ANTI-CHOICE LAWS
Abortion Ban
AFTER 12 WEEKS
Illinois' unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks. 720 Ill. Comp. Stat. Ann. 513/1, 513/5, 513/10, 513/20, 513/99 (Enacted 1997).
A court held that Illinois' ban is unconstitutional because it lacks an exception to protect women's health and unduly burdens the right of a woman to choose an abortion. The court issued a permanent injunction prohibiting the law's enforcement. Hope Clinic v. Ryan, 249 F.3d 603 (7th Cir. 2001). The U.S. Supreme Court previously held that a similar ban that lacks an exception to protect a woman's health and that bans more than one procedure is unconstitutional. Stenberg v. Carhart, 530 U.S. 914 (2000).
Illinois' unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a felony, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical illness, or physical injury, including a life-endangering condition caused by or arising from the pregnancy itself, and no other medical procedure will suffice. 720 Ill. Comp. Stat. Ann. 513/1, 513/5, 513/10, 513/20, 513/99 (Enacted 1997).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure. Click here to read more about the Federal Abortion Ban.
Counseling Ban/Gag Rule
Grants provided by the Department of Health Services to nonprofit agencies and organizations under the "Problem Pregnancy Health Services and Care Act," which is designed "to expand and improve the availability of, and access to, needed comprehensive community services which assist problem pregnancies and to obtain proper care and assistance to those persons in need," may not be used to refer or counsel for abortion. 410 Ill. Comp. Stat. Ann. 230/1-100 (Enacted 1979; Last Amended 1991), 2-100 (Enacted 1979), 3-101 (Enacted 1979; Last Amended 1997), 4-100 (Enacted 1979; Last Amended 1984); Ill. Admin. Code tit. 77, § 655.10.
A court held that a previous version of this law that prevented organizations that referred or counseled for abortion from receiving state problem-pregnancy funds was unconstitutional. In addition, the court held that the previous version's counseling restriction unconstitutionally "manipulate[d] the information available to pregnant women." Planned Parenthood Ass'n-Chicago Area v. Kempiners, 568 F.Supp. 1490 (N.D. Ill. 1983).
Insurance Prohibition for Abortion
Funds paid by the state for group health insurance and health maintenance organization (HMO) plans for its employees may not be used to pay for an abortion unless necessary to preserve the woman's life. 5 Ill. Comp. Stat. Ann. 375/6 (Original Statute Enacted 1971; Relevant Provision Enacted 1978; Last Amended 2003); 5 Ill. Comp. Stat. Ann. 375/6.1 (Original Statute Enacted 1976; Relevant Provision Enacted 1983).
Other Anti-Choice Law
Illinois has created additional threats to privacy and choice by adding anti-choice language to its state code to express its opposition to abortion and its intent to restrict the right to choose to the greatest extent possible.
The General Assembly "solemnly declare[s] and find[s] in reaffirmation of the longstanding policy of this State, that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child's right to life and is entitled to the right to life from conception under the laws and Constitution of this State. . . . [I]f those [abortion-related] 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." 720 Ill. Comp. Stat. Ann. § 510/1 (Enacted 1975; Last Amended 1979). Since Illinois' pre-Roe abortion ban has been repealed, additional legislation would likely be required to actually reinstate the ban.
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
Illinois allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Physicians, health care facilities, or employees thereof.
What does the refusal clause allow? No physician, health care facility, or employee thereof, objecting in writing on grounds of conscience, may be required to participate in an abortion. The refusal of a person to perform, counsel, refer, or participate in abortion may not be a basis for civil or criminal liability or for discrimination, including in employment, education, and the granting of public aid or benefits.
No employer, training institution, or other entity may refer in its application form to or orally question an applicant about refusal to participate. The refusal of a health care facility to permit, perform, counsel, refer, or participate in abortion, contrary to the facility's conscience as recorded in its governing documents, may not be a basis for civil or criminal liability or for discrimination, including in the granting of licenses, authorizations, aid, and benefits.
The refusal of an HMO, insurance company, or other health care payer to pay for abortion, contrary to the payer's conscience as recorded in its governing documents, may not be a basis for civil or criminal liability or for discrimination, including in the granting of licenses, authorizations, aid, and benefits.
Any person, association, corporation, entity, or health care facility injured by violation of these provisions may bring a claim for treble damages, and in no case for less than a specified amount for each violation, costs, and attorneys' fees. If a person, institution, or official has entered into a contract specifically to provide abortion-related services or has accepted federal or state funds for the sole purpose of permitting or providing abortion-related services, this conscience-based exemption shall not apply.
Illinois' refusal clause law does not relieve physicians or other medical personnel from legal obligations to provide emergency care.
Must the refusal be in writing? Yes.
Does the law require the refusing individual or entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
745 Ill. Comp. Stat. Ann. 70/1 to 11 (Enacted 1977; Last Amended 1998); 745 Ill. Comp. Stat. Ann. 70/11.2 to 11.4 (Enacted 1998); 745 Ill. Comp. Stat. Ann. 70/12 to 14 (Enacted 1977; Last Amended 1998); 745 Ill. Comp. Stat. Ann. 30/1 (Enacted 1973); 720 Ill. Comp. Stat. Ann. 510/13 (Enacted 1975).
HEALTH CARE PROVIDER AND HEALTH CARE INSTITUTION REFUSAL CLAUSES
Illinois allows certain individuals or entities to refuse to comply with individual health care instructions or decisions based on conscience.
To whom does the refusal clause apply? Health care providers and health care institutions.
What does the refusal clause allow? No physicians or health care personnel may be found civilly or criminally liable for refusing to perform, assist, counsel, suggest, recommend, refer, or participate in a health care service for reasons of conscience. No person, association, or corporation that owns, operates, supervises, or manages a health care facility may be found civilly or criminally liable for refusing to permit or provide a health service that violates the facility's governing documents. No health care payer may be found civilly or criminally liable for refusing to pay or arrange for payment of a health care service for reasons of conscience.
It is unlawful to discriminate against a health care provider, or person, association, or corporation that owns, operates, supervises, or manages a health care facility, or health care payer for refusing to permit or provide a health service.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for the requested health service? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
745 Ill. Comp. Stat. Ann. 70/1 to 11 (Enacted 1977; Last Amended 1998); 745 Ill. Comp. Stat. Ann. 70/11.2 to 11.4 (Enacted 1998); 745 Ill. Comp. Stat. Ann. 70/12 to 14 (Enacted 1977; Last Amended 1998).
Restrictions on Young Women's Access to Abortion
Illinois law restricts young women's access to abortion.
Is the law enforceable? Yes. On July 15, 2009 a three-judge panel of the U.S. Court of Appeals for the 7th circuit lifted an injunction blocking the enforcement of Illinois Parental Notice of Abortion Act of 1995 that requires parental notification 48 hours before minors can receive abortion care. The Illinois General Assembly originally passed the law in 1984 and revised it in 1995. A federal court held that the law was unenforceable because the Illinois Supreme Court had previously refused to promulgate rules concerning the judicial waiver procedure. Zbaraz v. Ryan, No. 84 C 771 (N.D. Ill. Feb. 8, 1996). In September 2006, the Illinois Supreme Court adopted a new rule creating a judicial bypass procedure; however in February 2008, the court declined to lift the permanent injunction and found the law unconstitutional. Ill. Sup. Ct. R. 303A; Zbaraz v. Madigan, No. 84 C 771, slip op. (N.D. Ill. Feb. 28, 2008), appeal docketed, No. 08-1620 (7th Cir. Mar. 14, 2008); Illinois Parental Notice of Abortion Act §750 ILCS 70/1.
Who is considered a minor? A young woman under the age of 18 who has never been married and is not emancipated under state law.
What is required - parental consent or parental notice? Notice.
Who must be notified? One parent.
Are there other trusted adults who may be notified instead? Yes, the physician may notify a grandparent or legal guardian, or a step-parent living in the house, provided that person is over 21 years of age.
What is the process for providing notification? A young woman may not obtain an abortion until at least 48 hours actual notice has been given in person or by telephone to a parent, grandparent, or step-parent living in the household. If actual notice is not possible after a reasonable effort, 48-hour constructive notice by certified mail must be given. If notice is given by certified mail, the 48-hour period begins to run at the time of the mailing. Parental notice is not required if the pregnant woman is accompanied by a parent, grandparent or step-parent, or if notice is waived in writing by the person entitled to notice.
May the parental mandate be waived if a young woman is a victim of rape or incest? Yes, if the young woman declares in writing that she is a victim of sexual abuse by a parent, grandparent, or step-parent.
May the parental mandate be waived if a young woman is a victim of child abuse? Yes, if the young woman declares in writing that she is a victim of physical abuse or neglect by a parent, grandparent, or step-parent.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if the attending physician certifies that a medical emergency exists. A medical emergency is defined as a medical condition of the pregnant woman that necessitates an immediate abortion to preserve her life or for which a delay will create "serious risk of substantial and irreversible impairment of major bodily function."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating either that she is sufficiently mature and well informed enough to make her own decision or that notice is not in her best interests.
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? Yes. In 1996, the Illinois district court issued a permanent injunction prohibiting enforcement of the state's parental notification law because of deficiencies in the judicial bypass procedure, but did not reach any constitutional issues. Zbaraz v. Ryan, No. 84 C 771 (N.D. Ill. Feb. 8, 1996). Upon review in 2008, however, the Illinois district court found the statute unconstitutional on its face because it lacks language that would permit a state court to authorize the consent for abortion. On July 15, 2009, the 7th circuit court said that the measure was "a permissible attempt to help a young woman make an informed choice about whether to have an abortion." Zbaraz v. Madigan, No. 84 C 771, slip op. (N.D. Ill. Feb. 28, 2008), appeal docketed, No. 08-1620 (7th Cir. July 15, 2008).
Other information about the law: None.
750 Ill. Comp. Stat. Ann. 70/1, 5, 10, 15, 20, 25, 30, 35, 40, 45, 50 (Enacted 1995).
Spousal Consent
The U.S. Supreme Court held that requiring a woman to obtain her husband's consent prior to an abortion is unconstitutional. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 67-72 (1976). Yet, Illinois has not repealed its unconstitutional and therefore unenforceable law that provides: "In any case when a married woman wishes to have an abortion performed upon her, and her spouse, who is the father of the unborn child, is opposed to the performance of that abortion, a court may hear testimony from both parties and balance the rights and interests of those parties. When the interests of the husband in preventing the abortion outweigh those of the wife in having an abortion performed after the unborn child is viable, the court may issue an injunction against the performance of the abortion but only where the court makes a finding that the mother's life or physical health are not in danger." 735 Ill. Comp. Stat. Ann. 5/11-107.1 (Enacted 1985).
Targeted Regulation of Abortion Providers (TRAP)
Illinois imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:
Restrictions on Where Abortions May Be Performed
Illinois places medically unnecessary restrictions on where abortions may be performed.
Outpatient abortion clinics are a subcategory of ambulatory surgical treatment centers. They are required to be licensed, are regulated by the state, and are limited to performing abortions up to 18 weeks. Ill. Admin. Code tit. 77, § 205.710.
The state designated "any facility in which a medical or surgical procedure is utilized to terminate a pregnancy, irrespective of whether the facility is devoted primarily to this purpose" as an ambulatory surgical treatment center, subject to a variety of stringent requirements. Other non-abortion-related facilities were only required to become licensed as ambulatory surgical treatment centers if they were "devoted primarily" to the performance of surgery. 210 Ill. Comp. Stat. Ann. §5/3(A) (Enacted 1973; Last Amended 1994).
When Illinois tried to single out abortion providers for more onerous restrictions not imposed on other medical providers, a federal court held the regulations unenforceable. Ragsdale v. Turnock, 625 F. Supp 1212 (N.D. Ill. 1985).
The regulations required providers who performed any abortions to become surgical centers, which were the "'functional equivalent of small hospitals.'" Ragsdale v. Turnock, 734 F. Supp. 1457, 1460 (N.D. Ill. 1990) (quoting Ragsdale v. Turnock, 625 F.Supp. 1212, 1216 (N.D. Ill. 1985). After a court held that the regulatory scheme "infring[ed] on the constitutional right of women to have an abortion," the parties settled the case with an agreement that enjoined enforcement of the more onerous provisions but permitted the state to continue to regulate outpatient abortion clinics in ways that are not medically justified.
Restrictions on Who May Perform Abortions
Illinois prohibits certain qualified health care professionals from performing abortions.
Only a physician licensed by the state may perform an abortion. 720 Ill. Comp. Stat. Ann. 510/3.1 (Enacted 1979; Last Amended 1989), 720 Ill. Comp. Stat. Ann. 510/2(2) (Enacted 1975; Last Amended 1988). In addition, any corporation operating as an ambulatory surgical center devoted primarily to providing facilities for abortion must have a licensed physician who is actively engaged in the practice of medicine at the center and on the Board of Directors for the corporation. Ill. Admin. Code tit. 77, § 205.118(d).
A court upheld Illinois' physician-only requirement as applied to a chiropractor. People v. White, 387 N.E.2d 728 (Ill. App. Ct. 1978), cert. denied, 444 U.S. 1090 (1980).
PRO-CHOICE LAWS
Contraceptive Equity
Illinois law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception.
What is required? If a health insurance plan provides coverage for outpatient prescription drugs or devices and outpatient services, it must provide coverage for all Food and Drug Administration-approved outpatient contraceptive drugs and devices and outpatient contraceptive services.
To which insurance plans does the law apply? Individual and group health insurance policies, including health maintenance organization policies, issued or renewed after January 1, 2004 that provide coverage for outpatient prescription drugs or devices and outpatient services.
Does the law provide additional protections for women? Yes. An insurer may not impose any deductible, coinsurance, waiting period, or other cost-sharing or limitation that is greater than that required for any outpatient service or prescription drug or device otherwise covered by the policy.
Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage? No.
215 Ill. Comp. Stat. Ann. 5/356z.4 (Enacted 2003); 215 Ill. Comp. Stat. Ann. 125/5-3 (Enacted 2003).
Emergency Contraception
EMERGENCY CONTRACEPTION (EC) FOR SEXUAL ASSAULT VICTIMS
Illinois law ensures that sexual assault victims receive information about emergency contraception (EC) in hospital emergency rooms. Hospitals providing emergency services to sexual assault victims must develop a protocol that ensures that victims will receive medically and factually accurate written and oral information about EC, the indications, counter-indications, and risks associated with EC, and a description of how and when victims can obtain EC upon written order of a licensed physician.
The Illinois Department of Health must approve all protocols for providing information about EC. The protocol must require that information about EC be provided to the victim as soon as possible, and no later than 12 hours after the sexual assault victim appears at the hospital for emergency care. Sexual assault victims must also be referred to a physician for appropriate follow-up care.
410 Ill. Comp. Stat 70/2.2 (Enacted 2001); Ill. Admin. Code tit. 77, 545.20, -.35, -.60, -.95 (Effective Jan. 15, 2003).
MEDICAID COVERAGE OF EMERGENCY CONTRACEPTION (EC)
Illinois provides Medicaid coverage of emergency contraception without a prescription.
NARAL Pro-Choice America Survey of State Medicaid Offices
Guaranteed Access to Prescriptions
Illinois law guarantees that women's birth control prescriptions will be filled. Upon receipt of a valid and lawful prescription for contraception, a pharmacy must dispense the contraceptive or a suitable alternative without delay. If the pharmacy does not have the contraceptive or a suitable alternative in stock, the pharmacy must obtain the contraceptive under its standard procedures for ordering contraceptive drugs. In the alternative, a patient may choose to have the prescription transferred to a different pharmacy or have the prescription returned to her.
All pharmacies are required to prominently display a notice for women and other consumers that explains their right to prescription contraceptives without hassles, lectures, or delay. The notice must be clearly visible from the area at which the pharmacy takes prescriptions and must include information about how to file a complaint with the Department of Financial and Professional Regulation in the event of a violation.
Nothing under Illinois law interferes with a pharmacist screening for potential drug therapy problems, including contraindications, drug interactions, and incorrect drug dosage or duration of drug treatment.
This law has been challenged in court. Menges v. Blagojevich, No. 3:05-CV-O3307-JES-BGC (C.D. Ill. filed Dec. 21, 2005); Morr-Fitz, Inc. v. Blagojevich, No. 104692 (Ill. filed May 23, 2007); Vandersand v. Wal-Mart, No. 3:06-CV-03292-JES-DGB (C.D. Ill. filed Dec. 11, 2006).
Parties reached a settlement agreement in the Menges and Vandersand cases. The Meneges settlement agreement provides for an amendment to the law that would allow pharmacies to work by electronic communication with an off-site pharmacist to process the request if an individual pharmacist objects to dispensing the medication and no other pharmacist is available on-site. Women would still receive the medication on-site, if the medication is in stock.
On December 18, 2008, the Supreme Court of Illinois reversed the lower courts' dismissal of the pharmacists' complaint in the Morr-Fitz case, sending the case back to the lower courts without ruling on the merits of the regulation. Morr-Fitz, Inc. v. Blgojevich, No. 104692 (Ill. 12/18/08). On April 3, 2009, a county circuit court judge issued a temporary restraining order against the statute as it applies to the pharmacies who are parties to the Morr-Fitz, Inc. v. Blagojevich suit, until the judge hears the pharmacists' objections. Morr-Fitz, Inc. v. Blagojevich, No. 05CH495 (Ill. 04/03/09).
Ill. Admin. Code tit. 68, § 1330.91 (Enacted 2006; Last Amended 2008).
Low-Income Women's Access to Abortion
Illinois allows women eligible for state medical assistance for general health care to obtain public funds for abortion: (1) in the professional judgment of a licensed physician, the life of the woman would be endangered if the fetus were carried to term; (2) the pregnancy is the result of rape or incest; or (3) to protect the woman's health. Ill. Dep't of Pub. Aid, Medical Assistance Program, Handbook for Physicians, ch. 200, § A-210.51 (Apr. 2001), at http://www.hfs.illinois.gov/assets/101006_physician.pdf.
The abortion payment application form further defines the life exception as an abortion necessary to preserve the life of a woman endangered by a physical disorder, injury, or illness, including a life-endangering physical condition caused by or arising from the pregnancy itself. Ill. Dept. of Pub. Aid, Medical Assistance Program, Handbook for Physicians, ch. 200, Appendix A-4a: Abortion Payment Application (Feb. 2001), at http://www.hfs.illinois.gov/assets/101006_physician.pdf.
Unconstitutional and unenforceable statutes provide that a woman eligible for state medical assistance may not obtain public funds to pay for an abortion unless the procedure is necessary to preserve her life or the life of her unborn child. 305 Ill. Comp. Stat. Ann. 5/5-5 (Original Statute Enacted 1967; Relevant Provision Enacted 1977; Last Amended 2004), 5/6-1 (Original Statute Enacted 1967; Relevant Provision Enacted 1977; Last Amended 2002).
A court held that these laws violate the Illinois Constitution and has issued an order prohibiting their enforcement to the extent that they bar funding for an abortion necessary to preserve the woman's health. Doe v. Wright, No. 91 CH 1958 (Ill. Cir. Ct. Dec. 2, 1994).
In addition, a court held that these laws conflict with federal law prohibiting participating states from excluding abortion from the Medicaid program in cases of rape or incest as well as life endangerment, and has issued an injunction prohibiting its enforcement to the extent that it conflicts with federal law. Planned Parenthood v. Wright, No. 94 C 6886 (N.D. Ill. Dec. 6, 1994). See also Williams v. Zbaraz, 448 U.S. 358 (1980) (holding that Medicaid does not require a state to pay for medically necessary abortions that are not covered by federal law and that state law does not violate the Equal Protection Clause of the U.S. Constitution).
Low-Income Women's Access to Family Planning
Illinois provides increased access to reproductive health care services through a Section 1115 family planning waiver. The waiver allows the state to cover family planning services for women ages 19 to 44 who would otherwise lose eligibility for Medicaid after 60 days postpartum and for women with incomes up to 200 % of the federal poverty level who are not otherwise eligible for state and federal health care programs.
Beneficiaries of family planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: family planning office visits; laboratory visits for family planning, education and counseling; FDA-approved contraceptives, certain over the counter contraceptives, diaphragms, contraceptive injectables, contraceptive implants and sterilizations.
The waiver will expire on Mar. 31, 2009; state officials intend to submit a renewal application.
Ill. Family Planning Demonstration Fact Sheet, Ctrs. for Medicare and Medicaid Servs. at http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/MWDL/itemdetail.asp?filterType=none&filterByDID=-99&sortByDID=2&sortOrder=ascending&itemID=CMS028623&intNumPerPage=2000 (last visited Dec. 5, 2008);
NARAL Pro-Choice America Survey of State Medicaid Offices
State Constitutional Protection
A state court held that the Illinois Constitution protects the right to reproductive choice to a greater extent than the federal Constitution. The court held that a law prohibiting state medical assistance for an abortion when necessary to protect a woman's health is unconstitutional under the state constitution when state funding is available for an abortion when necessary to preserve her life. Doe v. Wright, No. 91 CH 1958 (Ill. Cir. Ct. 1994). This restriction has been upheld by the U.S. Supreme Court under the federal Constitution. Williams v. Zbaraz, 448 U.S. 358 (1980).
OTHER LAWS
Post-Viability Abortion Restriction
Illinois' post-viability restriction states that no abortion may be provided after viability unless necessary to preserve the woman's life or health. The physician must use the available method most likely to preserve the life and health of the fetus, and a second physician must attend. 720 Ill. Comp. Stat. Ann. 510/5 (Enacted 1975; Last Amended 1984), 510/6 (Enacted 1975; Last Amended 1985).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions, such as Illinois', that contain adequate exceptions to protect the woman's life and health.
