Appeals court OKs IL abortion funding, despite 'problematic' lack of revenue estimate; Appeal to IL Sup Ct vowed

By Jonathan Bilyk | Sep 20, 2018

A group of pro-life organizations seeking to undo Illinois legislation mandating taxpayer funding of abortion services has pledged to appeal their case to the Illinois Supreme Court, after a state appeals court opted not to compel the state of Illinois to account for where the money to pay for the abortions would come from.

On Sept. 18, a three-justice panel of the Illinois Fourth District Appellate Court in Springfield ruled in favor of the state, and finding the courts lacked authority to “determine whether the General Assembly failed to appropriate funds and adopt a revenue estimate to cover the costs of services” under the controversial law.

“We reach this conclusion because we find the (Illinois state) constitution lacks a requirement of a revenue estimate,” the justices wrote.

The decision was issued as an unpublished order under Supreme Court Rule 23, which limits its use as legal precedent. The order was authored by Justice Lisa Holder White, with justices Robert J. Steigmann and Craig H. DeArmond concurring.

Peter Breen  

The appellate decision comes more than nine months since Sangamon County Circuit Judge Jennifer M. Ascher sided with the state in the opening round of the court fight filed by a coalition of anti-abortion groups against the state over the law, generally known as House Bill 40.

Under that law, which was passed by the Democrat-dominated Illinois General Assembly and signed by Republican Gov. Bruce Rauner, the state would authorize funding for abortions for women on Medicaid, or who are on state employee health insurance plans.

The law was promptly challenged in court by a group of organizations, including the Illinois Right to Life Action; Illinois Federation for Right to Life; the Pro-Life Action League; and “Right to Life” committees and groups from Springfield, Lake County, Knox County, Morgan County, Henry County, Clinton County and Adams County, as well as the Diocese of Springfield.

Plaintiffs in the case also include state lawmakers, including state representatives Barbara Wheeler, Mark Batinick, Steve Reick, Keith Wheeler, Charlie Meier and Jeanne Ives, and state senators Dan McConchie, Kyle McCarter, Paul Schimpf, Dale Fowler, Sam McCann and Neil Anderson.

The legal challenge asserts the state could be required to pay for an estimated 30,000 abortions per year, or more, adding tens of millions of dollars to state spending without having yet identified how the state will actually pay for the abortions.

Since federal Medicaid funds can’t be used to pay for abortions directly, the plaintiffs noted Illinois taxpayers would be left to foot the bill.

The lawsuit asserts failing to provide any estimate for how much the abortion services would cost taxpayers makes the law unconstitutional under the state constitution’s balanced budget requirement.

The lawsuit also asserted the law should not have taken effect on Jan. 1, as the law was not sent to the governor’s desk until after May 31, 2017.

Judge Ascher, however, rejected the challengers’ arguments, and the plaintiffs appealed.

However, on appeal, the Fourth District panel similarly backed Judge Ascher’s decision.

The justices determined the law was legally valid on Jan. 1, as it was approved by both houses of the General Assembly before June 1, 2017.

And the justices also rejected the plaintiffs’ claims related to the need for the General Assembly to show how the state is paying for the abortions.

While conceding language in the state constitution “certainly seems to anticipate some estimate,” they noted neither the state constitution nor a related state law requires any such estimate for specific spending items.

“Without a constitutional requirement of an estimate, there can be no legitimate probe into whether the General Assembly complied with that nonexistent requirement,” the justices said.

Further, the justices said invalidating HB 40 on these grounds could also invalidate the entire state budget, producing “severe” consequences for the entire state government apparatus.

“… We are unaware of any way to parse out certain appropriations and leave others intact,” the justices said.

And taking such a step would cause the courts to trespass into the political powers delegated to the General Assembly, and thus outside the court’s jurisdiction, even though the justices said they found lawmakers’ failure to abide by the law’s seeming requirements “problematic.”

State Rep. Peter Breen, who is serving as special counsel for the plaintiffs in the case, in conjunction with the Thomas More Society, said the plaintiffs were “disappointed in the appellate court’s decision, which held that the courts cannot enforce the Balanced Budget requirement of our state constitution.”

“But we knew, win or lose, due to the importance of the issues here, this matter would continue beyond the appellate court level. The people of Illinois deserve a definitive ruling from their Supreme Court before our state’s courts entirely step back from enforcing the Balanced Budget requirement of the Illinois Constitution,” Breen said.

In a release, the plaintiffs said their petition to the Illinois Supreme Court would be filed by Oct. 22.

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Organizations in this Story

Diocese of Springfield in Illinois Illinois Federation for Right to Life Illinois Fourth District Appellate Court Illinois Right to Life Illinois Supreme Court State of Illinois General Assembly Thomas More Society

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