Attorneys for five Cook County commissioners fighting board President Richard Phelan`s executive order to resume abortions at Cook County Hospital on Friday appealed a court ruling upholding the legality of Phelan`s actions. The commissioners` attorneys also requested an extension of the temporary restraining order that had barred abortions from resuming. The injunction ran out Friday afternoon.
Phelan`s attorney has been instructed to respond to the request for a restraining order by 10 a.m. Tuesday, when a three-judge panel will decide whether to continue the injunction.
Pam Smith, a Phelan spokeswoman, said hospital officials had told her that abortions probably could not be performed before the middle of September even if the restraining order is not granted Tuesday.
But Phelan will proceed with his directive if the court does not bar him from doing so, Smith said, rather than waiting for the appeal to run its course.
On Wednesday, Cook County Circuit Judge Thomas O`Brien ruled that Phelan was within his powers when he issued the executive order to perform elective abortions at the hospital beginning July 30.
Four commissioners sued, and the injunction was imposed until the suit could be resolved. A fifth commissioner later joined the suit.
In his decision, O`Brien said that the board`s failure to set a policy regarding abortions at the public hospital allowed the board president to do so.
The case was not over the legality of abortions, but rather who has power to set policy within the board.
Joseph Morris, attorney for four of the commissioners who are suing Phelan, filed his appeal with the Illinois Appellate Court, as did Anthony Bass, attorney for the fifth commissioner.
Morris said he expected the appeal to be heard within the next few weeks, but the final outcome may not be known for several months, especially if the case is appealed to a higher court.
”Phelan is disappointed that a minority of commissioners insist on continuing this dispute at taxpayers` expense even in the face of a definitive statement by Judge O`Brien,” Smith said Friday afternoon.
But Carl Hansen, one of the commissioners suing Phelan, said he believes that O`Brien misunderstood the 1980 resolution in which the board endorsed former President George Dunne`s directive banning abortions at the hospital.
O`Brien ruled that the board was merely backing Dunne`s directive, not setting policy of its own.
”It`s clear that there were things in writing and that the board understood what it was doing,” Hansen said. ”In my mind, there was no ambiguity whatsoever.”
O`Brien`s ruling said that the board is free now to form its own policy to overrule Phelan, but Hansen dismissed such an attempt as futile.
Meanwhile, Phelan may face a second suit that would seek to halt abortions at the hospital. Joseph Scheidler, executive director of the Pro-Life Action League, said Friday that his group would resume its suit against the board president.
Scheidler had halted the suit but said that it is now necessary as a
”safety valve” should the commissioners` case fail.
