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Charles v. Daley

November 30, 1984

ALLAN G. CHARLES, M.D., ET AL., PLAINTIFFS-APPELLEES/CROSS-APPELLANTS,
v.
RICHARD M. DALEY, ET AL., DEFENDANTS-APPELLANTS/CROSS-APPELLEES, EUGENE F. DIAMOND, M.D., ET AL., INTERVENING DEFENDANTS-APPELLANTS/CROSS-APPELLEES; THE HOPE CLINIC FOR WOMEN, LTD., ET AL., PLAINTIFFS-APPELLEES, V. RICHARD M. DALEY, ET AL., DEFENDANTS-APPELLANTS, EUGENE F. DIAMOND, M.D., ET AL., INTERVENING DEFENDANTS-APPELLANTS



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 79 C 4541, 79 C 4548; Charles Kocoras, Judge.

Author: Pell

Before WOOD, Circuit Judge, PELL, Senior Circuit Judge and CAMPBELL, Senior Circuit Judge.*fn*

PELL, Senior Circuit Judge. This case confronts the court with the review of cross-motions for summary judgment. Defendants Richard M. Daley, Illinois State's Attorney, et al., and intervening defendants Dr. Eugene F. Diamond and Dr. Jasper F. Williams appeal from the district court's grant of a permanent injunction against the enforcement of three sections of the Illinois Abortion Law.*fn1 Defendants and intervening defendants also appeal from the district court's grant of plaintiffs' motion to strike intervening defendants' Exhibit 2, which intervening defendants affixed to their motion for summary judgment. Intervening defendants' Exhibit 2 contained excerpts from a newspaper series entitled The Abortion Profiteers.

Plaintiffs Dr. Allan G. Charles, et al., and The Hope Clinic for Women, Ltd., et al., appeal from the district court's denial of their motion for a permanent injunction against the enforcement of section 6(1) of the Illinois Abortion Law. The district court declined to enjoin section 6(1) because the court found that a recent amendment to the Abortion Law, which section 6(1) incorporated, removed section 6(1)'s constitutional infirmities.

Section 6(1), along with section 6(4), was the subject of a preliminary injunction entered by then District Judge Joel Flaum on November 16, 1979. Judge Flaum enjoined these sections because they incorporated an unconstitutional definition of viability. Judge Flaum declined to enter a preliminary injunction against sections 2(10) and 11(d).

Plaintiffs appealed Judge Flaum's denial of a preliminary injunction with respect to sections 2(10) and 11(d) to this court. This court disagreed with Judge Flaum and found plaintiffs entitled to a preliminary injunction of these sections. Charles v. Carey, 627 F.2d 772, 789-90 (7th Cir. 1980). This court ruled that the sections failed to pass constitutional muster because the sections forced physicians "to act as the mouthpiece for the State's theory of life." Id.

Plaintiffs moved for summary judgment on the basis of these preliminary injunctions and sought the entry of a permanent injunction against sections 6(1), 6(4), 2(10) and 11(d). Defendants and intervening defendants also sought summary judgment on the basis that the preliminary injunctions against these sections were erroneously entered. As previously noted, Judge Kocoras of the District Court granted plaintiffs' motion for a permanent injunction against the enforcement of sections 6(4), 2(10) and 11(d). Judge Kocoras granted defendants' and intervening defendants' motion for summary judgment with respect to section 6(1). Judge Kocoras furthermore struck intervening defendants' Exhibit 2, which intervening defendants submitted in support of their motion for summary judgment. These rulings of the district court form the basis of this appeal.

I. THE STATUTE

A. Section 6(1)

Section 6(1) of the Illinois Abortion Law of 1975, as amended by S.B. 47, S.B. 666 and H.B. 1399*fn2 imposes a standard of care on physicians who perform abortions on a viable fetus. Section 6(1), as it existed at the time plaintiffs, defendants and intervening defendants moved for summary judgment, read as follows:

No person who intentionally terminates a pregnancy after the fetus is known to be viable shall intentionally fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in such a pregnancy termination who shall intentionally fail to take such measures to encourage or to sustain the life of a fetus known to be viable, before or after birth, commits a Class 2 felony if the death of a viable fetus or infant results from such failure.

ILL.REV.STAT. ch. 38, P81-26 (1983). On September 17, 1983, the Illinois legislature amended its definition of viability and incorporated this amendment into section 6(1). The amendment made viability a subjective determination based on the medical judgment on the attending physician. Judge Kocoras evaluated section 6(1) with reference to this intervening amendment.

On June 30, 1983, the Illinois legislature amended section 6(1) again. This recent amendment substantially transformed section 6(1). The amendment is the subject of a temporary restraining order entered by the Northern District of Illinois in Keith v. Daley, No. 84 C 5602 (N.D. Ill. 1984), a separate lawsuit. This court accordingly declines to discuss the constitutionality of the 1984 amendment.

B. Section 6(4)

Section 6(4) of the statute, as amended, imposes a similar standard of care on physicians performing abortions on a possible viable fetus. When plaintiffs, defendants and intervening defendants filed their motions for summary judgment in the district court, section 6(4) read, in pertinent part:

No person who intentionally terminates a pregnancy shall intentionally fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus to be born and not aborted when there exists, in the medical judgment of the physician performing the pregnancy termination based on the particular facts of the case before him, a possibility known to him of more than momentary survival of the fetus, apart from the body of the mother, with or without artificial support.

ILL. REV. STAT. ch. 38, P81-26 (1983). District Judge Kocoras permanently enjoined section 6(4) despite the 1983 amendment to the statute's definition of viability, which section 6(4) incorporated. In 1984, H.B. 1399 substantially altered section 6(4). Because this amendment to section 6(4) is also the subject of the temporary restraining order entered in Keith v. Daley, No. 84 C 5602 (N.D. Ill. 1984), this court declines to evaluate its constitutionality.

C. Sections 2(10) and 11(d)

Section 2(10) of the Illinois Abortion Law of 1975, as amended by S.B. 47, defines an "abortifacient" method of birth control. Section 11(d) of that statute requires a physician who prescribes an "abortifacient" method of birth control to inform his patient that he has done so. The Illinois legislature enacted these sections as follows:

Sec. 2(10). "Abortifacient" means any instrument, medicine, drug or any other substance or device which is known to cause fetal death when employed in the usual and customary use for which it is manufactured, whether or not the fetus is known to exist when such substance or devise is employed.

Sec. 11(d). Any person who sells any drug, medicine, instrument, or other substance which he knows to be an abortifacient and which is in fact an abortifacient, unless upon prescription of a physician, is guilty of a Class B misdemeanor. Any person who prescribes or administers any instrument, medicine, drug or other substance or device, which he knows to be an abortifacient, and intentionally, knowingly, or recklessly fails to inform the person ...


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