Richard M. Ragsdale v. Bernard J. Turnock, Director of the Illinois Department of Public Health

841 F.2d 1358

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 12, 1988
• Docket: 85-3242
• Status: Published

Opinions

ESCHBACH, Senior Circuit Judge.

Plaintiffs consist of a class of all duly licensed physicians and surgeons performing or who desire to perform pregnancy terminations in Illinois and a class of all women in the State of Illinois of child-bearing age who desire or may desire an abortion at sometime in the future. Defendants are a class of the State’s Attorneys of all of the counties of the State of Illinois,¹ the Director of the Illinois Department of Public Health, the Illinois Attorney General, and the Director of the Illinois Department of Registration and Education. Plaintiffs sued under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-02, seeking declaratory and injunctive relief to the effect that three Illinois statutes and the regulations thereunder violate the constitutional right to privacy, specifically to abortion, as established in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and subsequent Supreme Court cases. This case comes to us on appeal from the district court’s grant of plaintiffs’ motion for a preliminary injunction. 625 F.Supp. 1212 (N.D.Ill.1985). Because we believe certain of the claims are moot, we vacate in part. In most respects, however, we affirm the preliminary injunction.

I

A. Statutory and Regulatory Provisions

The statutory and regulatory scheme is somewhat complex. Therefore, we set it out in some detail. Section 16(1) of the Medical Practice Act (“the MPA”), 111 Ill. Rev.Stat. If 4433(1), allows for revocation or suspension of the license of any physician who performs an “elective abortion” in any place other than a licensed Ambulatory Surgical Treatment Center (“ASTC”), a hospital, or a facility run by the state or federal governments.² The Ambulatory Surgical Treatment Center Act, IIIV2 Ill. Rev.Stat. Ml 157-8.1, et seq. (the “ASTCA” or the “Act”), provides for the licensure of all ASTCs, which it defines as “any ... place ... devoted primarily to ... 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....” IIIV2 Ill.Rev.Stat. Í! 157-8.3(A). In addition, plaintiffs have challenged those sections of the Health Facilities Planning Act, IIIV2 Ill.Rev.Stat. ¶¶ 1151, et seq. (“HFPA”), which require anyone seeking to open an ASTC to obtain a certificate of need for the facility from the Department of Public Health after a public hearing and 120-day review period. See IIIV2 Ill.Rev.Stat. MI 1155-1160.³

The bulk of plaintiffs’ specific challenges, however, are directed at the AST-CA and the regulations promulgated thereunder, and their application, via the MPA, to physicians desiring to perform first and early second trimester abortions. Accordingly, we set forth the ASTCA and its accompanying regulations in some detail.⁴

The Act itself is largely procedural in operation and grants the Department of Public Health the authority to promulgate specific regulations governing ASTCs. IIIV2 Ill.Rev.Stat. ¶ 157-8.10. However, certain specific provisions of the statute also prescribe requirements for ASTCs. Section 6.1 of the ASTCA requires any corporation operating an ASTC devoted primarily to providing facilities for abortion to have on its board of directors 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. Pars. 157-8.5 and 8.6 generally provide for licensing with an initial fee of $500 and an annual renewal fee of $300. Additionally, those sections require that a licensed facility be under the supervision of one or more physicians and that at least one physician have admitting and surgical privileges at an Illinois hospital. Pars. 157-8.7a and 8.7b require statements regarding the ownership of and financial condition of the facility. Par. 157-8.8 requires Department approval of construction of, alterations of, or additions to a facility. Par. 157-8.9 provides for quarterly inspections of facilities and provides for confidentiality of information received by the Department.

The remedial sections of the Act provide an array of enforcement mechanisms. Par. 157-8.9a provides that a facility may be closed by administrative order if its continued operation constitutes an imminent and serious menace to the health or safety of the patients or if the operator thereof has been convicted of a violation of par. 157-8.-12. Par. 157-8.12 provides for a fine of $10,000 per day for operating a facility without a license or otherwise violating the Act. Par. 157-8.13 makes the operation of a facility in violation of the Act or regulations a public nuisance subject to injunction.

Par. 157-8.15 provides, in broad terms, for severability of the provisions of the Act.

The general regulations under the AST-CA, found in Title 77 of the Illinois Administrative Code, are detailed and govern many aspects of an ASTC.

For example, there are quite specific physical plant regulations which require: (1) a minimum size of 250 sq. ft. for at least one procedure room (any additional ones must be no smaller than 120 sq. ft.) and a minimum of 80 sq. ft. for examinations rooms; (2) that an ASTC be “identifiably separate from other medical facilities and functions”; (3) that a “control station” be located to allow visual surveillance of traffic entering the operating suite; (4) that facilities including a lounge, lockers, separate toilets, and a space for changing clothes be provided for male and female personnel; (5) a separate janitorial closet for the surgical suite; (6) a “diagnostic facility” if pre-admission evaluation tests are to be performed; and (7) minimum corridor (5' or 8' depending on whether stretchers are to be used) and door (3' or 3'8") widths. § 205.1310-1390. Also, an elaborate air-conditioning, heating, and ventilation system to provide for specific filter efficiencies and airflow relationships between rooms is required. § 205.1540 and Table A.

The licensure regulation provides for a detailed application including identification of the owners and operators of the facility, its location, a description and architectural plans, documentation of compliance with building and safety codes, a description of the services to be performed, and a list of all personnel and their qualifications. A new application is required for a change in ownership, location of the facility, remodeling, or addition of services or programs. Notice to the Department must be given of any change in the administrative staff, medical director, staff physicians, supervising nurse, addition or deletion of surgical procedures, or change in any shareholder interest of five percent or more. § 205.120.

Other general requirements include an organizational plan which is available for public information, a policies and procedures manual, and written personnel policies including job descriptions. § 205.310. All facilities are required to have the following personnel present during the operative and post-operative period for all patients: a physician, a registered professional nurse with post-graduate education or experience in surgical nursing, and a person certified in “Basic Life Support” by the American Heart Association. Sections 205.320-40. Additionally, each facility must have either a certified medical technician or a written agreement with a licensed laboratory to perform required laboratory procedures. § 205.350. A consulting committee must be established to develop standards of professional work and a physician must serve as the medical director of the facility. § 250.230.

With regard to equipment, all facilities are required to have monitoring equipment, suction apparatus, oxygen, and cardiac pulmonary resuscitation equipment. § 205.410. Additional written procedures are required to govern care, use, sterilization, storage and disposal of all materials, and to govern storage and use of all medications. Id. Additional written procedures are required for garbage and refuse removal, insect and rodent control, and maintenance of heating, ventilation and utility service. § 205.420.

Patient care regulations include a requirement of a written “emergency” procedure in case of fire, explosion, or “other non-patient medical emergency,” and preparation to manage the emergencies normally associated with the surgical procedures performed. § 205.510. A “complete physical” is required and specified tests are required to be performed by a qualified laboratory technician for any procedures performed under general anesthesia, local anesthesia with sedation, or any pregnancy termination. A signed, written informed consent for any procedure is to be maintained with the patient’s clinical records. § 205.520. All removed tissues are to be examined by a consulting pathologist. § 205.530.

Post-operative care regulations provide that any patient who has had general anesthesia, local anesthesia with sedation, or pregnancy termination is required to be observed for a period of time sufficient to detect any immediate post-operative complications, and that no patient be required to leave in less than one hour. § 205.540. Additionally, written documentation is required of a transfer agreement with a licensed hospital within fifteen minutes of the facility, or that the medical director of the ASTC (or each staff physician of the ASTC) has admitting privileges at such a hospital. § 205.540.

Detailed clinical records are also required to be maintained. § 205.610. Additionally, facilities are required to make annual statistical reports that include the number and type of procedures performed, the number and type of complications reported, the number of patients requiring transfer to a hospital due to complications, the number of patients returning for follow-up, and the number of deaths.

The regulations also have an abortion-specific subpart which requires: (1) at least one registered professional nurse with post-graduate education or experience in obstetrical or gynecological nursing, section 205.720; (2) testing and reporting of the results to the patient of blood Rh factor and diagnosis of pregnancy, section 205.-730(a); and (3) counseling by someone specifically trained to give it and who has no financial interest in the patient’s decision, which counseling must include a discussion of alternatives, description of the procedure to be performed, and an explanation of risks and possible complications, section 205.730(b). Contraceptive information may be provided post-operatively, and shall be provided if desired by the patient. Id. Counseling must take place in a room separate from the procedure room, and a record of the counseling given is to be included in the patient’s clinical record. Id. The sub-part contains its own reporting requirement which requires monthly reporting of each procedure “on forms provided by [the Department].” Additionally, the regulations prohibit an ASTC from performing abortions on patients with a gestational age exceeding twelve weeks. § 205.740.

B. Enforcement Policies

Not all of the provisions of challenged statutes and regulations are being enforced. Since 1981, the Act and regulations have been applied only to facilities which are primarily devoted to the performance of surgical procedures (including abortions). This enforcement policy was adopted in response to Village of Oak Lawn v. Marcowitz, 86 Ill.2d 406, 55 Ill.Dec. 916, 427 N.E.2d 36 (1981), which refused to enforce, in a criminal proceeding, that portion of a local ordinance which incorporated the ASTCA definition of an ASTC which covered “any facility where a medical or surgical procedure is performed for the termination of pregnancy, regardless of whether the facility is primarily devoted to that purpose.” The defendants also contend that the MPA’s revocation or suspension sanction for performing abortions outside an ASTC is similarly not being enforced, but the evidence on this point is equivocal.

The defendants also contend that the prohibition on performance of second trimester abortions in ASTCs is not being enforced because it was considered enjoined by the order in Paula Poe v. IDPH, No. 78-04126 (N.D.Ill.1982). In that case, enforcement of section 4 of the Illinois Abortion Law of 1975, 38 Ill.Rev.Stat. H 81-24, which required all second trimester abortions to be performed in a hospital, along with “any related regulation” was enjoined pending decision of three Supreme Court cases involving a second trimester hospitalization requirement. Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Planned Parenthood Association, Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); and Simopoulos v. Virginia, 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983). An internal memorandum of the Department of Public Health following the decisions in those cases opined that they confirmed the unconstitutionality of the second trimester hospitalization requirement in the Illinois statutes and regulations. See Deft. Ex. 4. Representatives of the defendants testified at trial that the requirement is not currently being enforced for this reason.

Defendants also contend that section 10 of the Illinois Abortion Law of 1975, an abortion-specific reporting requirement, was enjoined by Judge Kocoras in Charles v. Carey, 579 F.Supp. 464 (N.D.Ill.1983), aff'd in part, rev’d in part on other grounds Charles v. Daley, 749 F.2d 452 (7th Cir.1984) (Charles II), appeal dismissed sub nom. Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), and that the abortion-specific reporting requirement in the ASTC regulations has not been enforced since that time.

These non-enforcement policies are not publicly stated, but persons who inquire of the various enforcement agencies are informed of them.

C. Individual Plaintiff Dr. Ragsdale

The individual plaintiff physician was required to relocate his practice, the Northern Illinois Women's Center (“the NIWC”), which is the only facility of its kind (that is, a non-hospital clinic) offering abortion services in a large area of northwestern Illinois because his landlord refused to renew his lease. The facility which he had been operating was not in full compliance with the ASTCA regulations, but was nonetheless licensed as “substantially complying” with them. When he sought another location, he had to go through the certificate-of-need proceedings. The required public hearing on the application degenerated into a shouting match between “pro-choice” and “pro-life” members of the public, after which the doctor’s prospective landlord withdrew his lease commitment. In addition, officials charged with enforcing the regulations told him that they would require “considerably more substantial compliance” than had been the case with his prior facility, particularly with respect to the architectural requirements. The cost of either building a facility or renovating one to comply with the regulations was estimated by the plaintiff at between $25.21 and $47.66 per patient. Because of his inability to find a location that can be renovated to comply with the AST-CA, particularly the structural and physical plant requirements of the regulations, at a reasonable cost, Dr. Ragsdale will close the NIWC unless the statute is enjoined.

D. Individual Plaintiff Margaret Moe

Margaret Moe is a registered nurse who currently operates two medical facilities in the State of Illinois. The facilities offer family planning education and medical care that includes the prescription of contraceptives, prenatal care, and delivery assistance for pregnant women. Her clinics receive approximately sixty requests for abortions each week. She would like to offer abortion services at her clinics, and she has on staff physicians who are competently trained and willing to perform such abortions. However, her facilities do not comply with the structural requirements of the Act and regulations and cannot be renovated to so comply without prohibitive cost. Accordingly, she does not offer such services.

II

We first consider whether certain of plaintiffs’ challenges have been mooted by the State’s non-publicized policy of non-enforcement.⁵ It is well established that voluntary cessation of putatively illegal conduct ordinarily will not moot a controversy and prevent its adjudication by a federal court. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n. 10, 102 S.Ct. 1070, 1074 & n. 10, 71 L.Ed.2d 152 (1982); County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, , 59 L.Ed.2d 642 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953); see also Charles v. Daley, 749 F.2d 452, 456-58 (7th Cir.1984) (Charles II), appeal dismissed sub nom., Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). However, such cessation does render a controversy moot where there is no reasonable expectation that the putatively illegal conduct will be repeated, and there are no remaining effects of the alleged violation. Davis, 440 U.S. at 631, 99 S.Ct. at 1383; W.T. Grant, 345 U.S. at 633, 73 S.Ct. at 897. Defendants bear a heavy burden of persuading the court that a controversy is moot. United States v. Phosphate Export Association, Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); W.T. Grant, 345 U.S. at 633, 73 S.Ct. at 897; Charles II, 749 F.2d at 457; Sanchez v. Edgar, 710 F.2d 1292, 1294-95 (7th Cir.1983).

We note additionally that cessation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties. According to one commentator, such self-correction provides a secure foundation for a dismissal based on mootness so long as it appears genuine. See 13A Wright, Miller & Cooper Federal Practice and Procedure § 3533.7, at 353 (2d ed. 1984).

A.

We believe that application of these general principles to the present circumstances mandates a conclusion that plaintiffs’ challenge to the second trimester hospitalization requirement is moot. As we have noted above, the defendants have conceded, at least since 1983, that this requirement is unconstitutional under governing Supreme Court decisions and is therefore not enforced. Plaintiffs have not attempted to counter the defendants’ showing on this point, nor do we believe they could. The individual plaintiff Dr. Ragsdale testified that he was informed by a State inspector that the hospitalization requirement was not being enforced and that after that time he began performing early second trimester abortions at his facility.

Analogous assurances of discontinuance of the challenged conduct have been held to render challenges moot in other cases. For example, in McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S.Ct. 325, 70 L.Ed. 2d 165 (1981), election officials conceded that they had erred by attempting to compel a political candidate to file certain financial disclosure reports and wrote the candidate abandoning their request for such reports. This, according to the court, mooted the challenge to the officials’ action because “Appellant ‘has presented no evidence creating a reasonable expectation that the [Commission] will repeat its purportedly unauthorized actions in subsequent elections. Appellant’s conclusory assertions that the actions are capable of repetition are not sufficient....’” Id. at 1310 & n. 1 (quoting Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 187, 99 S.Ct. 983, 992, 59 L.Ed.2d 230 (1979)). In Northern Virginia Women’s Medical Center v. Batch, 617 F.2d 1045 (4th Cir.1980), an even more questionable assurance of discontinuance was held to moot the controversy. There, a local prosecuting attorney’s policy of not enforcing a state trespass statute against anti-abortion protestors who unlawfully entered and blocked access to an abortion clinic was challenged as a denial of Equal Protection. The court held that the prosecutor’s assertion at oral argument that the non-enforcement policy had been abandoned, coupled with the fact that prosecutions had in fact occurred during the pend-ency of the litigation, rendered the challenge moot. According to the court, “[sjince the good faith of this representation is not questioned, we conclude that the controversy between the Center and the commonwealth attorney is now moot and that it is not likely to be revived.” Id. at 1049.

We believe that the defendants’ now public policy of non-enforcement of the hospitalization requirement, particularly in view of the reasons therefor (i.e., that enforcement is barred by clear Supreme Court precedent), moots any challenge to that requirement. While we share plaintiffs’ concern that the State has not acted to remove or amend the statute and regulations, we know of no authority by which we can require it to do so. The most we could do, and all plaintiffs request of us, is to enjoin their enforcement. Federal courts do not, as a rule, enjoin conduct which has been discontinued with no real prospect that it will be repeated. Accordingly, the challenge to the second trimester hospitalization requirement should have been dismissed. Therefore we vacate the portion of the injunction that pertains to it.

B.

However, we do not believe that the challenge to the reporting requirement of the ASTCA and regulations is moot. Although defendants testified that this requirement is no longer being enforced in light of Charles v. Carey, 579 F.Supp. 464 (N.D.Ill.1983), we have reviewed that decision and cannot find anything in it which remotely supports the conclusion that the requirement under challenge here was enjoined. The only reporting requirement addressed by that decision was section 11(d) of the Illinois Abortion Act, which required the reporting to the Department of the name of any patient diagnosed as having complications from abortion. The more general requirements here are quite different. Unlike its representations of non-enforcement of the other sections, the State produced no pre-existing documentation of the policy. We share the district court’s concern that the State’s position on this provision is asserted only in this litigation.

C.

The challenge to the application of the ASTCA and regulations to first trimester abortions is similarly not moot. While the requirement is apparently no longer applied to the “occasional” abortion provider, the State continues to maintain that it is free to apply the ASTCA to abortion providers whose practice is “primarily devoted to” performing surgery, even if that “surgery” consists exclusively of first trimester abortions. This is in fact the situation facing at least one of the named plaintiffs, Dr. Ragsdale.

Additionally, the evidence regarding the suspension/revocation sanction in the MPA was, as we have noted, ambiguous. A representative of the Department merely testified that any complaint regarding this provision would be “examined by the General Counsel’s office for a determination of whether there would be any enforcement action taken pursuant to that section.” He additionally testified that “to the best of [his] knowledge” the Department would not enforce the section. While we admit that it would be anomalous for the Department to take the position that “occasional” abortion providers need not be licensed but that performance of such abortions could subject the physicians to revocation of their licenses to practice medicine, the Department’s position is sufficiently murky and the sanctions sufficiently severe, that we believe a live controversy exists regarding this requirement. Doctors should not have to risk loss of their professional licenses to explore the contours of the asserted non-enforcement position.

Ill

On the merits,⁶ we must consider whether the requirements of the statutory and regulatory scheme violate the right to privacy (and to abortion) as established in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 710, 35 L.Ed.2d 147 (1973), and its progeny. In Roe, the Court first set out the now familiar “trimester” approach:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

410 U.S. at 164-65, 93 S.Ct. at 732.

In elaborating on this approach, the Court noted that the State’s interest in the health of the mother becomes compelling:

in the light of present medical knowledge, ... at approximately the end of the first trimester. This is so because of the now-established medical fact, ... that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

Id. at 163, 93 S.Ct. at 731-32.

Since Roe, the Court, along with the lower federal courts, has on numerous occasions clarified the constitutional standards which apply to regulations aimed at both first and second trimester abortions. Few restrictions on first trimester abortions have been upheld. For example, the Court upheld a requirement that all abortions be performed by a licensed physician. Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975) (per curiam). This requirement, apart from being endorsed in dictum in Roe, was upheld because “the State retains an interest in ensuring the validity of Roe’s factual assumption that ‘the first trimester abortion [is] as safe for a woman as normal childbirth at term,’ an assumption that ‘holds true only if the abortion is performed by medically competent personnel under conditions insuring the maximum safety of the woman.’ ” Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 430 n. 12, 103 S.Ct. 2481, 2492 n. 12, 76 L.Ed.2d 687 (quoting Menillo, 423 U.S. at 11, 96 S.Ct. at 171).

Likewise, the Court upheld a state-required pathology examination which required tissues removed by abortion, like all other removed tissues, to be examined by a pathologist. Planned Parenthood Association, Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983). This was because such an examination was considered “absolutely necessary” from a medical standpoint and “ ‘abnormalities in the tissue may warn of serious, possibly fatal disorders.’ ” Id. at 487-89, 103 S.Ct. at 2523-24. According to the Court, certain regulations of even first trimester abortions that “ ‘have no significant impact on the woman’s exercise of her right [to have an abortion] may be permissible where justified by important state health objectives.’ ” Id. at 489-90, 103 S.Ct. at 2524 (quoting Akron, 462 U.S. at 430, 103 S.Ct. at 2492-93 (alterations by the Court)).

The quoted language clearly indicates that, where first trimester abortions are involved, not only must the impact of the challenged regulation be insignificant in terms of the woman’s exercise of her right, but also that the regulation must be “justified by important state health objectives.” This is consistent with our own case law to the effect that once such regulations are shown to have more than a de minimus impact on the abortion decision, the government must show a compelling basis for the law, i.e., that the burden is not undue or unjustifiable. Charles v. Carey, 627 F.2d 772, 777 (7th Cir.1980) (Charles I), on remand, 579 F.Supp. 464 (N.D.Ill.1983).⁷

Appellants contend that the district court’s application of a “medical necessity” standard was error. We disagree. First, we believe that a “medical necessity” standard, at least as the term was used in the testimony below, is entirely consonant with the standards to be applied to regulations regarding first trimester abortions. See Akron, 462 U.S. at 430, 103 S.Ct. at 2492-93 (such restrictions must be “justified by important state health objectives”); Ashcroft, 462 U.S. at 487, 103 S.Ct. at 2523 (pathology examination requirement upheld because “absolutely necessary” from a medical standpoint). Additionally, it is clear from a review of the transcript that when the experts below testified that a requirement was not “medically necessary,” they meant by that term that it had no real relationship to safety or health. See, e.g., R. Vol. I at 112 (testimony of Dr. Ragsdale) (certain provisions not medically necessary because without “any real relationship to the particular circumstances” of physician performing abortions). According to the testimony, the minimum size requirements for examination rooms, procedure rooms, recovery rooms, corridors and doors, for example, not only were not “medically necessary,” but do not enhance the safety of the abortion procedure “in any way” or did not have “any medical justification.” R. Vol. I at 263-72 (testimony of Dr. Hern); see also R. Vol. I at 154 (testimony of Dr. Ragsdale) (large procedure room “not only medically unnecessary but medically poor”). The district court found, with full support from the record, that the physical plant requirements of the regulations required ASTCs to be “the functional equivalent of small hospitals,” 625 F.Supp. at 1216, and that these requirements “may be medically detrimental.” Id. at 1230 n. 23.

We note as well that the question whether some or all of the requirements of the statute and regulations could be constitutionally applied to early second trimester abortions is a more nettlesome one, but it is a question which we need not decide.⁸ The statute and regulations do not distinguish between the two. Indeed, as written, due to the (now unenforced) second trimester hospitalization requirement, they originally applied only to first trimester abortions. Accordingly, as we have in other cases, we apply the legal standards applicable to restrictions on first trimester abortions. See Charles I, 627 F.2d at 782; Friendship Medical Center, Ltd. v. Chicago Board of Health, 505 F.2d 1141, 1149 (7th Cir.1974), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975). We are simply not at liberty to insert the words “except with regard to first trimester abortions” into either the statute or the regulations. To do so would result in a scheme with little resemblance to that enacted by the Illinois legislature or the Department of Public Health. See Thornburgh v. American College of Obstetricians, 476 U.S. 747, 106 S.Ct. 2169, 2181, 90 L.Ed.2d 779 (1986).

Defendants suggest that, because the regulations apply to all facilities primarily devoted to surgery, we must review them under a different standard than if they had singled out abortions. We disagree. Defendants have cited us to no cases, and we have found none, which would justify such a distinction. In fact, Friendship suggests, albeit in dictum, exactly the opposite. 505 F.2d at 1153-54; see also Birth Control Centers, Inc. v. Reizen, 743 F.2d 352, 361-62 (6th Cir.1984) (applying strict scrutiny notwithstanding general applicability of regulations).

We adhere to the statement in Friendship for several reasons. First, we cannot ignore the fact that the ASTCA was enacted primarily with abortion clinics in mind and only applied to outpatient surgical clinics generally in an effort to save the statute from unconstitutionality. See Pf. Ex. 22-24 (minutes of ASTC Licensing Board meetings). Secondly, the State cannot, merely by applying the expedient and con-clusory label “surgery” to a medical procedure, apply requirements which would be necessary to major surgical procedures in the abortion context where they would be wholly inappropriate. It is as much a vice to treat abortion similarly to dissimilar procedures as it is to treat it differently from analogous procedures. In either case, imposition of burdensome requirements which are completely unnecessary to the performance of safe abortions is attempted. A prime example of this problem is the fact that many of the physical plant requirements of the regulations are designed with procedures to be performed under general anesthesia in mind, although the testimony in this case clearly established that first and early second trimester abortions of the type at issue here are not usually performed using such anesthesia and that, in fact, the use of a general anesthetic increases the risk of death and major complications from such procedures.

With the standards enunciated above in mind, we now turn to evaluation of the constitutionality of the challenged statutes and regulations.

IV

The State initially contends that the plaintiffs have not met their threshold burden of showing an impact on the abortion decision. We must reject this contention. The district court found that the regulations at issue do substantially burden the effectuation of the decision to have an abortion. Specifically, the lower court found that the regulations raised the cost of abortions, by $25-$40 for abortions performed at Dr. Ragsdale’s clinic, and, more importantly, that they would limit the availability of abortions in that, unless the regulations were enjoined, the clinic would close for lack of a suitable location that could be renovated to comply with them.⁹ Additionally, the district court found that the regulations prevented individual plaintiff Moe from offering abortion services at her clinic because the cost of compliance was prohibitive. We cannot say these findings are clearly erroneous.

Dr. Ragsdale testified that he estimated compliance with the regulations would entail a per-patient cost of between $25 and $40.¹⁰ While the defendants point out, correctly, that this is not a great deal more than the cost of the pathology examination upheld in Ashcroft, they seem to have missed the import of that case. The Court did not hold that the impact was so small that the state was not required to justify it at all. It merely held that, during even the first trimester, requirements having an insignificant impact on the abortion decision were constitutional “where justified by important State health objectives.” Thus, the regulations at issue here, which have a greater financial impact than that in Ashcroft, must be justified by at least similar state interests.

Additionally, although the financial per-patient cost of compliance might not seem overwhelming, it is not the only burden which must be considered. The lack of availability of abortions caused by the upfront cost and difficulty of obtaining a complying facility is at least as real and possibly more burdensome to women seeking abortions. Furthermore, there was testimony of the psychological burdens which would result from having to undergo an abortion in a hospital-like facility when the more psychologically comforting setting of a doctor’s office would serve just as well from a medical standpoint. We cannot say that these burdens are “de minimus.” Cf. Charles I, 627 F.2d at 777 (“direct interference” is shown where impact is not de minimus or where regulation imposes restrictions “that did not already exist”). Therefore, they must be justified by important state health objectives.

The first facet of the scheme we consider is the requirement that facilities performing first trimester abortions be licensed at all. While this may not seem a particularly onerous requirement, we note Supreme Court precedent suggests only that a licensing requirement may be permissible in the second trimester. The Court stated in Roe that the state’s interest in maternal health during the second trimester extends to “the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic of some other place of less-than-hospital status; as to the licensing of the facility; and the like.” 410 U.S. at 163, 93 S.Ct. at 732. By contrast, the Court stated that during the first trimester “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free from interference by the State.” Id. (emphasis added).

While we realize that the last quoted statement has been qualified by the Court in subsequent decisions (that is, where the “interference” does not have a significant impact and furthers important state health concerns), we nonetheless believe it retains force here. Thus, we are persuaded in this case that the State may not require separate licensure of facilities primarily devoted to performing abortions.

A primary factor which persuades us is that the State has in no way shown that performance of first trimester abortions in physicians’ offices rather than heavily regulated ASTCs in any way undermines the safety of the operation. We further note that Akron itself seems to reject such an argument. 462 U.S. at 429 n. 11, 103 S.Ct. at 2492 n. 11. The State in fact basically concedes that it cannot prevent doctors from performing at least some abortions in their offices.

To the extent that there is any basis for distinguishing between a doctor who occasionally performs an abortion in his office and one whose practice is primarily devoted to such procedures, the regulations appear to run contrary to sound health policy. All of the expert testimony in the record is in agreement that the physician who performs many abortions in general will have more expertise and therefore a better safety record. The State’s attempt to regulate experienced, and therefore safer, physicians, more heavily than the occasional abortion provider thus appears, as the district court noted, to lack even a reasonable basis.

We realize that the Sixth Circuit upheld a similar general licensing requirement in Reizen. However, in doing so, the court did not address a challenge based on the constitutional right to abortion, but rather an Equal Protection challenge based upon the physician’s right to practice. Accordingly, the court applied a highly deferential “rational basis” standard of review. 743 F.2d at 358-59. As we have already held, such a standard of review is not appropriate in this case. Additionally, none of the evidence of the type mentioned above was apparently present in Reizen. There, the district court found that a private physician was more likely to have direct control over staff and procedures, but that the absence of this control might characterize a “clinic.” Such findings are absent in this case.

Purely as a matter of the plain language of the statutory and regulatory scheme, once the licensing requirement falls, the remainder of the requirements fall with it (or, more properly, are inapplicable). The specific substantive requirements are not (leaving aside the unenforced requirement that all abortions must be performed in an ASTC) applicable to abortions, per se, but rather to ASTCs. In the alternative, however, we analyze those specific substantive aspects of the regulations focused on at trial which render the scheme unconstitutional as a whole.¹¹

The abortion-specific subpart of the regulations is of particular concern. Many of the requirements set forth in that subpart seem clearly contrary to either pri- or Supreme Court precedent or our own cases. In particular, we note that section 205.730(a)(2) apparently requires the physician who is to perform the abortion to also perform a pregnancy test on the patient regardless of whether such testing had previously been done by another physician. We previously invalidated a similar “same doctor” requirement in an Illinois statute. See Charles I, 627 F.2d at 784, 786. The requirement in the instant regulation is, if anything, more burdensome and less justified than the one we invalidated there, which required only that the performing physician provide the patient with “a true copy” of her pregnancy test, rather than to possibly conduct a second test. For the same reasons as in Charles I, the provision in this case is invalid.

The counseling requirements too suffer from constitutional defects. Section 205.730(b)(3) attempts to prescribe the precise content of such counseling in mandatory terms applicable to all cases. The regulation states that counseling “shall include a discussion of alternatives, description of the procedure to be performed, explanation of the risks and possible complications.” We believe that this provision, particularly the requirement of a “discussion of alternatives” is unconstitutional under the Supreme Court’s recent decision in Thornburgh v. American College of Obstetricians, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986). The requirement “that a specific body of information be given in all cases, irrespective of the particular needs of the patient, intrudes upon the discretion of the pregnant woman’s physician and thereby imposes the ‘undesired

and uncomfortable straitjaeket’ ” which the Court has rejected. Id. 106 S.Ct. at 2179 (quoting Planned Parenthood Association, Inc. v. Danforth, 428 U.S. 52, 67 n. 8, 96 S.Ct. 2831, 2840 n. 8, 49 L.Ed.2d 788). The informational requirements of the regulation are certainly not as intrusive or as specific as those previously stricken by the Court, but they are just as inflexible. Dr. Ragsdale testified below that some of the information, particularly the “discussion of alternatives” might not be appropriate for some patients. We agree that “for a patient with a life-threatening pregnancy, the ‘information’ in its very rendition may be cruel as well as destructive of the physician-patient relationship.” Thornburgh, 106 S.Ct. at 2180. We bear in mind that, during the second trimester at least, “the validity of an informed consent requirement ... rests on the State’s interest in protecting the health of the pregnant woman.” Id. at 2179 (quoting Akron, 462 U.S. at 443, 103 S.Ct. at 2499). Viewed in this light, the provision at issue here may, like that in Thornburgh, “require[ ] the dissemination of information that is not relevant to such consent, and thus, it advances no legitimate state interest.” Id. at 2180.

Another aspect of the counseling requirements is troubling. Section 205.-730(b)(2)(D) requires that “counselors shall have no financial interest in the patient’s decision.” We find it impossible to read this provision in such a way that it does not, at least in some cases, preclude the performing physician from providing the counseling. This, we believe, is fundamentally at odds with the emphasis placed on the patient-physician relationship by Roe and its progeny. The woman desiring an abortion, according to those cases, is to reach that decision in consultation with “her responsible physician.” Roe, 410 U.S. at 153, 93 S.Ct. at 727; cf. Akron, 462 U.S. at 449, 103 S.Ct. at 2502 (striking down a requirement that the attending physician, rather than other professionals, must provide the requisite counseling). The state cannot preclude that dialogue, or demand that others be a party to it merely because the physician has a “financial interest” in the woman’s decision. In all other areas of medicine, the state relies on the physician’s professional and ethical obligations to prevent his “financial interest” from clouding his perspective to the detriment of his patient. It may not do otherwise merely because an abortion decision is involved. See Doe v. Bolton, 410 U.S. 179, 197-200, 93 S.Ct. 739, 750-51, 35 L.Ed.2d 201 (1973). In Doe, the Court struck down requirements that an abortion be approved by a hospital abortion committee and by two other physicians independent of the woman’s own consulting physician because, inter alia, the state requiredsuch additional approval for “no other voluntary medical or surgical procedure.... ” According to the Court:

If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient’s needs and unduly infringes on the physician’s right to practice.

Id. at 199, 93 S.Ct. at 751.

We believe those principles are equally applicable here. Accordingly, we hold that the requirement that counseling be conducted by one who has no “financial interest” in the patient’s decision is unconstitutional.

D.

Of the requirements applicable to ASTCs generally, the physical plant equipment and staffing requirements, in particular, seem totally unjustified from a medical standpoint. The testimony regarding many of the physical plant requirements makes clear that they have “no medical justification whatsoever” when applied to first and early second trimester abortions of the type involved in this case.

According to the testimony, the minimum size requirements for examination rooms, procedure rooms, recovery rooms, and corridors and doors not only are not “medically necessary,” but do not enhance the safety of the abortion procedure “in any way” and do not have “any medical justification.” R.Yol. I at 263-72 (testimony of Dr. Hern); see also R.Vol. I. at 154 (testimony of Dr. Ragsdale) (large procedure room “not only medically unnecessary but medically poor”). We agree that the requirements that ASTCs performing first and early second trimester abortion(s) be “the functional equivalent of small hospitals” are not sufficiently justified by “important state health objectives” to be sustained.

Additionally, the ventilation requirements of the regulations, which require specific air pressure relationships between rooms and specific air change ratios are unrelated to the safety of first and early second trimester abortions. The purpose of such requirements is to prevent infection from airborne bacteria. All of the medical experts, including defendants’, testified that airborne bacteria simply is not relevant to the procedures involved in this case, because the procedures do not involve an incision. The sole testimony to the effect that such requirements might be advisable came from the State’s architectural expert, who apparently believed that an incision was required. It can scarcely be doubted that such a witness lacks any expertise to enable him to form an opinion regarding the medical justification for a particular requirement.¹²

More importantly, perhaps, the defendants failed to adduce any evidence at all of a medical justification for the physical plant requirements. Although the defendants protest on appeal that plaintiffs’ experts who testified as to the lack of medical justification were not building and construction experts, the relevant test is whether the standards are “justified by important state health objectives.” It seems clear to us that medical experts can offer testimony relevant to that standard, and it is questionable whether those without a health care background can. As we have noted above, only defendants’ architectural expert testified as to the need for the ventilation requirements. This witness similarly testified regarding room sizes, although he stated that the requirements were drafted with procedures involving general anesthesia in mind. At one point, he testified that he relies on the physician operating a facility to determine what is medically required. Linder Dept, at 42.

The structural, equipment, and staffing requirements of the regulations are quite similar to those invalidated in Reizen. See 743 F.2d at 364-65. They also bear a remarkable resemblance to the abortion-specific scheme we invalidated in Friendship. While the evidence in Reizen indicated a per-patient cost increase considerably greater than that in this case (Friendship did not consider particularized cost estimates), the regulations there, as here, would have required considerable up-front expenditures. Also, as we have noted above, per-patient financial cost is not the only relevant burden. We have little trouble concluding that these requirements, which impose a substantial burden and are not justified by health objectives, are unconstitutional.

E.

We also believe that the “certificate of need” proceeding requirement of the Health Facilities Planning Act is unconstitutional. The only interest which the State has articulated is the desire to keep costs down under the “cost-plus” disbursement method which was at one time used by the State in making certain health care payments for its residents. Apart from the fact that this interest no longer exists because the State has discontinued use of this method, the State has never made such payments for abortions. Furthermore, the interest cannot be said to be compelling in any event. While a state may have some interest in preventing wasteful duplication of resources, the interest must give way where the exercise of constitutional rights is concerned. Certainly it would be unconstitutional for a state to require that anyone desiring to publish a newspaper demonstrate “need” for the publication, though it can scarcely be gainsaid that at least some few involve wasteful duplication. Where the exercise of constitutional rights is concerned, the government may play no role in determining whether outlets for their exercise are “needed.”

The unconstitutionality of the “certificate of need” proceedings as applied to ASTCs that wish to perform abortions is exacerbated by the failure of the State to prevent the process from becoming essentially a public veto of the ASTCs’ existence. As we noted above, the proceedings attended by the individual plaintiff physician was allowed to degenerate into a shouting match between abortion foes and advocates of free choice. The State’s unwillingness or inability to confine the proceedings to its even arguably legitimate goals bolsters our conclusion that this requirement cannot stand because it is not justified by any legitimate State interest.

V

While, as we have noted above, there may well be facets of the statute and regulations which would individually pass constitutional muster, supra nn. 8 & 11, we are constrained to affirm the district court’s injunction of the scheme as a whole. Defendants, citing Zbaraz v. Haritgan, 763 F.2d 1532, 1545 (7th Cir.1985), aff’d, — U.S. —, 108 S.Ct. 479, 98 L.Ed.2d 478 (1987) and Charles I, 627 F.2d at 779, urge that we specifically analyze each provision and sever those portions which are unconstitutional. However, in neither Zbaraz nor Charles I were we confronted with a comprehensive scheme which either applied or not depending on whether a licensing requirement could stand. In Zbaraz, we noted that severability applies only to “any provisions which can be given effect without the invalid provisions,” and that “severance is improper if the unconstitutional provision is ‘an integral part of the statutory enactment viewed in its entirety.’ ” 763 F.2d at 1545 (quoting Scheinberg v. Smith, 659 F.2d 476, 481 (5th Cir.1981)). Here, where we are dealing with a licensing scheme and the provision for separate licensure is itself invalid, not only can none of the other provisions “be given effect without the invalid provisions,” but the licensing provision is certainly “an integral part” of the scheme as a whole. Additionally, in neither Zbaraz nor Charles I was the scheme already so riddled with exceptions resulting from judicial decisions and non-enforcement policies as to be unintelligible. In such circumstances, we simply “cannot untangle the constitutional from the unconstitutional provisions_” Mahoning Women’s Center v. Hunter, 610 F.2d 456, 460 (6th Cir.1979), vacated on other grounds, 447 U.S. 918, 100 S.Ct. 3006, 65 L.Ed.2d 1110 (1980).

As originally written, the statute and regulations represented at least a coherent, if unconstitutional, whole which regulated all aspects of abortion practice in Illinois. However, as a result of various judicial decisions, and the defendants’ change of enforcement policies in response to them, the scheme has long since lost that coherence. The statute and regulations as written bear very little resemblance to the way they are currently enforced. As is clear from portions of our opinion, we have at times encountered considerable difficulty discerning just what the law in Illinois is. Yet, the State expects physicians, on pain of professional censure (possibly including loss of their licenses) and a $10,000 a day fine, to divine the contours of the rules under which they must operate.

Under these circumstances, we fully agree with the Sixth Circuit’s decision in Mahoning Women’s Center. There, in invalidating, in its entirety, a local ordinance that required “the functional equivalent of a hospital” for first trimester abortions, the court held “[i]n this situation, we do not believe a useful purpose would be served by attempting to rewrite the minor provisions of the ordinance in order to make them constitutional.” 610 F.2d at 461. We could not agree more.

Accordingly with the exception of the portion of the injunction regarding the second trimester hospitalization requirement, which is Vacated As Moot, the preliminary injunction is

Affirmed.

1 . Class certification as to both the defendant and plaintiff classes was challenged below. The district court granted certification. 625 F.Supp. at 1219-24. That ruling is not challenged on appeal.

2 . Section 16(1) of the Medical Practice Act reads, in pertinent part:

The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license ... of any person ... in this state to practice medicine ... upon any of the following grounds:

(1) Performance of an elective abortion in any place ... other than:

(a) a facility licensed pursuant to the “Ambulatory Surgical Treatment Center Act" ...;

(b) [a licensed hospital];

(c) an ambulatory surgical treatment center or hospitalization or care facility maintained by the State or any agency thereof ...;

(d) ambulatory surgical treatment centers, hospitalization or care facilities maintained by the Federal Government, or

(e) ambulatory surgical treatment centers, hospitalization or care facilities maintained by any university or college established under the laws of this State and supported principally by public funds raised by taxation....

3 . Section 1158 of the Health Facilities Planning Act reads, in pertinent part:

... When an application for a permit is initially reviewed by a recognized areawide health planning organization or [the Department of Public Health] ... [they] shall afford an opportunity for a public hearing within a reasonable time after receipt of the complete application_ Such hearing shall be con-

ducted in the area or community where the proposed project is to occur, and shall be for the purpose of allowing the applicant and any interested person to present public testimony concerning the approval, denial, renewal or revocation of the permit.... The State Board shall promulgate reasonable rules and regulations governing the procedure and conduct of such hearings.

4 . Selected regulations that are discussed in detail in our analysis infra in the text are set forth in an Appendix to this opinion.

5 . We note that the defendants did not argue that portions of the case were moot until their reply brief, arguing in their initial brief only that the non-enforcement policy meant that the plaintiffs were not being irreparably harmed by the statutory scheme. Nonetheless, as we are under a duty to determine our own jurisdiction, we must consider the question of mootness even if no party properly raises it.

6 . On appeal, various of the defendants and ami-ci contend that the district court did not properly weigh various of the factors which are normally considered in issuing a preliminary injunction. We note that the presentation of the case below focused almost exclusively on the constitutionality vel non of the statutory scheme or its component parts. However, the district court undertook a thorough examination of the traditional factors governing the granting of preliminary relief, i.e., the lack of an adequate remedy at law, irreparable harm, balance of harms, likelihood of success on the merits, and the public interest. We confine our discussion to the likelihood of success on the merits, that is, the governing legal standards and their relationship to the facts found below for two related reasons. First, the balancing of the other factors is typically reviewed on an "abuse of discretion standard” and we see no abuse, and second, we find insufficient merit to any of the defendants* or the amicus’ belated assertions that this or that factor was given insufficient weight to add to this already lengthy opinion.

7 . Appellants make much of the fact that the district court connected the two parts of the Charles I dictum with "and” rather than "that is,” claiming that the district court thus applied an improper standard. See 625 F.2d at 1230. This claim is meritless. Charles I in fact reiterated the standard enunciated by the Supreme Court, that the state must justify its regulation with a compelling interest and show that the regulation is narrowly drawn to express only that interest. See 627 F.2d at 776-78. Scrutiny of such laws always involves two questions: (1) how important the asserted state interest is, and (2) how well the regulation is drawn to achieve only that interest. Charles I did not intend to suggest that the second inquiry was unnecessary, and appellants’ reliance on it for that purpose is misplaced.

8 . A number of the regulations involved may well pass muster under the less stringent standard of review applied to state regulation of second trimester abortions. That standard allows the state to regulate second trimester abortions to the extent that the regulation "reasonably relates to the preservation and protection of maternal health,” but it may not "adopt abortion regulations that depart from accepted medical practice." Akron, 462 U.S. at 430-31, 103 S.Ct. at 2493. The experts who testified at hearing described many of the requirements as "consistent with accepted medical practice.” While it is true, as the district court found, that "[t]his is not equivalent to a showing of medical necessity,” such a showing is not required for regulations which apply only to the second trimester.

We note that the Supreme Court stated in Roe that the state’s interest in maternal health during the second trimester extends to “the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic of some other place of less-than-hospital status; as to the licensing facility; and the like.” 410 U.S. at 163, 93 S.Ct. at 732. Further, in Simopoulos v. Virginia, 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983), the Court rejected an attack on a criminal conviction, upholding against a charge of facial invalidity a statute requiring all second trimester abortions to be performed in a “hospital,” where that term was defined to include facilities which were not full-fledged acute care hospitals. Thus, it appears that at least some licensing of facilities performing second trimester abortions would be permissible. However, we caution that the Court in Simopoulos specifically noted that "[w]e need not consider whether Virginia’s regulations are constitutional in every particular_ [Appellant has not attacked them as being insufficiently related to the State's interest in protecting health.” Id. at 513, 103 S.Ct. at 2539. Also, Simopoulos, unlike the present case, involved a late second trimester abortion performed using the saline instillation method.

Much of the testimony below was to the effect that the requirements of the regulations bore little relationship to safe performance of early second trimester abortions as well as first trimester abortions. This should come as little surprise, since the medical procedures utilized are quite similar if not identical. We remind the State of the Supreme Court’s admonition in Akron that:

[I]f it appears that during a substantial portion of the second trimester the State's regulation ”depart[s] from accepted medical practice,” supra [103 S.Ct.], at 2493, the regulation may not be upheld simply because it may be reasonable for the remaining portion of the trimester. Rather, the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered.

462 U.S. at 434, 103 S.Ct. at 2495.

Thus, while the trimester approach remains the applicable legal framework for weighing the competing interests involved in the abortion decision, it does not necessarily follow that all state regulations of abortion which are keyed to it are reasonable. Instead, the state should endeavor to draw its regulations designed to further maternal health in medically relevant terms (for example, certain of the requirements of the statute involved here may well make sense for late second trimester abortions which are performed under a general anesthetic, but not for simple "dilation and evaculation” abortions performed early in the second trimester).

9 . The Americans United for Life Legal Defense Fund, as amicus curiae, contends that, because individual plaintiff Dr. Ragsdale would have had to relocate his clinic regardless of the regulations (due to an ostensibly unrelated business decision of his landlord), plaintiffs have presented no direct injury flowing from the challenged government conduct. However, this argument misses the critical point that the regulations make difficult, if not impossible, the relocation of an existing abortion practice or the commencement of a new one. As such, we have little doubt that plaintiffs have established a sufficient injury both to satisfy Article III and to warrant the grant of injunctive relief.

10 . Defendants place considerable emphasis on the allegedly erroneous admission of Dr. Rags-dale’s handwritten cost estimates. We need not decide whether these constituted inadmissible hearsay, however, because Dr. Ragsdale testified at length, and without objection, to the substance of the estimates. Therefore, the admission of the written estimates themselves, if error, was surely harmless.

11 . We do not decide whether particular provisions of the regulations not specifically mentioned in the text would, standing alone, pass constitutional muster. In particular, the pathology examination required by the general regulations seems nearly identical to that upheld in Ashcroft. Also the reporting requirement does not appear particularly onerous, nor does it appear calculated to raise the fear of harassment by physicians and patients by raising the spectre of public disclosure. Section 205.760 of the regulations merely requires a report of each procedure performed in an ASTC within ten days, and that such reports be made in such a manner and at such time so as not to avoid accurate reporting of complications. If complications become known to the ASTC, it is required to submit a supplemental report. Section 205.620, a non-abortion-specific reporting requirement, merely requires reporting of the number and type of procedures performed, the number and type of complications reported, the number of patients requiring transfer to hospitals, the number of patients returning for follow-up, and the number of deaths. These requirements appear to be consistent with Planned Parenthood Association, Inc. v. Danforth, 428 U.S. 52, 79-81, 96 S.Ct. 2831, 2846-47, 49 L.Ed.2d 788 (1976). The requirements are considerably less stringent than those previously enjoined. In particular, the name of the patient is in no way required to be disclosed to the State.

Additionally, a number of the other general requirements seem as though they would place no real burden at all on the abortion right. Requirements which may fall in this category might include the general provisions relating to personnel and administrative procedures governing ASTCs, such as those calling for a written policies and procedures manual, consulting committee, organization plan, personnel policies, and maintenance of a sanitary facility. Similarly, the operative care and post-operative care regulations may be in accord with accepted medical practice. Dr. Ragsdale objected to many of these requirements as "stating the obvious.” However, so far as we are aware, there is no constitutional bar to "stating the obvious" even where abortion procedures are concerned.

Fewer of the abortion-specific regulations, as is evident from our discussion in the text, fall in this category. However, there was testimony below that the counselor qualification requirements of section 205.730(b)(2) were consistent with accepted medical practice. Additionally, subsection (1) of the same regulation merely requires, in general terms, that some counseling be given prior to the performance of an abortion (and that it occur in a room separate from the procedure room). As noted in the text infra, other aspects of the counseling requirements suffer from constitutional defects. Also, section 205.710 merely provides that “Abortions shall be provided to the public with the same standards of safety effectiveness, and regard for patients rights as any other health service."

Of course, we need not and do not decide the ultimate constitutionality of any of the requirements mentioned above.

12 . Defendants’ medical expert, Dr. Barton, lacked significant experience performing first trimester abortions. Those which he did perform were generally performed under a general anesthetic in a hospital setting. Due to his lack of experience relevant to the procedures at issue in this case, the district court properly accorded his testimony little weight. Defendants similarly do not rely on it heavily in this court.