Jim Dey: High court abortion ruling is end of a long road

The relentlessly divisive issue of abortion was back in the local news this week when the Illinois Supreme Court ended a nearly 20-year-old political and legal battle by unanimously declaring a parental notification law to be constitutional.

By a 7-0 vote, the high court upheld a 1995 measure requiring the parent/s of an underage girl who is seeking an abortion to be given 48 hours advance notice of the planned procedure.

Both sides on the parental notification question reacted strongly to the court's decision.

Abortion advocate Terry Cosgrove of Personal PAC called the decision "nothing short of heartless and cruel."

"Under this law, these vulnerable and terrorized teenagers now will be required to inform their parents, many of whom are absent, that they are seeking an abortion and then to face the consequences," he said.

Abortion foe Tom Brejcha of the Thomas More Society described the decision as a "huge victory for the rights of parents not only in Illinois but in all Midwestern states."

Brejcha noted that "until now, Illinois was the only Midwest state without a parental notice or consent law in effect," the result being that Illinois had become an abortion "dumping ground."

He said the Illinois anomaly allowed "thousands of abortions to be performed in Illinois on nonresident minors who crossed state lines, often accompanied by the parents who impregnated them."

The superheated rhetoric demonstrates the depth of feeling surrounding this issue as the state stands on the precipice of enforcement of parental notification.

But left mostly unreported in stories about the high court decision are two significant aspects of the ruling:

— The disgracefully political role the Supreme Court played 17 years ago in undermining the parental notification legislation that it affirmed this week by a 7-0 vote.

— The court's ruling within a ruling this week — by a 4-3 vote — that the Illinois Constitution as well as the U.S. Constitution provides a constitutional right to abortion.

First, the politics.

When the Illinois General Assembly passed this legislation in 1995, it was required to establish a legal framework by which an underage girl seeking an abortion could ask for court authorization to bypass parental notification. That's why the legislation requested the Illinois Supreme Court to "promulgate any rules and regulations necessary to ensure that (judicial waiver) proceedings under this act are handled in an expeditious and confidential manner."

But the high court, under the late Chief Justice Michael Bilandic, effectively vetoed the legislation by refusing to do so. The result of the high court's inaction was that the notification act was rendered null and void by virtue of the absence of judicial rules governing the bypass process.

The notification act lay dormant for the next 11 years, until the Thomas More Society enlisted former DuPage County State's Attorney Joe Birkett to petition the Illinois Supreme Court to reconsider its stance and adopt the needed procedural rules.

This time the court, under then-Chief Justice Robert Thomas, agreed to issue bypass rules, and the legislation was resurrected, but only temporarily.

Abortion supporters have spent the past seven years challenging the legislation in the federal courts and, after losing there, in the state courts.

Second, the Illinois Constitution.

Although the Illinois Supreme Court unanimously upheld the constitutionality of parental notification, it split on the issue of whether the state constitution provides a right to abortion.

Justices Anne Burke, Charles Freeman, Mary Jane Theis and Rita Garman held that it does. Justices Robert Thomas, Thomas Kilbride and Lloyd Karmeier disagreed.

What both sides concluded is clear; what it means is not.

The majority concluded that the Illinois Constitution affords a constitutional right to an abortion because the state constitution's due process clause is similar to the U.S. Constitution's due process clause on which the federal right to an abortion is based. The legal principle of basing one on the other is called "limited lockstep."

"Therefore, at this time, we interpret our state due process clause to provide protections, with respect to abortion, equivalent to those provided by the federal due process clause," Justice Burke wrote.

Justice Thomas wrote a 13-page dissent "to express my disagreement with the lead opinion's conclusion that the due process clause of the Illinois Constitution contains a right to abortion" that parallels the U.S. Constitution.

Citing debate from the state convention that produced the 1970 Illinois Constitution, Thomas concluded that "the drafters specifically refused to modify our state constitution to limit the Legislature's authority to restrict abortion or prevent it outright" and instead "expressed a strong desire to leave the matter of abortion regulation to our state Legislature."

But as times change, so does policy.

Abortion was illegal in Illinois and across much of the country when the new state constitution was adopted in 1970. But in 1973, in one fell swoop, the U.S. Supreme Court struck down abortion laws in all 50 states and legalized it on a nationwide basis. People have been fighting about it ever since, not to much effect because the Roe v. Wade decision didn't leave much to legislative initiative except peripheral issues like parental notification.

But this week's Illinois Supreme Court decision raises a question — do female residents of the state now possess a second and separate right to abortion under the state as well as the federal constitution? Or would the state right disappear if the U.S. Supreme Court reverses the stance it took in Roe v. Wade?

"If that were to happen, the lead opinion's approach would simply revert the meaning of our due process clause to the pre-Roe interpretation and the matter of abortion regulation would be left for the legislative process. Although it may seem to be an academic point, then, to conclude, as I do, that the Illinois Constitution does not contain a right to abortion, it is our solemn obligation to discern and effectuate the true intent of the drafters of our state constitution on this matter," Thomas said.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or at 351-5369.

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jlc wrote on July 13, 2013 at 8:07 pm

Did I read that quote correctly? The man from the Thomas More Society thinks that girls who are "impregnated" (i.e., raped) by a family member should be forced to carry the fetus to term? That's disgusting.