A group of pro-life doctors and pregnancy help centers in Illinois was granted temporary relief on December 20 from the conscience-compromising aspects of an amended state law that took effect on January 1.
The plaintiffs—including Pregnancy Care Center of Rockford, Aid for Women, and Dr. Anthony Caruso—challenged the law in Illinois circuit court on August 5, 2016. They asserted that the changes to the law in question forced them to choose between referring patients for abortions, transferring patients to abortion providers, or giving patients a list of providers who perform abortions if they refuse to perform abortions themselves.
The statute, known as SB 1564, was signed by Illinois Governor Bruce Rauner on July 29, 2016, and amended the existing Illinois Healthcare Right of Conscience Act (Conscience Act), which became law in 1998.
The Conscience Act as amended states in part that “a health care facility, or any physician or health care personnel working in the facility, may refuse to permit, perform, assist in, counsel about, suggest, recommend, refer for, or participate in health care services because of a conscience-based objection only if the refusal occurs in accordance with written access to care and information protocols designed to ensure that (1) the patient receives material information in a timely fashion; and (2) the refusal will not impair the patient’s health by causing delay of or inability to access the refused health care service.”
In the context of the issue lurking beneath the surface of this lawsuit—abortion—this language means that pro-life doctors or employees at pregnancy help centers cannot refuse to participate in or counsel about abortion unless they provide patients with information about where they can obtain an abortion or refer patients to an abortion provider.
The Conscience Act functions as a shield that health-care providers can employ against being forced to participate in procedures that violate their consciences. But SB 1564 employs as a precondition for invoking its protection certain requirements to provide information and referral assistance with respect to patients’ legal treatment options—including abortion.
Winnebago County Circuit Judge Eugene Doherty emphasized in his opinion that the issue in the case “is whether the State may compel Plaintiffs to speak a message to which they object.”
Because the pro-life groups raised a “fair question” as to whether the amended law infringes on their free speech rights under the Illinois constitution, the court granted them preliminary injunctive relief and barred the state from enforcing the law against the groups—but only the groups named as plaintiffs in this case—when it came into effect on January 1.
The court noted that the state defended SB 1564’s amendments to the Conscience Act on the grounds that they do not require a provider seeking to invoke its protections “to do anything that is not also required of him or her under ‘current standards of medical practice or care.’” The state claimed that the information, referrals, and protocols required of conscientious objectors under SB 1564 “are simply not required of Plaintiffs as a condition of invoking the Conscience Act unless they are also already required of them … as a matter of professional ethical responsibility.”
The court highlighted the inconsistencies in the state’s argument. The state, Doherty held, “cannot argue that SB 1564 addresses an unmet health need and at the same time argue that its requirements are already part of existing professional standards.”
Concluding that professional standards of conduct do not corroborate the state’s claim that the performance of or referral for abortions is a standard requirement for health care providers, the court proceeded to analyze whether the law’s compelled speech of medical providers is justified.
A law compelling speech must both (1) advance a substantial government interest and (2) not burden more speech than necessary to further that interest in order to survive intermediate scrutiny—the level of scrutiny the court determined to be appropriate in this context based on federal appellate court precedent.
The state argued that it was pursuing a substantial government interest by enacting SB 1564: namely, “protecting the health and autonomy of its citizens by ensuring that they receive the information they need to make informed medical decisions.” The court agreed.
Did the state compel more speech than necessary to further that interest? The court held that it did. Doherty raised a “critical concern” with SB 1564: “If the legislative purpose to be served by SB 1564 is to impose on providers the legal obligation to make referrals or engage in the discussions objected to by Plaintiffs, why has the State singled out only conscientious objectors as providers who must carry that message?”
The state did not address why only those who object must be the ones to provide the information the state wishes to convey. The court noted that the state could just as easily have made the desired information available to the public itself.
While the pro-life groups represented in this case requested that the preliminary injunction be granted to all health care providers who object to SB 1564’s requirements, the court did not grant that request. Another lawsuit filed by Alliance Defending Freedom on behalf of National Institute of Family and Life Advocates in federal court is set for a hearing on January 10.
Tim Bradley is a research associate at the Charlotte Lozier Institute.