Calling the law "both stupid and likely unconstitutional," a federal judge has blocked Illinois Attorney General Kwame Raoul from enforcing a new state law Raoul authored and Gov. JB Pritzker trumpeted as a way to combat what they deem to be "misinformation" used by abortion opponents working through crisis pregnancy centers to persuade pregnant women not to get abortions.
On Aug. 3, U.S. District Judge Iaian Johnston granted a preliminary injunction against the legislation known as Senate Bill 1909, about six days since the law took effect immediately after Pritzker signed it into law.
The law had been challenged in a lawsuit filed by a group of pro-life groups and crisis pregnancy centers who claimed Illinois’ enthusiastically pro-choice Democratic elected officials enacted the law in a bid to silence religious and political speech against abortion, disfavored by the state’s current leaders.
Peter Breen, Executive Vice President & Head of Litigation at Thomas More Society
| https://www.thomasmoresociety.org/attorneys/peter-breen
Johnston granted the injunction at a hearing in Rockford federal court, at which attorneys for both sides squared off.
Johnston followed that with a written order, issued late in the day Friday, Aug. 4.
Throughout the order, Johnston minced few words in castigating Raoul for not only championing, but attempting to defend a law that Johnston noted Raoul's own deputies have conceded is unncessary to achieve its stated goal, but essentially appears to serve no other purpose than to target people who speak out against abortion in Illinois.
"It is stupid because its own supporter admitted it was unneeded and was unsupported by evidence when challenged," Johnston wrote in his order. "It is likely unconstitutional because it is a blatant example of government taking the side of whose speech is sanctionable and whose speech is immunized - on the very same subject no less.
"SB 1909 is likely classic content and viewpoint discrimination prohibited by the First Amendment."
Following the hearing, attorney Peter Breen, of the Thomas More Society, who represented the anti-abortion organizations, hailed the ruling.
“Free speech won today in the Land of Lincoln,” Breen said in a release. “Pro-life advocates across Illinois can breathe a sigh of relief they won’t be pursued for ‘misinformation’ by Attorney General Kwame Raoul."
“Across the nation, pregnancy help ministries are being discriminated against by laws that target their life-affirming work. The injunction granted today sends a strong, clear message to the country that the First Amendment protects pro-life speech.”
Raoul has not yet responded to the ruling, and has not filed any notice of appeal.
However, Gov. Pritzker blasted the ruling. He said the lawsuit and the injunction are efforts by "the far right" to interfere "with the ability for women to access safe medical care without deception or lies." He said he was "confident that the law will ultimately be found constitutional."
Pritzker signed SB1909 into law on July 27. The law took effect immediately. It would empower the attorney general’s office use Illinois’ consumer fraud law to investigate crisis pregnancy centers for “misinformation” related to abortion and human reproduction, and then potentially penalize those pregnancy centers with fines or closure orders.
In statements at the time the law was approved in the General Assembly, and at the time Pritzker signed it into law, supporters lent full-throated support to SB1909.
Supporters said the law was needed to protect woman from alleged “deception” at the hands of pro-life advocates who seek to talk with women arriving at abortion clinics, and who operate crisis pregnancy centers, which then provide a range of services to women, with the goal of persuading them to choose to carry the pregnancy to term, rather than choose to terminate the fetus.
Supporters of the law said it was needed to essentially prevent opponents of abortion from allegedly misleading women into birthing their babies, rather than choosing abortion.
In the lawsuit, the plaintiffs said the law goes far beyond merely addressing potential instances of “deceptive business practices” traditionally policed by the consumer fraud statute.
They note the law specifically exempts licensed medical professionals from its scope, and appears to also exempt abortion providers from being investigated for "misinformation," indicating the law was only intended to be applied against abortion opponents.
Yet, the plaintiffs note in their lawsuit that representatives of Raoul’s office further conceded under questioning at legislative hearings that the crisis pregnancy centers were already covered by the state’s consumer fraud law, and that Raoul's team could provide “no examples of (consumer fraud) claims ever brought against an organization providing pregnancy counseling.”
Further, the plaintiffs noted Raoul’s representatives repeatedly refused under questioning to rule out any examples of typical pro-life speech which the attorney general’s office would refuse to investigate as “misinformation,” saying only that they would evaluate the need to investigate on a “case-by-case basis.”
In advance of the Aug. 3 hearing, Judge Johnston publicly provided both sides with a list of questions he intended to ask, including a series of questions he aimed at the attorney general’s office concerning Raoul’s beliefs concerning the limits of his office’s investigatory powers under the law, such as:
- Did Raoul or his deputies “assert that crisis pregnancy centers were already covered by the statute?"
- “Can a hospital or abortion clinic make misrepresentations without being subject to sanctions under the Act or statute? For example, could a hospital or abortion clinic claim that abortions prevent or cure baldness without being subject to SB1909?”
- “Would a person who claimed the fetuses feel pain be subject to penalties under the Act or subject a crisis pregnancy center to penalties?” and
- “If ‘material facts’ are determined on a case-by-case basis, how can a crisis pregnancy center know what it can and cannot say?"
The attorney general’s office further attempted to argue in their motion that the plaintiffs should not be allowed to challenge the law at this time, because the attorney general has not yet threatened any action against them, despite his public statements lauding the law and the new powers it would extend to his office to police “misinformation” at such clinics, generally.
In that motion, Raoul sought more time to file a written response to the preliminary injunction request before the judge would hold a hearing on the request.
Judge Johnston, however, rejected that request out of hand.
“The motion is meritless on many levels, too many to explain in a minute order,” the judge wrote in a short order.
In his ruling, Judge Johnston expanded on his critique of Raoul's attempts to defend the law and prevent abortion opponents from suing.
He said the crisis pregnancy centers don't need to wait until Raoul attempts to bring the force of the state down upon them before they can challenge a law that they believe directly outlaws their rights to speak on abortion.
The judge noted all of the organizations moved immediately to curtail certain activities they believe are constitutionally protected in service of their mission to reduce the number of abortions performed, amid fears Raoul will attempt to use SB1909 to investigate and prosecute them in a bid to close their doors and otherwise attack abortion opponents.
The judge noted these concerns are not merely "speculative," either, particularly given Raoul's personal enthusiasm for the law and his close connections to major international abortion provider and promoter - and Democratic campaign contributor - Planned Parenthood. The judge pointed out Raoul ensured representatives of Planned Parenthood joined him on the stage at a press conference called specifically to boast about his support for SB1909 on the day Pritzker signed the legislation into law.
Further, the judge noted Raoul and his fellow Democrats specifically exempted abortion providers like Planned Parenthood from the law's reach, even if they were to make claims about abortion as untruthful and farcical as "abortion cures male pattern baldness."
"SB 1909 is content based discrimination," Johnston wrote. "The subject of the prohibited speech is not just abortion but speech that emphasizes the negative effects of abortion.
"What’s more, there is ample evidence in the record before the Court at this time that SB 1909 was adopted because of Defendant Raoul’s disagreement about the content of Plaintiffs’ speech."
Johnston was appointed to the federal bench in 2020 by former President Donald Trump, with the vocal support of Illinois Democratic Senators Dick Durbin and Tammy Duckworth.
Plaintiffs in the action include the National Institute of Family and Life Advocates, as well as crisis pregnancy center operators in McHenry, Rockford and Highland, and the Pro-Life Action League.
NIFLA has also fought successfully in court against similar efforts in California to use the power of the state to target abortion opponents.
Five years ago, NIFLA scored a big win at the U.S. Supreme Court, when it secured a decision striking down a California law requiring abortion opponents operating the pregnancy centers to refer women to abortion providers. The Supreme Court ruled this represented unconstitutional state-compelled speech.
California's Democrat-dominated state legislature has since considered a law similar to the SB1909 enacted in Illinois, but has not yet voted on that measure, which remains pending.
Editor's note: This story has been revised and updated from a previous version to discuss the written order issued by Judge Iaian Johnston.