IL Supreme Court denies abortion funding law challenge; Dissent: 'Political question' claims deserve hearing

By Jonathan Bilyk | Mar 20, 2019

A group of abortion foes have lost their bid to undo an Illinois law making all Illinois taxpayers foot the bill for what they say will be tens of thousands of abortions per year, as the Illinois Supreme Court refused to take up the case.

However, three of the court’s justices said the case should have received a hearing, as they say the majority was wrong to not consider the implications of allowing lawmakers to sidestep constitutional challenges by characterizing their votes as “political” decisions beyond the reach of the courts.

On March 20, the Illinois Supreme Court formally denied the appeal of the abortion opponents challenging the legislation known as HB40.

The Supreme Court justices delivered their denial without a written opinion or explanation.

The court’s denial prompted a brief dissent from Supreme Court Justice Robert R. Thomas, joined by justices Thomas L. Kilbride and Anne M. Burke.

“The issue of what constitutes the parameters of the political-question doctrine is of such vital importance that it should be resolved by the Supreme Court of Illinois and not simply left to the appellate court to grapple with,” Thomas wrote in the dissent.

The case had worked its way through the courts in Springfield since the Democrat-dominatred Illinois General Assembly approved HB40, and the bill was signed into law by Republican former Gov. Bruce Rauner, in 2017.

The lawsuit asks the court to rule lawmakers violated the Illinois state constitution’s balanced budget requirement when they required the state to pay for an estimated 30,000 abortions each year, or more, at a cost of tens of millions of dollars to taxpayers, yet refused to identify where the money was coming from.

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

A Sangamon County judge and a three-justice panel of the Illinois Fourth District Court of Appeals in Springfield rejected plaintiffs’ contentions.

The Fourth District court said invalidating HB40 on these grounds could also invalidate the entire state budget, producing “severe” consequences for the entire state government.

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

While the justices said they found “problematic” the legislature’s refusal to identify a funding source for the abortion payments, the justices said they believed the question was entirely outside their jurisdiction, because the issue of funding state government was a “political question.”

In his dissent from the Supreme Court’s refusal to take up the appeal of the Fourth District decision, Thomas said the decision may clash with the U.S. Supreme Court’s holding on such matters.

“In the leading case describing the doctrine, the United State Supreme Court observed that the political-question doctrine is ‘one of ‘political questions’ not one of ‘political cases,’’ and ‘the courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority,’” Thomas wrote.

“Here, the appellate court concluded that the legislature’s compliance with (the state constitution) … is a political question and therefore not justiciable. That conclusion is undoubtedly of sufficient importance to the people of the state of Illinois as to compel this court’s review.”

Plaintiffs in the action included 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 Catholic Diocese of Springfield.

They were joined by current and former 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.


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Organizations in this Story

Diocese of Springfield Illinois Federation for Right to Life Illinois Fourth District Appellate Court Illinois General Assembly Illinois Right to Life Committee Illinois Supreme Court Pro-Life Action League

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