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April 13, 1989

HEDD SURGI-CENTER, INC., an Illinois corporation, and ESTHER PIMENTAL, M.D., individually and as Medical Director of the Hedd Surgi-Center, Inc., Plaintiffs,
BERNARD J. TURNOCK, M.D., Director of the Illinois Department of Public Health, Defendant

The opinion of the court was delivered by: NORDBERG



 The plaintiffs -- Hedd Surgi-Center, Inc. (Hedd) and Dr. Esther Pimental, Medical Director of Hedd -- have brought this action against the defendant, Bernard M. Turnock, Director of the Illinois Department of Public Health, seeking a preliminary injunction enjoining the defendant from enforcing the Ambulatory Surgical Treatment Center Act of Illinois, Ill. Ann. Stat. ch. 111 1/2, paras. 157-8.1 to -8.16 (Smith-Hurd 1977) (ASTCA), a comprehensive statutory and regulatory scheme that provides for the licensure of "any place . . . devoted primarily to . . . the performance of surgical procedures" and at one point also provided for the licensure of "any facility in which a medical or surgical procedure [was] utilized to terminate a pregnancy, irrespective of whether the facility [was] devoted primarily to this purpose." As this court will discuss in more detail, the Seventh Circuit held that this latter provision violated the fundamental right to privacy and abortion when applied to the licensing of facilities performing first trimester abortions. See Ragsdale v. Turnock, 841 F.2d 1358 (7th Cir. 1988) (appeal filed Nov. 10, 1988). The plaintiffs, however, claim that the ASTCA was invalidated in its entirety and that the state cannot enforce the Act as to any portion of the clinic's practice (including nonabortion procedures). The defendant, on the other hand, contends that the opinion applied only in the abortion context and, therefore, that enforcement of the ASTCA to nonabortion surgical procedures is constitutional. For the following reasons, the court concludes that the Seventh Circuit in Ragsdale invalidated the ASTCA only as applied to first and early second trimester abortion procedures. Accordingly, the court denies the plaintiffs' motion for a preliminary injunction.


 Given the rather complicated procedural posture of this case, the court will discuss the events culminating in the present motion for a preliminary injunction. On November 27, 1985, this court issued a preliminary injunction enjoining the State of Illinois from enforcing the ASTCA *fn1" as applied to a plaintiff class of physicians *fn2" who offer or perform first or early second trimester abortions. See Ragsdale v. Turnock, 625 F. Supp. 1212, 1231 (N.D. Ill. 1985), aff'd in part, vacated in part as moot, 841 F.2d at 1376. Dr. Pimental asserts that as a physician performing first and early second trimester abortions, she is part of this plaintiff class.

 On appeal, the Seventh Circuit vacated in part this court's preliminary injunction, holding that the plaintiffs' challenge to a second trimester hospitalization requirement was moot because state officials had conceded that the provision was unconstitutional and, therefore, were not enforcing it. Ragsdale, 841 F.2d at 1365-66. The remainder of this court's preliminary injunction, however, was affirmed. The Seventh Circuit held that the ASTCA and its regulatory scheme (both the licensure requirement and most of the substantive provisions) violated the right to abortion as established in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), and its progeny, since the first trimester regulations were not justified by important state health objectives. 841 F.2d at 1368, 1370-75. Although the court conceded that "there may well [have been] facets of the statute and regulations which would individually pass constitutional muster," id. at 1375, the court nevertheless invalidated the scheme in its entirety because the unconstitutional licensing provision was an "integral part" of the scheme as a whole (and therefore, could not be severed from the Act) and because the scheme already had been riddled with numerous exceptions resulting from other judicial decisions and state nonenforcement policies. In such circumstances, the court "simply '[could not] untangle the constitutional from the unconstitutional provisions.'" Id. (quoting Mahoning Women's Center v. Hunter, 610 F.2d 456, 460 (6th Cir. 1979), vacated on other grounds, 447 U.S. 918, 65 L. Ed. 2d 1110, 100 S. Ct. 3006 (1980)). The defendants appealed to the Supreme Court, which thus far has not decided whether to hear the case.

 In June 1988, the State of Illinois instituted on-site inspections of Hedd, determined that the clinic was not in compliance with several provisions of the ASTCA (as applied to nonabortion procedures), and began license revocation proceedings. On November 30, 1988, Dr. Pimental and the clinic filed with this court a petition for rule to show cause why the defendant should not be held in contempt of court for allegedly violating this court's preliminary injunction in Ragsdale. The plaintiffs, however, did not clearly delineate the scope of the clinic's activities, alleging only that the clinic was "a medical facility devoted primarily to the performance of surgical procedures, including first and early second trimester abortions and other abortion-related gynecological procedures." Petition for Rule to Show Cause at 2 (filed Nov. 30, 1988) (emphasis added). Also unclear was the precise nature of the plaintiffs' challenge, for at times the plaintiffs appeared to allege that the Seventh Circuit's opinion struck down the ASTCA in its entirety -- even as applied to nonabortion procedures; *fn3" at other times, though, the plaintiffs asserted that application of the Act would implicate the fundamental right to abortion. Furthermore, even though the plaintiffs ostensibly brought the petition pursuant to the Ragsdale decision, they chose not to proceed through class counsel for the Ragsdale plaintiffs and, indeed, did not even notify class counsel, who learned of the hearing only from the Attorney General's Office.

 In its response to the petition, the defendant asserted that although the state could not directly regulate first trimester abortions under the ASTCA, it could count the number of abortions performed at a clinic in determining whether the facility was devoted "primarily to the performance . . . of surgical procedures." According to the defendant, if the total number of surgical procedures (including abortions) constituted a majority of the clinic's practice, the state then could proceed under the ASTCA to regulate the nonabortion procedures performed at the clinic.

 At the November 30 hearing, this court noted that the petition was ambiguous and that the precise question whether abortions could be counted in determining whether a clinic fell within the ambit of the ASTCA was not addressed specifically by this court's preliminary injunction (or, this court believed, by the Seventh Circuit's opinion). The court and class counsel also expressed concern over the effect a possible modification of the preliminary injunction would have on the Supreme Court's decision whether to hear the case. This court then determined that the petition was more in the nature of a temporary restraining order and, given the sparse factual record, concluded that the plaintiffs had not satisfied the requirements for such an order. See Transcript of Nov. 30, 1988, Hearing at 19-20. Although the court questioned whether the plaintiffs could proceed within the class context (especially without going through class counsel) and suggested that a separate lawsuit might be more appropriate, the court nevertheless set a briefing schedule for a preliminary injunction and a hearing date of January 6, 1989. On December 12, 1988, however, the plaintiffs sent this court a letter requesting leave to withdraw their petition for rule to show cause, which this court granted on December 27.

 On that very day, the plaintiffs filed as a separate suit (No. 88 C 10805) a verified complaint for declaratory and injunctive relief, which was assigned to Judge Bua. In the complaint the plaintiffs again asserted that the Seventh Circuit's decision invalidated the ASTCA even as applied to nonabortion surgical procedures; this time, however, the plaintiffs were more specific in their contention that abortions rights also were implicated, alleging that "over 90% of the entire procedures performed at the clinic [were] abortions." Verified Complaint at para. 9 (filed Dec. 27, 1988). Upon learning of this suit, the defendant filed with this court a motion requesting that the court find the case related to Ragsdale. At a January 12, 1989, status hearing, this court noted that no one objected to a finding of relatedness and, therefore, granted the defendant's motion. The court then required the parties to file a preliminary injunction pretrial order and set a status date for January 20, 1989.

 At the January 20 hearing the parties informed the court that the plaintiffs were proceeding on two theories: First, that the Seventh Circuit's decision went beyond this court's preliminary injunction to strike down the ASTCA in its entirety, even as applied to nonabortion procedures; and second, that the plaintiffs were members of the Ragsdale class and any attempt to apply the ASTCA to the plaintiffs would "have a chilling effect on [the clinic's] right to perform first trimester and early second trimester abortions, as protected under the constitutional rights to privacy and the First and Fourteenth Amendments to the United States Constitution." Preliminary Injunction Pre-Trial Order at 2 (filed Jan. 20, 1989). The plaintiffs, however, agreed to file an amended motion for preliminary injunction and pursue only their first position (preserving their rights to argue the alternative position) and then, if necessary, to appeal this court's decision on that narrow ground. In addition, the parties agreed to stay the state administrative proceeding until this court ruled on the revised motion for preliminary injunction.


 A plaintiff seeking a preliminary injunction bears the burden of establishing the ...

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