Federal judge temporarily blocks Illinois law subjecting ‘crisis pregnancy centers’ to civil liability

[August 05, 2023]  By HANNAH MEISEL
Capitol News Illinois
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SPRINGFIELD – A new law allowing Illinoisans to sue so-called crisis pregnancy centers under the state’s Consumer Fraud and Deceptive Business Practices Act is on hold after a federal judge late Thursday granted a preliminary injunction against it.

After a lengthy hearing in his Rockford courtroom, Judge Iain Johnston issued a brief oral ruling on Thursday evening, saying the law violated the First Amendment. Nearly 24 hours later, Johnston on Friday filed a 14-page order explaining the preliminary injunction, which began by recalling a joke told by the late conservative U.S. Supreme Court Justice Antonin Scalia.

“Justice Scalia once said that he wished all federal judges were given a stamp that read ‘stupid but constitutional,’” Johnston wrote. “SB 1909 is both stupid and very likely unconstitutional.”

Johnston, who was appointed by former President Donald Trump in 2020, went on to characterize the law as “likely classic content and viewpoint discrimination prohibited by the First Amendment.”

Anti-abortion groups filed their First Amendment suit within an hour of Gov. JB Pritzker signing the law last week. The measure expands Illinois’ longstanding consumer fraud law to explicitly include crisis pregnancy centers, which abortion rights advocates say often employ aggressive tactics to confuse those seeking abortion care. Under the law, a judge or jury can award up to $50,000 in civil penalties for each act of fraud or deception proven in court.

But CPCs and their allies claim that threat of litigation is an attack on their First Amendment rights to operate their facilities as they see fit. After Thursday evening’s ruling, Peter Breen – a former GOP state lawmaker and vice president of the anti-abortion Thomas More Society – celebrated the injunction in a statement.

“Across the nation, pregnancy help ministries are being discriminated against by laws that target their life-affirming work,” said Breen, who argued for the injunction in court. “The injunction granted today sends a strong, clear message to the country that the First Amendment protects pro-life speech.”

The law was part of an ongoing expansion of abortion rights in Illinois as surrounding states have restricted access to the procedure in the 13 months since the U.S. Supreme Court overturned Roe v. Wade. Planned Parenthood of Illinois CEO Jennifer Welch on Friday said she was frustrated with Johnston’s injunction.

“For decades, crisis pregnancy centers have targeted our patients using deceptive and false practices,” Welch said in a statement. “Often crisis pregnancy centers provide misleading and medically inaccurate information, sometimes deliberately misdiagnosing patients or misdating their pregnancies so people think they have more time to decide about abortion or that they are past the time when they can have an abortion.”
 

Illinois Attorney General Kwame Raoul (Capitol News Illinois file photo)

CPCs, which are often affiliated with anti-abortion, religious organizations, are focused on diverting women from having abortions. They range from volunteer-run outfits that can’t offer much more than counseling to facilities with licensed medical professionals on staff who can perform exams. They advertise services such as pregnancy tests, ultrasounds and even material help like baby formula, diapers and parenting classes.

But proponents of the law say CPCs’ efforts to prevent abortions sometimes include tactics meant to confuse abortion seekers and dissuade them from going through with an abortion. Those include locating facilities near real abortion clinics, giving false information about the risks of abortions and attempting to physically divert the clients of real abortion providers as they arrive for their appointment. CPCs will sometimes park mobile units, which advertise services such as ultrasounds, outside of real abortion clinics.

Attorney General Kwame Raoul, whose office pushed for the law during the General Assembly’s spring legislative session, has often told the story of a visit to an abortion clinic where his driver was stopped by CPC volunteers who carried clip boards and attempted to divert him from going into the facility, instead saying they needed to check him in first.

A spokesperson for Raoul’s office did not return a request for comment Friday, but last week he told reporters that he was “confident” the law would be upheld in court.

“You’re not free to lie to people and to use deceptive practices and to sometimes take people away from where they were intending to go,” Raoul said. “There’s nothing in the First Amendment that protects that type of action.”

At an unrelated news conference on Friday, Pritzker echoed that sentiment, saying he was hopeful that the courts will ultimately “recognize that you can’t lie to misinform people” to dissuade them from entering actual abortion clinics.

Judge Johnston has not yet set a date for a hearing on the merits of the case, but he did say the preliminary injunction applies to all of the approximately 100 CPCs in Illinois – not just the named plaintiffs.

The judge is also presiding over a long-awaited bench trial in a related case next month over a 2016 law aimed at health care providers – including individual practitioners and faith-based hospitals – who have moral objections to abortion. The law, if allowed to take effect, would require providers with such objections to give patients information about where to get an abortion, and a referral if requested.

Johnston’s colleague blocked the law in 2017 on First Amendment grounds, but litigation has been ongoing since. Since the law was first challenged in court, the U.S. Supreme Court in 2018 struck down a California law aimed at forcing crisis pregnancy centers to advise women about where to get an abortion.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of print and broadcast outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.