CHICAGO — A federal judge refused to grant a permanent injunction sought by a group of anti-abortion crisis pregnancy centers and medical professionals who challenged a 2016 law that mandates referrals for abortion services, despite a U.S. Supreme Court decision the pro-life groups claim demonstrates the law is unconstitutional.
The suit was first filed in September 2016 in federal court in Chicago. Plaintiffs are the National Institute of Family and Life Advocates, of Virginia; Illinois nonprofit agencies, including Informed Choices, of Grayslake and Crystal Lake; TLC Pregnancy Services, of Elgin; and Mosaic Pregnancy & Health Centers, of Granite City; as well as Maryville Women’s Center and its owner, Dr. Tina Gingrich. Named defendants included then-Gov. Bruce Rauner and Bryan A. Schneider, then secretary of the Illinois Department of Financial and Professional Regulation.
Rauner signed the challenged legislation in July 2016. The plaintiffs alleged Senate Bill 1564, an amendment to the Illinois Healthcare Right of Conscience Act, forced them “to violate their consciences and beliefs by either referring women for abortions, transferring a patient to an abortion provider or providing a patient asking for abortion with a list of providers they reasonably believe may perform the abortion.”
In July 2017, U.S. District Judge Frederick Kapala granted a preliminary injunction preventing the IDFPR from enforcing the law. But in an opinion issued Sept. 3, Chief Judge Rebecca Pallmeyer denied a permanent injunction request while also rejecting the pro-life groups' motion for summary judgment.
Pallmeyer noted the case was stayed for several months while the U.S. Supreme Court considered a similar compelled speech argument originating in California in National Institute of Life Advocates v. Becerra. In a 2018 opinion, the court struck down a law requiring licensed crisis pregnancy centers to disseminate a government-written notice concerning abortion and forcing certain unlicensed clinics to post a notice concerning the lack of a state medical license.
However, Pallmeyer continued, the Supreme Court acknowledged the plausible constitutionality of other professional speech regulations, in part by referencing its 1992 opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey. Both sides in the Illinois lawsuit said the opinion from the California NIFLA case supported their arguments.
Pallmeyer agreed with the defendants the requirement to discuss the benefits of abortion, as in Casey, “is a regulation of professional conduct that only incidentally burdens speech” since it relates to a medical procedure, is not misleading and is relevant to a patient’s decision. She said the Illinois law directs much more specific disclosures than the overturned California statute and agreed with the defendants the state has a substantial interest in making sure “all patients be provided with all information necessary to give informed consent.”
The plaintiffs also challenged the requirement to refer or transfer to or provide patients information about abortion providers. Pallmeyer said this argument, though concerning the same state law, “is not squarely an informed consent requirement … because it concerns more than the provision of information about a procedure.”
She said summary judgment was inappropriate because there are remaining issues of fact, such as if the law promotes substantial government interest or if the standard applies. She also said it’s unclear how much the law burdens crisis centers, noting there already are instances in which they refer patients to obstetricians, primary doctors or emergency rooms “without necessarily knowing who that doctor is or what treatments that doctor provides.”
With both arguments, Pallmeyer said expert discovery is required. She also said the law doesn’t target only the plaintiffs’ free speech rights, noting abortion providers are required to discuss risks and the challenged “amendments were aimed at rectifying problems created by the breadth of immunity given to conscience objectors.”
Pallmeyer would not say the plaintiffs’ waived any challenge to the 2016 amendments rather than their application, but she agreed with the defendants there is no violating of the First Amendment’s free exercise clause because the law is part of “the state’s larger framework governing medical professionals,” which is established as neutral and generally applicable.
Representatives for the plaintiffs include attorneys from the firm of Mauck & Baker, of Chicago; the Alliance Defending Freedom, of Scottsdale, Ariz., and Washington, D.C.; and the National Institute of Family and Life Advocates, of Fredericksburg, Va.