Major victory for religious liberty and freedom of conscience

Joseph A. MorrisThe following report was provided by Joseph A. Morris of Morris & De La Rosa. 

In a major victory for religious liberty and freedom of conscience, an Illinois trial court yesterday granted an injunction which prohibits the State of Illinois from enforcing a statute that would compel physicians and other health care providers, even if they decline to perform abortions on religious or other conscience-based grounds, nonetheless to counsel patients about abortion options and to refer them to providers willing to carry out abortions.

The plaintiffs winning protection in the lawsuit were Aid for Women, Inc., a not-for-profit pregnancy center based in Chicago;  Best Care for Women, Inc., also known as A Bella Baby ObGyn, an obstetrical clinic based in Downers Grove;  the Pregnancy Care Center of Rockford, also known as Rockford Area Pregnancy Care Center, a non-profit center based in Rockford;  and  Anthony Caruso, M.D., an obstetrician practicing in Downers Grove.

Judge Eugene G. Doherty of the Circuit Court of Winnebago County, Illinois, sitting in Rockford, Illinois, issued the injunction yesterday, December 20, 2016, in Pregnancy Care Center v. Rauner, No. 2016-MR-741.

The case involved the interplay between two Illinois statutes.

In early 1998 the Illinois General Assembly enacted the Illinois Health Care Right of Conscience Act, codified at 745 ILCS §§ 70 / 1 et seq.  That act protected health care providers from having to provide services to which they objected on grounds of religion or conscience.

Later that year the legislature enacted the Illinois Religious Freedom Restoration Act, 775 ILCS §§ 35 / 1 et seq., which provided, in pertinent part, that “Government may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling governmental interest.”

Finally, earlier this year the legislature amended the Illinois Health Care Right of Conscience Act to effectively to require physicians and providers, when they decline to perform abortions and other procedures to which they object on grounds of religion or conscience, nonetheless to provide information about “legal treatment options”.  That amendment was scheduled to go into effect in ten days, on January 1, 2017.

The court undertook a lengthy and erudite discussion on how to read the two statutes together, including application of the “entrenchment doctrine” and rules of statutory construction, including the question of “general” vs. “particular”  legislation and the significance of the time-sequence of enactments.  The court also considered how other courts, including the United States Supreme Court in passing in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), addressed the question of a professional duty of health care providers to supply, unwillingly, information about abortion of related options.

Ultimately Judge Doherty decided the case by recourse to the Speak, Write, and Publish Freely Clause of the Illinois Constitution, Ill. Const. Art. I, § 4, observing that because “Illinois does not interpret its constitutional guarantees in lockstep with their Federal counterparts, Article 1, section 4 of the Illinois Constitution may afford greater protection than the First Amendment in some circumstances….”  Applying the “intermediate standard of review” familiar in First Amendment jurisprudence, the court held that the statutory amendment about to go into effect would have resulted in “compelled speech” that is impermissible under the Illinois Constitution.  An injunction against its enforcement against the plaintiffs was entered.

The court’s order does not broadly enjoin enforcement of the Conscience Act amendment against all health care providers in Illinois, but certainly sets the stage for a broader injunction and supplies a precedent to any other Illinois plaintiffs who seek the same relief.

An appeal to the Illinois Appellate Court for the Second District, which sits in Elgin, Illinois, is possible.

Victorious counsel in the case were Matt Bowman, senior counsel at the Alliance Defending Freedom, a public-interest law center based in Atlanta, Georgia, and cooperating local counsel Noel W. Sterrett.  Mr. Sterrett is a member of the Chicago law firm of Mauck & Baker LLC, which has a substantial national as well as local practice in representing churches and others in religious freedom cases.


CCI Editor’s note:  Mr. Morris serves on the advisory board of Catholic Citizens of Illinois.