On Friday, an Illinois appellate court remanded Hope Clinic for Women v. Adams—a case filed by the ACLU seeking to strike down Illinois’ parental notification law—to a lower court for trial.
Enacted in 1995, the Illinois Parental Notice of Abortion Act (“Act”) has been plagued with litigation for 16 years. While the Act is clearly constitutional under the U.S. Constitution and U.S. Supreme Court precedent, the ACLU and its allies in the Illinois courts keep finding ways to stall the Act’s eventual enforcement. This time around, the ACLU is arguing that the Act violates privacy and gender discrimination clauses in the Illinois constitution. While these arguments are not plausible and were rejected by the trial court, the Illinois appellate court reversed and remanded the claims for trial. This means that more weeks, months, or even years of litigation are ahead—with minors left unprotected from the harms of abortion in Illinois, and parents left without a role in the abortion decisions of their daughters.
Considering 16 years have already passed since the Act’s enactment, practically an entire generation of young girls has been left unprotected. Sadly, women who were minors when the statute was enacted are now in their 30s.
Without delving into the appellate court’s murky legal analysis and procedural discussion, a couple excerpts from the decision demonstrate that the court made this determination in an effort to stall what many believe will be the ultimate upholding of this law by the Illinois Supreme Court:
1) In regard to the constitutionality of parental involvement statutes, the appellate court stated, “Although seven justices in [Planned Parenthood v.] Casey appeared to agree that a parental consent provision was constitutional, they were unable to agree to an opinion concerning this provision. Thus, it is hard to know what this decision stands for on this issue.” While it could be said that the different Justices on the U.S. Supreme Court disagreed on how and why parental involvement statutes are constitutional, it is a farce to say that we do not know what the Casey decision stands for in regard to parental involvement statutes. The U.S. Supreme Court has been explicitly clear that parental involvement statutes are constitutional as long as they contain a judicial bypass mechanism (i.e., a way for minors to approach the court and avoid notifying their parents if it is not in their best interests). To say otherwise indicates that the court is grasping at straws to help the ACLU stall the inevitable enforcement of the Act.
2) The appellate court ruled that the Act results in “sex-based distinctions.” The appellate court’s rationale is that the law would permit a minor male, without notifying his parents, to consent or withhold consent for a surgical procedure for his child, even if that decision might endanger the health or life of that child, while requiring parental notice for young women seeking to abort. But this is an improper analogy. The law also allows minor women to make those same decisions—without parental notice—for their born children. On the other hand, the court missed the fact that minor boys can NEVER make decisions for their unborn children, while minor girls can. If the court wants to use a true analogy, then should we not then say that minor males are being discriminated against because they have no power to, to quote the court, “make a similar decision for a fetus”?
In the coming weeks, we will know more about Illinois Attorney General Lisa Madigan’s next steps in further litigating this case. There is a chance she could take the case to the Illinois Supreme Court; on the other hand, being a pro-abortion sympathizer, she could just let the case languish in the trial court a while longer.
Either way, the sad reality is that minor girls continue to be left without the protection of the Illinois parental notification law. And in light of recent reports that abortion complications and deaths in Illinois are vastly underreported, it could mean the difference between life and death for some young girls.