not provide any definitive pronouncements for purposes of this litigation and did not overrule the previous relevant Supreme Court decisions." State Defendants' Response, p. 9.
Similarly, mere speculation that the Supreme Court might uphold the provisions challenged here in light of Webster will not invalidate the consent decree.
In deciding whether to approve a settlement, "the district court should refrain from resolving the merits of the controversy or making a precise determination of the parties' respective legal rights." Hiram Walker, 768 F.2d at 889. Settlement proceedings are not an appropriate occasion for resolving the merits of undecided legal issues. The court declines the invitation of some objectors to do so.
Other objectors insist that the consent decree endangers the health and safety of women seeking abortions. There is no evidence to support this contention. To the contrary, in their briefs and at the fairness hearing, counsel for both parties made clear what their intentions were during settlement negotiations: to assure safe and sanitary conditions for abortion procedures while permitting women the opportunity to exercise their constitutional rights. Toward that end, the parties consulted with obstetricians, gynecologists, and other medical and public health experts in drafting the terms of the settlement.
Far from leaving women unprotected, the settlement creates a network of statutes and rules regulating the provision of abortion services. Facilities that provide abortions beyond 18 weeks gestational age or use general anesthesia must comply with the Ambulatory Surgical Treatment Center Licensing Requirements. Facilities that offer abortion services within 18 weeks gestational age, using local anesthesia, must abide by the requirements set forth under subpart G of the ASTCA, "Limited Procedure Specialty Centers." Like any other provider of medical services, abortion providers must comply with standards of conduct generally applicable to the medical profession.
Finally, the Clinical Laboratory Act -- and any other present or future legislation not contrary to the consent decree -- may be applied to providers of abortion services.
Taken together, these statutes and regulations provide the state with ample authority to safeguard the health and safety of women seeking abortions. That is certainly the view of the Department of Public Health, which is charged with regulating health care in the State of Illinois: "it is the judgment of the medical doctors with the Department of Public Health that the remaining regulations provide a sufficient mechanism by which the Department can regulate and inspect these facilities in order to minimize the risk of harm to patients undergoing surgery at these facilities. This judgment, as well as the goal of regaining regulatory authority is consistent with the stated purpose of the ASTC Act to 'promote safe and adequate treatment.'" State Defendants' Response, p. 7 (citation omitted).
There remain two objections to the proposed consent decree worth discussing. A handful of state's attorneys contend that the defendant class to which they belong was not adequately represented during settlement negotiations. In support of this charge, the objectors refer obliquely to "information" culled from their review of the settlement proceedings which they regard as evidence of inadequate representation. They consider the behavior of their class representative so suspect that, even if it does not require rejection of the proposed settlement, it warrants further discovery.
Their charge is without merit. On November 8, 1989, this court ordered the State's Attorney of Cook County, or his representative, to participate in settlement negotiations. Assistant State's Attorney Harold E. McKee, III, was assigned to the case. At the fairness hearing, plaintiffs and defendants alike attested to the vigor and frequency of Mr. McKee's participation in the negotiations. He "attend[ed] and participate[d] in all settlement negotiations . . . participated in drafting the proposed settlement and consent decree, represented the class interest in maintaining the ability to prosecute future violations under the settled acts, and also participated in the briefings held for the benefit of the news media . . ." State's Attorney Partee's Response, p. 4. The court finds his representation adequate and denies the Motion for Leave to Take Discovery brought by Dennis Schumacher, Greg McClintock, Samuel Naylor, and Stephen L. Reed, state's attorneys for Ogle, Warren, Hancock, and Henderson counties, respectively.
Finally, some objectors challenge the consent decree because it would expose defendants to a claim for attorney's fees. But the consent decree expressly reserves the issue of attorney's fees for resolution at a later date:
The plaintiffs' entitlement to, and the amount of, any counsel fees and reimbursement of disbursements and expenses to be paid by the defendants shall be determined by the District Court upon proper application by the plaintiffs after the entry of the Consent Decree and final Judgment.
Settlement Agreement, p. 5. Any objections regarding fees made at this time are premature.
The parties' Stipulation discusses this and nearly every other aspect of these settlement proceedings. Although far too detailed for full discussion here, some elements of the Stipulation deserve mention. Beginning with page 7, for instance, the Stipulation comprehensively reviews the procedural history behind the consent decree. The court incorporates that review in this opinion. Further, the Stipulation identifies several factors which may be used to decide whether a settlement is fair, including the strength of plaintiffs' case versus the settlement offer; the complexity and expense of further litigation; the reaction of class members to the settlement; the opinion of competent counsel; and the stage of proceedings and amount of discovery completed. Stipulation, p. 27.
Without launching into full analysis of these factors here, the court notes that it considered them all in reaching its holding today. The consent decree offers plaintiffs, by their own admission, "permanent injunctive relief similar . . . to that which they sought in this litigation . . ." (Stipulation, p. 28); further litigation could prove lengthy and expensive; few class members objected to the settlement; counsel were clearly well-informed and represented their clients zealously; and the settlement agreement arose late in the proceedings, after thorough discovery had been completed. These and other factors considered by the court are more fully explained by the parties in the Stipulation.
For the foregoing reasons, the court finds the proposed consent decree lawful, fair, reasonable, and adequate. Accordingly, the court grants the parties' joint motion for approval of the settlement, and enters the consent decree herewith.
I. HISTORY OF THE LITIGATION
This class action litigation was commenced as a civil rights case on June 28, 1985, by named Plaintiffs Richard M. Ragsdale, M.D., Margaret Moe, R.N., the Northern Illinois Women's Center, Sarah Roe and Jane Doe, under 42 U.S.C. sections 1983 and 1988, and 28 U.S.C. sections 2201 et seq. Plaintiffs claimed that the challenged Illinois statutes and regulations, which included (1) the Medical Practice Act, ("MPA") Ill. Rev. Stat. ch. Ill. section 4433 (1)(a)-(e) (since recodified at Ill. Rev. Stat. ch. 111 section 4400-22(1)), (2) the Ambulatory Surgical Treatment Center Act ("ASTC Act"), Ill. Rev. Stat. ch. 111 1/2 sections 157-8.1 to 157-8.16 and regulations promulgated thereunder, and (3) the Health Facilities Planning Act ("HFP Act"), Ill. Rev. Stat. ch. 111 1/2 sections 1151 to 1168, impermissibly restricted the performance of first and second trimester abortions and thus allegedly violated rights secured by the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution.
Plaintiff Richard M. Ragsdale, M.D., is a physician, licensed to practice in Illinois, who is the Director of the Northern Illinois Women's Center. At the time the complaint was filed and at the present, Dr. Ragsdale performs abortions for his women patients who seek such medical care. Plaintiff Margaret Moe is a registered nurse and the sole owner and executive director of a medical facility in Cook County, Illinois. Ms. Moe employs licensed physicians and she sought to offer abortion services at her facility. Plaintiffs Sarah Roe and Jane Doe are patients of Dr. Ragsdale who had sought and received an abortion from Dr. Ragsdale and who may need or desire another abortion in the future.
The named plaintiffs brought this lawsuit on their own behalf, on behalf of a class of physicians who perform or desire to perform abortions in the State of Illinois, and on behalf of a class of Illinois women who desire abortion services. In orders issued on November 27, 1985 and on December 11, 1985, this Court certified the following plaintiff classes pursuant to Rule 23(b) of the Federal Rules of Civil Procedure:
(a) A plaintiff class consisting of all physicians and surgeons who perform or desire to perform abortions in the State of Illinois; [and]
(b) A plaintiff class consisting of all Illinois women of child-bearing age who desire or may desire an abortion sometime in the future[.]