How abortion access would vary without Roe v. Wade
Illinois is poised to provide greater access to reproductive health care and abortion procedures than any other state in the country.
Proponents and opponents agree passage of the Reproductive Health Act, repealing and replacing current abortion law, is a near certainty. It would fulfill a promise by Gov. J.B. Pritzker to turn the Prairie State into “the most progressive state in the nation for access to reproductive health care.”
It would also, detractors say, create a series of unintended, undesirable consequences.
There seems little doubt Democrats will have a legislative victory in the matter. The party holds a supermajority in both chambers of the 101st General Assembly, with 29 more seats than Republicans in the House and 21 seats more in the Senate.
“Right now, this bill is passing,” said Peter Breen, vice president and senior counsel for the Thomas More Society, a conservative, pro-life law firm based in Chicago.
The House version has more than 40 sponsors. The Senate version has nine.
Leading the push in the House are Reps. Kelly Cassidy and Emanuel “Chris” Welsh. The Senate’s main sponsors are Sens. Melinda Bush and Elgie Sims, Jr.
The measure will not be successful without a philosophical fight initiated by those on the right; or, likely, without Illinois being thrust into the national political spotlight — much like New York was after its state legislature approved an controversial bill with a name identical to the one Illinois’ General Assembly will consider.
Breen said the Thomas More Society will likely challenge some aspect of it in court, and it is probable other conservative legal groups will as well.
The current law
Illinois’ current abortion statute was passed into law in 1975. Legislators wrote their objective was to “reasonably regulate” abortion procedures to adhere with the U.S. Supreme Court’s decision in Roe v. Wade.
Since then, though, courts have struck down several aspects of the Abortion Law, such as a ban on fetal experimentation, a prohibition on sex-selective abortion procedures, and a provision allowing the husband of a woman seeking the procedure to receive a court order barring her from doing so.
Illinois’ chapter of the American Civil Liberties Union has also pointed out that the state’s law includes a provision allowing doctors to be jailed for performing an abortion procedure.
According to a memo prepared by the Thomas More Society, the Reproductive Health Act goes much further than bringing the state’s law up-to-date.
“A bill intended to repeal only unconstitutional provisions of Illinois law would have been half a page long, not 120 pages,” the memo’s author wrote.
The Society is challenging a measure former Gov. Bruce Rauner signed two years ago, allowing tax dollars to be spent on abortion procedures through Illinois’ Medicaid and state employee health insurance programs, in court. Most recently, it filed paperwork asking the state’s Supreme Court to take up the case.
What is the reproductive health act?
New legislation would repeal current abortion law and replace it with language enshrining reproductive health as a “fundamental right.”
As is written in the measure, “This Act sets forth the fundamental rights of individuals to make autonomous decisions about one’s own reproductive health, including the fundamental right to use or refuse reproductive health care.”
The time for such a change is now, ACLU attorney Amy Meek said, because of the national landscape.
“We have a president who has said that women should be punished for having an abortion and a majority of Supreme Court justices and courts who are hostile to Roe v. Wade and signaled that their goal is to outlaw abortion and to put it out of reach for women at any stage of pregnancy,” she said.
The Reproductive Health Act is filed as twin pieces of legislation in both chambers of the General Assembly.
The push for House Bill 2495 is being led by Cassidy, from Chicago, and Welch, from Hillside.
“This is modernization; this is clean-up; this is not breaking much, if any, new ground,” Cassidy said. “We are making clear what the state of our law is — once and for all, we are making clear that health care decisions are made between a medical professional and a woman.”
Senate Bill 1942 is sponsored by Bush, from Grayslake, and Sims, from Chicago.
The Reproductive Health Act prohibits the state from intruding in a woman’s reproductive health care decision-making, whether that be choosing to carry a pregnancy to term or opting for an abortion procedure. It creates an avenue for a woman to bring a lawsuit should she feel this right was violated.
It also allows local governments to write ordinances strengthening reproductive health care, but bars them from weakening access to such procedures as abortion.
The proposed legislation additionally requires health care professionals to file a report with the Department of Public Health of each abortion procedure they perform. This requirement, though, is less specific than current statute, which mandates the type of information to be collected and reported.
The Act exempts these reports from Freedom of Information requests.
Criminal penalties for doctors who perform abortions are removed from the proposal. Colleen Connell, executive director of the state’s chapter of the ACLU, said that part of existing law was “dangerous.”
“The reason doctors aren’t going to prison today for providing abortions and prescribing certain forms of birth control is because the ACLU has gone to court time and again and secured more than 14 injunctions blocking the enforcement of these dangerous laws,” she said at a news event in Chicago earlier this month.
Among other statutes, the measure repeals the Partial-birth Abortion Ban Act, which was struck down as unconstitutional, the Abortion Performance Refusal Act and part of the Ambulatory Surgical Treatment Center Act.
“At the end of the day, this is treating abortion care as health care, which it is, and removing it from the criminal code,” said Julie Lynn, manager of External Affairs for Planned Parenthood of Illinois.
The Thomas More Society released a 13-page analysis of Illinois’ abortion law overhaul last week. It includes what its attorneys say will be legal repercussions.
“The Reproductive Health Act is an extreme bill that would basically enshrine abortion as a positive good in Illinois law,” according to the memo from the conservative pro-life law firm based in Chicago.
The Society takes issue with a mandate that private insurance companies operating in Illinois would have to cover abortion procedures if they also provide pregnancy-related benefits.
This would cause two problems, according to the memo. One is that groups that oppose abortion for religious, moral or other reasons but purchase insurance policies would be forced to provide coverage for the procedure. The other is that all those who participate in the policy — the insurance company, employers, employees — have no way to opt out.
A related issue is that the proposal would repeal sections of at least three statutes that give legal protections for health care workers and providers who refuse to take part in or perform abortion procedures.
One law, the Health Care Right of Conscience Act, would remain on the books. The memo, though, makes a case that a legal challenge could render it ineffective because a health care worker could be hindering a woman’s newly-created fundamental right to reproductive health care.
Taken together, Breen said it looks as if the Reproductive Health Act would enshrine that right as stronger than that of those in the U.S. Constitution’s First Amendment.
It is a concern shared by the Catholic Conference of Illinois, a group representing the state’s six bishops, including Bishop Edward K. Braxton of the Belleville Diocese.
“These bills taken together crowds us out. For people who have moral objections, they basically are saying we don’t have any rights,” Robert Gilligan, executive director, said earlier this month. “That’s what’s going on, that people with First Amendment rights are being crowded out of protections under the law.”
Another statute might additionally be made obsolete should the Reproductive Health Act successfully become law, according to the Society’s memo.
There are twin measures in both chambers of the General Assembly that would repeal the Parental Notice of Abortion Act, which requires a minor to consult with her parent or guardian before terminating a pregnancy. Both bills are sponsored by Democrats.
The House version has four supporters, and the Senate version has eight sponsors. It is unclear what level of legislative success they will have.
Even if the measures do not pass, the memo’s author wrote, the Reproductive Health Act says the government would not be allowed to impede a woman’s ability to decide what to do in her pregnancy. The Act does not differentiate between an adult and a minor.
“Because the Parental Notification of Abortion Act of 1995 requires a pregnant minor to notify one of her parents (or guardians) only of her intention to obtain an abortion, but not of her intention to give birth, the notice requirement could also be said to ‘discriminate’ against her based upon her choice to undergo an abortion,” according to the memo.
The Society’s document also makes an argument that one line in the Reproductive Health Act could unintentionally undermine homicide cases.
The sentence in question — “A fertilized egg, embryo, or fetus does not have independent rights under the laws of this State” — appears in a section of the legislation outlining reproductive health as fundamental rights.
“Here’s part of the problem: If we treat the unborn child as if it’s just a clump of cells, then how do you say that someone has wrongfully killed a human being,” Breen said. “You start to undermine the logic of a variety of laws that we have.”
For example, he said, in Illinois, someone can be convicted of first-degree murder for intentionally killing an unborn child. If this proposal were to become law, a “wily attorney” could argue his or her client should be charged with a lesser crime, and therefore a lesser sentence.
The Society’s analysis raises several other issues, such as the merits of allowing physician assistants to perform abortion procedures, eliminating restrictions on where the procedure can occur and removing reporting requirements to the government after the procedure.
Generally, though, Breen said the Reproductive Health Act would be bad for Illinois.
“Pritzker and his Democratic supermajorities would convert the ‘Land of Lincoln’ into the ‘Abortion Capital of America,’” he said in a news release.
Although Democrats do not need Republican support to send the Reproductive Health Act to Pritzker’s desk, where he will likely sign it into law, Cassidy and Sims both indicated they would like to achieve a bipartisan vote.
“I don’t think I’ve ever passed a bill without Republican support — I hope this doesn’t break my streak,” Cassidy said at a news event in Chicago when the four chief sponsors of the legislation announced their intention to file this legislation.
Sims added he wants to have an “honest dialogue” with his conservative counterparts, even though he knows doing so about this particular subject will be difficult.
“I understand there are some folks who are adamantly opposed to the exercise of reproductive health — I get it,” he said. “But I also get that you cannot pick and choose which rights you believe are fundamental to an individual.”
Amy Meek, the ACLU attorney, said the opposition is a “smokescreen” to cover the real objective of abortion opponents, “Which is to push abortion out of reach, to shut down clinics and to punish women for seeking out reproductive health care.”
The Reproductive Health Act exists as two identical measures in the House and Senate. House Bill 2495 has a hearing with the Human Services Committee at 8:30 a.m. March 6. The Senate Version, Bill 1942, has not yet been assigned to a substantive committee.
The two bills repealing the Parental Notice of Abortion Act are House Bill 2467, which will be heard at the same committee meeting as House Bill 2495, and Senate Bill 1594.