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. Sec. 1983 and 28 U.S.C. Secs. 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.

* 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. p 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, 111 1/2 Ill.Rev.Stat. paragraphs 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...." 111 1/2 Ill.Rev.Stat. p 157-8.3(A). In addition, plaintiffs have challenged those sections of the Health Facilities Planning Act, 111 1/2 Ill.Rev.Stat. paragraphs 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 111 1/2 Ill.Rev.Stat. paragraphs 1155-1160.3

The bulk of plaintiffs' specific challenges, however, are directed at the ASTCA 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. 111 1/2 Ill.Rev.Stat. p 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 ASTCA, 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 250.230.

With regard to equipment, all facilities are required to have monitoring equipment, suction apparatus, oxygen, and cardiac pulmonary resuscitation equipment. Sec. 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. Sec. 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. Sec. 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. Sec. 205.520. All removed tissues are to be examined by a consulting pathologist. Sec. 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. Sec. 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. Sec. 205.540.

Detailed clinical records are also required to be maintained. Sec. 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 subpart 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. Sec. 205.740.

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-C-4126 (N.D.Ill.1982). In that case, enforcement of section 4 of the Illinois Abortion Law of 1975, 38 Ill.Rev.Stat. p 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.

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 ASTCA, 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.

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.

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, 1383, 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 Sec. 3533.7, at 353 (2d ed. 1984).

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. Balch, 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 pendency of the litigation, rendered the challenge moot. According to the court, "[s]ince 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.

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.

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.

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 conclusory 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.

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 up-front 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 prior 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 straitjacket' " 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.

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.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"). 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.

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.

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.

COFFEY, Circuit Judge, dissenting.

A decade and one-half ago the Supreme Court announced "that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (1973). Today, under the guise of protecting the woman's constitutional privacy rights, the majority holds that the State of Illinois' health services statutory scheme, enacted in an attempt to regulate the ever-escalating costs of medical care without sacrificing its citizens' health and safety, is unconstitutional. Specifically, now some 14 years after its enactment, the majority declares the Ambulatory Surgical Treatment Center Act, 111 1/2 Ill.Rev.Stat. paragraphs 157-8.1 et seq. (the "ASTCA" or the "ASTC Act") and the regulations promulgated thereunder unconstitutional, holding that the State may not require licensure of facilities devoted primarily to performing semi-complicated (minor) surgery, including first-trimester abortions. As an alternative approach, the majority chooses and carves out a select few ASTC regulations among various others, discusses their validity, and then proceeds to invalidate those regulatory sections of the ASTC Act that apply to first-trimester abortion facilities in Illinois, stating that it was unable to sever those provisions of the Act it deemed unconstitutional from those that were constitutional. Thus, the majority strikes down the ASTCA and baldly asserts that "the [statutory] scheme has long since lost ... coherence." Unfortunately, it is the majority's decision, rather than the Illinois legislative scheme, that lacks coherence.1 I am convinced that under Roe and its progeny that the individual states have the authority to ensure that all surgical procedures, including first-trimester abortions, are performed "under conditions insuring maximum safety for the woman." Connecticut v. Menillo, 423 U.S. 9, 11, 96 S.Ct. 170, 171, 46 L.Ed.2d 152 (1975) (per curiam). Certainly states have the power and authority, if not the duty, to apply the same licensing standards to abortion facilities as those applied to facilities performing similar surgical procedures.2 I know of no law to the contrary.

Moreover, the majority decision ignores the legislative intent and the historical context of the enactment of the challenged provisions: section 16(1) of the Medical Practice Act (the "MPA"), 111 Ill.Rev.Stat. p 4433(1); the Ambulatory Surgical Treatment Center Act, 111 1/2 Ill.Rev.Stat. paragraphs 157-8.1, et seq., and the regulations promulgated thereunder; and the Illinois Health Facilities Planning Act, 111 1/2 Ill.Rev.Stat. paragraphs 1151, et seq., particularly paragraphs 1155-1160. Research reveals that the Illinois legislature enacted Sec. 16(1) of the MPA3 intending to limit the performance of abortions only to licensed ambulatory surgical treatment centers, hospitals, or similar facilities and expressed such intention by requiring licensure of "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," (definitions section--ASTCA, p 157-8.3(A)).4 However, the legislature's primary purpose for enacting the Ambulatory Surgical Treatment Center Act was to regulate and prescribe safeguards for the rapidly developing trend of cost-effective ambulatory surgical medical services. The majority unfortunately disregards this primary purpose which provided the impetus for the enactment of the ASTCA and through mere speculation holds that the ASTCA is solely an abortion statute. Further, in its determination to do away with the duly enacted legislation, the majority completely disregards the statute's severability clauses as if they didn't exist, stating it could not "untangle the constitutional from the unconstitutional" and thus refuses to give effect to the challenged acts.5 Rather than recognize and effectuate the true intent and legitimate purpose of the acts and enjoin only those provisions which might impinge on a woman's limited right to terminate her pregnancy (Sec. 16(1) of the MPA, its companion clause in p 157-8.3(A) and Sec. 205.730(b)(2)(D) of the ASTCA regulations), the majority, in over-expansive language, declares, " '[W]e do not believe a useful purpose would be served by attempting to rewrite minor provisions of the ordinance [in this case the statutes and regulations] in order to make them constitutional.' " In so holding, the majority improperly substitutes its judgment for that of the legislature which enacted the statute because of its concern for the safety of its citizens. In the end, the majority decision severely limits (or casts aside) the state's ability to implement cost-effective schemes and regulate rapidly developing and modern methods of providing medical services simply because abortion (surgical) procedures may be involved. The majority's misdirected holding ultimately protects only the financial interests of abortion providers, like Dr. Ragsdale, rather than following the Supreme Court's limited mandate in Roe aimed at protecting the patient's privacy rights. If we allow the majority's "reasoning" to stand, surgeons, as well as other ASTC operators whose facilities are devoted primarily to the performance of abortions, will be allowed to operate without regulation while those ASTCs primarily performing other types of minor surgical procedures will remain regulated (assuming the majority's decision merely affirms the district court's preliminary injunction). Thus having treated facilities devoted primarily to abortions differently from those facilities primarily devoted to other surgical procedures, the majority carves out an "abortionist exception" to the general rule that states can reasonably regulate how medical services are provided to its citizens. Ultimately, the majority in effect creates a legal vehicle for the non-abortionists primarily performing other surgical procedures to challenge the ASTCA on equal protection grounds; for what rational basis exists for regulating ambulatory surgical centers differently than those facilities, like Ragsdale's abortion enterprise, devoted primarily to the termination of pregnancies?

The task of a reviewing court, contrary to the majority's reasoning, is, "of course, ... to resolve the issue by constitutional measurement, free of emotion and predilection." Roe v. Wade, 410 U.S. at 116, 93 S.Ct. at 709. Consistent with this Supreme Court directive, our decision must neither reflect pro choice nor anti-abortion sentiment. The Illinois legislation at issue, specifically the ASTCA, is fundamentally different from other Illinois abortion-related legislation and merits thorough, reflective, and separate consideration. I would enjoin Sec. 16(1) of the MPA and sever and further enjoin its companion clause in p 157-8.3(A) of the ASTCA requiring licensure of "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" because these provisions prevent a physician from performing a first-trimester abortion in his or her office. Under Roe and its progeny this prohibition may very well be considered unconstitutional. I am convinced that the states, including Illinois, are free to regulate ambulatory surgical treatment centers, including those performing abortions, as long as abortions are not singled out from other, similar surgical procedures, subject only to the well-known rational basis test governing social and economic legislation. Under the rational basis test the ASTCA and IHFPA are constitutional. Consistent with this analysis, I further evaluate the remaining abortion-specific statute sections and regulations6 promulgated thereunder under the strict scrutiny test articulated in Roe and its progeny7 and would hold all but one of these constitutional because these statutory sections and regulations neither burden the abortion decision nor its effectuation, and are justified with important health objectives in mind.

When the alleged "tripartite" legislative scheme is thus analyzed, neither a woman's right to terminate her pregnancy, nor the state's right to rationally regulate modern medical services for the protection of its citizens is adversely affected. Thus, I would reverse the district court's order enjoining Illinois' health services laws, except to the extent it enjoined Sec. 16(1) of the Medical Practice Act, its companion clause in p 157-8.3(A) of the ASTCA, and Sec. 205.730(b)(2)(D) of the ASTCA regulations.

* The majority decision properly notes that the "statutory and regulatory scheme is somewhat complex," but then proceeds to further confuse the challenged acts and their interrelationships, completely disregarding the legislature's intent regarding the various acts. The record of the legislative history reveals that Sec. 16(1) of the MPA, 111 Ill.Rev.Stat. Sec. 4433(1), and the Ambulatory Surgical Treatment Center Act (ASTCA), 111 1/2 Ill.Rev.Stat. paragraphs 157-8.1, et seq., were initially companion bills to the initial comprehensive Illinois Abortion Act (IAA), 38 Ill.Rev.Stat. paragraphs 81-11, et seq.8 The IAA, Sec. 16(1) of the MPA, and the ASTCA, were Senate Bills (S.B.) 1049, 1050, and 1051, respectively. The legislative history further reveals that S.B. 1049 and S.B. 1050 were integrally related; their purpose was to regulate abortions in Illinois in light of, and in an attempt to comply with, the Supreme Court's then-recent Roe and Doe decisions. As noted by the majority, Sec. 16(1) of the MPA provided for the "revocation or suspension of the license of any physician who performs 'elective abortions' in any place other than a licensed Ambulatory Surgical Treatment Center (ASTC), a hospital, or a facility run by the state or federal governments." Apparently, members of the Illinois legislature were concerned that the State would eventually be responsible for the cost of abortions performed on indigents in hospitals, so to reduce the State's anticipated abortion costs, less-expensive ASTC facilities were included in the list of approved locations for the performance of pregnancy termination procedures. At the same time the legislature was debating the regulation of abortions, ASTCs were just coming into existence and thus not regulated. Thus, S.B. 1051, an independent health regulatory bill creating and regulating ASTCs, was made a companion bill to the abortion bills.

Contrary to the majority's assertions, the ASTCA, unlike the IAA and Sec. 16(1) of the MPA, was not primarily enacted for the purpose of regulating abortions. The record and legislative history reveal that the ASTC Act became law in Illinois in 1973 with the express policy of insuring maximum safety in all medical procedures, providing:

"for the better protection of the public health through the development, establishment, and enforcement of standards (1) for the care of individuals in ambulatory surgical treatment centers, and (2) for the construction, maintenance and operation of ambulatory surgical treatment centers, which, in light of advancing knowledge, will promote safe and adequate treatment of such individuals in ambulatory surgical treatment centers."

Ill.Rev.Stat. ch. 111 1/2, p 157-8.2. Further, the ASTCA was intended to regulate the cost-effective and rapidly developing ambulatory outpatient surgical medical services. The minutes of the March 7, 1974, Ambulatory Surgical Treatment Center Licensing Board meeting provide relevant historical facts relating to the enactment of the ASTCA:9

"In July 1971 ... a member of the hospital licensing board, was appointed chairman of a committee appointed to formulate regulations for those facilities that were presently unlicensable. Consideration was given to a large number of classifications and actually there were 32 types of health facilities listed.... On July 12, 1972, the final draft (after four drafts) of proposed standards were submitted to the Hospital Licensing Board.... [O]n August 16 [a member of the Board] sent these proposed regulations forward [to the legislation liaison].... About August 1972 [the Board] began to get involved more with the question of abortions which became the primary target for discussion."

The significance of these Board minutes lies in the fact that as early as 1971 a state agency began preparing the proposed regulations in response to the changing needs and practices of medical services. Cost-effective "[f]ree-standing ambulatory surgical centers (FASCs) are independent entities which first opened in 1970.... [T]hese facilities were conceived to fill a gap between the doctor's office and the hospital for minor surgical procedures not requiring overnight hospitalization." Note, Freestanding Emergency Centers: Regulation and Reimbursement, 11 Am.J.L. & Med. 105, 118 (1985).10 "The first successful freestanding ambulatory surgery center (FASC), [well known as Surgicenter], was opened in February 1970 in Phoenix, Arizona." D. Ermann and J. Gabel, The Changing Face of American Health Care, Multi-Hospital System, Emergency Centers, and Surgery Centers, 23 Medical Care 401, 406 (May 1985). As early as 1976 one commentator observed:

"From a societal point of view, perhaps the greatest impetus behind the ambulatory surgery concept is its potential for reducing the cost of services. This potential applies to both freestanding and hospital-based facilities, the two major prototypes for ambulatory surgery. By eliminating overnight hospital stays, expenditures for hospital services for inpatient health care, which now account for about 40 percent of our total national health expenditure, may be reduced directly and dramatically, at least on a short-term basis. By focusing on reducing inpatient surgery (accounting for 60 percent of all hospital expenditures and about 25 percent of total health care expenditures), ambulatory surgery may further reduce costs."

T. O'Donovan, Ambulatory Surgical Centers, Development and Management, p. 143 (1976). Further, by 1984 the ASTC trend was well established:

"The success of the Phoenix center precipitated rapid growth of a new type of facility for the delivery of ambulatory surgery, the freestanding, independent, ambulatory surgery center. Since that time, the Surgicenter has become a model for an increasing number of both independent and hospital-sponsored free-standing ambulatory surgery programs.

According to the Freestanding Ambulatory Surgical Association (FASA), there are approximately 125 independent freestanding ambulatory surgery centers, 86 of which are members of FASA. According to FASA, which has been keeping statistics on its members since 1974, the membership performed 94,499 ambulatory surgery procedures in 1981, an increase of 6 percent over the number performed in 1980. This figure can be compared to 3.2 million ambulatory surgical procedures performed by hospitals offering ambulatory surgery in 1980."

L. Burns, Ambulatory Surgery, Developing and Managing Successful Programs, pp. 11-12 (1984). Lastly, I observe that freestanding ambulatory surgical centers are properly subject to licensure and regulation (as are the vast majority of medical facilities performing surgeries) throughout the country, and not only in Illinois. One writer pointed out that:

"a FASC must obtain a state CON [Certificate of Need] in order to build the facility. In some states FASCs must also seek accreditation. In Illinois, FASCs are licensed and regulated by the State Department of Public Health. In Minnesota, surgical centers are covered by licensing rules. They must be staffed and equipped to handle surgical procedures, anesthesia, and post-surgical care."

Note, Freestanding Emergency Centers, Regulation and Reimbursement, 11 Am.J.L. & Med. 105, 118 (1985).

Obviously the Illinois Legislature was not privy to all this information regarding ambulatory surgical treatment centers in 1973, at the time it enacted the ASTCA. However, as I stated, the record and legislative history reveal that the legislature was well aware of the new and fast developing medical trend in outpatient ambulatory care and specifically sought to regulate it. During the Senate debates, state Senator Wooten summarized S.B. 1051 as follows:

"This is another one of those bills that cuts across lines in all kinds of ways. The Illinois State Medical Society asked that it be presented in a series with the two previous bills [S.B. 1049 and S.B. 1050], one changing the law relating to abortion, the other changing the Medical Practices Act. While this has a relationship to abortion, it actually goes much beyond that. It [S.B. 1051] provides for the establishment and licensing of facilities which can perform minor surgery. This would be things like tonsilectomy, hernias, abortions would be included, facial surgery, plastic surgery and so on. In other words procedures which would not require an overnight stay. And indeed these ambulatory surgical treatment centers are forbidden to keep patients overnight. However, those of you who have kept close to medical practices know that untoward things can occur at any time, and so provision is made in here that doctors who function in such a center must also be licensed to practice in a hospital nearby so that if any complications occur they can quickly move the patient to that place. Now, I handed out an outline to explain to you how these things would work, definitions, they must get a license, some of these things are left open as to regulations. The Department would like to take a hand in that. This is something doctors have been urging us to do for a couple of years now, and ambulatory surgical treatment centers are ... in effect out west. The idea is that they can be a great saving to a patient. One of the big costs in a hospital, if you remember it's kind of like a hotel which has special services and if you don't need that overnight stay, you can save a great deal of money. So there's a great savings possible for the patient who needs this kind of one-day surgical treatment. It does include abortion, and everything would be rather closely regulated and inspected."

(Emphasis added). Another state senator further pointed out that:

"This bill is a good bill. It's not related in any way to abortions. It's sponsored by the Medical Association. There's nothing wrong with ambulatory medical services."

Thus, contrary to the majority's mere speculative assertions, the legislative history clearly and unequivocally supports the proposition that the ASTCA was not enacted primarily to regulate abortions, but rather for the regulation of all semi-complicated (minor) surgical procedures performed in the rapidly developing ambulatory surgical treatment centers. Finally, I observe that just prior to the ASTCA's enactment, Senator Wooten specifically stated: "The main thrust of [S.B. 1051] is to try to save some money by getting minor surgical treatment out of the hospital where it is hideously expensive and into a clinic." (Emphasis added).

The record and the legislative history further reveal that the Illinois Health Facilities Planning Act (IHFPA) was enacted one year after the enactment of Sec. 16(1) of the MPA and the ASTCA and was clearly not part of a "tripartite" legislative scheme to limit the availability of abortions. The legislative history of the IHFPA reveals that it neither mentions abortions, nor referred to them, nor was it enacted for purposes of regulating abortions. The IHFPA was intended to address the problem of expensive, overexpanded and underpopulated medical facilities and underutilized medical equipment in the State of Illinois. In the words of a legislator, the IHFPA was to

"provide a means for proper planning with local input and decision making to cut down on empty hospital facilities, nursing home facilities, sheltered care ... facilities and ... ambulatory surgical facilities."

(Emphasis added).

Thus, the legislative history of the acts supports the valid premise that the legislature intended to regulate abortions when it enacted the Illinois Abortion Act. It also appears that section 16(1) of the MPA and its companion clause in p 157-8.3(A) of the ASTC were probably enacted to prevent abortions from being performed in a physician's office. On the contrary, there is no proof in this record that either the ASTCA or the IHFPA were enacted primarily to regulate abortions; rather, these laws were adopted to regulate the delivery of medical services to its citizens and to attempt to prevent and control the further unnecessary overexpansion of Illinois' medical facilities. That the ASTCA was initially a companion bill to the abortion bills is more of a historical coincidence relished by political opportunists who, in this case, apparently fully utilized it to their advantage. As the minutes of the licensing board reflect, for whatever their worth: "Without the public interest in abortions, we would not have any of the present legislation." That is to say that the state legislators and other interested parties who were primarily interested in regulating ambulatory medical services would not have been able to enact the legislation without the statewide and even nationwide interest in the abortion question at the time.

The majority, acting and reasoning as if living in a social and economic vacuum (overlooking the developing nationwide trend of ASTCs), ignores the dual purpose of the legislative scheme presently at issue, selectively carving out the regulatory motive of the ASTCA to support its abortion theory of enactment. Thus, the majority states: "As originally written, the statute [I assume the ASTCA] and regulations represented at least a coherent, if unconstitutional, whole which regulated all aspects of abortion practice in Illinois." Having ignored or at least overlooked the State's legitimate intent to regulate the new and rapidly developing trend of ambulatory surgical medical services, the majority treats the ASTCA and the regulations promulgated thereunder as "minor" abortion provisions. Further, the majority rejects the basic principle of severability when interpreting the construction of a duly adopted legislative enactment which should give effect to the State's legitimate purposes; and thus fails to apply the correct legal standard to the different acts and regulations and affirms the preliminary injunction. Thus, the majority limits and fails to effectuate the legitimate legislative purposes behind the ASTCA. As a noted commentator has observed, limiting the scope of a legislature's intent constitutes undesirable judicial activism as much as a decision construing a statute beyond its intended scope. See Posner, Statutory Interpretation, in the Classroom and in the Courtroom, 50 U.Chi.L.Rev. 800, 822 (1983). The majority's failure to give full effect to the real and legitimate legislative intent to regulate ASTCs is the basis of my dissent.

"In Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), the Supreme Court stated that unconstitutional provisions in a statute shall be severed if it appears that the legislature would have enacted constitutional provisions of the statute independently of those provisions. 103 S.Ct. at 2774 (citing Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976))."

Zbaraz v. Hartigan, 763 F.2d 1532, 1545 (7th Cir.1985), aff'd, --- U.S. ----, 108 S.Ct. 479, 98 L.Ed.2d 478 (1987). The Illinois laws in question all have their own severability provisions; thus, it is clear that the Illinois legislature intended that the constitutional provisions of the acts should be given effect even if other provisions were held unconstitutional. Accordingly, I analyze the challenged statutes and regulations recognizing that "severance is improper [only] if the unconstitutional provision is 'an integral part of the statutory enactment viewed in its entirety.' " Id. (quoting Scheinberg v. Smith, 659 F.2d 476, 481 (5th Cir.1981)). On the other hand, the challenged provision which burden a woman's right to privacy may be severed as long as the severed provisions do not affect "the essential purposes of the act." Id.

The abortionist, Dr. Richard M. Ragsdale, plaintiff-appellee, testified at the preliminary injunction hearing that the alleged "[f]irst and major burden [affecting a woman's right to terminate her pregnancy] is simply the requirement for an independent licensure as an abortion provider." This licensing requirement, applicable to any physician who wishes to perform an abortion outside of a hospital, an ASTC, or other regulated facility, regardless of the gestational period of the embryo or fetus, was created when the legislature enacted Sec. 16(1) of the MPA and its companion clause in the ASTC definitions section. As previously noted by the majority, "[s]ection 16(1) of the Medical Practice Act ... 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 ..., a hospital, or a facility run by the state or federal governments." The following clause in p 157-8.3(A) of the ASTCA is the companion clause to Sec. 16(1) of the MPA, and brought all surgeons who wished to perform abortions under the ASTCA licensing and regulatory scheme:

" 'Ambulatory Surgical Treatment Center' means ... 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...."

Significantly, the defendant-appellant, the State of Illinois, asserts that it no longer enforces Sec. 16(1) of the MPA. Additionally, the majority observes that Illinois alleges that the clause in p 157-8.3(A) above is no longer being enforced, noting that:

"Since 1981, the [ASTC] 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 the 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 majority holds, and I agree, that Illinois' alleged nonenforcement policy does not render the issues moot.

Although several justices have persuasively argued that Roe v. Wade and its progeny articulate an "unworkable scheme for constitutionalizing the regulation of abortion." Thornburgh v. American College of Obstetricians, 476 U.S. 747, 814, 106 S.Ct. 2169, 2207, 90 L.Ed.2d 779 (1986) (Justice O'Connor, dissenting), or represent a "venture ... fundamentally misguided since its inception," Id. at 786, 106 S.Ct. at 2192 (Justice White, dissenting), this court should be bound by Roe and its progeny. The Supreme Court's recent Thornburgh decision "reaffirm[ed] the principles laid down in Roe and Akron." Id. at 759, 106 S.Ct. at 2178. Thus, we analyze the abortion licensing requirement created when the Illinois legislature enacted Sec. 16(1) of the MPA and its companion provision contained in the ASTC definition of ambulatory surgical treatment center, p 157-8.3(A), under the standards articulated in Roe and its progeny.

"In Roe v. Wade, the Court held that the 'right of privacy, ... founded in the the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.' ...

* * *

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The Court also has recognized, because abortion is a medical procedure, that the full vindication of the woman's fundamental right necessarily requires that her physician be given 'the room he needs to make his best medical judgment.' ...

At the same time, the Court in Roe acknowledged that the woman's fundamental right 'is not unqualified and must be considered against important state interests in abortion.' ... But restrictive state regulation of the right to choose abortion, as with other fundamental rights subject to searching judicial examination, must be supported by a compelling state interest.... [The Supreme Court] recognized two such interests that may justify state regulation of abortions.

First, a state has an 'important and legitimate interest in protecting the potentiality of human life.' ... Although this interest exists 'throughout the course of the woman's pregnancy,' ... it becomes compelling only at viability, the point at which the fetus 'has the capability of meaningful life outside the mother's womb.' ...

Second, because a State has a legitimate concern with the health of women who undergo abortions, 'a State may properly assert important interests in safeguarding health [and] in maintaining medical standards.' ... [The Court further] held in Roe, however, that this health interest does not become compelling until 'approximately the end of the first trimester' of pregnancy.... Until that time, a pregnant woman must be permitted, in consultation with her physician, to decide to have an abortion and to effectuate that decision 'free of interference by the State.'

This does not mean that a State never may enact a regulation touching on the woman's abortion right during the first weeks of pregnancy. Certain regulations that have no significant impact on the woman's exercise of her right may be permissible where justified by important state health objectives....

From approximately the end of the first trimester of pregnancy, the State 'may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.' ... The State's discretion to regulate on this basis does not, however, permit it to adopt abortion regulations that depart from accepted medical practice. [The Court has] rejected a State's attempt to ban a particular second trimester abortion procedure, where the ban would have increased the cost and limited the availability of abortions without promoting important health benefits.... If a State requires licensing or undertakes to regulate the performance of abortions during this period, the health standards adopted must be 'legitimately related to the objective the state seeks to accomplish.' "

City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 426-31, 103 S.Ct. 2481, 2490-93, 76 L.Ed.2d 687 (1983) (citations omitted) (emphasis added).

Initially one observes that the abortion licensing requirement as it exists pursuant to Sec. 16(1) of the MPA and the ASTCA definition, fails to distinguish between first and second trimester abortions; thus, it prohibits the performance of first-trimester abortions in physicians' offices. The record reveals that a woman's qualified right under Roe to terminate her pregnancy is very probably impermissibly burdened because surgeons who would otherwise perform first-trimester abortions out of their offices are precluded from doing so. Dr. Ragsdale, an abortionist and a board-certified obstetrician and gynecologist, testified that outpatient abortions, whether performed in a physician's office or a clinic, were as safe as an abortion performed in a hospital setting.

Plaintiffs additionally called another alleged abortion expert, Dr. Warren Martin Hern, a doctor and general practitioner without board certification in the specialty of obstetrics and gynecology. Hern testified that first-trimester abortions, performed six to eight weeks from the last menstrual period are "probably the safest surgical procedure being performed in the United States in this category of procedures."11 Dr. Hern further testified that the safest surgical method of first-trimester abortion was the "vacuum aspiration" method. This procedure is basically "a suction removal of the uterine contents."12

The State of Illinois' expert, Dr. John J. Barton, a board-certified specialist in the fields of obstetrics and gynecology, also testified that first-trimester abortions performed in outpatient facilities (such as physicians' offices or ASTCs) present no greater risk than the risks and complication rates of abortions performed in hospitals. Based on the medical experts' testimony, it appears probable that first-trimester abortions could be safely performed in the surgeon's office. Thus, it appears that Sec. 16(1) and its companion clause in p 157-8.3(A) of the ASTCA would limit the availability of abortions by precluding the performance of abortions in a physician/surgeon's office.

In Akron the Supreme Court noted that where the abortion law "increased the cost and limited the availability of abortions," such a law would probably interfere with the woman's decision to have an abortion as well as its effectuation. Akron, 103 S.Ct. at 2492-93. Further, although dictum, the Supreme Court noted "that the medical evidence suggests that until approximately the end of the first trimester, the state's interest in maternal health would not be served by regulations that restrict the manner in which abortions are performed by a licensed physician." Id. at 2492 n. 11. The Court further observed that "uncomplicated abortions generally may be performed in a physician's office or an outpatient clinic up to 14 weeks from the first day of the last menstrual period." Id. (American College of Obstetricians and Gynecologists (ACOG), Standards for Obstetric-Gynecologic Services 54 (5th ed. 1982)). In light of the Supreme Court's caveat in Akron noting the probability that physicians can perform first-trimester abortions in their offices; given the defendant's policy of nonenforcement regarding Sec. 16(1) of the MPA and its companion clause in the ASTC, p 157-8.3(A), requiring the licensure of any facility performing even one abortion; and after evaluating the evidence presented during the preliminary injunction hearing which established that first-trimester abortions performed in a controlled outpatient setting, including a physician's office, probably were as safe as abortions performed in hospitals, I would selectively enjoin the enforcement of Sec. 16(1) of the MPA and its companion clause in the ASTCA definition without destroying the entire act because it is more likely than not that the plaintiffs would prevail on the merits in light of present Supreme Court precedent.

In so holding, I agree with the Illinois Supreme Court decision in Village of Oak Lawn v. Marcowitz, 86 Ill.2d 406, 55 Ill.Dec. 916, 427 N.E.2d 36 (1981), which also held that the ASTCA definition was constitutionally invalid as incorporated in a local ordinance which "closely resemble[d] the state [ASTC] act and implementing regulations adopted by the Department of Health." Id. 55 Ill.Dec. at 918, 427 N.E.2d at 38. The local ASTC ordinance also required an "initial license fee of $5,000, plus annual renewal fees of $2,000." Id. 55 Ill.Dec. at 919, 427 N.E.2d at 39. In Marcowitz the Illinois court, foreshadowing the caveat in Akron, stated:

"Given the substantial licensing fee required and the detailed regulation involved, it seems inevitable that medical practitioners who might otherwise perform abortions for their regular patients, but whose facilities were not primarily devoted to surgery, would choose not to qualify under the ordinance. The right of a woman considering a first-trimester abortion to seek the advice and services of her obstetrician, gynecologist, or other physician in whom she has trust and confidence may not be so drastically curbed."

Id. 55 Ill.Dec. at 922, 427 N.E.2d at 42.

Further, both Sec. 16(1) of the MPA and the impermissible definition clause in the ASTCA,13 can easily be severed from their respective acts without affecting the legislature's "essential purposes" for the acts' enactments. See Zbaraz, 763 F.2d at 1545. The MPA is virtually unaffected and capable of being enforced independently of Sec. 16(1) and as such will continue to be used inter alia to revoke or suspend a malfeasant physician's license. Similarly, the ASTCA becomes "abortion