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Village of Oak Lawn v. Marcowitz





Appeal from the Circuit Court of Cook County, the Hon. Thomas Walsh, Judge, presiding.


Plaintiff, the village of Oak Lawn, filed a complaint in the circuit court of Cook County charging the defendant, Dr. Stewart Marcowitz, with operating an ambulatory surgical treatment center without a license in violation of a village ordinance. Dr. Marcowitz moved to dismiss, alleging the ordinance was unconstitutional, and the trial judge so held. We allowed the village's motion to transfer its appeal to this court.

The village's "Ambulatory Surgical Treatment Centers" ordinance is included as article IX of the village's code of ordinances relating to health and sanitation. It defines such centers by adopting the definition contained in the State act:

"The term ambulatory surgical treatment center shall have the same meaning as ascribed in the `Ambulatory Surgical Treatment Center Act' of 1973 as now and hereafter amended. (Chapter 111 1/2, Section 157-8.3 of the Illinois Revised Statutes)." Oak Lawn, Ill., Code of Ordinances, ch. 10, art. IX, sec. 10-141 (1979).

A center is defined under the Ambulatory Surgical Treatment Center Act:

"(A) `Ambulatory surgical treatment center' means any institution, place or building devoted primarily to the maintenance and operation of facilities for the performance of surgical procedures or any facility in which a medical or surgical procedure is utilized to terminate a pregnancy, irrespective of whether the facility is devoted primarily to this purpose. Such facility shall not provide beds or other accommodations for the overnight stay of patients. Individual patients shall be discharged in an ambulatory condition without danger to the continued well being of the patients or shall be transferred to a hospital.

The term `ambulatory surgical treatment center' does not include (1) any institution, place, building or agency required to be licensed pursuant to the `Hospital Licensing Act', approved July 1, 1953, as heretofore or hereafter amended.

(2) any person or institution required to be licensed pursuant to `An Act in relation to the licensing and regulation of homes for the maintenance, care, or nursing of persons who are ill, aged or physically infirm', approved July 17, 1945, as heretofore or hereafter amended;

(3) hospitals or ambulatory surgical treatment centers maintained by the State or any department or agency thereof, where such department or agency has authority under law to establish and enforce standards for the hospitals or ambulatory surgical treatment centers under its management and control;

(4) hospitals or ambulatory surgical treatment centers maintained by the Federal Government or agencies thereof; or

(5) any place, agency, clinic, or practice, public or private, whether organized for profit or not, devoted exclusively to the performance of dental or oral surgical procedures." Ill. Rev. Stat. 1979, ch. 111 1/2, par. 157-8.3(A).

The ordinance in many other respects closely resembles the State act and implementing regulations adopted by the Department of Public Health. It requires detailed information regarding ownership and operation of a center; a description, including architectural plans, of the facility, and documentation of compliance with all applicable building and safety codes; a description of the services to be provided and the names, addresses, qualifications, and licenses of all personnel; requires the facility to be under the medical supervision of one or more physicians; permits surgical procedures to be performed only by a physician privileged to perform surgery in at least one Illinois hospital; requires at least $1 million liability insurance and notice to the village medical director of any change in staff, surgery performed, or ownership. An "organization plan" detailing duties and responsibilities of staff personnel must be submitted to the medical director and regularly reviewed, and a consulting committee must be appointed to establish and enforce professional standards. Physicians operating in the facility must be active staff members of a licensed hospital within 15 minutes' travel time or five miles. A policies and procedures manual must be prepared for approval by the consulting committee and must be followed at all times. In addition to the presence of a qualified physician, an experienced registered nurse and at least one person certified in "Basic Life Support" shall be on the premises while patients are present. Each facility must have either a certified medical technician to perform laboratory procedures or a written agreement with a licensed laboratory. The ordinance specifies certain equipment which must be available and certain standards to be maintained in preserving materials and supplies. Specific testing and procedures for pre-operative and post-operative care and record keeping are mandated. Only first-trimester abortions may be performed, and their performance requires specific testing, a diagnosis of pregnancy based upon chemical and physical examination by the operating physician, a 24-hour wait between the initial examination and abortion, and pre-abortion counseling by qualified personnel. Pathological examination of all tissue removed during an abortion and a written report of the findings are necessary, together with a confidential report, to the medical director, of each abortion performed or attempted. There must be at least four inspections of a licensed facility each year, and licenses may be revoked for violation of ordinance provisions. Violators may also be fined $500 per day for each day a violation continues. A severability clause is included indicating an intent to enact any part of the ordinance remaining following a declaration of partial invalidity. An initial license fee of $5,000, plus annual renewal fees of $2,000, are required.

There is no doubt of the village's authority to enact ordinances imposing reasonable regulations for the purpose of protecting the health and safety of its residents. (City of Carbondale v. Brewster (1979), 78 Ill.2d 111, appeal dismissed (1980), 446 U.S. 931, 64 L.Ed.2d 783, 100 S.Ct. 2145 (ordinance requiring snow removal from sidewalk fronting property); City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill.2d 40 (special use permit for sheltered care home); Schuringa v. City of Chicago (1964), 30 Ill.2d 504, cert. denied (1965), 379 U.S. 964, 13 L.Ed.2d 558, 85 S.Ct. 655 (fluoridation of public water supply is reasonable exercise of police power).) The Ambulatory Surgical Treatment Center Act expressly recognizes the municipality's authority:

"Nothing in this Act shall be construed to impair or abridge the power of municipalities to license and regulate ambulatory surgical treatment centers, provided that the municipal ordinance requires compliance with at least the minimum requirements developed by the Department pursuant to this Act." Ill. Rev. Stat. 1979, ch. 111 1/2, par. 157-8.4.

Defendant urges, however, that the ordinance upon which the complaint against him is based is an unconstitutional restriction upon the decision by a woman and her doctor to obtain a first-trimester abortion; that it violates equal protection requirements in that it requires a permit for a facility in which a single abortion is performed, but does not require a license for a facility in which other surgical procedures are performed unless the facility is primarily devoted to that purpose; and that the ordinance is so vague and indefinite that defendant is unable to determine what type of conduct is proscribed. It is readily apparent, of course, from the definition of a center, that the ordinance requirements would be triggered by the performance of a single abortion. Since, on a motion to dismiss, all well-pleaded allegations in the complaint are taken to be true (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540), and no evidence was presented as to the effect of these regulations upon the abortion decision, we are limited to a consideration of the validity of the ordinance on its face.

A review of the relevant decisions will be helpful. The United States Supreme Court has recognized that the fundamental right of privacy, including a woman's qualified right to terminate her pregnancy, is protected against State action under the fourteenth amendment. (Roe v. Wade (1973), 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705; Doe v. Bolton (1973), 410 U.S. 179, 35 L.Ed.2d 201, 93 S.Ct. 739.) ...

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