Illinois Supreme Court Upholds State’s Parental Involvement Statute

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Analysis Law and Policy

Illinois Supreme Court Upholds State’s Parental Involvement Statute

Jessica Mason Pieklo

A unanimous decision could put an end to decades of legal battles over the state's parental involvement statute.

A unanimous decision by the Illinois supreme court last week brought an end to almost 20 years of litigation over the state’s parental involvement laws, upholding the constitutionality of a 1995 law that requires doctors to notify parents of patients younger than 17 who need an abortion.

The Parental Notice of Abortion Act requires doctors of teens 17 and younger to notify a parent 48 hours before an abortion. Parents must then sign a form acknowledging they’ve been notified. That form then becomes a permanent part of the young person’s medical record. The law does provide for judicial waiver; in those cases, a young person can get a waiver only if a judge finds notification is against her best interest, including in cases of sexual abuse.

Passed in the mid-1990s, the law has never been enforced thanks to a long string of court challenges.

Opponents of the parental involvement law argued it violates privacy and gender equality rights, but the Illinois supreme court disagreed. “We find that, while a minor clearly has an expectation of privacy in her medical information, which includes the fact of her pregnancy, the intrusion on the minor’s privacy occasioned by the Act is not unreasonable” the court wrote. “The state has an interest in ensuring that a minor is sufficiently mature and well-informed to make the difficult decision whether to have an abortion.”

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Lorie Chaiten, reproductive rights project director at the American Civil Liberties Union (ACLU) of Illinois, expressed disappointment in the decision. “The reality is that most young women seek out the guidance of a parent or trusted adult when making the decision to terminate a pregnancy. Those who don’t, choose not to for good reason,” Chaiten said in a statement.

Research and experience in other states shows that young women who are forced to involve a parent in their abortion decision against their will are at substantial risk for physical and emotional abuse, being kicked out of their homes or being forced to carry a pregnancy to term against their will. Research also demonstrates that young women are capable of making an informed medical choice regarding abortion—indeed as capable as adult women and other teens who are pregnant and choose to carry to term. Nonetheless, the Supreme Court today acted to permit this dangerous law to take effect based on the General Assembly’s assumptions about the purported harms of abortion and the supposed inability of young women to make medical decisions. In the face of today’s decision, teens are forced to make a difficult choice – notify an abusive parent, navigate a complex, imposing judicial system, or carry a pregnancy to term against their will.

In order for the court to uphold the Illinois law, it had to accept the justification offered by the Illinois Assembly when it first passed the law: that parental involvement is necessary, because science shows that young women lack the ability to make an informed decision about whether to terminate a pregnancy on their own. But during the decades of litigation challenging the law, a mountain of scientific evidence from leading public health organizations proved just the opposite. That evidence was outright rejected by the court, and the result is that now pregnant teens in Illinois will be able to make every decision about their pregnancy on their own, except the decision to terminate. For this particular decision, the court gave preference to the rights of parents and the state, saying parents had a right to be involved and informed in that specific decision and the state had an interest in making sure that involvement happened as part of guaranteeing a pregnant minor is “sufficiently mature” enough to decide to terminate.

It’s a reasoning that displays a troubling arrogance, and one that continues to stigmatize abortion as something other than once component of comprehensive reproductive health care. Prior to the ruling, Illinois had been the only state in the Midwest to recognize teens’ constitutional rights to make the decision to abort without parental involvement.

The law will not go into effect until 35 days after the ruling. While lawyers for the ACLU figure out what, if any, further legal options they have, clinics will have to figure out how to comply with the law. The law left it up to the state supreme court to draft rules detailing the judicial waiver and appeal process, but those rules were not set until 2006, and because the law has been blocked while the legal challenges were pending, no agency has ever gone through enforcement of those rules. As Chaiten said, “This law will not go into effect for another 35 days. In the meantime, the ACLU of Illinois will be working with health care providers, lawyers and others interested in teen safety across the state to help young women avail themselves of the judicial waiver or bypass alternative afforded by the act. We will work to ensure that every young woman in our state whose health and safety is at risk under this law will have professional assistance to seek a court waiver.”

It’s hard to find a decision that better illustrates the damage stigmatizing abortion does to patients. The evidence is overwhelming that parental involvement laws unnecessarily put teens at risk, and its a risk the court can only justify by diminishing teen agency in making informed health-care decisions. The Illinois law puts the most vulnerable teens at greatest risk, and the state’s supreme court doesn’t seem to mind.