of other than first trimester abortions in ASTCs; and (4)
Regulation 205.760, requiring a report of each abortion procedure
performed in an ASTC.
However, the IDPH has on no occasion formally notified
physicians or abortion providers of its decision not to enforce
these provisions. Also, the IDPH has not attempted to amend the
regulations or introduce amendatory legislation in the Illinois
legislature. With no formal commitment of nonenforcement, the
statutory and regulatory requirements, even if not in fact
enforced, clearly "chill" potential abortion providers. Moreover,
even if there were a formal nonenforcement agreement, the
discussion above demonstrates that plaintiffs have established
irreparable injury resulting from the statutory and regulatory
scheme, as written and as enforced.
The court notes, at this time, the irony implicit in the
defendants' nonenforcement argument. At the preliminary
injunction hearing, Dr. Hern, an expert on abortion practice,
testified that most important factor in determining the safety of
an abortion is the skill and experience of the physician.
According to Dr. Hern, a physician who performs only a few
abortions a year will be less skilled than physicians with a
practice "primarily devoted" to the performance of abortions.
Under the statutory and regulatory scheme, as defendants contend
it is now enforced, physicians performing thousands of abortions
yearly are more strictly regulated than physicians performing a
few abortions a year.
B. Harm To The Plaintiffs Outweighs Any Harm To Defendants
The threatened harm to the plaintiffs clearly outweighs any
possible harm defendants may suffer if the court issues the
preliminary injunction. Indeed, it is difficult to discern
exactly what, if any, harm will befall defendants upon the
issuance of this injunction, which will merely prevent defendants
from enforcing the challenged statutes and regulations. See e.g.,
Fox Valley, 446 F. Supp. at 1074.
C. Likelihood of Success On The Merits
In the landmark case of Roe v. Wade, 410 U.S. 113, 93 S.Ct.
705, 35 L.Ed.2d 147 (1973), the Supreme Court established that
the right of privacy, grounded in the concept of personal liberty
guaranteed by the Constitution, encompasses a woman's right to
decide whether to obtain an abortion. Id. at 153, 93 S.Ct. at
726. At the same time, the Court acknowledged that this
fundamental right "is not unqualified and must be considered
against important state interests in abortion." Id. at 154, 93
S.Ct. at 727. However, as pointed out in Roe, 410 U.S. at 155, 93
S.Ct. at 727, and more recently in City of Akron v. Akron Center
For Reproductive Health, 462 U.S. 416, 427, 103 S.Ct. 2481, 2491,
76 L.Ed.2d 687 (1983), restrictive state regulation of the right
to choose abortion, as with other fundamental rights, must be
supported by a compelling state interest.
In Roe, the Court identified the relevant state interests and
the point at which those interests become compelling. According
to the Court, the state has an interest in the health of the
mother, and this interest becomes compelling at approximately the
end of the first trimester. After the first trimester, the state
may, in promoting this interest, "regulate the abortion procedure
in ways that are reasonably related to maternal health." Roe, 410
U.S. at 164, 93 S.Ct. at 732. Until that time, a pregnant woman
must be allowed, in consultation with her physician, to decide to
abort and to effectuate that decision "free of interference by
the State." Id. at 163, 93 S.Ct. at 732; Akron, 462 U.S. at
429-430, 103 S.Ct. at 2492-2493.
The Court in Roe based its identification of the end of the
first trimester as the "compelling point" on the finding that,
according to medical literature available in 1973, first
trimester abortions are as safe for a woman as normal childbirth.
Roe, 410 U.S. at 163, 93 S.Ct. at 731. In Akron, the Court
noted that medical developments in the past decade "have extended
the period in which abortions are safer than childbirth." Akron,
462 U.S. at 429, n. 11, 103
S.Ct. at 2492, n. 11.*fn21 Still, the Akron Court held it
"prudent . . . to retain Roe's identification of the beginning of
the second trimester as the approximate time at which the State's
interest in maternal health becomes sufficiently compelling . . .
(emphasis added)." Id. The court now turns to the Roe
trimester standard, as interpreted in Akron and other cases, to
provide the legal framework for the constitutional evaluation of
the challenged statutes and regulations.
First, the court notes that the statutes and regulations here
apply to all facilities in which any abortions are performed.
None of the statutes or regulations exclude from their scope
facilities in which first or early second trimester abortions are
performed. However, this does not mean that the statutes and
regulations are per se unconstitutional. As the Akron court
noted, certain State regulations that have no "significant
impact" on a woman's exercise of her abortion right during the
first trimester may be permissible where justified by important
State health objectives. Akron, 462 U.S. at 430, 103 S.Ct. at
2492. See Planned Parenthood of Central Missouri v. Danforth,
428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (upholding
regulations which applied to first trimester abortions and
required that a patient give written consent prior to the
abortion, and that records be kept of all abortions); Connecticut
v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975)
(upholding a statute requiring that only licensed physicians
perform abortions, including first trimester abortions).
Neither does Roe stand for the proposition that any general
medical regulation which applies to the performance of first and
early second trimester abortions is per se constitutional.*fn22
As the Seventh Circuit stated in Friendship Medical Center, Ltd.
v. Chicago Board of Health, 505 F.2d 1141, 1153-1154 (7th Cir.
1974), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680
Furthermore, any proposed regulation, even if applied
universally to all similar medical procedures,
because of the fundamental right of a woman to
procure an abortion during the first trimester, would
have to meet a compelling governmental interest
requirement. Thus, any general health regulations
which would apply to first trimester abortions would
have to be limited so as to give effect to the
fundamental rights as established by Roe and Doe;
that is, not be burdensome on a woman's right to
decide to abort a pregnancy. By this we mean that in
all probability nothing broader than general
requirements as to the maintaining of sanitary
facilities and general requirements as to meeting
minimal building code standards would be permissible.
Thus, any regulation, even a general regulation, which burdens a
woman's right to choose to terminate her pregnancy during the
first trimester would have to meet the compelling governmental
In addition, under Roe and Akron, a regulation which burdens
a woman's right to choose to terminate her pregnancy during the
early second trimester must be "reasonably relate[d]" to the
preservation and protection of maternal health. Akron, 462 U.S.
at 430-431, 103 S.Ct. at 2492-2493; Roe, 410 U.S. at 163, 93
S.Ct. at 731.
In the present case, plaintiffs have overwhelmingly
demonstrated the burden that the challenged statutory and
regulatory scheme places on a woman's right to choose to
terminate her pregnancy during the first and early second
trimester. As noted in the previous discussion of irreparable
injury, the scheme, as written and as enforced, increases the
cost and decreases the availability of abortions. Also, the
scheme may delay the effectuation of a woman's decision to abort.
Charles v. Carey, 627 F.2d 772, 777 (7th Cir. 1980), app.
after remand, sub nom. Charles v. Daley, 749 F.2d 452 (7th Cir.
1984), instructs that once a plaintiff has shown that
interference in the pregnancy termination decision is
"sufficiently substantial and not de minimus," the State must
show that there is compelling basis for the law and that the
burden is not undue or unjustifiable. Here, plaintiffs have
demonstrated that the challenged scheme substantially interferes
with the pregnancy termination decision during the first and
early second trimester.
Defendants, however, have failed to produce any evidence at all
of a compelling or even rational basis for the challenged
statutes and regulations. The defendants presented no evidence in
their pleadings or at the hearing that the statutes and
regulations are medically necessary.*fn23 Dr. Barton, the
defendant's expert in obstetrics and gynecology, testified at the
hearing that he was of the opinion that there is a medical
necessity for some regulation by the state of outpatient abortion
facilities, but Dr. Barton did not testify as to the medical
necessity of any of the statutes or regulations here challenged.
Also, Dr. Barton agreed that there is no medical reason to single
out abortion from other medically analagous procedures for
different regulation. Defendants, at best, have shown that
selected regulations, such as Regulation 205.730(b)(2)(a), which
sets out the qualifications for counselors, are consistent with
accepted medical practice. This is not equivalent to a showing of
Plaintiffs have established the burdensome nature of the scheme
as a whole. Defendants have failed to demonstrate a compelling,
or even a rational, basis for the statutory and regulatory
scheme. Therefore, the court now finds that there is a reasonable
likelihood that plaintiffs will succeed on the merits.
D. Harm To The Public Interest
In Fox Valley, 446 F. Supp. at 1075, the court found that the
public's interest would not be disserved by the issuance of the
preliminary injunction. The court reasoned that the public's
interest lies in the enforcement of that which is mandated by the
Constitution, and the Constitution mandated that the abortion
regulation challenged in that case not be imposed.
Likewise, in the present case, the Constitution mandates
that the challenged statute and regulations not be applied to
physicians who perform first trimester abortions or early second
trimester DE abortions, or to the facilities in which these
procedures are performed.
Of course, the public also has an interest in the preservation
and protection of a patient's health. However, contrary to the
argument of the State's Attorney at the preliminary injunction
hearing, the injunction which the court now issues will not
disserve this interest. At the hearing, the State's Attorney
argued that, if the court issued the injunction prayed for, this
would "open the door" to substandard abortion facilities in
Illinois. Not so. The injunction here will not leave abortion
clinics, such as the NIWC, free from all state regulation. On the
contrary, such facilities will still have to meet the standards
set by local building codes. Also, physicians performing
abortions are obligated to practice surgery with care and will
still be subject to disciplinary action under the remaining
subsections of section 16 of the MPA. The court therefore finds
that the public interest will be served by the issuance of this
E. Scope of The Preliminary Injunction
Having found preliminary injunctive relief is appropriate in
this case, the court now turns to the scope of the preliminary
injunctive relief granted. In the above discussion dealing with
the plaintiffs' demonstration of the likelihood of their success
on the merits, the court found that defendants have failed to
show a compelling need or even a rational basis for the
burdensome statutory and regulatory scheme. Accordingly, the
court preliminarily enjoins defendants from enforcing the
challenged statutes and regulations against any plaintiffs who
offer or perform first or early second trimester abortions.
For the reasons set forth above, the court grants plaintiffs'
motion for certification of two plaintiff classes and one
defendant class, with some modification. Also, the court grants
plaintiffs' motion for preliminary injunction, and hereby enjoins
defendants from enforcing the challenged statutes and regulations
against any plaintiff offering, performing, or desiring to offer
or perform a first or early second trimester abortion.