Illinois ‘Ultrasound Bus’ Zoning Dispute Potentially Advances Fetal Rights

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Analysis Law and Policy

Illinois ‘Ultrasound Bus’ Zoning Dispute Potentially Advances Fetal Rights

Jessica Mason Pieklo

When a federal judge ruled earlier this month that Elgin, Illinois, is permanently blocked from enforcing a provision of its zoning regulations that had blocked an anti-abortion "ultrasound bus," he did more than just open the possibility of more crisis pregnancy centers on wheels to pop up.

When United States District Court Judge Samuel Der-Yeghiayan ruled earlier this month that Elgin, Illinois, is permanently blocked from enforcing a provision of its zoning regulations that had blocked an anti-abortion “ultrasound bus,” he did more than just open the possibility of more crisis pregnancy centers on wheels to pop up—he endorsed, at least preliminarily, fetal constitutional rights.

According to the allegations in the complaint, the plaintiff, Life Center, operates TLC Pregnancy Services, a religious-based organization that provides pregnant women with “spiritual support, free reproductive healthcare information, and limited ultrasound services.” In September 2010, TLC began providing services from an RV that TLC parked in a couple of commercial lots in Elgin with permission of the lot owners.

Life Center contends it has one mission with its mobile unit: to proselytize to pregnant women. “TLC’s volunteers aboard the mobile facility provide a message of hope by sharing the truth of God’s love for them and the life they can find in and through Jesus Christ,” the opinion states. By Life Center’s own admission, its mobile facility provides religious literature to pregnant women along with some ultrasound services. According to Life Center, TLC’s patients are mostly poor, desperate, and vulnerable. In fact, that’s the whole point. Life Center contends that unlike the services at a permanent facility, which are often inaccessible to those who need them, the mobile unit’s services are visible and accessible, which allows them to target those who otherwise may not want to go to a fixed-location crisis pregnancy center.

According to Life Center, the City of Elgin had consistently approved temporary use permits for TLC to operate in parking lots in the city. Temporary use permits allow property owners to engage in some activities on their property that would otherwise violate other zoning regulations, like noise restrictions, so long as those activities are limited or “temporary.” According to Life Center, on August 7, 2012, a city employee approached the mobile unit and told TLC to cease operations. The city allegedly informed TLC that, based on a recent amendment to the Elgin Municipal Code relating to temporary uses, TLC could obtain permits for the mobile unit under the Temporary Use Provision only for a limited number of days each year. The city then allegedly informed TLC that it had already used its permitted time for 2012.

Sex. Abortion. Parenthood. Power.

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The change in the ordinance prohibited temporary uses to no more than four times per year per property, with permit holders limited to a total of 60 days per calendar year for their “temporary uses.” The code defines the term “land use” as “[t]he purpose or type of activity for which land, or the structure or building thereon, is designed and intended, or for which it is occupied or maintained.” The code also defines the term “structure” as “[a]nything manufactured, constructed, or composed of parts joined in some definite manner that requires a location on the ground or that is attached to something that has a location on the ground” and “[s]tructures shall include, but shall not be limited to buildings, antennas, signs, fences, and off street parking facilities.”

Life Center sued, arguing the ordinance was unconstitutional. According to Life Center, the definitions under the code for the terms “land use” and “structure” are so broad that they would encompass virtually all types of activity, including a substantial amount of activity protected under the First Amendment. The district court agreed. “For example,” the court surmised on Life Center’s prompting, “a property owner in the City might hang a flag from a flagpole attached to a building and the flag might contain graphics or lettering to indicate the property owner’s support for a country, political position, or philosophical position, which could be speech protected under the First Amendment.”

But rather than just challenge the city’s ordinance on behalf of its own constitutional rights, Life Center also asserted claims both on behalf of pregnant women and the “fundamental rights of unborn children.” Specifically, Life Center is challenging the ordinance on the grounds that it “violates a woman’s right to acquire useful knowledge and care for her unborn child” and that it “violates an unborn child’s fundamental right to begin life with a sound mind and body”—and since there’s no level of irony too thick with the anti-choice community, because it interferes with Life Center’s rights under the Free Access to Clinics Entrances (FACE) Act.

These claims, the judge determined, should proceed.

Instead of dismissing the remaining claims, since presumably their determination wouldn’t change the outcome since the ordinance was blocked, the judge declined, refusing to grant any part of the city’s motion to dismiss. And while that doesn’t mean that those claims won’t be thrown out later, there’s every indication from the opinion that the judge is sympathetic to Life Center’s cause:

It is also important to note in this case that the City is seeking to limit much more than, for example, temporary commercial sidewalk or tent sales. Although the City claims that it is merely applying the Temporary Use Provision with a blind eye toward the activities that it impacts, it must be recognized that the City is preventing Life Center from being able to effectively provide pregnant women in the City with needed medical care that could identify medical issues and save the lives of unborn children.

Judge Der-Yeghiayan, a George W. Bush appointee, continued:

[T]he motives in amending the Code in 2012 are highly suspect and the City appears to have been targeting Life Center. The City’s Code is unduly burdensome to the right of a woman to choose life. The City’s effort to curtail private entities from providing free and valuable services to its young women is ill-advised. It is puzzling why the City would be so unreasonable in implementing ordinances and policies that curtail not only the constitutional rights of its citizens, but also the availability of needed medical care and emotional support for its vulnerable young women.

So even though the ordinance is permanently blocked on the grounds that it is unconstitutional and vague, the court allowed the case to proceed so it can consider these other claims. That means the court is willing to entertain, at least as a preliminary matter, whether or not a religious anti-abortion organization can assert the rights of potential “unborn children” when challenging local ordinances designed to regulate abortion and reproductive health-care services. It also means, in asserting a FACE Act claim, that anti-choice crisis pregnancy centers are demanding the law put them on the same legal footing as legitimate reproductive health-care clinics. And at least one judge looks willing to go along with all of it.