potential termination of life.” Harris v. majority’s rejection counseling re- McRae, 297, 325, 448 U.S. 100 S.Ct. quirements ignores the recent trend in (1980). Thus, I 65 L.Ed.2d 784 em- encourages patients medicine which to seek phasized Hartigan, 763 F.2d Zbaraz v. opinions undergoing surgical second before J., dissenting): (Coffey, at 1549-50 procedures. In some instances insurance psychological

“There are and emo- companies severe required have even a second only tional stresses involved not opinion respect before non-emergency with sur- during procedure, geries providing abortion but coverage. before These days, years developments importance for months and even follow- reflect (as ing procedure_ many profession For footing individ- well as those Hern, court-qualified expert, dealing 21. Dr. testified discussion the alternatives for pregnancy as follows: with depending A Yes. And also to some extent on Now, you you "Q pro- testified earlier that do patient’s subject. interest in this Some your facility, counseling vide is that patients absolutely to discuss alterna- right, . doctor? refuse tives; they they come in and have their A Yes. absolutely up they minds made about what well, why you provide [counseling], Q ... do they get impatient to do want Dr. Hern? process they Well, really do wish important A I believe that it is for each about, great spend talking deal time patient good to have not under- example, adoption.” standing going that she is added). (Emphasis having got pregnant to be and how she [?!] her, mean, and what the methods are for I According majority, counseling re- permitted permit for her to be or to her to quirement particular requirement and in "the pregnancies avoid unwanted in the future. a ‘discussion of alternatives’ is unconstitution- Well, Q you say things every do the same majority Ragsdale's al.” The relied on testimo- patient, you give Dr. Hern? Do the same ny to the effect that discussions of alternatives counseling? might Ragsdale appropriate. speculated not be general, Although yes. really depends A In inappropriate that it would be to inform a wom- upon patient the individual as to how much continuing an of alternatives if her health was give we as to that but I also think that —how dependent undergoing medically what, but, on her neces- emphasis give much we and as to sary Obviously, say, abortion. in this situation a important patient as I it is also for the inappropriate opportunity “discussion of alternatives” is ply sim- express to have an her feel- ings because there are no The ma- pregnancy about alternatives. and about and, jority’s interpretation perhaps, relationship of the Illinois which it occurred. lead absurd results. It is clear that a Hern, Q you always, required only Would example, Dr. discussion of alternatives when your inlude in discussion with the woman a alternatives in fact exist. obligates us to declare responsibility dicial The informed consent. bill) places on the governmental unit to be act another merely an re- counseling regulations Illinois the enacted law is only if we believe void terminate planning to quire that a woman After review- contrary the Constitution. knowingly; Roe does do so pregnancy her challenged provi- the ing ASTCA and However, the contrary. the not hold to IHFPA, I that am convinced of the sions 205.730(b)(2)(D) requires that “[c]ounse- § people the as enacted expressed the will financial interest lors shall have no contrary to Illinois is not in these statutes appears to interfere patient’s decision” and Constitution; thus, I principles of the relationship and physician-patient with this well-reasoned not interfere Thus, I do enjoined. should be severed and a co- legislature, Illinois judgment counseling require- believe government. Surely equal branch (2)(D), 205.730(b), are except ments of § require legislature is entitled the Illinois validity. uphold their improper and would including procedures, first- all IV abortions, “under are trimester safety ensuring maximum conditions conclusion, indi- I am convinced that In Con- well as the the woman man].” [as duty, obligation, the have the vidual states Menillo, at 96 S.Ct. necticut v. 423 U.S. ASTC power to license medical and the (minor) surgi- semi-complex where facilities including first-trimester procedures, Moreover, 16(1) cal than § abortions, performed as a valid exercise ASTCA, are MPA, companion clause in the its protecting health interest 205.730(b)(2)(D), of a state’s I believe that and § pa- ensuring safety maximum for the and regulations question do not statutes and Determining to strike where tients. on a woman’s decision to place a burden is a competing interests between pregnancy balance her in the first trimes- terminate legislature, not for Further, matter if one is able to find bur- ter. wisely vests the the level of de The Constitution den, certainly court. it is below government with legislative branch of the Lastly, reflect minimis. laws, for authority to enact power common, and accepted approved standards equipped carry legislature is better practice and are of medical parties, task in that interested safety out designed to enhance the of Illinois’ repre- governmental citizens, such as state local important For state interest. sentatives, etc., experts, are reasons, able foregoing I would reverse the present respective positions before their court. order of the district open, unre- legislative body in a more Thereafter, APPENDIX stricted, informal forum. questions problems, as well

myriad of solutions, brought possible be- as their TITLE 77 ILLINOIS ADMINISTRATIVE legislative govern- fore the entire branch HEALTH CODE: PUBLIC scrutiny of subject ment and are hearing dealing public When debate. CHAPTER 1: DEPARTMENT OF complex ever-changing ques- with the HEALTH PUBLIC provide the health care tion of how to best b: HOSPITALS AND SUBCHAPTER citizens, to its at a reasonable cost FACILITIES AMBULATORY CARE factfinding policy making capabilities PART 205 limited and court of law are far more very due to the nature of a court STANDARDS, confined AND MINIMUM RULES truly independent judiciary A must of law. THE LICEN- REGULATIONS FOR always powers exercise review OF AMBULATORY SURGI- SURE making and reser- decision with discretion TREATMENT CENTERS. CAL vation, recognizing compe- that we are not policy to make social and economic

tent A: GENERAL SUBPART ,and giving decisions due deference to the ju- 205.120 Licensure legislative government. Our Section branch

A) applicant shall file a state- ownership. applicant ment of shall be for license a) application An update the information agree to shall pro- on forms Department made ownership in the statement of required shall con- application This by it. vided from the initial date of every 6 months required information under the tain filing, application this Part. Act and sixty B) than shall file an attested not less Each license submitted shall be intended Depart- of (60) days prior to the date statement with the financiаl July 1980 and at times operation. by ment required, include but thereafter b) application shall following information: limited to be C) shall be Financial statements address(es) name(s) per- of 1) annually April of filed on or before fa- sons) operate the own and/or who previous calendar year for the each they name under which cility and the (3) year, three months after or within sub- corporation A shall do business. period fiscal the close of the mit: licensee, of incor- A) certificate copy of its D) shall be A financial statement poration, Department forms on filed with name, title, ad- B) list of the by Department or on an- provided officers, corporate of its of each dress prepared on nual financial statements C) and address of the name list of mini- applicant. At used forms holding more of its shareholders each mum, they shall include detailed bal- 5%, the shares. than sheets, statements of income and ance 2) facility. location expense, statements including B) description of the E) Every facility licensed under this interviewing, exami- not limited to but Act, premises proposed to any be fa- nation, surgical, recovery room facility by applicant conducted as a cilities. during open shall be for a license plans. 4) schematic architectural inspection regular hours to an business 5) compliance with documentation writing by the Director. authorized building, utility and Safe- applicable all given any person notice need be No ty Codes. any inspection, prior to provid- 6) to be description of services F) operating an Any corporation facility including a list of by the ed Ambulatory Surgical Treatment Cen- performed. to be surgical procedures primarily providing fa- ter devoted 7) including their personnel all list of physi- must have a cilities for abortion name, address, position, qualifications practice licensed to medi- cian who is licensure. is active- of its branches and cine all signed by 8) shall be applications All medicine engaged practice in the ly shall applicant application and the center, Di- the Board of form acknowl- include a verification licensure of rectors as a condition to application to true and edging the the center. appli- complete certifying that the facilities, services, pro- c)Only those knowledge and under- cant has grams procedures included comply required action stands the application shall be licensed. licensing require- the Act and required for the application A new by a The form shall be verified ments. following: notary public. The forms shall be ac- 1) ownership, change in companied by $500. a license fee location, 2) change in 9) or As a condition of the issuance 3) facility so as to remodeling of Ambula- renewal of the license examination, interviewing, change the tory Surgical Center: Treatment monitoring equipment, a) There shall be oxygen and related apparatus, suction space or recovery room surgical or surgical and within items available number, Cardiac recovery area. postoperative programs. services 4)addition of equipment resuscitation pulmonary The addition NOTE: AGENCY in all facilities. available shall services, example, specialty new procedures written b) There shall be obstetrics/gynecology, podiatry sterilization, use, care, governing consulting changes may require all materials storage disposal of staffing. committee, and/or procedures supply of ster- adequate that an insure that a finds Therefore, Department pro- for each equipment is available ile needed. license is new on “Sterilization The section cedure. (1) one for valid d) license shall be The Con- Infection and Disinfection” re- suspended or sooner year, unless edi- most Hospital, recent in the trol annually voked, renewable shall be Association, tion, Hospital American and Department by the approval upon guideline. as the be used shall of $300. fee a license payment procedures to c) written shall be There only for be issued license shall Each storage use of in safety assure in the persons named premises gas- anesthetics medical inhalation transfer- not be and shall application edition of National es. current The shall The licenses assignable. or able (Stan- Association Code Fire Protection on the place conspicuous in a posted be 56a) as the be used shall dard regis- No. placard or A premises. licensed standard. physicians staff all try of centrally located procedures to facility d) shall be written shall be There any interest- to inspection storage use of safety available assure application renewal persons. in accord- ed narcotics and medications all by the De- provided on forms be shall state and federal law. ance with submitted be partment and shall 30, p. Ill.Reg. (Source: Amended at expi- prior to the days than 30 less 1979) July effective date. ration notice to e) give written shall E: GENERAL SUBPART (7) days seven within Department PATIENT CARE following: any Preoperative Care Section 205.520 staff, 1) administrative change of evaluation, a) examina- medical Where director, 2) change medical tion, made from referral are physicians, 3) change of staff office, hospital, or private physician’s nurse, 4) change supervising shall clinic, thereof pertinent records surgical pro- 5) or deletion addition pa- part of the and made be available performed, cedures the time the record at clinical tient’s change corporation 6) in the case of admitted registered and patient is involving equity shareholders cen- ambulatory surgical treatment more interest. or 5% ter. 6220, ef- Ill.Reg. (Source: Amended at 6 history be shall b) complete A 17, 1982) May fective physical examination and the obtained hemoglobin or complete. A shall be SUPPLIES, EQUIPMENT, D: SUBPART of the examination hematocrit MAINTENANCE FACILITY AND sugar, protein, and acetone urine for qualified labo- Equipment by a performed 206.410 Section shall be following prior to the ratory technician working order good shall be Equipment procedures: sufficient in numbers available and shall general anes- 1) with performed those on the good patient care based provide thesia, facility. performed procedures to be Abortions provided shall be public with the same standards of safety, effec- 2) performed those with local anesthe- tiveness, regard patients sedation, rights sia with as any other health service. 3) those preg- terminate nancy. (Source: Amended Ill.Reg. 30, at 3 p. c) A indicating written statement in- July 23, 1979) effective formed signed consent and a authoriza- Section 205.720 Personnel patient tion performance for the At least registered one professional nurse specific surgical procedure shall postgraduate procured experience education or part and made pa-

tient’s clinical record. obstetrical gynecological nursing shall d) supervise Surgical procedures and direct the per- nursing personnel shall not be patient’s medical, formed on having patients and care of having pro- obstetrical surgical, psychiatric conditions or cedures. complications specified by the con- AGENCY NOTE: Procedures involv- sulting committee in the facility’s writ- ing pregnant subject uterus are policies. ten particular complications post- (Source: 10974, Amended at Ill.Reg. operative requires care special a 30, August 1982) effective knowledge on part nursing Section Operative 205.530 Care staff. a) Surgical procedures per- shall be (Sourcе: 30, Amended at Ill.Reg. p. only by qualified formed a physician, July 23, 1979) effective dentist podiatrist within the limits defined specific practice his/her Section 205.730 General Patient Care privileges. a) Examination b) qualified A anesthesiologist, a dental 1) Prior procedures to obstetrical anesthesiologist or a reg- certified blood Rh factor shall be by determined anesthetist, istered nurse medically di- qualified a laboratory technician for by rected a licensed physician who ad- every patient. ministers or directs the administration 2) physician performing an abor- anesthesia an Illinois licensed

hospital, procedure tion present shall be shall diag- establish the ad- ministration of anesthetics and recov- nosis of pregnancy by appropriate clin- ery patients any general when ical testing prior per- evaluation major regional anesthetic is used. forming procedure. an abortion c) All tissues during removed surgery 3) Time shall be allowed between shall by consulting be examined pa- initial examination and termination of thologist x-rays and all shall be read pregnancy permit reporting by consulting radiologist who shall reviewing of all laboratory tests provide a written report of his/her ex- with patient by facility physi- attending amination to the' physician. cian. A copy report of this shall be filed in b) Counseling patient’s clinical record within sev- (7) days. en 1) Counseling provided shall be follow- (Source: Ill.Reg. 13337, Amended at 6 ing patient disclosure to the 20, 1982) effective October diagnosis pregnancy, prior to

performance any surgical proce- dure. It individually shall be done SUBPART REQUIRE- G: ADDITIONAL designated a room for such use MENTS FOR FACILITIES IN procedure WHICH shall not be the room. OBSTETRICAL/GYNECO- LOGICAL ARE PROCEDURES PER- 2) All provide facilities shall orienta- FORMED training tion for counselors and insure Section 205.710 Abortions that each qualified counselor is to: Center Ambulatory Surgical Treatment gestation exceeds whose patients those on by per- done Counseling be shall

A) 12 weeks. to: qualified son 30, p. Ill.Reg. 3at (Source: Amended dealing i) alternatives discuss 1979) July 371, effective pregnancy; an unwanted used procedures ii) describe Require- Postoperative 205.750 Section facility; ments possible risks and iii) explain service obstetrical/gynecological a) Each procedure; of each complications factor sensitization provide Rh shall informa- contraception iv) provide patients negative Rh to all prophylaxis tion. proce- according to standard counseling such B) Demonstration dures. by the required be shall qualifications family availability of b) Information Department. provided, shall services planning train- of orientation C) Documentation When, in patient. desired when Depart- by the required ing shall be best it is opinion, physician’s ment. and with patient interest no financial have D) shall Counselors consent, planning ser- family patient’s patient’s decision. interest dis- prior to the may initiated vices discus- Counseling include 3) shall patient. charge of the alternatives, description of sion Ill.Reg. 5at explana- Amended (Source: performed, to be 1981) complica- possible November effective of risks tion information Contraceptive tions. Reports 205.760 Section Group postoperatively. provided be procedure a) report of each A in addition provided counseling may be surgical ambulatory in an performed patient’s counseling. The individual made to shall be center treatment documenta- include shall clinical record by it. provided forms Department on counseling received. tion of the shall be submitted reports These opinion of In the AGENCY'NOTE: following the (10) days ten later than Treatment Cen- Ambulatory Surgical per- the abortion in which month Board, patient should Licensing ter submitted shall be Reports formed. concerning proce- make a decision whether performed procedures on coer- from atmosphere free in an dure pregnant. patient was not the Board be- Consequently, cion. out in such b) shall not filled Reports in a accomplished is best lieves as to a time avoid or at manner such apart pro- separate room complications. reporting of accurate Board believes The room. cedure voluntary truly to reach it is difficult of a aware c) facility becomes If the is undressed patient while the decision following the submission complication table. procedure on the supple- report, then original Ill.Reg. at 5 (Source: Amended be submitted report shall mental 1981) November effective Department. Require- Preoperative Section 205.740 30, p. Ill.Reg. at 3 (Source: Amended ments 1979) July effective a ambulato- may performed Abortions only those center ry treatment including DESIGN, up to gestation CON- patients with I: BUILDING SUBPART rath- with ovulation commencing STANDARDS, AND weeks STRUCTION of the men- basis on the computed er REQUIREMENTS than PHYSICAL physi- by the cycle, as determined strual General Considerations 205.1320 Section per- condition cian, patient’s medical if the a) Location not be shall Abortions mits. (whether movable).

ter fixed or Ar- rangements permit shall at least 2'-6" facility identifiably sepa- This shall be clearance at each side and at both ends rate from other facilities and func- of the examination table. tions. b) Program 2) lavatory Narrative A equipped or sink for handwashing with knee sponsor project pro- for each or foot shall control program

vide a narrative provided. of functions shall be for facility space which contains 3) A counter space or shelf writing for requirements, staffing patterns, de- provided. shall be partmental relationships and other ba- b) room(s) Procedure sic relating information to the fulfill- 1) Provide at least one room ment of the objectives. institution’s with a minimum clear area of 250 general This be a or detailed de- square feet and a minimum dimension scription per- of each function to be feet, of 14 exclusive of fixed and mova- formed, space needed for these func- ble cabinets and Any shelves. tions, operation, hours of number of procedure rooms shall not be less than occupants staff or other of the various square feet with a minimum di- spaces, types equipment required, mension of 10 feet. interrelationship of various functions spaces, description 2) of those Provide a system communication necessary complete services for the connecting with the control station. functioning but which 3) special Provide features such x- as elsewhere in the available commu- ray illuminators, film storage and, therefore, nity dupli- need not be space required by program. facility. Explain cated in this type c) room(s) Recovery surgery procedures, the volume 1) Room(s) post-anesthesia for recov- work, doctors, the number of etc. ery surgical patients pro- shall be c) Size vided. (number types) extent 2) room(s) Recovery shall contain a diagnostic, clinical, and administrative square minimum of 100 feet of usable provided facilities to be shall be deter- space floor single occupancy bed contemplated mined the services square per and at least 80 feet bed for patient and the estimated load as de- multiple occupancy, arranged bed so program. scribed in the narrative that there will be at least 3 feet be- d) Handicapped Provisions for the tween beds and 4 space feet clear at design provide shall for accessibili- the foot of each bed. ty to the physically handicapped (pub- lic, staff, 3) room(s) patients). and drug This shall contain a e) station, handwashing distribution Privacy for facil- Patient ity, charting facilities, station, nurses’ design provide of the shall storage space and supplies for privacy and dignity pа- for the and of the during interview, equipment. examination,

tient and treatment. 4) Provide a toilet which is accessible (Source: Amended IlLReg. at 6 ef- room, recovery having without 17, 1982) May fective recovery to leave the room to reach it.

[*] ^{[*] [*]} The water closet shall be equipped gray with a diverter valve. Section 205.1360 Clinical Facilities 5) A a)Examination separate supervised may room(s) room be provided by patients for use who are 1)Each room(s) examination shall recovery (post-anes- able to leave have a minimum clear floor area of 80 thesia) feet, room square but need additional time and a minimum dimension feet, excluding signs of 8 for vital spaces such all to be stabilized to the vestibule, toilet, closet, point and patient may work coun- where the leave the space for clean handwashing,and for supply A clean supplies. sterile equipped room shall be facility. This the narra- when provided be shall room for lounge type chairs reclining or with system for the program defines tive minimum shall contain patients and of clean storage distribution space floor of usable square feet of 50 not re- supplies which sterile at accommodated patient to be for each of a clean workroom. the use quire time. one incorporated 2) shall be An autoclave may com- recovery be 6) rooms These workroom. the clean into bined, if desired. storage facilities shall be h) Anesthesia recovery four 7) a minimum Provide anesthetics Flammable provided. proce- for each lounge chairs beds or four prohibited. At least one dure room. bed, three space and the storage must be i) supply with gas Medical lounge chairs or beds. be oxygen oxide and reserve nitrous Ill.Reg. ef- (Source: provided, Amended all with cylinders shall be 1982) May fective secured. properly tanks Areas Support Service 205.1370 Section sup- equipment and Storage j) area for located to a) shall be A station control surgical shall be plies suite used of all traffic visual surveillance permit provided. suite. operating enters shall k) personnel facilities be Staff facility(ies) with b) sterilizing Provide person- for male and female provided conveniently autoclave(s) high speed nurses, technicians, (orderlies, nel rooms. procedure all to serve located surgical doctors) working within the may be provisions Approved alternate lounge, The areas shall contain suite. instru- replacement of sterile made for toilets, lockers, equipped for lavatories surgery. during ments changing handwashing, space for be c) station shall drug A distribution be ar- clothing. areas shall These preparation storage and provided one-way traffic ranged provide administered to be of medication entering personnel pattern so that patients. surgical suite can outside from knee or d) foot stations Scrub directly into change, gown, and move provid- be shall faucets elbow actuated Space for removal surgical suite. the entrances ed near be foot covers shall scrub suits ar- shall be facilities rooms. Scrub using it will designed personnel so that nearby splatter on ranged to minimize per- contact with clean physical avoid supply carts. personnel sonnel. e) for the exclusive A workroom soiled patients l) change areas where Provide staff shall suite use clothing into change street can shall The soiled workroom provided. pre- privacy, hospital gowns in counter, equipped sink contain a work This include surgery. shall pared for receptacle, handwashing, waste for change lockers, toilets, clothing or This room receptacle. and linen area(s), the ad- space for gowning and cleaning equip- anesthesia for be used medications. ministratiоn ment. out of m) storage area shall be Stretcher be f) disposal facilities shall Fluid waste line traffic. direct respect conveniently located with re- n) containing floor Janitor’s closet general procedure rooms. sink, storage ceptor or and service S) housekeeping and supplies for space supply clean 1)A workroom or a clean provided exclusive- shall be equipment required clean materials room when suite. surgical for the ly suite assembled within are Ill.Reg. ef- (Source: Amended at shall A workroom prior use. clean 1982) May counter, equipped sink fective a work contain permit which will access in hardware emergency. an Diagnostic Facilities Section 205.1380 e) pa- width of doors for minimum pre-admission evaluation tests are to If the tient access to examination and treat- facility, performed within the the follow- be ment rooms shall be 3'-0". provided. ing services shall be f) The minimum of doors width to rooms suite, a) Radiographic provided, if shall needing (proce- access stretchers following: contain the rooms, recovery) dure shall be 3'-8". 1) processing film area g) openings Doors on all corri- between 2) viewing and area administration spaces subject dors and rooms or 3) storage film facilities doors, occupancy, except elevator shall 4) handwashing toilet room with facili- swing type. ties, directly accessible from each fluo- h) Doors, except spaces doors to such as entering roscopy room without subject small closets which are not general corridor area. occupancy, swing shall into corri- 5) dressing area with convenient ac- might dors a manner that obstruct cess to toilets. required traffic flow or reduce the cor- b) Laboratory suite shall contain the fol- ridor width. lowing minimum facilities: i) Doors, sidelights, lights, borrowed 1) Laboratory counter sink work with glazing windows which the extends vacuum, and electric services. downs to within 18 inches of the floor 2) Lavatory equipped or counter sink (thereby creating possibility of acciden- handwashing. traffic) breakage by pedestrian tal 3) Storage cabinet or closet. glazed safety glass, shall be with wire 4) Specimen collection facilities glass, plastic glazing material that equipped lavatory. a toilet and breaking resist not create will will 5) facilities shall have Blood collection dangerous cutting edges when broken space for a chair and work counter. of Illinois accordance with State (Source: Ill.Reg. Amended at 6 ef- (Ill.Rev. Safety Glazing Act Materials 17, 1982) May fective Stat.1981, 111%,par. seq.). ch. 3101 et Similar materials shall be used wall 205.1400 Details and Finishes Section required openings unless otherwise for a) public shall Minimum corridor width safety. fire 5'-0", except those corridors where j) expansion joint covers Thresholds patients transported in stretchers made flush with the floor sur- shall be or carts shall be 8'-0". face to facilitate use of wheelchairs b) or section shall have carts. remote from each other. least two exits k) dryers, paper dispensers Air towel relating details to exits and fire Other receptacles provid- shall be waste safety shall be in accordance with Sec- handwashing ed at all fixtures. (Business Occupancy) tion 13 l) required, fire doors are Where labeled latest edition of NFPA Standard 101 indepen- these shall be certified requirements herein. outlined testing laboratory meeting the dent govern These differ- Standards where requirements equal construction ent from the code. doors in National Fire those for fire c) fountains, drinking Items such as tele- (NFPA) Association Stan- Protection booths, machines, vending phone fire 80. Reference to a labeled dard portable equipment shall be located so include la- door shall be construed to not restrict corridor traffic or hardware. beled frame and reduce the corridor width below the required m) requirements minimum. protection Radiation ray d) X-ray gamma and installations All may doors to toilets which be used requirements of by patients equipped shall conform to the shall be with t) easily materials shall Floor be cleana- appropri- wear resistance ble and have Safety Department of Nuclear ate for the location involved. Against Rules for Protection Radiation 1) frequently subject In all areas (32 Ill.Adm.Code, b) Subchapter and methods, cleaning floor materials wet guidelines of re- should follow NCRP physically by ger- shall not affected be February ports # and 33 dated cleaning micidal and solutions. September 1976. Provi- #49 dated 2) subject that are Floors traffic testing made for and sions shall be wet, nonslip shall have a surface. while use, completed and installation before u) finishes shall be washable and Wall all defects must be corrected before plumbing the immediate area of fix- use. tures, be smooth and moisture shall n) ceiling height minimum shall be resistant. 8'-0", following exceptions: with v) penetrations by pipes, and wall Floor rooms, 1) provided, if shall have Boiler ducts, tightly and conduits shall be ceiling not less than 2'-6" clearance entry to minimize of rodents sealed header and con- above main boiler insects. and Joints structural ele- necting piping. similarly ments shall be sealed. 2) Radiographic and other rooms con- w) Ceilings shall and those be cleanable taining ceiling-mounted equipment and in sensitive areas such as including ceiling-mounted those with readily rooms shall be washable surgical light height fictures shall have that can retain dirt without crevices equip- required to accommodate particles. These sensitive areas shall ment and/or fixture. ceiling, covering have finished all corridors, rooms, 3) storage Ceilings in piping. ductwork and overhead rooms, minor rooms toilet and other x) ceilings may Finished be omitted in not less than 7'-8". be equipment spaces, mechanical 4) tracks, rails, Suspended pipes areas, storage shops, general and sim- path of normal traffic shall located spaces, required ilar unless for fire-re- not less than 6'-8" above the floor. purposes. sistive o) prohibited. Anesthetics are Flammable y) ceilings Acoustical are recommended p) draperies Cubicle curtains and shall corridors, rooms, multipurpose or rendered flame noncombustible waiting areas. large pass retardant and shall both (Source: Ill.Reg. Amended at 6 ef- and small tests of NFPA Stan- scale 17, 1982) May fective dard 701. q) ceilings Interior finish of walls J: SUBPART MECHANICAL rooms, ways, storage all exit and areas Conditioning, fire

of unusual hazard shall have Section 205.1540 Air Heat- spread rating ing Ventilating Systems flame of not more than 25. a) systems designed pro- shall be temperatures r) vide the comfort and hu- Floor finish materials shall have a midities as recommended ASHRAE spread rating flame of not more than Standards. separate underlayment 75. If a material, used floor finish b) handling systems Air shall conform spread assembly in- flame test shall Conditioning “Installation of Air underlayment. clude the Ventilating Systems,” NFPA 90A- s) All interior finish materials shall have c) 25,000 developed rating exceeding spaces

smoke of 450 or less. For cubic volume, produce heating, The use of materials known to feet in air condition- large gases ing, ventilating systems con- amounts of toxic shall be shall for the Installation avoided. form to “Standard

1407 j)For systems serving procedure and re- rooms, covery filter 1 bed No. shall be Heating of Warm Air Air Condi- upstream located of the conditioning tioning Systems, 90-B, 1973, NFPA ex- equipment and filter bed No. ‍‌‌​‌‌‌‌‌​​‌​‌‌‌​​​‌​‌​​​​‌‌‌‌‌‌‌​​‌‌‌‌​​‌​‌​‌‌​​‍2 shall be cept return ducts shall constructed located downstream of supply fan equal specified of material to that conditioning equipment including ducts, supply Chap. 1.1., paragraph humidifiers. Duct Materials. k)

d) Filter frames shall be Outdoor air intakes shall durable be located as practical provide shall airtight far as but not less than 15 fit with the enclosing feet from exhaust outlets of ventila- duct joints work. All be- systems, tion equipment combustion segments tween filter enclosing stacks, medical-surgical sys- vacuum gasketed duct work shall be or sealed tems, plumbing vent stacks or from provide positive against seal air areas which collect vehicular ex- leakage. haust and other noxious fumes. l) A manometer shall be installed across e) All ventilation air outlets and inlets serving each filter bed procedure and shall conform to NFPA 90A-Chapter recovery rooms. 2, paragraph 3.2. Location of Outlets m) Fire and dampers smoke shall be con- and Inlets. structed, located and installed in ac- f) systems The ventilation shall be de- cordance requirements with the signed provide and balanced to NFPA 90A. pressure ventilation and relationships n) systems, All regardless size, as shown in Table A. serve more than one smoke or fire g) supplied The ventilation air pro- zone, shall equipped with smoke cedure rooms shall be delivered at or detectors to shut down fans automati- ceiling served, near the of the area cally specified paragraph 4-3.1 of all exhaust or return air from the area NFPA 90A. shall be removed near the floor level. o) The system ventilation for anesthesia At least two exhaust outlets shall be storage rooms shall conform to the used each room. requirements of “Standard for Inhala- h) All central ventilation or air condition- 56A, tion Anesthetics” NFPA includ- ing systems equipped shall be with fil- ing the gravity option sys- ventilation having ters efficiencies not less than tem. specified those following table: p) Boiler rooms provided shall be sufficient outdoor air to maintain com- FILTER EFFICIENCIES FOR CENTRAL bustion equipment rates of and limit VENTILATION AND AIR CONDI- temperatures working stations to TIONING SYSTEMS IN AMBULATO- 97° F Temperature Effective as de- RY SURGICAL TREATMENT FACIL- fined ASHRAE Handbook of Fun- ITIES All Recovery Rooms Procedure and Area i)All filter Other Designation ed in accordance with the American atmospheric Areas efficiencies shall be Filter Beds Number of Minimum dust spot Filter Bed efficiencies test- No. 1 Efficiencies (Percent) Filter average Filter Bed No. 2 — fective (Source: q) of 100° F. above from ventilated to equipment, such as boiler rooms and heater damentals. Rooms May Amended at 6 rooms, containing 17, 1982) exceeding prevent shall be insulated and any floor surface Ill.Reg. heat-producing temperature ef- Section 205. Society TABLE A Refrigeration General Pres- Heating, Conditioning Air Engineers (ASHRAE) Relationships sure and Ventilation Rates Standards 52-68. Ambulatory Surgery Area 1408 Minimum Air All Air Total Changes Exhausted per Pressure Directly Hour Relationship Adjacent Supplied Area Room

Within Recirculated Outdoors Designation Areas Room Units No 15 Optional Room Procedure + 6 ® Optional Optional Room Examination 6 Optional Optional Room Recovery + Optional 4 Optional Area Medication + 6 Optional Optional Room o X-Ray Workroom Soiled No 10 Yes Holding Soiled Workroom Clean Holding Optional Optional Clean + I 10 No Yes Darkroom I 10 No Yes Toilet Room ! 10 Yes No Janitors’ Closet t Yes No Rm. Sterilizer Equip. No Yes Linen and Trash Rm. 1- Optional Optional Laboratory No Storage Yes Linen Soiled Storage Optional Optional Linen Clean + No Storage Yes O Anesthesia Services Area Central I Yes No Soiled Area Optional Optional Area Clean + Storage O Optional Optional Equipment = Positive + - = Negative =0 Equal America, Appellee, ef- UNITED STATES IlLReg. 6at Amended

(Source: 1982) May v. fective CYR,

Richard ST. Allen a/k/a Dexter, Appellant. Nos. 86-5311 to 86-5315. America, Appellee, STATES UNITED Appeals, Court of States United v. Eighth Circuit. O’CONNELL, Edward W. a/k/a Daniel 8, 1987. June Submitted Smith, Appellant. 14, 1988. March Decided America, Appellee, UNITED STATES 86-5315 in No. Rehearing Denied v. 8, 1988. April COOKE, Appellant. Gregory J. Denied Rehearing En Banc Rehearing and 25, 1988. April in No. 86-5312 America, Appellee, UNITED STATES Denied Rehearing En Banc Rehearing and v. 3, 1988. May in No. 86-5311 COLLIER, Appellant. Patrick Basil Rehearing En Banc Rehearing and 20, 1988. May America, Denied Appellee, STATES UNITED PATTERSON, II, Appellant. R. William

Case Details

Case Name: Richard M. Ragsdale v. Bernard J. Turnock, Director of the Illinois Department of Public Health

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 12, 1988

Citation: 841 F.2d 1358

Docket Number: 85-3242

Court Abbreviation: 7th Cir.