Recently, several social policy debates have moved from the legislature to the judicial system.
Mindy Swank’s water broke just four months into her pregnancy. Swank and her husband Adam learned that their baby had severe anomalies and would not survive. But the Catholic hospital she sought treatment at would not aid in terminating the pregnancy under directives of the church. She began bleeding and returned to the hospital four times in five weeks. She says she was told she wasn’t ill enough for labor to be induced.
Swank says doctors at the Catholic hospital didn’t tell her that she could obtain a medically necessary abortion elsewhere, and her insurance didn’t cover her care at another hospital a few hours away.
“At 27 weeks, I woke up bleeding a lot more than I had been. Desperate to prove I was sick enough for them to treat me, I brought to the hospital all of the pads and clothing I had bled through,” Swank told an Illinois Senate committee when testifying about her experience. “The doctors decided that I was sick enough to induce delivery. I gave birth to a baby boy, who never gained consciousness and died within a few hours.”
Legislative observers say Swank’s emotional testimony last year was the turning point in what had been a contentious debate over the effort to amend Illinois’ almost four-decade-old health care right of conscience law. Even the Catholic Conference of Illinois, which had been adamantly against the proposed amendment, took a neutral stance on Senate Bill 1564, after concessions were made. Under the new law, medical providers would be required to give patients information on procedures they won’t perform because of religious or moral objections, including abortion.
Though supporters gained the neutrality of the Catholic Conference of Illinois, they hadn’t avoided the opposition of conservative nonprofit, the Alliance Defending Freedom (ADF), or a group of anti-abortion doctors and crisis adoption centers. Soon after Gov. Bruce Rauner signed the bill — months before its January effective date — these groups filed suits challenging it in circuit and federal courts in Rockford.
In Illinois, this is just one of several conflicts, involving thorny debates over religion, freedom of speech, privacy and human rights, that are currently playing out in court.
Mauck and Baker, LLC, a law firm has shared several cases with ADF attorneys, represents a group of pastors who are suing over an Illinois ban on gay conversion therapy for minors that went into effect in January. The pastors say they fear they could be charged with consumer fraud by offering counseling. Of the five states that have approved conversion therapy bans, Illinois is the only one that has a consumer protection clause.
In August, the Thomas More Society, a conservative law firm, challenged the constitutionality of a Chicago ordinance that bars protesters from getting within 8 feet of patients who are within 50 feet of the entrance of a medical facility. The law is meant to keep anti-abortion protestors from walking up to women and medical personnel going to abortion clinics. Supporters say it deters harassment and physical threats. The Thomas More Society contends these “bubble zones” violate free speech.
Another case contends a transgender student in a Chicago suburb violates the privacy rights of other students by being in the girls’ locker room. The U.S. Supreme Court recently agreed to hear a similar case in which a transgender teen in Virginia is suing to use the boys' bathroom at school.
“I think there is a trend in Illinois with social issues being settled by the political process, and then people who end up on the short side of the vote or the minority attempting to construct a variety of different legal arguments to challenge those issue in court,” says ACLU of Illinois spokesman Ed Yohnka, whose organization is involved in some of the suits. “In other words, I think what’s really happening here is that in many of these issues it is no longer really possible to sustain them on a political basis or in a democratic with a small ‘d’ way. So there is effort then to use the courts … to win a victory you didn’t win through the legislative process.”
The strategy of going to the courts is not new. It dates back to the early days of the modern civil rights struggle, says University of Illinois Springfield political scientist Jason Pierceson.
The NAACP, for example, won several battles knocking down the doctrine of racial segregation as separate-but-equal.
He says, based on the NAACP’s success, a pattern of using the courts to achieve liberal causes continued. “Conservative groups have adopted the same strategy and decided ‘if liberal groups can go to court and achieve their goals, we can do the same.’ Advocacy groups have blossomed, and they have become omnipresent,” Pierceson says.
He says the ADF is a powerful player in this strategy. “They find local plaintiffs, or local plaintiffs will seek them out. And they will file lawsuits and in the way they frame their litigation they hopefully will find a sympathetic judge at least in some part of the process to bring some leverage to the political process that wasn’t there in the legislative arena,” Pierceson says.
Noel Sterett is a lawyer with Mauck and Baker, which along with ADF, represents two groups of crisis pregnancy centers challenging the new changes to the Health Care Right of Conscience Act.
Sterett says they violate both the free speech rights and religious freedoms of anti-abortion medical providers who say they cannot participate in “the killing of a child" by providing patients with information about abortion providers.
“You have to carry forward the government message, which is there are benefits to abortion. And you must provide a list of local abortion providers to a woman who may come to your clinic,” Sterett says “The result is basically taking these pro-life organizations and forcing them to put words in their mouths about something they can’t bring themselves participate in.’’
Sterett says the state’s 39-year-old health care right of conscience law was “the gold standard” for the country. Before the new changes, the law had the most sweeping protections for health care providers of any in the nation, says Elizabeth Nash, who tracks state-level issues for the Guttmacher Institute. The institute researches public policy on reproductive rights and health issues.
“When you start looking at the definitions in the law, you start to see the individual provider and the institution can refuse to perform testing or diagnosis, provide instructions or counseling — pretty much any aspect of medical care,” Nash says. “Unlike most of the other states, this isn’t limited to abortion, contraception or perhaps sterilization. Its reach applies to any medical care. So essentially in Illinois, health care providers or institutions can refuse to provide pretty much any medical service.”
Sen. Daniel Biss, an Evanston Democrat who sponsored the bill, says he believes providers should have the right to abstain from providing health care options, like abortion and contraception, if they are morally opposed. His proposal won’t change that, but he says it will recognize the patient’s right to be informed.
“What the law now says is that the patient has the right to full medical information about all the legal options, has the right to know the medical benefits and drawbacks of each option,” He says. “And if the provider doesn’t want to perform that procedure or participate in that form of health care, they have to either refer the patient or at least tell the patient where they might likely find that service provided.”
Lorie Chaiten, director of the reproductive rights project of the Illinois ACLU says her organization has heard complaints for years about problems caused by the broadness of the law. “There are the people turned away from pharmacy counters who are seeking contraception, the ambulance driver who gets called to transfer a patient for a medically necessary abortion, and when she gets there and learns that, refuses to transfer the patient,’’ she says. “We want to make sure patients aren’t kept in the dark because of somebody else’s religious beliefs.”
Bob Gilligan, executive director of the Catholic Conference of Illinois says Swank’s unfortunate story of being repeatedly sent home from the hospital had an emotional impact on lawmakers. In terms of what Swank and her husband went through because of what they say was a lack of information and help from a Catholic health care provider, Gilligan says, “No one that I know would defend the actions she outlined.”
He says the conference objected to the bill as first introduced. One of the major concerns was that, as the conference read it, “there was a provision that if in invoking your conscience right there was any delay in receiving the health care requested, you couldn’t have a right to object.”
Gilligan says the conference was doubtful that the bill could be stopped in the Senate. “Could we have stopped it in the House? I don’t know. But you try the best you can to work out something. … The version of the bill that ended up passing was one that we felt we could still deliver quality health care and not violate our conscience — albeit we preferred the original law.’’
The issue cannot be “easily distilled into a soundbite,’’ says Brigid Leahy, who is director of policy for Planned Parenthood of Illinois. “It is complex. There are competing rights here that we have to recognize. It’s all about balancing, but in this balancing act we can never forget there is a patient whose health matters.” Leahy says the old version of the law would have made it impossible for patients to sue for malpractice if they were harmed by a provider refusing to give them care or information.
Robin Fretwell Wilson, a law professor at the University of Illinois Urbana-Champaign, says the law is a good compromise that puts the onus for giving information and access to care on the institution rather than the individual doctor or nurse. Wilson says she believes, as written, the amended law will put the state in the middle of the spectrum of states emphasizing patients’ rights and those leaving heavily toward freedom of religion.
Sterett, the lawyer representing groups challenging the new requirement, says the pregnancy crisis centers — organizations with a mission centered entirely around presenting pregnant women with alternatives to ending their pregnancies — simply should not have to give information on abortion.
“Young women can find information about abortion providers very easily online or on their phones these days, so there’s no need to go and violate somebody’s right of conscience and require people that have a scientific and religious objection to abortion to speak of it in any way — never mind that they would become a referral source for the local Planned Parenthood clinic,” he says.
But Chaiten of the ACLU says, “Sending people to a library is not the way medicine is practiced in this country, and while health care providers are entitled to their own religious and conscience beliefs, when they hold themselves out as a health care provider, they take on duties to patients that cannot be ignored to the patient’s detriment.”
Some conservative lawmakers voiced disappointment after the bill became law. Kyle McCarter, a Republican from Lebanon who opposed the amendment, complained on Facebook about Rauner’s decision to sign the controversial bill.
In a written a statement, Rauner spokesperson Catherine Kelly said that “Governor Rauner has never pushed a social agenda and remains committed to government, economic and education reforms that can turnaround Illinois.”
She did not reply when asked about a 2013 video in which Rauner says, “But I am one who believes — I just think it’s better that a woman, her physician, her family and her minister and priest make the decision better than the government. That’s my view. You may not agree with me, I respect that.”
McCarter opposed another Biss-sponsored bill, this one a ban on gay conversion therapy for minors. That law went into effect in January, and it also drew a lawsuit from the ADF-affiliated Mauck and Baker Law firm. McCarter was one of the Republican senators who said they opposed the bill because they feared it might not give minors an option to get therapy to tamp down unwanted feelings of homosexual attraction.
“The option is not being provided,” McCarter told the Chicago Tribune. “We say they don’t have a choice. They don’t. It's one way or the other.”
John Mauck, the attorney who represents the group of pastors, says the reverends want a declaration from the state that ministers who counsel about same-sex attraction cannot be sued under the consumer protection provision of the law.
“We feel that people should be free to come to them and ask advice without this threat of consumer fraud hanging over their heads,” Mauck says.
The Rev. Steven Stultz, a Chicago minister who is among those suing the state, says, “We’ve had a good number of times when kids would be their struggling with same-sex attraction or being involved in a homosexual relationship and come and want counsel, want to know what the Bible teaches and just want help along those lines.”
He says that telling religious authorities what they can and can’t say in that instance encroaches on religious liberties protected by the U.S. Constitution. “It’s very much a slippery slope, and we don’t want to become a society the [puts] down religious expression,” Stultz says. “We are founded on religious freedom and that freedom should include the right to teach and administer the Bible — as the Bible is written (and,) as it should be applied to people’s lives.”
Legal challenges to bans in California and New Jersey have been unsuccessful.
Chicago Democratic Rep. Kelly Cassidy, who sponsored the law in House, says, “I fail to see how they’ve been harmed by this law because their ability to practice faith is 100 percent protected under our law.”
Cassidy, who is a lesbian, says seeking religious counsel from a priest about her sexuality “saved” her relationship with her family.
“Fundamentally, I would hope that rather than picking and choosing what versions of their faith they want to impress up their followers, they could be more like the priest that my mom and I went to. He focused on the importance of being loving families, and supporting each other, and finding ways to keep your relationship solid.”
Biss says he’s not surprised to see conservative opponents of his proposals looking to defeat them in the courts — after the issues have been fought out in the Democratically controlled state legislature.
“These items of social policy are related to questions of fundamental rights. … I think it’s healthy,” he says. “I obviously strongly disagree with the people bringing these particular suits. I hope and frankly believe they’ll be unsuccessful. But I also think that’s what we have courts for, and I think that’s a good system.”