Posted May 1, 2017 10:06 AM
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Bill removes trigger from abortion law, but impact unclear

Ann M. Lousin
Ann M. Lousin
Peter C. Breen
Peter C. Breen
Sara Feigenholtz
Sara Feigenholtz
By Sarah Mansur
Law Bulletin correspondent

SPRINGFIELD — One central element of an abortion bill that passed the House this week would remove language from a 1975 state law recriminalizing abortion.

But lawmakers and legal experts disagree on the significance of this phrasing in the event that the U.S. Supreme Court’s landmark decision legalizing abortion, Roe v. Wade, is overruled.

The so-called trigger language in the Illinois Abortion Law of 1975 states that if Roe is “reversed or modified … then the former policy of this [s]tate to prohibit abortions unless necessary for the preservation of the mother’s life shall be reinstated.”

Ann M. Lousin, a professor at The John Marshall Law School, said the meaning of the trigger provision is unclear, in part, because the words contained in it are ambiguous.

“It is extremely vague,” said Lousin, who helped draft the 1970 Illinois Constitution.

She said it’s not clear what ‘reversed’ or ‘modified’ were intended to mean.

House Bill 40, which passed the House 62-55 on Tuesday, would remove this section from the 1975 abortion law.

Proponents of HB 40, including the bill’s sponsor Sara Feigenholtz, want to eliminate the trigger provision in case Roe is reversed by the U.S. Supreme Court — a possibility that some Democrats think could happen if the high court makes a shift further to the right with additional Trump nominees.

But, during the floor debate on HB 40, Rep. Peter C. Breen argued the trigger provision could not reinstate stricter, repealed abortion laws in Illinois if Roe is overruled.

Citing a 1989 Legislative Research Unit study, Breen said the Illinois General Assembly would have to pass an entirely new law in order to recriminalize abortion.

“This business that there is somehow a risk of Illinois abortion law changing when Roe v. Wade is overturned in the next few years is false,” said Breen, a Lombard Republican who outside of his state role serves as special counsel to the Thomas More Society, a pro-life conservative public-interest law firm. “There is no one who practices in this area who actually seriously believes that.”

Though the 1975 abortion law was later repealed in 1980, Lousin said including this trigger provision was a dangerous thing to do.

“This is a back-door way of doing this, and it is guaranteed to produce litigation and confusion,” she said.

When the 1975 abortion law was introduced in the state Senate more than 40 years ago, the sponsor was Sen. Robert J. Egan, a Northwest Side Democrat who would later become a Cook County circuit judge.

The 1975 law intended to impose stricter regulations on abortions and replace a 1973 abortion law enacted after Roe.

Unlike the 1973 version, the 1975 law required married women to seek written consent of their husbands before having an abortion not deemed medically necessary.

A single woman under age 18 also had to receive written consent from her parents in order to obtain an abortion that was not medically necessary. The law also imposed criminal penalties for doctors that intentionally failed to inform women seeking abortion about the “physical competency” of the fetus.

Lousin said the 1975 abortion law was simply a way for legislators to placate constituents in the aftermath of Roe.

“This was an attempt to deal with certain parts of their constituencies,” she said. “A lot of these people had pro-life constituencies.”

The discussion in 1975 on the abortion bill was no less contentious than the floor debate about HB 40 this week.

But when the bill was debated in 1975, lawmakers did not discuss the trigger language contained in the statement of legislative intent.

Critics of this legislation were more concerned about passing an abortion bill in 1975 without first repealing the 1973 abortion law.

Former Rep. Joseph R. Lundy, an Evanston Democrat, criticized the idea of having two conflicting abortion laws in place.

“Either we ought to have the present law in the books or we ought to have this law in the books … but you can’t have on the statute books, simultaneously, two laws which permit and prohibit under criminal penalty the same conduct. That’s absolutely idiotic,” Lundy, a former lawyer with Schiff Hardin, said during the House debate, according to the 1975 transcript.

In addressing this concern, Egan said this could be remedied by following the common-law practice that exists for dealing with a conflict among multiple state laws.

“Every law student in Illinois knows that where there are conflicting laws on the books, the latter passed is that which prevails,” Egan said during the 1975 Senate debate.

Despite these assurances, some legislators — like former Rep. Jesse Madison of Chicago — expressed doubts and foresaw potential constitutional challenges:

“[M]y only comment would be, particularly to those who consider themselves constitutional lawyers, I hope you know what the hell you’re doing.”

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