7 years after passage, Illinois’ first in string of recent abortion
protections gets day in court
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[September 30, 2023]
By HANNAH MEISEL
Capitol News Illinois
hmeisel@capitolnewsillinois.com
ROCKFORD – In 2016 – before Donald Trump’s presidency paved the way for
the eventual overturning of Roe v. Wade – Democrats in Illinois passed
what would become the first in a series of laws shoring up reproductive
rights in the state.
That law altered Illinois’ 1970s-era Health Care Right of Conscience Act
– a statute passed in the wake of the Roe decision to shield health care
providers from liability if they have religious objections to abortion.
The change stipulated that, if requested by the patient, providers who
don’t perform abortions must refer, transfer to or give patients written
information about providers who do.
But the law has been in legal limbo since 2017 when a federal judge put
it on hold. Amid the drawn-out litigation, Illinois Democrats have since
passed several more sweeping abortion protections that have all but
erased the 2016 law from the political discourse.
That could change after a federal judge in Rockford last week heard a
three-day bench trial over the law, which gave a peek behind the curtain
at “crisis pregnancy centers,” a type of limited services medical
facility – usually religiously affiliated – aimed at diverting women
from having abortions. The CPCs that sued over the law offer free
pregnancy tests and ultrasounds, along with counseling and material help
for would-be mothers. But abortion rights activists call CPCs “fake
clinics” that lure women in for the sole purpose of convincing them not
to terminate their pregnancies.
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U.S. District Judge Iain Johnston, a Trump appointee, heard more than 20
hours of arguments and testimony in the case last week, though it could
be weeks or months until he issues a ruling. Johnston is also overseeing
a challenge to a 2023 law that subjects crisis pregnancy centers to
liability under Illinois’ longstanding Consumer Fraud and Deceptive
Business Practices Act – a law he called “both stupid and very likely
unconstitutional” in a preliminary injunction he issued in early August.
Read more: Federal judge temporarily blocks Illinois law subjecting
‘crisis pregnancy centers’ to civil liability
The legal questions raised by the two cases are distinct and the
landscape of abortion access in the U.S. changed dramatically in the
seven years between the two laws’ passage. But arguments made during
last week’s trial have resonance in the fight over the 2023 law and
beyond.
First Amendment or ‘Rokita standard?’
When Illinois Democrats passed the 2016 law, its sponsors’ rhetoric was
focused not on crisis pregnancy centers, but Catholic hospitals, which
do not provide elective abortions and often bar doctors from prescribing
contraceptives and sterilization.
In extreme cases, like to save the life of the mother, Catholic
hospitals may terminate a pregnancy, but sponsors pointed to the story
of a woman who was made to wait five weeks during her prolonged
miscarriage until she was bleeding enough to justify the procedure.
Then, as now, roughly 30 percent of hospital beds in Illinois are in
Catholic-affiliated institutions.
But negotiations over the bill in 2015 and 2016 were able to neutralize
opposition from influential organizations like the Illinois Catholic
Hospital Association and the Catholic Conference of Illinois, and
arguments against the bill evolved to prioritize the First Amendment
concerns of CPCs. During debates over the bill in the House and Senate,
Republican opponents warned the law would violate both the facilities’
rights to free speech and religious liberties.
Those comments turned out to be a preview of the legal battle over the
Health Care Right of Conscience Act’s amendment; last week’s trial
involved no plaintiffs associated with Catholic hospitals. Instead,
plaintiffs are a handful of CPCs in Illinois, one doctor who volunteers
as a medical director for a CPC, and the National Institute of Family
and Life Advocates, a Virginia-based nonprofit that offers resources,
training and legal advice to CPCs across the U.S. Out of the roughly 100
CPCs in Illinois, 81 are members of NIFLA’s network.
The facilities – which, according to Chicago public radio station WBEZ-FM,
outnumber actual abortion clinics 3-to-1 in Illinois – often advertise
services like ultrasounds and pregnancy tests, and even material help
like diapers, baby formula, clothing and parenting classes.
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Kevin Theriot, an attorney for the Arizona-based conservative legal
organization Alliance Defending Freedom, told Judge Johnston in his
opening statements that the law would force crisis pregnancy centers to
inform clients of “unspecified benefits” of abortion, “even if it makes
centers complicit in what (they) believe is morally wrong.” That,
Theriot argued, was a violation of the CPCs’ First Amendment rights.
The First Amendment argument was a winner in 2018 when the U.S. Supreme
Court’s conservative majority sided with NIFLA’s objections to a
California law that targeted CPCs.
That regulation required state-licensed CPCs to inform clients that the
state offers subsidized programs for family planning services –
including abortion and contraception. The law also required unlicensed
centers to disclose that they were not licensed to perform medical
services.
Unlike California, Illinois does not license either abortion clinics or
CPCs, and Illinois’ 2016 law did not target the facilities in the same
way California’s did. Even so, the litigation over Illinois’ law was put
on pause for roughly six months as SCOTUS weighed the California case,
given their similarities.
But lawyers for Attorney General Kwame Raoul’s office argued crisis
pregnancy centers don’t have the right to claim carte blanche coverage
under the First Amendment while also seeking a liability shield from
medical malpractice claims under the state’s Health Care Right of
Conscience Act.
“Plaintiffs cannot hide behind the First Amendment to avoid regulation
of their professional conduct,” Elizabeth Morris, a lawyer for the
attorney general’s office, said during her closing arguments.
Instead of viewing Illinois’ law through a pure free speech lens, the
state is urging Judge Johnston to consider a standard set in a November
2022 opinion from the Seventh Circuit Court of Appeals in Doe v. Rokita.
The appellate court in that case reinstated Indiana’s law requiring
health care providers to dispose of embryonic tissue or fetal remains –
whether from abortion or miscarriage – as they would a deceased person:
either via burial or cremation. Critics claim the law essentially forces
patients to accept the state’s view of fetal personhood.
But in the final paragraphs of the opinion, the panel stipulated that
the overturning of Roe v. Wade – paving the way for Indiana’s near-total
ban on abortion this year – did not affect the right of governments to
“require physicians…to provide accurate information to their clients.”
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‘Standard of care’
Providing accurate information to patients, the state argued during the
trial, is tantamount to the medical ethics principle of “informed
consent.” The state’s case hinges on a theory of informed consent
adopted by influential organizations in the world of western medicine
like the American Medical Association and the American College of
Obstetrics and Gynecology.
According to this theory, informed consent requires physicians to inform
a patient about all relevant options for treatment – including those to
which a doctor may have a moral objection.
The state then argued that when medical professionals decline to discuss
all options for treatment, they fall short of meeting a “standard of
care.” Standards of care are tough to nail down and vary slightly from
one medical specialty to another. But in general, a standard of care is
the benchmark that determines whether a clinician has met his or her
professional obligations to patients. Negligence is the failure to meet
a standard of care.
“As soon as (CPCs) began offering medical services, they began to owe a
duty of care to their patients,” Sarah Gallo, a lawyer for the attorney
general’s office, said in her opening statements.
The state brought in just one expert witness: Dr. Paul Burcher, the
residency program director and an OB-GYN at WellSpan York Hospital in
Pennsylvania and head of the hospital system’s bioethics committee.
Burcher, a practicing Catholic who does not perform abortions for that
reason, contended that only discussing the risks of abortion with a
patient would be a violation of the standard of care.
“(It’s) poisoning the well for a later encounter where someone presents
a more balanced (counseling),” he testified.
The CPC-affiliated plaintiffs who testified acknowledged that staff at
their facilities only discuss risks and harms of abortion with clients.
Some scoffed when the state’s attorneys asked about discussing the
“benefits” of abortion.
“We don’t believe abortions have any benefits,” Kathleen Lesnoff, the
founder, president and CEO of Mosaic Pregnancy and Health Centers based
in the Metro East, said on the witness stand. “Basically, we would have
to lie to (clients) to tell them there are benefits, and we would never
do that.”
Lesnoff testified that she both had an abortion and briefly worked at an
abortion clinic as a young adult, shaping her anti-abortion views.
Evidence shown at trial included pamphlets distributed by the CPC
plaintiffs, some of which warned of infection or surgical complications
– though those are risks inherent to any medical procedure – and
increased incidences of breast cancer, particularly in Black women, a
thoroughly debunked claim.
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‘Limited medical services’
In their arguments, lawyers for the CPCs emphasized that the facilities
provide only “limited medical services,” and are not practicing prenatal
care.
At Focus Women’s Center in McHenry, for example, executive director Judy
Cocks testified that the ultrasounds given to women who consent to them
after a positive pregnancy test are meant to help determine three
things: the estimated gestational age of the fetus, the viability of a
pregnancy and whether a fertilized egg is growing normally in the uterus
or outside of it – a life-threatening condition called ectopic
pregnancy.
“Well, we’re not doing any diagnosing with it,” Cocks said of the
limited ultrasound. “It’s a great tool for a woman to be able to see her
baby and also to hear the heartbeat of the child.”
On the witness stand, plaintiffs and their attorneys did not shy away
from the assertion that CPCs use the ultrasound scan to convince
so-called “abortion-vulnerable” or “abortion-determined” women not to
terminate their pregnancies.
Cocks, who is also a plaintiff in the litigation over Illinois’ recent
CPC fraud law, said the nurses who work at Focus are only providing
“generally available” medical information to clients, and actually
“can’t” give medical advice.
For the most part, the plaintiffs in the case offer urine pregnancy
tests, “limited” ultrasounds, and in some cases, limited STD testing and
treatment, all free of charge. One CPC leader testified that her
facilities offer “abortion pill reversal,” which is essentially the
experimental administration of high levels of the hormone progesterone
to undo the effects of the first drug in the two-pill regimen referred
to as a “medication abortion” – an increasingly common method of
terminating pregnancies in the first trimester.
Some CPC-affiliated plaintiffs who testified during last week’s trial
said their facilities began as charity resource organizations, but as
technologies like ultrasound machines began getting better and cheaper,
they were able to expand their operations.
Most CPCs that use ultrasound machines and lab testing equipment have
also hired full-or part-time licensed nurses and techs, moving away from
an all-volunteer staff model. The seven CPC-affiliated witnesses all
said their facilities also have volunteer medical directors – licensed
OB-GYNs who can review ultrasound photos, but generally don’t ever
actually see patients.
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Plaintiffs testified that after receiving the limited medical services
like a pregnancy test or ultrasound, CPC clients are told to go to an
OB-GYN to confirm their pregnancy and receive prenatal treatment, often
signing a medical release form before leaving the facility.
But the state rejected the CPCs’ secondary arguments that they are
exempt from state regulations because they only provide “limited”
medical services.
In closing arguments, Morris, of the attorney general’s office, echoed
Burcher’s testimony that what goes on during a visit to a CPC – “There’s
a history taken, there’s a procedure performed and then counseling
occurs” – constitutes a medical visit, automatically invoking a standard
of care.
“No one forced plaintiffs to start offering (medical services and
counseling),” Morris said. “They chose to hold themselves out to their
communities as medical centers.”
And in doing so, she said, CPCs also must accept the responsibilities
inherent to running a medical center.
Capitol News Illinois is
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