Democrats push repeal of abortion law mandating minors notify parents

[March 18, 2021]  By SARAH MANSUR
Capitol News Illinois
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SPRINGFIELD — Some Democratic lawmakers want to repeal an abortion law that requires girls under the age of 18 who are seeking an abortion to notify their parents at least 48 hours before the procedure, with some exceptions.

Under the current law, the notice requirement doesn’t apply if a minor is accompanied by an adult family member, such as a parent, grandparent, stepparent or legal guardian, or if an adult family member waives the notice in writing.

Additionally, there are exceptions for minors who are victims of physical or sexual abuse or neglect by an adult family member. Exceptions to the 48-hour notice requirement also apply in cases where the minor is married, divorced or widowed, if the minor has been legally emancipated, or if the health care provider determines that there is a medical emergency.

The final exception in the law, referred to as “judicial bypass,” allows for minors to obtain a waiver of the notification requirement from the courts.

Through the judicial bypass process, minors can petition the court to show that they are mature and well-informed enough to make the decision to obtain an abortion, or that it is not in their best interest to notify an adult family member.

The attempt to repeal is the latest development regarding the law that was entangled in court battles since it passed in 1983 until the Illinois Supreme Court’s 2013 decision upholding it as constitutional. The law was revised in 1995 to the current iteration.

House Democrats, including Speaker Emanuel “Chris” Welch, of Hillside, and Rep. Kelly Cassidy, of Chicago, sponsored a bill to repeal the parental notification law in the previous General Assembly but it never moved out of committee.

Welch and Cassidy are now sponsoring House Bill 1797, along with Democratic Reps. Margaret Croke and Greg Harris, both from Chicago, and Anna Moeller of Elgin.

The American Civil Liberties Union of Illinois issued a report last week that found the law is “dangerous for youth in the state, violates their human rights, and threatens their health and safety.”

The report, made in partnership with Human Rights Watch, was based on interviews with 37 people — including attorneys, health care providers and a retired judge — and analyzed about 3 1/2 years of data gathered by the ACLU of Illinois regarding young people who have gone through the judicial bypass process.

The ACLU of Illinois also operates the Judicial Bypass Coordination Project to provide free legal advice to minors seeking to obtain a court waiver for the parental notification requirement.

Of more than 500 minors whom the ACLU represented in this process during the past seven years, only one minor’s request for judicial bypass was denied, according to the news release.

“After years of representing young people before judges in bypass cases around the state of Illinois, it is clear that this law is unnecessary and harmful,” Emily Werth, a staff attorney at the ACLU of Illinois, said in the release. “The law should protect young people seeking to end a pregnancy, not erect unnecessary barriers and delays that stand between them and receiving safe health care from a qualified provider.”

Conservative anti-abortion groups — including the Catholic Conference of Illinois — are calling on lawmakers to keep the parental notice law intact.

Reps. Emanuel "Chris" Welch of Hillside and Kelly Cassidy of Chicago speak in 2019 at a rally for the Reproductive Health Act at the Illinois State Capitol. The lawmakers are sponsoring a bill to repeal the state's Parental Notice of Abortion act. (Credit: Capitol News Illinois file photo)

On Monday, five Catholic bishops in Illinois and Archbishop of Chicago Cardinal Blase J. Cupich released a letter encouraging Catholic Illinoisans to contact their state lawmaker and urge them to oppose the bill.

“These are the reasons every state in the Midwest and 37 states overall have laws requiring some form of parental involvement in the decision of a minor to have an abortion. Illinois has been among those states for 8 years and no obvious problems or detriments have been publicly exposed. The repeal of Parental Notice of Abortion is a tragic solution in search of a problem,” the letter states.

Parental notice of abortion in the courts

Almost immediately after the Parental Notice of Abortion Act of 1983 was passed over the veto of then-Gov. James Thompson, a group of abortion doctors filed a lawsuit in federal court that argued the law was unconstitutional.

The 1983 law prohibited “unemancipated minors and incompetents” from obtaining an abortion unless both parents or the legal guardian were given notification in advance.

The federal district court ruled the law was unconstitutional, in part, because the judicial bypass process did not provide for swift appeals of notification decisions, and the process also did not guarantee the girl’s anonymity. In reaching this decision, the court permanently blocked the state from enforcing the law.

The state appealed this decision to the federal appeals court, the 7th Circuit Court of Appeals, which vacated the federal court’s finding of unconstitutionality with regards to the judicial bypass process.

But the 7th Circuit continued to block the enforcement of the law “until the Illinois Supreme Court promulgates rules which assure the expeditious and confidential disposition of the waiver of notice proceedings at trial and on appeal.” The 7th Circuit decision was affirmed by the U.S. Supreme Court in 1987.
 

The General Assembly replaced the 1983 law with the Parental Notice of Abortion Act of 1995, which created exceptions for the notice requirement.

The 1995 law was similarly challenged in federal court as unconstitutional, and the court issued a permanent order blocking the law’s enforcement in February 1996.

In 2006, the Illinois Supreme Court adopted a new rule entitled “Expedited and Confidential Proceedings Under the Parental Notification of Abortion Act.” In light of the new rule, then-Illinois Attorney General Lisa Madigan sought to dissolve the 1996 district court order blocking the law but it was again challenged as unconstitutional.

The federal district court again ruled the law unconstitutional, but that decision was then reversed by the 7th Circuit in 2009.

Three months after the 7th Circuit ruling, an Illinois abortion clinic filed a lawsuit in Cook County Circuit Court that alleged the law was unconstitutional because it violated the privacy, due process, equal protection and gender equality clauses of the state constitution.

The state’s highest court ultimately rejected all of these claims in a 35-page opinion issued in July 2013.

After 30 years of litigation, the Parental Notice of Abortion Act of 1995 took effect on Aug. 15, 2013.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.