Ragsdale v. Turnock

941 F.2d 501

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 20, 1991
• Docket: Nos. 90-1907, 90-2123, 90-1908 & 90-2122
• Status: Published

Opinions

FAIRCHILD, Senior Circuit Judge.

The party class representatives in this case moved for approval of a proposed settlement and consent decree, and the district court granted their motion. Plaintiffs had challenged statutes relating to abortion. After the parties reached an agreement, two expectant fathers representing the interests of fetuses moved to intervene as of right. The district court denied their motion, and they have appealed. Also, two purported members of the plaintiff class objected to the consent decree and have appealed.

BACKGROUND

This ease concerns the constitutionality of certain Illinois laws having an impact on the performance of abortions. The plaintiffs sue on behalf of a class of physicians who perform or desire to perform abortions in Illinois and on behalf of a class of women who may desire abortion services. The defendants are various officers of the executive branch: the Director of the Illinois Department of Public Health, the Attorney General, the Director of the Department of Registration and Education, and the State’s Attorney of Cook County who defends on behalf of a class consisting of the State’s Attorneys of Illinois.

The plaintiffs filed this suit on June 28, 1985. They challenged three Illinois statutes and numerous regulations. They originally asked the district court “to enjoin defendants from enforcing, in derogation of a physician’s right to perform, and a woman’s right to obtain, first and early second trimester abortions, three Illinois statutes: (1) Section 16(1) of the Illinois Medical Practice Act (“MPA”), Ill.Rev.Stat. ch. Ill, para. 4433(1) [now para. 4400-22(l)(a)-(e) ]; (2) the Ambulatory Surgical Treatment Center Act of Illinois (“AST-CA”), Ill.Rev.Stat. ch. IIIV2, paras. 157-8.1-157-8.16, and the regulations promulgated thereunder; and (3) the Illinois Health Facilities Planning Act (“HFPA”), Ill.Rev.Stat. ch. lllVk, paras. 1151-1168, and the regulations promulgated thereunder.” Ragsdale v. Turnock, 625 F.Supp. 1212, 1215 (N.D.Ill.1985).

“Essentially, section 16(1) [of the MPA] 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.” Id. at 1216.

The ASTCA provides for licensure of all ambulatory surgical treatment centers (ASTCs) with regulations which, in effect, “require ASTCs to be the functional equivalent of small hospitals.” Id. The HFPA requires all ASTCs to obtain a certificate of need. Id.

Upon finding that plaintiffs had established the burdensome nature of the scheme as a whole, and that defendants had failed to establish a compelling basis for it, the district court enjoined defendants, pendente lite, “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.” Id. at 1231.

This court affirmed (by a divided panel) with one exception. The portion of the injunction against enforcement of the “second trimester hospitalization requirement” was vacated as moot. Ragsdale v. Turnock, 841 F.2d 1358, 1376 (7th Cir.1988). The basis for the exception was that “the defendants have conceded, at least since 1983, that this requirement is unconstitutional under governing Supreme Court decisions and is therefore not enforced.” Id. at 1365.

In affirming, this court noted that although “there may well be facets of the statute and regulations which would individually pass muster ... we are constrained to affirm the district court’s injunction of the scheme as a whole.” In response to a request for severance of unconstitutional portions, the court indicated its inability to untangle the constitutional from the unconstitutional provisions. Id. at 1375.

Defendants filed a Notice of Appeal, seeking review by the United States Supreme Court. On July 3, 1989, the Supreme Court entered an order accepting the case for oral argument but postponing the question of jurisdiction until the hearing on the merits. Turnock v. Ragsdale, 492 U.S. 916, 109 S.Ct. 3239, 106 L.Ed.2d 587 (1989). Oral argument was scheduled for December 5,1989, but on November 22, 1989, the parties filed a joint motion to defer further proceedings in the Supreme Court pending submission of the proposed Consent Decree to the district court for approval. The Court granted the parties’ joint motion. Turnock v. Ragsdale, — U.S. -, 110 S.Ct. 532, 107 L.Ed.2d 530 (1989).

The consent decree, unlike the preliminary injunction, is not a blanket prohibition of enforcement of the statutes at issue; it allows some regulation affecting abortions performed during the first half of pregnancy. Understanding the entire decree requires careful attention to details, and we see no reward in attempting a summary or detailed description here. For the terms of the decree and the observations of the district court concerning it, see Ragsdale v. Turnock, 734 F.Supp. 1457, 1460-62, 1466-70 (N.D.Ill.1990). The defendants claim that the decree benefits the state:

The decree has, for the first time since November 27,1985, reinstated DPH’s authority to regulate outpatient surgical facilities to the extent they perform abortions. Prior to the entry of the decree, the IDPH had been enjoined from exercising its statutory authority to license, regulate, and inspect such facilities. Clearly, the decree furthers the IDPH’s interests in ensuring that surgical procedures, including abortions, be performed under circumstances ensuring maximum safety.

Brief of defendants-appellees at 14-15.

Because this case is a class action, the settlement could not be effective until all members of the classes were notified and it was approved by the district court. Fed. R.Civ.Pro. 23(e). The district judge conducted a fairness hearing (after notice, including publication) at which all class members were permitted to appear. All objectors to the proposed settlement were initially required to submit their responses by February 13, 1990. On February 13, Kenneth M. Reed and Mark I. Aughenbaugh as next friends of unborn children moved to intervene on behalf of “a class consisting of all Illinois unborn babies.” On February 22, the district court denied the motion to intervene, but allowed the proposed in-tervenors to submit briefs as amici curiae.

Overall, the district court received 326 telephone calls, 2 telegrams, and 1266 letters, and the judge reviewed all of the submissions. On February 23, 1990, the district court conducted a fairness hearing. At the hearing, the court heard objections from amici who had filed briefs with the court and also allowed anyone attending the hearing to speak. The lawyer for the Murphy and Greenwood plaintiff class members and the proposed intervenors was allowed to speak. All of the objections argued on appeal appear to have been raised. On March 22, 1990, the district court approved the consent decree. Ragsdale v. Turnock, 734 F.Supp. 1457 (N.D.Ill.1990).

The appellants challenge both the refusal of the district court to allow the intervention of parties representing the interest of fetuses and the decision of the district court that the consent decree is lawful, reasonable, fair, and adequate.

INTERVENTION

The “petition to intervene and to maintain a class action of baby Reed and baby Aughenbaugh” was filed February 13, 1990, the last day initially set by the district court for filing objections to the proposed settlement. The petition was made as next friends by Kenneth Reed and Mark Aughenbaugh. They alleged their wives were pregnant, but did not allege any threat of abortion. The gestational age was not alleged, although that fact was material to any impact the consent decree could have on them. The petition invoked Rule 24(a)(2) of the Federal Rules of Civil Procedure, but was not, as required by Rule 24(c), “accompanied by a pleading setting forth the claim or defense for which intervention is sought.”

Rule 24(a) does not require that an applicant must be permitted to intervene where “the applicant’s interest is adequately represented by existing parties.” Judge Nord-berg orally denied the petition but granted Mr. Reed and Mr. Aughenbaugh leave to appear as amici curiae. His principal reason was that the objectors had not shown that the state had not adequately protected the interest of the fetuses. Ragsdale, 734 F.Supp. at 1459 n. 4. The author of this opinion agrees that the petition failed to make this showing.

Rule 24 also requires that the application be timely. Timeliness requires a consideration of all the circumstances of a case and not just the point to which the suit has progressed. NAACP v. New York, 413 U.S. 345, 365-66, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973). This court has required that in determining timeliness under the totality of the circumstances, four factors should be considered:

(1) the length of time the intervenor knew or should have known of his or her interest in this case, (2) the prejudice to the original party caused by the delay, (3) the resulting prejudice to the intervenor if the motion is denied, and (4) any unusual circumstances.

South v. Rowe, 759 F.2d 610, 612 (7th Cir.1985).

The prejudice to the present parties of a grant of intervention (factor 2) is obvious and substantial. After pursuit of litigation for several years, they expended great effort in working out a settlement to which the proposed intervenors are opposed. Once parties have invested time and effort into settling a case it would be prejudicial to allow intervention. Farmland Dairies v. Commissioner of the New York State Dept. of Agriculture and Markets, 847 F.2d 1038, 1044 (2d Cir.1988); City of Bloomington v. Westinghouse Electric Corp., 824 F.2d 531, 535 (7th Cir.1987) (“intervention at this time would render worthless all of the parties’ painstaking negotiations because negotiations would have to begin again and [the intervenor] would have to agree to any proposed consent decree”); Jones v. Caddo Parish School Bd., 735 F.2d 923, 935 (5th Cir.1984). A case may never be resolved if another person is allowed to intervene each time the parties approach a resolution of it. United States v. City of Chicago, 908 F.2d 197, 199 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 783, 112 L.Ed.2d 846 (1991). This court has held that once complex settlement negotiations that are well publicized begin parties may not be allowed to intervene. City of Bloomington, 824 F.2d at 535.

Prejudice to the intervenors (or other members of the proposed class) if intervention is denied (factor 3) is problematic at best. The existing preliminary injunction would presumably remain in effect if intervention were granted, and the litigation would presumably continue before the Supreme Court to resolve the reserved question of jurisdiction and the merits of the preliminary injunction if jurisdiction were found. The intervenors (and the class member appellants) apparently believe that this case is one in deciding which the Supreme Court might overrule Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and thus permit greater state regulation (or prohibition) of abortions. That this hope is precarious is emphasized by the fact that the Supreme Court initially postponed consideration of its own jurisdiction of this case and later granted the motion of the parties to defer proceedings pending submission of the proposed consent decree to the district court for approval.

The motion to intervene does not demonstrate the length of time Mr. Reed or Mr. Aughenbaugh knew of their wives’ pregnancies, of this action, or of the proposed consent decree (factor 1). This action was begun in 1985. The Attorney General’s willingness to compromise became public knowledge by November 22, 1989.

We see no unusual circumstances (factor 4) significantly supporting intervention. The state officers who are defendants vigorously defended against the challenges within the bounds of existing law and court decisions. They began to work out a settlement by consent decree only after the district court granted a preliminary injunction finding a likelihood, if not certainty, that plaintiffs’ challenges would succeed, and this court affirmed (except for a portion as to which the case was deemed moot because enforcement was withheld in recognition of unconstitutionality). Although the courts recognized that the issue at the preliminary injunction stage pertinent to constitutionality was whether plaintiffs have shown a better than negligible likelihood of success, Ragsdale, 841 F.2d at 1366 n. 6; Ragsdale, 625 F.Supp. at 1224, the language of both the district court opinion and the majority opinion in this court seems to indicate conviction that the statutes are unconstitutional if fully applied.¹

The General Assembly is left free to enact new statutes or to amend the present statutes at any time and for any reason. Ragsdale, 734 F.Supp. at 1461 nn. 10 & 11. Also, the consent decree provides for changes in regulations based upon changes in medical or scientific knowledge and for the right to ask the court to modify the gestational age upon which certain provisions of the consent decree depend based upon further development of medical or scientific knowledge. Id. at 1469-70.

The author of this opinion concludes the application for intervention was not timely and would affirm for that reason as well. Additionally, Judge Posner (post at 19) may be correct in reliance on Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), as establishing that denial of intervention should be affirmed because the proposed intervenors lack standing, although Diamond dealt with a physician’s conscientious objection to abortion, and the case was in a somewhat different procedural posture.

OBJECTORS MURPHY AND GREENWOOD

All four appellants appeared by one counsel and filed a single brief. No distinction is made between arguments raised on behalf of proposed intervenors, Reed and Aughenbaugh, and those on behalf of members of the plaintiff class, Murphy and Greenwood (Illinois women of child bearing age who desire or may desire an abortion sometime in the future).

Most of the arguments in the brief attack the doctrine of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and are consistent with the position urged by the proposed intervenors on behalf of unborn children. These arguments, and others which concern only the interests of unborn children, are not properly before us and will not be addressed.

Appellants Murphy and Greenwood also make some arguments that are at least facially grounded on a woman’s interest in protection of her health if she sought to have an abortion. One portion of appellants’ brief argues, “The medical health of the women of child bearing age of the State of Illinois has been compro-mised_” Appellants’ Brief at pp. 46-48.

This is an argument that the consent decree is too favorable to the plaintiffs because it goes too far in enjoining enforcement of portions of the statutes and regulations. Appellants Murphy and Greenwood may individually believe in this argument, but they have no standing to make it in their capacity as members of the plaintiff class.

There are other arguments in the brief challenging the propriety of the consent decree, i.e., that when the constitutionality of a state statute is an issue, it is improper for a federal court to issue a consent degree against enforcement upon the consent of the Attorney General and other members of the executive department, and that defendants have, in effect, re-written the statutes. It is sufficiently clear that these arguments are offered in support of the claim that the decree is too favorable to plaintiffs, and appellants Murphy and Greenwood therefore have no standing to make them as members of the plaintiff class.

Thus, there is no party before this court with standing to challenge questions of propriety of the settlement.

Accordingly, we Affirm the district court’s denial of intervention, and Dismiss the appeals of the proposed intervenors and appellants Murphy and Greenwood.

1 . We see nothing in recent Supreme Court opinions thought to limit the doctrine of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), affecting the statutes challenged in this case. Rust v. Sullivan, — U.S.-, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (government may constitutionally prohibit dissemination of information concerning abortion at clinics which accept government funds); Hodgson v. Minnesota, — U.S.-, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (parental notification statute partially constitutional and partially unconstitutional); Ohio v. Akron Central for Reproductive Health, — U.S.-, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (parental notification statute constitutional); Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) (restriction on abortions in public facilities and viability testing requirement are constitutional).