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November 27, 1985


The opinion of the court was delivered by: Nordberg, District Judge.


Plaintiffs bring this action against defendants pursuant to 42 U.S.C. § 1983, 1988 and 28 U.S.C. § 2201, 2202, seeking declaratory and injunctive relief. Plaintiffs challenge the constitutionality of three Illinois statutes, and the regulations thereunder, which, plaintiffs contend, form a scheme that in effect requires all abortions to be performed in a hospital or its functional equivalent. Plaintiffs charge that this scheme violates the equal protection rights of Illinois physicians who perform or desire to perform abortions, and the privacy rights of Illinois women who desire or may desire to obtain an abortion.

The court has reviewed the pleadings of the parties dealing with the class certification motion. The court held a hearing on the motion for preliminary injunction on November 18-22 and 26, 1985. The court has reviewed the pleadings dealing with the preliminary injunction motion, and has heard the opening statements and closing arguments of counsel and the testimony of witnesses. The court has considered all the evidence presented, including the depositions of several witnesses who did not testify at the hearing. The court has drawn reasonable inferences from this evidence, and has evaluated the legal arguments presented by the parties. In judging the credibility of each witness and the weight to be given the testimony of each, the court has taken into account for each witness the intelligence, ability and opportunity to observe, the age, the memory, the manner while testifying, any interest, bias, or prejudice the witness may have, and the reasonableness of the testimony considered in the light of all the evidence in the case. The court has reviewed its extensive hearing notes and its references concerning credibility.

Based on all of the evidence and legal arguments presented, and for the reasons set forth below, the court grants, with some modification, plaintiffs' motion for certification of the three classes, and the court grants plaintiffs' motion for a preliminary injunction. A preliminary consideration of the challenged statutes and regulations, and of the facts, will greatly aid in the discussion of both motions. Therefore, the court now turns to the statutes and regulations, and to the facts.

I. The Challenged Statutes and Regulations

The statutes and regulations which plaintiffs challenge in this action present an unusual mixture of abortion-specific and general provisions.*fn1 First, section 16 of the MPA generally provides the grounds upon which the IDPH may revoke or suspend the medical license of any person. However, subsection (1), the only portion of section 16 which plaintiffs challenge, is abortion-specific. Under subsection (1), the IDPH may revoke or suspend the license of any physician who performs an "elective abortion" in any place other than an ASTC, a hospital, or a facility run by the state, the federal government, or a state university or college. Essentially, section 16(1) prohibits physicians from performing even one abortion in their offices, and requires physicians who wish to provide abortion services in non-hospital environments to comply with the ASTCA and the HFPA.

The ASTCA defines what an ASTC is and provides for the licensure of all ASTCs. Section 3 of the ASTCA defines an ASTC as "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." Thus, the ASTCA applies generally to all ASTCs devoted primarily to the performance of surgical procedures, regardless of the specific procedure performed, while at the same time the ASTCA singles out, for more strict regulation, facilities at which abortions are performed. The remainder of the ASTCA concerns, for the most part, the requirements and the procedure for obtaining an ASTC license. One other provision of the ASTCA deals specifically with abortion, and that is section 6.1, which requires any corporation operating an ASTC devoted primarily to providing facilities for abortion to have a physician, who is licensed to practice medicine in all of its branches and is actively engaged in the practice of medicine at the ASTC, on the ASTC's board of directors as a condition to licensure of the ASTC.

The regulations promulgated pursuant to the ASTCA are comprehensive and detailed. They cover all aspects of the provision of abortion services, from personnel policies to physical plant requirements. Many of the regulations are abortion-specific. An entire section of the regulations, Subpart G, is abortion-specific. The regulations in subpart G include a prohibition upon the performance of abortions after the first trimester and reporting requirements for each abortion performed in an ASTC.

The physical plant requirements in the regulations cover building design, construction standards, physical requirements and mechanical and electrical systems. In effect, they require ASTCs to be the functional equivalent of small hospitals.*fn2 These regulations include, but are not limited to, the following:

  (a) Regulation 205.1320(a), requires an ASTC to be
      "identifiably separate" from other [medical]
      facilities and functions.
  (b) Regulation 205.1330, requires anyone seeking to
      build or substantially remodel an ASTC to submit
      work plans to the state for prior approval. These
      work plans include architectural drawings,
      structural drawings, and mechanical drawings
      (which include drawings of the heating, cooling,
      ventilation, plumbing, drainage, standpipe and
      electrical systems).
  (c) Regulation 205.1360(a), requires that an
      examination room be at least 80 square feet in
  (d) Regulation 205.1360(b), requires that a procedure
      room have a minimum clear area of 250 square
  (e) Regulation 205.1370(a), requires an ambulatory
      surgical treatment center to have a "control
      station" located to permit "visual surveillance
      of all traffic which enters the operating suite".
  (f) Regulation 205.1370(k), requires that "staff and
      personnel facilities be provided for male and
      female personnel," including a lounge, lockers,
      separate toilets, and space for changing clothes.
  (g) Regulation 205.1370(n), requires a separate
      janitorial closet exclusively for the surgical
  (h) Section 205.1380, requires an ambulatory surgical
      treatment center to establish a "diagnostic
      facility" equipped to perform diagnostic tests
      far more elaborate and complex than those
      performed during the course of a pregnancy
  (i) Regulation 205.1400 regulates the size of doors
      and halls to require that some corridors be at
      least 8 feet in width and that doors to procedure
      rooms be at least 3 feet 8 inches wide. These
      dimensions parallel the requirements for hospital
  (j) Section 205.1540 regulates the air conditioning,
      heating, and ventilation systems to require (a)
      specific filter efficiencies and (b) air flow
      systems "balanced" to comply with the detailed
      ventilation and pressure relationships
      established by the regulation. Different pressure
      relationships and air change requirements are
      specified for the following areas: (1)
      theprocedure room, (2) the examination area, (3)
      the recovery room, (4) the instrument cleaning
      room, (5) the toilet room, (6) the janitors'
      closet, (7) the linen and trash area, (8) the
      anesthesia storage area, (9) the equipment
      storage area, (10) the clean linen and storage
      area, (11) the soiled linen storage area, (12)
      the laboratory area, and (13) miscellaneous other

As can be seen, these regulations are extremely detailed. The regulations, without question, cause abortion providers to incur great construction or renovation costs.

The HFPA requires all "health Care facilities," which includes all ASTCs, to obtain a "permit," or certificate of need, before acquiring major medical equipment or constructing or modifying a health care facility. HFPA §§ 3, 5. The procedure which the HFPA established for acquiring a certificate of need is as follows: (1) the applicant must submit a comprehensive application to the Illinois Health Facilities Planning Board ("Board"), HFPA § 6; (2) if there is an Areawide Health Planning Organization, the Board forwards the application to this organization for a period of review which may last up to 120 days, HFPA § 8; (3) the Areawide Health Planning Organization, or the IDPH, must provide an opportunity for a public hearing on the application, and may schedule that hearing up to 90 days after the receipt of a complete application, HFPA § 8; and (4) ultimately, the Board will determine whether to grant or deny the application for a certificate of need based on factors such as the applicant's ability to provide a proper standard of health care service for the community, the economic feasibility of the project, and the project's consistency with the public interest and the orderly and economic development of such facilities, HFPA § 6.*fn3

II. The Facts

The uncontroverted facts are as follows. Dr. Ragsdale is a licensed Illinois physician. He is the Director of the Northern Illinois Women's Center ("NIWC"), which is located in Rockford, Illinois. The NIWC provides gynecological, family planning and abortion services to women in northwest Illinois.

Since it opened in 1973, the NIWC has been the only provider of abortion services in the large area of northwest Illinois. This geographic area extends east to Chicago, west to Iowa, north to Wisconsin, and south to Peoria. The NIWC offers first trimester and early second trimester "Dilation and Evacuation" abortions, all performed with a local anesthetic. The NIWC provides either reduced fee or free abortion services to indigent women. In 1984, physicians at the NIWC performed 3,480 abortions. Few complications resulted.*fn4

The NIWC is currently licensed under the ASTC, and has been so since 1973, although at no time has the NIWC fully complied with the ASTCA and its regulations.*fn5 The current location of the NIWC is the Rockford Medical Arts Building, which is operated by the Rockford Services Company.

In early February, 1985, the Rockford Services Company informed Dr. Ragsdale that his lease would not be renewed. The fundamental reason the Rockford Services Company did not renew Dr. Ragsdale's lease, as set out in the telephonic deposition of Mr. Delts, the President of the Rockford Services Company, is that the premises of the NIWC are needed as office space for physicians that refer more patients to the adjoining Rockford Memorial Hospital. Deposition of William Delts, p. 15. Another factor in the decision, however, was the determination that it would cost approximately $240,000 for the building to be brought into compliance with the ASTCA and its regulations. Id. at 8, 9, 14.

Since the Rockford Services Company informed him that his lease would not be renewed, Dr. Ragsdale has attempted to find new facilities and secure a certificate of need for such facilities. Dr. Ragsdale, for reasons set forth below in detail, has not been able to secure a relocation site for the NIWC. On December 31, 1985, the NIWC must vacate its premises in the Rockford Medical Arts Building. At that time, because of a lack of a relocation site, the NIWC will be forced to close altogether.

Margaret Moe is a registered nurse, and she currently operates two medical facilities, one in Elgin, Illinois, and another in Palatine, Illinois. The Elgin facility is in Kane County, and the Palatine facility is in Cook County. Margaret Moe's facilities offer complete family planning education and medical care, including the ...

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