The Illinois Supreme Court and Parental Notification: Should justices act as a “super legislature”?

By Dave Andrusko

Illinois Solicitor General Michael Scodro

Our most recent story about the Illinois Supreme Court hearing a challenge to a never-enforced 1995 parental notification law was written before the justices heard oral arguments in a lawsuit brought by the ACLU. What follows is an update of what transpired Thursday and additional background to the “Parental Notice of Abortion Act,” which was so permissive that even the then-Governor, pro-abortion Jim Edgar, agreed to sign it into law.

For girls under 18, the abortionist must tell a parent, step-parent living in the household, grandparent, or legal guardian two days before an abortion is to be performed. A judge can waive notice (known as a “judicial bypass”) if he/she determines the minor is “sufficiently mature” to make the abortion decision or if notification is not in her “best interest.” Or the girl herself could  declare in writing that she had been neglected or abused. 

In June of 1995 the ACLU persuaded a federal judge to grant a restraining order just hours after Edgar had signed the measure into law. That’s when the legal wrangling (the law’s “long, tortured history,” as one reporter put it) began. What follows is a very abbreviated history.

The Illinois General Assembly left it to the state Supreme Court to come up with rules for how a girl can seek a waiver from a judge and appeal a ruling that did not give her the waiver. When the justices at the time didn’t, the Illinois ACLU went to court and a federal judge permanently blocked the law from taking effect.

A decade later “Robert Thomas — then the chief justice — asked his colleagues to revisit the issue,” according to Brian Mackey. “This time, the court unanimously changed course, issuing the rules and paving the way for the law to finally take effect.”

And then challenges and more challenges and more legal wrangling and more legal wrangling.

Which brings us to Thursday’s oral arguments.

“The current battle began when a Granite City abortion clinic and a physician who runs the Center for Reproductive Health at the University of Illinois at Chicago filed a lawsuit in 2009,” the Peoria Star Journal reports. “They argue the Illinois Constitution gives unique protections not found elsewhere – privacy rights, prohibiting gender discrimination – which justify a trial.”

According to press accounts, the ACLU’s Lorie Chaiten was asled by Justice Thomas, “Are you asking this court to sit as some type of super-legislature?” She said no, but that the ACLU never had a chance to prove its case in court. Chaiten was referring to a lower court judge who dismissed the case, “relying on a federal decision that says parental notification laws are OK under the U.S. Constitution,” MacKey writes.

Defending the law was Solicitor General Michael Scodro. There is no need for a trial, he argued, because  the constitutionality of parental notification laws has already been settled by the United States Supreme Court and  that the Parental Notice of Abortion Act has exceptions built in (medical emergencies, cases of abuse, and the judicial bypass). With this in place, he said the law does not present an “undue burden” on the right of a minor to have an abortion.

Moreover, “The U.S. Supreme Court has made clear time and time again that the fundamental right is not the right to an abortion per se,” Scodro told the justices. “It’s a right — the right that’s protected, and vigorously protected, is the right not to have the state unduly burden that decision.”

Scodro says the Illinois law has exceptions that allow girls in unusual circumstances to get out of having to tell their parents — medical emergencies, cases of abuse, and that judicial bypass that caused all the fuss in the ’90s.

“The question is, does the notice law present an undue burden?” Scodro said after the court session. “The point we made is that the U.S. Supreme Court has addressed and resolved that question time and time again involving notice and consent laws. This law’s no different.”

Scodro said as long as those protections are in place, the Illinois law does not present an “undue burden” on minors seeking abortions.

Allowing the trial would make the court a “super Legislature,” he maintained, writing laws the General Assembly hadn’t intended.

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