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Testimony in Opposition to IL House Bill 6205

Testimony in Opposition to House Bill 6205

Before the House Human Services Committee

Clarke Forsythe, Esq., Senior Counsel,

Americans United for Life (AUL)

Wednesday, March 10, 2010

Thank you for the opportunity to submit this testimony in opposition to House Bill 6205.

Summary

Drafted in the context of federal constitutional abortion law, and following the language of the federal Freedom of Choice Act (FOCA) (introduced as S.1173 in the 110th Congress), House Bill (HB) 6205 declares abortion to be a “fundamental right” and prohibits any “interference” with abortion at any time of pregnancy in Illinois. Since any regulation (or condition) would “interfere” with an abortion, all regulations are effectively repealed in Illinois (unless specifically exempted by HB 6205).  The prohibition on “interference” extends throughout pregnancy (§15(a)(3)).  Among the regulations on abortion in Illinois that would be prohibited as unlawful “interference,” HB 6205 would effectively repeal Illinois’ physician-only law.  Section 20 prohibits limits on taxpayer funding of abortion as unlawful “interference.”  The sweeping scope of HB 6205 is confirmed by §40, which singles out and specifically exempts the Illinois Parental Notice Act of 1995 from the bill’s prohibitions.  HB 6205 also vests complete power and discretion in the abortion provider as to what information any adolescent or adult women might get about the nature, risks, or alternatives to abortion.  The provider exclusively determines whether the abortion patient gets informed consent.  HB 6205 vests abortionists with complete discretion to determine the “method” of “pregnancy termination,” and thus repeals the Illinois Partial-Birth Abortion Act and any other regulations on “methods.”  Consequently, if HB 6205 becomes law, any school nurse, in any public school (or any private school that receives public funds as an “agent”) could perform abortions.

Declaration of Abortion as “Fundamental Right”

HB 6205 is drafted in the context of Roe v. Wade and federal constitutional law on abortion.  HB 6205 declares abortion to be a “fundamental right.”  That invokes the “fundamental rights” analysis in constitutional law and the “strict scrutiny” judicial analysis that is applied to “fundamental rights” by state and federal courts.  Roe, 410 U.S. 113, 155-56 (1973).

Following the federal FOCA, HB 6205 prohibits any “interference” with abortion, precluding any regulation. The “strict scrutiny” judicial analysis would intensify the scope of any search for laws that “interfere” with abortion.

Furthermore, HB 6205 supersedes any existing Illinois law through the “notwithstanding” language of §15 and several other sections.  A long history of federal courts applying “strict scrutiny” to review state regulations of abortion between 1973-1989 showed that few if any regulations survived such review.  Courts applying strict scrutiny analysis struck down all regulations on abortion. The U.S. Senate Judiciary hearings on (a previous version of) FOCA in 1992 confirmed that the application of “strict scrutiny,” “to strike down any limits on abortion” was the aim of FOCA.

HB 6205 would not simply “codify” Roe in Illinois but go far beyond Roe by declaring abortion to be a “fundamental right.”  No majority of the U.S. Supreme Court has declared abortion to be a “fundamental right” or applied the “strict scrutiny” analysis to abortion-related laws for 24 years, since Thornburgh v. ACOG, 476 U.S. 747, 763 (1986).  The Supreme Court does not currently treat abortion as a “fundamental right” and has upheld the constitutionality of many abortion regulations and restrictions.  Thus, HB 6205 would sweep away all the common sense regulations that the US Supreme Court, applying Roe, has allowed.

Strict scrutiny cannot justifiably be applied to abortion because there are countervailing interests that strict scrutiny would completely ignore by treating abortion as “fundamental.”  These include the public health interest in ensuring, through appropriate regulations, that abortion is safe for women, that women are informed of all risks and alternatives. These interests,”separately and together,” justify regulation and public health oversight of abortion. HB 6205 would eliminate all health and safety regulations and vest the provider with complete and utter discretion as to health and safety procedures and as to what information any adolescent or adult woman is given.

“Health” Exception After Viability

The proposed prohibition on “interference” with abortion extends throughout pregnancy, from conception to birth.  The unrestricted right to abortion extends to “any time during a pregnancy” for reasons of “health.“ The “health” exception of §15(a)(3)(ii) incorporates the “health” exception in abortion law as defined in Doe v. Bolton, 410 U.S. 179, 192 (1973).  In abortion law, “health” means “all factors,” physical, emotional, psychological, familial and the woman’s age, “relevant to the well-being of the patient.” Doe v. Bolton, 410 U.S. at 192.  Thus, there is a right to abortion after viability for any minor for such “health” reasons.  Consequently, the “health” exception swallows the rule and completely eliminates any regulation before or even after viability.  Given the Doe definition of health in abortion law, the “health” exception is no limitation at all.  It means abortion on demand at any time of pregnancy.

Prohibition Against Discrimination in Public Funding

HB 6205 also proposes to prohibit discrimination against abortion in public funding to any individual “eligible for State Medicaid assistance” or “medical assistance” “at least to the same extent as other comparable services.”  Such discrimination “constitutes” an “interference” under §15.  The “discrimination” prong would eliminate any law affecting public funding that would treat abortion differently from childbirth and would require equal treatment.  Public funding of abortion and childbirth are clearly required to be equal.  Moreover, it is possible that public funding of abortion is required, even if childbirth is not funded, by the “interference” prong.

Overturning the Physician-Only Law in Illinois

Sections 15 and 25 of HB 6205 will overturn Illinois’ physician-only law that limits abortion practice to licensed physicians. Section 25 does not require that abortions be done by a physician, merely that they be done “in accordance with accepted standards of medical practice.”  This loophole is confirmed by the second sentence of section 25 which immunizes a “qualified medical professional.” Forty-three states and the District of Columbia have such laws, and they have been upheld repeatedly by the Supreme Court (Connecticut v. Menillo, 423 U.S. 9 (1975); Mazurek v. Armstrong, 520 U.S. 968 (1997))  HB 6205 does this by prohibiting any “interference.”  Although “physician” is defined in HB 6205, “qualified medical professional” is not.  §25 replaces any legal standard for liability with a subjective medical standard (“in accordance with accepted medical standards of medical practice” and “clinical judgment of the attending medical professional”).  HB 6205 specifically immunizes any “medical professional” from any civil or criminal claim in §25(a).  HB 6205 invalidates any limitation on who can do abortions and any limitations on public facilities where abortions can be performed.

Overturning Illinois’ Prohibition on Partial-Birth Abortion

Section 25 also overturns Illinois’ prohibition on partial-birth abortion and any other limits on methods of abortion by authorizing any “medical professional” to do abortion by any “method that, in the clinical judgment of the attending medical professional, will best serve the interests of the pregnant patient.”

Immunity for any “medical professional” performing abortions

Superseding any other existing Illinois law, §25 also immunizes any “qualified medical professional” from civil or criminal liability for performing any abortion as long as the abortion is “performed in good faith, in accordance with the attending medical professional’s good faith clinical judgment and accepted standards of medical practice.”  §25 eliminates any legal regulations relating to medical safety and vests any “medical professional” with exclusive discretion in the performance of abortion. This vague and subjective standard immunizes a doctor from any suit for malpractice.

Replaces Illinois Conscience Laws with Limited Protection Under §45

Illinois has two laws protecting rights of conscience, one of which dates back to 1973 or 1974.  Since laws protecting rights of conscience are alleged to “interfere” with access to abortion, section 15 would eliminate such laws.  A proposed Section 45 would apparently preserve the Health Care Right of Conscience Act but not the abortion-specific conscience law from 1973-74.

Conclusion

By elevating abortion to a “fundamental right,” and prohibiting any “interference” with or “discrimination” against abortion, HB 6205 would nullify:

  • Requirement that only licensed physicians perform abortions, 720 Ill. Comp. Stat.  510/3.1 (2008);
  • Regulations establishing minimum health and safety standards for abortion clinics, 210 Ill. Comp. Stat. Ann. 5/3, et seq. (2008); Ill. Admin. Code tit. 77 §§ 205.330, 205.540 and 205.710 (2005);
  • Limitations on the use of state taxpayer funds for abortion counseling and referrals, 410 ILCS §230/4-100 (2008);
  • Limitations on the use of state taxpayer funds to purchase insurance coverage for abortions, 5 ILCS 375/6.1 (2008);
  • Limitations on the performance of post-viability abortions, 720 ILCS § 510/5 (2008);
  • Protection for infants who survive an attempted abortion, 5 ILCS §70/1.36 (2008); and
  • Protections for healthcare providers and institutions that refuse to perform abortions. 745 ILCS 30/1  (2010)
  • Moreover, it would unilaterally trump Illinois’ long-standing policy that “solemnly declare[s] and find[s] . . . that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child’s right to life and is entitled to the right to life from conception under the laws and Constitution of this State. . . . ” 720 ILCS § 510/1 (Enacted 1975; Last Amended 1979).