Bill aims to protect abortion rights on the chance Roe v. Wade is overturned.
With Democrats in firm control of the Illinois General Assembly, abortion rights might seem to be safe in the state. But what would happen if the U.S. Supreme Court overturned its landmark Roe v. Wade decision, which made abortion legal across the country in 1973?
Abortion-rights supporters worry that an Illinois statute from 1975 could act as a “trigger law,” automatically banning abortions in the state.
“If Roe is overturned, … we would revert back to abortion being illegal — even some forms of birth control being illegal, the way that act is drafted,” says state Rep. Sara Feigenholtz, a Chicago Democrat. “It’s important that we strike these items from our statutes so that we can affirm that abortion should remain safe and legal in Illinois. None of this would be necessary if it were not for (President) Donald Trump’s anti-woman agenda.”
Feigenholtz introduced House Bill 40, which would repeal portions of the Illinois Abortion Law of 1975. Her bill would also allow state funding to provide abortions through health insurance for state employees, as well as the portion of Medicaid that’s funded by the Illinois government (as opposed to the federal portion of Medicaid, which does not cover abortions).
Opponents of abortion rights, mostly on the Republican side, are harshly critical of Feigenholtz’s bill, which awaits a vote by the full House of Representatives. “What this bill does, is it forces people to pay for abortions,” says Emily Troscinski, executive director of the Illinois Right to Life organization. “This is very out of touch with the national feeling on abortion and with what Illinoisans want. Not only that. It also removes the language in this law … that said that the unborn child is a person. So it’s quite shocking to us that this bill would go so far to remove that language, and turn Illinois into a culture of death.”
The public is sharply divided on the subject of abortion, as it has been ever since Roe v. Wade. Polls show support in Illinois for abortion rights is several percentage points above the national average.
In a February 2016 poll by Southern Illinois University’s Paul Simon Public Policy Institute, 36 percent of Illinoisans said abortion should be legal in all circumstances, compared with 29 percent in a nationwide Gallup poll last May. In the same polls, 44 percent in Illinois said abortion should be legal only in certain circumstances, compared with 50 percent who said that nationwide. And 15 percent of Illinoisans told the pollsters that abortion should be illegal in all circumstances — compared with 19 percent of Americans.
One point of disagreement is whether the Illinois Abortion Law of 1975 actually would function as a trigger law. Despite Feigenholtz’s assertion that the 1975 law would instantly ban abortions, Troscinski says she doesn’t believe that’s true. “Should abortion be overturned in terms of Roe v. Wade, it actually would not affect Illinois,” she says. “It would still remain legal here.”
The 1975 law, which legislators passed over a veto by Democratic Gov. Dan Walker, clearly states that Illinois intends to outlaw abortions. The law says:
If those decisions of the United States Supreme Court are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions unless necessary for the preservation of the mother’s life shall be reinstated.
But that language is just in the law’s preamble. The American Civil Liberties Union of Illinois has argued that this preamble isn’t legally binding. According to a 1991 Chicago Tribune article, the General Assembly’s Illinois Legislative Research Unit concluded the same thing: Abortions won’t become illegal in Illinois unless a new law makes them illegal.
“There’s nothing automatic about anything, but it creates serious risk,” Lorie Chaiten, director of the Women’s and Reproductive Rights Project at the ACLU of Illinois, says about the 1975 law. “Our interest is in getting rid of this language that someone could arguably use to undercut abortion rights in Illinois, were Roe to fall. That portion of House Bill 40 is an opportunity for Illinois to say, ‘We’re never going back. Abortion will be legal in Illinois regardless of what Trump does with regard to the Supreme Court and regardless of what happens on a national level.’”
In 1827, Illinois became one of the first states to pass a law against abortion. An 1867 Illinois law criminalized all “attempts to produce the miscarriage of any pregnant woman,” though it included an exception for “bona fide medical or surgical purposes.”
Abortions remained illegal in Illinois for more than a century. But in 1970, Cook County Circuit Judge George E. Dolezal ruled that the law was unconstitutional, throwing out charges against Chicago bartender Spiro Anast, who was accused of soliciting women to get abortions. “The right of a woman not to be compelled to bear a child must be considered a personal right of the most intimate and highest moment,” Dolezal said. Local prosecutors appealed another ruling by Dolezal, when he dismissed charges accusing Chicago gynecologist Harry Frey of committing illegal abortions.
In 1827, Illinois became one of the first states to pass a law against abortion.
But before that case was resolved, the U.S. Supreme Court weighed in on a different case out of Texas — Roe v. Wade. On January 22, 1973, the nation’s high court ruled 7-2 that the 14th Amendment’s due process clause protects a woman’s decision to have an abortion. During the first trimester of a pregnancy, all medical judgments about whether to have an abortion were left up to the woman and her physician. During the second trimester, states could regulate abortion procedures, but only to protect a woman’s health. And states could prohibit abortions in the third trimester, unless the abortions are necessary to preserve the woman’s health.
Two months after the ruling in Washington, the Illinois Supreme Court applied Roe v. Wade’s standards to the Illinois abortion law, declaring it was unconstitutional. The court ruled in favor of Dr. Frey and another Chicago physician, Edward J. Mirmelli, who’d been the subject of several Chicago Tribune headlines such as: “RAIDERS TRAP, ARREST DOCTOR FOR ABORTION.” The justices noted that Illinois’ abortion law was “substantially identical” to the Texas law in Roe v. Wade.
Illinois soon passed new laws bringing the state into line with Roe v. Wade. State Sen. Don Wooten, Rock Island Democrat, sponsored that legislation, saying he objected to abortion but that “we need this bill or we’ll have abortion mills,” the Tribune reported.
Outraged by Roe v. Wade, abortion opponents pushed through the Illinois Abortion Law of 1975, which declares “the longstanding policy of this State, that the unborn child is a human being from the time of conception.” And that law has stayed on the books ever since, even though abortion has been legal that entire time. (The U.S. Supreme Court’s 1992 ruling in Planned Parenthood v. Carey removed Roe v. Wade’s trimester framework, shifting to a determination of whether a fetus is viable outside the womb.)
Some 42,270 abortions were provided in Illinois in 2014, according to the Guttmacher Institute, a research and policy organization committed to advancing sexual and reproductive health and rights. Illinois had 16.3 abortions for every 1,000 women of reproductive age, a decrease from 2011, when the rate was 17. The Illinois abortion rate was higher than the national rate for 2014, which was 14.6 abortions per 1,000 women of reproductive age.
In 2014, Illinois had 40 abortion-providing facilities, including 24 clinics, Guttmacher reported. Three years earlier, there were 37 abortion-providing facilities, including 26 clinics.
Republican Donald Trump’s election as president in November raised alarms for abortion-rights supporters. During the campaign, Trump had vowed to appoint Supreme Court justices who would overturn Roe v. Wade, allowing each state to decide whether abortion should be legal. Trump has nominated a federal appellate judge, Neil Gorsuch, to replace Justice Antonin Scalia, who died last year. If the Senate confirms the conservative Gorsuch’s appointment, the court’s balance will likely be 5-4 in favor of abortion rights, just as it was before Scalia’s death. But Trump might get the chance to appoint one or more additional justices over the next four years. And that could tip the court against abortion rights.
“We have very serious concerns about the new president and his administration when it comes to access to women’s health care, including access to safe and legal abortion,” says Brigid Leahy, director of public policy for Planned Parenthood of Illinois Action. “Roe v. Wade has been the law of the land for 44 years, and it would be dangerous to women if that were overturned.”
This new sense of urgency prompted Feigenholtz to introduce her bill in Springfield. She said she was galvanized by the Women’s March on January 21, when an estimated 250,000 people demonstrated in Chicago, along with countless others in Washington and around the world, on the day after Trump’s inauguration.
“It was a clarion call for women to unite because they were shocked — and I think we continue to be shocked — at how appalling some of the policies coming from the White House are,” Feigenholtz says. “We stand with resolve, and … we are going to make sure that women move forward, not backward.”
On February 8, the Illinois House’s Human Services Committee voted 7-5 along party lines for Feigenholtz’s bill. Opponents included Rep. Sheri Jesiel, R-Winthrop Harbor. “I take great exception to the section that removes the personhood of a baby,” Jesiel said, according to The State Journal-Register. “From a financial standpoint, we’re funding it with taxpayer dollars, which at the federal level, we’ve already decided that this is inappropriate.”
Before casting her vote in favor of the bill, Rep. Kelly Cassidy, a Chicago Democrat, revealed that she’d once had an abortion. She said it preserved her fertility after a difficult pregnancy, making it possible for her to have her three sons in the following years.
“They wouldn’t be here if not for access to safe and legal abortion and appropriate insurance coverage for that abortion,” Cassidy said in the hearing. “Those three boys, who we all have watched grow up, who are my life, wouldn’t exist. I had to have that abortion to preserve my fertility.”
Cassidy told Illinois Issues that she spoke out to help women overcome a perceived stigma. “I know in my heart that everyone in the Capitol knows at least one person who has had an abortion,” she says. But, she adds, “They don’t know that they have.” Cassidy says she hopes other women hearing about her story might “feel a little less ashamed” about discussing their own experiences. “The reality is that this is something that touches more lives than people know,” she says.
Cassidy says it’s important to note that she had insurance that covered abortions. “The fact that I had enough insurance to help me make those decisions without having to weigh the cost,” she says. And now she supports Feigenholtz’s legislation, which would help more women obtain that sort of medical coverage.
But that’s one of the reasons that abortion opponents are so concerned about HB 40. “It will make Illinoisans pay for abortions through the full nine months of pregnancy, for any reason,” says Troscinski of Illinois Right to Life. “This is even when the unborn child can feel the pain of being dismembered by the abortion.”
However, Planned Parenthood’s Leahy sees the issue of funding for abortions as a matter of fairness. “We believe that a woman’s ability to make personal decisions about her pregnancy should not depend on things she cannot control,” she says. “It shouldn’t depend on her ZIP code, her lack of income, those kinds of things. It’s discriminatory to target poor women and put restrictions on their health coverage, when they really don’t have the ability to get health care in another way.”
If Feigenholtz’s bill passes the House and Senate, the question remains whether Gov. Bruce Rauner will sign it. In a February meeting with the Chicago Sun-Times’ editorial board, the Republican governor was noncommittal, saying he hadn’t studied the bill. Asked whether he supports abortion rights, Rauner said, “I have publicly said that I believe it’s a decision that’s best made by a woman and her physician,” according to the Sun-Times. The governor’s press office did not respond to an emailed question from Illinois Issues asking about his position on House Bill 40.
On another front, Planned Parenthood is fighting to keep its funding from Washington, D.C. The nonprofit now gets federal funding through Medicaid and the Title X family planning program, but none of that money is used for abortions — because of restrictions in the Hyde Amendment, which has been in place since 1976. That law was originally sponsored by Henry Hyde, a Republican congressman from suburban Chicago (who died in 2007). During the floor debate over his measure, Hyde explained, “I would certainly like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle class woman, or a poor woman. Unfortunately, the only vehicle available is the … Medicaid bill.”
Republicans are trying to take away Planned Parenthood’s funding altogether, targeting the nonprofit with a provision in their failed plan to repeal Obamacare. A House health care reform bill that would have defunded Planned Parenthood was considered earlier this month but never made it to the full House for a vote. Another attempt is always a possibility, though. Rep. John Shimkus, a Collinsville Republican, hailed this defunding proposal in a January speech.
“As a member who believes that individual, distinct life begins at conception, Planned Parenthood’s lack of remorse or even concern highlights their dark business,” Shimkus said, alluding to a secretly filmed video from 2015 that purportedly shows Planned Parenthood officials trying to illegally profit from selling aborted fetal tissue. Planned Parenthood says the video was deceptively edited, and a federal judge said there isn’t “even a scintilla of evidence” that Planned Parenthood committed wrongdoing.
“In Illinois, we serve about 60,000 patients, and … about 40 percent of our patients are on Medicaid,” Leahy says. If the GOP plan passes, she says, “our patients will no longer be able to receive those cancer screenings, the annual exam, come in to get a urinary tract infection treated — those basic things that they need. And in many circumstances, we’re the only provider that they have. Or we’re the only provider in the area that provides those types of services for low-income people. So it will mean that people will go without health care.”
Leahy notes that many women from surrounding states have abortions in Illinois, because their home states have more restrictions and fewer clinics offering the procedure.
“It becomes a daunting task for women to get what they need in the state where they live,” Leahy says. “So Illinois is this oasis in the Midwest right now. We have relatively few restrictions compared to the states around us, and that is another reason that we are feeling that this is an important time to pass House Bill 40. … I don’t want to go back to the pre-Roe days where women did have to travel or resort to something very unsafe where they live. But if that happens, we want Illinois to be a safe haven for a women.”
Illinois Issues is in-depth reporting and analysis that takes you beyond the headlines to provide a deeper understanding of our state. Illinois Issues is produced by NPR Illinois in Springfield.
