Seven years after passage, Illinois’ first in string of recent abortion protections gets day in court

ROCKFORD — In 2016, before Donald Trump’s presidency paved the way for the eventual overturning of Roe v. Wade, Democrats in Illinois passed what would become the first in a series of laws shoring up reproductive rights in the state.

That law altered Illinois’ 1970s-era Health Care Right of Conscience Act – a statute passed in the wake of the Roe decision to shield health care providers from liability if they have religious objections to abortion. The change stipulated that, if requested by the patient, providers who don’t perform abortions must refer, transfer to or give patients written information about providers who do.

But the law has been in legal limbo since 2017 when a federal judge put it on hold. Amid the drawn-out litigation, Illinois Democrats have since passed several more sweeping abortion protections that have all but erased the 2016 law from the political discourse.

That could change after a federal judge in Rockford last week heard a three-day bench trial over the law, which gave a peek behind the curtain at “crisis pregnancy centers,” a type of limited services medical facility – usually religiously affiliated – aimed at diverting women from having abortions. The CPCs that sued over the law offer free pregnancy tests and ultrasounds, along with counseling and material help for would-be mothers. But abortion rights activists call CPCs “fake clinics” that lure women in for the sole purpose of convincing them not to terminate their pregnancies.

U.S. District Judge Iain Johnston, a Trump appointee, heard more than 20 hours of arguments and testimony in the case last week, though it could be weeks or months until he issues a ruling.  Johnston is also overseeing a challenge to a 2023 law that subjects crisis pregnancy centers to liability under Illinois’ longstanding Consumer Fraud and Deceptive Business Practices Act – a law he called “both stupid and very likely unconstitutional” in a preliminary injunction he issued in early August.

The legal questions raised by the two cases are distinct and the landscape of abortion access in the U.S. changed dramatically in the seven years between the two laws’ passage. But arguments made during last week’s trial have resonance in the fight over the 2023 law and beyond.

First Amendment or ‘Rokita standard?’

When Illinois Democrats passed the 2016 law, its sponsors’ rhetoric was focused not on crisis pregnancy centers, but Catholic hospitals, which do not provide elective abortions and often bar doctors from prescribing contraceptives and sterilization.

In extreme cases, like to save the life of the mother, Catholic hospitals may terminate a pregnancy, but sponsors pointed to the story of a woman who was made to wait five weeks during her prolonged miscarriage until she was bleeding enough to justify the procedure. Then, as now, roughly 30 percent of hospital beds in Illinois are in Catholic-affiliated institutions.

But negotiations over the bill in 2015 and 2016 were able to neutralize opposition from influential organizations like the Illinois Catholic Hospital Association and the Catholic Conference of Illinois, and arguments against the bill evolved to prioritize the First Amendment concerns of CPCs. During debates over the bill in the House and Senate, Republican opponents warned the law would violate both the facilities’ rights to free speech and religious liberties.

Those comments turned out to be a preview of the legal battle over the Health Care Right of Conscience Act’s amendment; last week’s trial involved no plaintiffs associated with Catholic hospitals. Instead, plaintiffs are a handful of CPCs in Illinois, one doctor who volunteers as a medical director for a CPC, and the National Institute of Family and Life Advocates, a Virginia-based nonprofit that offers resources, training and legal advice to CPCs across the U.S. Out of the roughly 100 CPCs in Illinois, 81 are members of NIFLA’s network.

The facilities – which, according to Chicago public radio station WBEZ-FM, outnumber actual abortion clinics 3-to-1 in Illinois – often advertise services like ultrasounds and pregnancy tests, and even material help like diapers, baby formula, clothing and parenting classes.

Kevin Theriot, an attorney for the Arizona-based conservative legal organization Alliance Defending Freedom, told Judge Johnston in his opening statements that the law would force crisis pregnancy centers to inform clients of “unspecified benefits” of abortion, “even if it makes centers complicit in what (they) believe is morally wrong.” That, Theriot argued, was a violation of the CPCs’ First Amendment rights.

The First Amendment argument was a winner in 2018 when the U.S. Supreme Court’s conservative majority sided with NIFLA’s objections to a California law that targeted CPCs.

That regulation required state-licensed CPCs to inform clients that the state offers subsidized programs for family planning services – including abortion and contraception. The law also required unlicensed centers to disclose that they were not licensed to perform medical services.

Unlike California, Illinois does not license either abortion clinics or CPCs, and Illinois’ 2016 law did not target the facilities in the same way California’s did. Even so, the litigation over Illinois’ law was put on pause for roughly six months as SCOTUS weighed the California case, given their similarities.

But lawyers for Attorney General Kwame Raoul’s office argued crisis pregnancy centers don’t have the right to claim carte blanche coverage under the First Amendment while also seeking a liability shield from medical malpractice claims under the state’s Health Care Right of Conscience Act.

“Plaintiffs cannot hide behind the First Amendment to avoid regulation of their professional conduct,” Elizabeth Morris, a lawyer for the attorney general’s office, said during her closing arguments.

Instead of viewing Illinois’ law through a pure free speech lens, the state is urging Judge Johnston to consider a standard set in a November 2022 opinion from the Seventh Circuit Court of Appeals in Doe v. Rokita.

The appellate court in that case reinstated Indiana’s law requiring health care providers to dispose of embryonic tissue or fetal remains – whether from abortion or miscarriage – as they would a deceased person: either via burial or cremation. Critics claim the law essentially forces patients to accept the state’s view of fetal personhood.

But in the final paragraphs of the opinion, the panel stipulated that the overturning of Roe v. Wade – paving the way for Indiana’s near-total ban on abortion this year – did not affect the right of governments to “require physicians…to provide accurate information to their clients.”

‘Standard of care’ 

Providing accurate information to patients, the state argued during the trial, is tantamount to the medical ethics principle of “informed consent.” The state’s case hinges on a theory of informed consent adopted by influential organizations in the world of western medicine like the American Medical Association and the American College of Obstetrics and Gynecology.

According to this theory, informed consent requires physicians to inform a patient about all relevant options for treatment – including those to which a doctor may have a moral objection.

The state then argued that when medical professionals decline to discuss all options for treatment, they fall short of meeting a “standard of care.” Standards of care are tough to nail down and vary slightly from one medical specialty to another. But in general, a standard of care is the benchmark that determines whether a clinician has met his or her professional obligations to patients. Negligence is the failure to meet a standard of care.

“As soon as (CPCs) began offering medical services, they began to owe a duty of care to their patients,” Sarah Gallo, a lawyer for the attorney general’s office, said in her opening statements.

The state brought in just one expert witness: Dr. Paul Burcher, the residency program director and an OB-GYN at WellSpan York Hospital in Pennsylvania and head of the hospital system’s bioethics committee. Burcher, a practicing Catholic who does not perform abortions for that reason, contended that only discussing the risks of abortion with a patient would be a violation of the standard of care.

“(It’s) poisoning the well for a later encounter where someone presents a more balanced (counseling),” he testified.

The CPC-affiliated plaintiffs who testified acknowledged that staff at their facilities only discuss risks and harms of abortion with clients. Some scoffed when the state’s attorneys asked about discussing the “benefits” of abortion.

“We don’t believe abortions have any benefits,” Kathleen Lesnoff, the founder, president and CEO of Mosaic Pregnancy and Health Centers based in the Metro East, said on the witness stand. “Basically, we would have to lie to (clients) to tell them there are benefits, and we would never do that.”

Lesnoff testified that she both had an abortion and briefly worked at an abortion clinic as a young adult, shaping her anti-abortion views.

Evidence shown at trial included pamphlets distributed by the CPC plaintiffs, some of which warned of infection or surgical complications – though those are risks inherent to any medical procedure – and increased incidences of breast cancer, particularly in Black women, a thoroughly debunked claim.

‘Limited medical services’

In their arguments, lawyers for the CPCs emphasized that the facilities provide only “limited medical services,” and are not practicing prenatal care.

At Focus Women’s Center in McHenry, for example, executive director Judy Cocks testified that the ultrasounds given to women who consent to them after a positive pregnancy test are meant to help determine three things: the estimated gestational age of the fetus, the viability of a pregnancy and whether a fertilized egg is growing normally in the uterus or outside of it – a life-threatening condition called ectopic pregnancy.

“Well, we’re not doing any diagnosing with it,” Cocks said of the limited ultrasound. “It’s a great tool for a woman to be able to see her baby and also to hear the heartbeat of the child.”

On the witness stand, plaintiffs and their attorneys did not shy away from the assertion that CPCs use the ultrasound scan to convince so-called “abortion-vulnerable” or “abortion-determined” women not to terminate their pregnancies.

Cocks, who is also a plaintiff in the litigation over Illinois’ recent CPC fraud law, said the nurses who work at Focus are only providing “generally available” medical information to clients, and actually “can’t” give medical advice.

For the most part, the plaintiffs in the case offer urine pregnancy tests, “limited” ultrasounds, and in some cases, limited STD testing and treatment, all free of charge. One CPC leader testified that her facilities offer “abortion pill reversal,” which is essentially the experimental administration of high levels of the hormone progesterone to undo the effects of the first drug in the two-pill regimen referred to as a “medication abortion” – an increasingly common method of terminating pregnancies in the first trimester.

Some CPC-affiliated plaintiffs who testified during last week’s trial said their facilities began as charity resource organizations, but as technologies like ultrasound machines began getting better and cheaper, they were able to expand their operations.

Most CPCs that use ultrasound machines and lab testing equipment have also hired full-or part-time licensed nurses and techs, moving away from an all-volunteer staff model. The seven CPC-affiliated witnesses all said their facilities also have volunteer medical directors – licensed OB-GYNs who can review ultrasound photos, but generally don’t ever actually see patients.

Plaintiffs testified that after receiving the limited medical services like a pregnancy test or ultrasound, CPC clients are told to go to an OB-GYN to confirm their pregnancy and receive prenatal treatment, often signing a medical release form before leaving the facility.

But the state rejected the CPCs’ secondary arguments that they are exempt from state regulations because they only provide “limited” medical services.

In closing arguments, Morris, of the attorney general’s office, echoed Burcher’s testimony that what goes on during a visit to a CPC – “There’s a history taken, there’s a procedure performed and then counseling occurs” – constitutes a medical visit, automatically invoking a standard of care.

“No one forced plaintiffs to start offering (medical services and counseling),” Morris said. “They chose to hold themselves out to their communities as medical centers.”

And in doing so, she said, CPCs also must accept the responsibilities inherent to running a medical center.