Illinois lawmakers cannot force pro-life doctors and abortion opponents operating so-called crisis pregnancy centers to tell women about the "benefits" of abortion, as a condition of keeping their protections against certain kinds of lawsuits, a federal judge has ruled.
On April 4, U.S. District Judge Iain Johnston struck down as unconstitutional recently enacted Illinois legislation which altered the state's Health Care Right of Conscience Act.
In the ruling, Johnston said the unconstitutional portion of the amended law violates the First Amendment speech rights of anti-abortion doctors and crisis pregnancy center operators by forcing them to pass along a state-approved pro-abortion message with which they personally or professionally disagree, or which they believe to be "morally abhorrent."
The ruling finally declaring the law unconstitutional comes eight years after a different federal judge had slapped an injunction on the state, blocking Illinois from enforcing the law while the constitutional challenges to the measure played out in court.
The law was first passed in 2016 by the Democrats who have dominated the General Assembly then and since. It was signed into law by former Gov. Bruce Rauner, a Republican, over the strenuous objections of other Republicans and pro-life advocates.
The law specifically placed new requirements on doctors and other pro-life medical care providers to obtain a so-called "liability shield" offered under the Health Care Right of Conscience Act.
The HCRCA law has been on the books in Illinois since the 1970s, offering legal protections to doctors and other medical professionals who refuse to perform abortions or other medical procedures they believe to be wrong.
However, in the new law, some of those protections could be removed from doctors and other medical professionals who do not agree to discuss what Democrats and other pro-abortion activists say are the "benefits" of abortion, or who refuse to refer pregnant women in their care to other medical providers who are willing to perform abortions.
The law was challenged swiftly in court by abortion opponents, who argued the changes to the law effectively "gutted conscience protections for pro-life physicians and pregnancy centers."
In federal court, a Chicago federal judge blocked the law from being enforced in 2017, as the courts agreed the challengers likely had a case that the law trampled their constitutional rights.
In the years since, the case has bounced from judge to judge, finally landing before Judge Johnston in Rockford federal court.
In the ruling, Johnston said the law falls "far short" under so-called "strict scrutiny," the standard of constitutional review he believes should be applied in this case, as he said it clearly implicates First Amendment rights.
The judge said the pro-abortion speech mandated in the Illinois law goes beyond merely requiring doctors to obtain "informed consent" from patients. Rather, he said, it all but requires abortion opponents to affirm what the state believes to be the "benefits" of abortion, whether or not the doctor or pregnancy center performs abortions, and whether or not the pregnant woman wishes to get an abortion.
Johnston noted the state has failed repeatedly to demonstrate the speech requirements even help the state accomplish its claimed goal of protecting women's health.
“Constitutionally, to obtain the liability shield, the State can’t require medical professionals to discuss with patients what the State believes are the benefits of abortions," Johnston said.
The conflict over the changes to the Right of Conscience Act marks just one of the losses for the state in its attempt to defend legislation targeting crisis pregnancy centers.
Such centers, operated almost exclusively by abortion opponents, offer a host of services to pregnant women, including ultrasounds and counseling, in an attempt to persuade women to reject abortion and birth their babies.
In 2023, for instance, Johnston also struck down a different Illinois law which would have empowered the Attorney General's office to use the state's consumer fraud law to sue crisis pregnancy centers for spreading pro-life "misinformation" to pregnant women.
In that ruling, Johnston called that law both "stupid" and "unconstitutional," and a clear attempt by the state to weaponize the power of the state against political and ideological opponents in the service of promoting abortion statewide, a goal explicitly shared by current Gov. JB Pritzker and Illinois Attorney General Kwame Raoul.
The state abandoned defending that law and did not appeal.
The new ruling in the Right of Conscience Act case was not a total victory for abortion opponents, however.
In the decision, Judge Johnston upheld a portion of the law which requires doctors to refer women to abortion providers, if their patients decide they wish to abort their unborn child. He said those requirements are allowed because they fall under the state's ability to regulate the "conduct" of medical providers as professionals.
The judge, however, noted that abortion opponents are not limited in their ability to also continue to state their opposition to abortion and discuss what they believe to be its potential drawbacks.
"The Court understands the Plaintiffs' position that, while complying with (the law), they are required to effectively endorse a course of conduct they find morally abhorrent," the judge said.
"... But, in any event, if the Plaintiffs are unhappy with this legislation, 'the remedy to be applied is more speech.'
"When meeting the requirements of (the law), covered providers may rearticulate their stance on abortion or explain that their conduct is required by the State. Many will. (The section of the law requiring referrals) establishes a floor, not a ceiling, of information that must be provided to patients," Johnston said.
In response to the ruling, the challengers said, while they were pleased by the judge's ruling regarding compelled speech, they intended to continue to fight to overturn the entire law.
The challengers are represented by attorneys from the Thomas More Society, of Chicago, and the Alliance Defending Freedom, of Scottsdale, Arizona.
In a statement included in a release from the Thomas More Society, one of the plaintiffs in the case, Judy Cocks, executive director of 1st Way Life Center, said:
"We’re relieved that the court has permanently protected our pro-life pregnancy centers from Illinois’ attempt to force us into becoming mouthpieces for the abortion industry. To share so-called ‘benefits of abortion’ would go against the very foundation of our ministry and our First Amendment rights.
"I have yet to see what the so-called ‘benefits of abortion’ are - what I see regularly at our centers, instead, is the pain and regret that comes with abortion. At the same time, we are deeply troubled that the court’s decision upholds Illinois’ abortion referral mandate. We cannot, in good conscience, recommend or refer for abortion. That’s not who we are, and it hurts our hearts to even contemplate being mandated to do so."
Attorneys Thomas Olp and Peter Breen pledged to appeal the decision to the U.S. Seventh Circuit Court of Appeals.
"We welcome the court’s ruling striking down Illinois’ attempts to force our pro-life physicians and pregnancy centers to parrot pro-abortion talking points, in violation of their First Amendment rights - a victory we’ve fought for since this case began nearly a decade ago," Olp said in a prepared statement.
"But we are greatly concerned that the court did not fully protect conscience rights, leaving our clients forced to compromise their deepest beliefs. We look forward to continuing this fight against the state of Illinois in the Seventh Circuit.”
Breen added: "This fight is far from over."