The opinion of the court was delivered by: Robson, District Judge.
MEMORANDUM AND ORDER ON MOTIONS FOR LEAVE TO INTERVENE AND FOR
A TEMPORARY RESTRAINING ORDER.
The petitioner moves for leave to intervene as a plaintiff in
this declaratory judgment action challenging the
constitutionality of the Illinois abortion law. Ill.Rev.Stat.
1967, ch. 38 § 23-1. She further asks this court to issue a
temporary restraining order enjoining the defendants from
prosecuting a named doctor, who is a plaintiff in this
purported multiple class action, if he terminates her
pregnancy. For the reasons set forth below, this court is of
the opinion the motion for leave to intervene should be
granted, but that the motion for a temporary restraining order
should be denied.
The petitioner is a pregnant sixteen-year old high school
student who was allegedly abducted, beaten, and raped by two
youths on December 31, 1969. Physicians' affidavits attached to
the motion to intervene attest that their medical examinations
have revealed evidence that the petitioner was raped and is
pregnant. The petitioner alleges that the Illinois abortion law
challenged in the declaratory judgment action at bar denies her
the constitutional right to have her pregnancy terminated. She
cites as authority recent decisions which have declared similar
abortion provisions of Wisconsin and California
unconstitutional. Babbitz v. McCann, 310 F. Supp. 293 (E.D.Wis.
1970); People v. Belous, 71 Cal.2d ___, 80 Cal.Rptr. 354,
458 P.2d 194 (1969), cert. den. 397 U.S. 915, 90 S.Ct. 920, 25
L.Ed.2d 96 (1970).*fn1 Since the petitioner raises
questions of law identical to those set forth in the complaint
in this matter, she is allowed to intervene as a plaintiff
pursuant to Rule 24(b), Federal Rules of Civil Procedure.
The petitioner further seeks a temporary restraining order to
enjoin the defendants from bringing a criminal action in the
courts of Illinois against one of the plaintiff-doctors in this
case, Dr. Charles Fields, if he terminates her pregnancy. From
the face of the complaint, it appears that the doctor in
question is a registered and licensed physician and surgeon in
the state of Illinois, and is engaged in the practice of
obstetrics and gynecology. It further appears that he is
presently Clinical Professor and Acting Chairman of the
Department of Obstetrics and Gynecology at the Chicago Medical
School, as well as Chairman of the Department of Obstetrics and
Gynecology at Mt. Sinai Hospital. Dr. Fields' affidavit,
appended to this motion, states that the petitioner's pregnancy
may be safely terminated until on or about March 27, 1970, and
that he will terminate her pregnancy "if permitted to do so by
this court." The petitioner specifically asks this court to
protect Dr. Fields "from prosecution as a result of his
treatment of the intervener in this case." Petitioner's
Memorandum, page 4. The petitioner asserts that unless she
receives such judicial assurance, "no one she can safely trust
will risk prosecution for her" and she will thereby suffer
irreparable harm. Petitioner's Supplemental Memorandum, page 2.
Despite the defendants' contentions to the contrary, this is
not a case where the so-called anti-injunction statute is
applicable. 28 U.S.C. § 2283. No state criminal action is
pending, and this case is therefore clearly distinguishable
from Babbitz v. McCann, supra, wherein both temporary and
permanent injunctions were denied the plaintiff-physician. Cf.,
Wilson v. Simon, 299 F. Supp. 305, 313 (N.D.Ill. 1969). However,
this court is of the opinion that it lacks jurisdiction to
grant the petitioner the relief she seeks. Although her motion
is styled as a prayer for a "temporary" restraining order, in
substance she is asking this court to immunize her treating
physician from any future prosecution under a presently valid
state criminal statute, whatever the ultimate disposition of
this litigation. The relief sought by the petitioner in reality
constitutes a permanent injunction selectively applied to one
Congress has defined the boundaries within which a federal
court may enjoin the enforcement of a state statute. An
interlocutory or permanent injunction may only be issued by a
three-judge court. 28 U.S.C. § 2281. See also Collins v.
Bolton, 287 F. Supp. 393, 404 (N.D.Ill. 1968). A single-judge
district court is statutorily prohibited from issuing either an
interlocutory or permanent injunction under 28 U.S.C. § 2281. A
single-judge court has the limited jurisdiction to grant a
temporary restraining order where a showing of a substantial
federal question and the threat of immediate irreparable harm
has been made. 28 U.S.C. § 2284. The life of a temporary
restraining order is brief, and would hardly afford the
protection sought here. This court cannot insulate Dr. Fields
from future vulnerability under a presently valid state
criminal statute, nor may this court eliminate his "risk of
prosecution" however compelling the plight of his patient. Only
a three-judge court may do so pursuant to 28 U.S.C. § 2284,
should it find the challenged statute unconstitutional.
It is therefore ordered that the petition for leave to
intervene be, and it is hereby granted.
It is further ordered that the motion for a temporary
restraining order be, ...