A federal judge in Rockford has ruled that a portion of a 2016 Illinois law violates the constitutional right to free speech for compelling anti-abortion medical professionals to provide information about abortion care to patients without being prompted.
U.S. District Court Judge Iain D. Johnston on Friday issued a split ruling in the case brought by the National Institute of Family and Life Advocates and three anti-abortion pregnancy centers. The plaintiffs had argued that the law imposed unconstitutional conditions — forcing anti-abortion activists to talk about “benefits” of abortion that they do not believe in. They also argued that abortion counseling would “encourage the procedure.”
“The Court concludes that Public Act 99-690 Section 6.1(1), in exchange for a liability shield, compels speech, requiring a discussion about the risks and benefits of childbirth and abortion. That compelled discussion violates the First Amendment,” Johnston wrote in his ruling.
The section Johnston struck down as unconstitutional states that health care providers are mandated to inform a patient of “legal treatment options, and the risks and benefits of the treatment options in a timely manner.”
The other section in question, which Johnston ruled as constitutional, requires that providers, if requested by a patient, either refer the patient, transfer the patient or provide written information about providers who may offer a service that the providers “can’t provide because of a conscience-based objection.”
Johnston wrote that requiring providers to discuss abortion treatment options “mandates speech regardless of anything else; whereas, the latter requires actions when prompted by a patient.” But he noted information via request from a patient is a “rational” tool for the state.
“Conceivably, the State has a legitimate interest in facilitating abortions provided by health care professionals to reduce the number of ‘self-managed abortions’ or ‘self-induced abortions,’ which are inherently dangerous,” Johnston wrote. “Requiring the Plaintiffs to provide the requested information is a rational means of meeting that goal.”
An amendment to the Illinois Health Care Right of Conscience Act was signed into law by former Republican Gov. Bruce Rauner in 2016 and was vehemently opposed by Catholic and anti-abortion groups. The amendment required healthcare providers to discuss the “benefits” of abortion and if requested, to refer clients to abortion providers in order to receive legal protections for conscientious objection.
The Thomas More Society sued on behalf of an Illinois doctor, Dr. Ronald Schroeder of 1st Way Pregnancy Support Services and Pregnancy Aid South Suburbs.
A federal judge in 2017 issued a preliminary injunction, which temporarily blocked both amendments to the law.
State Rep. Kelly Cassidy, D-Chicago, who was a sponsor of the 2016 amendment, called the judge’s split ruling both “gratifying” and “disappointing.”
“It is gratifying to see that the court recognized that patients must be provided with information about the best options for care when they see a provider who denies a particular type of care,” Cassidy said. “At the same time, it is disappointing that the most logical and direct way of ensuring the flow of this information has been blocked, putting the burden on patients to request the information.”
The Alliance Defending Freedom, which represented the plaintiffs in the three-day bench trial in 2023, said anti-abortion pregnancy centers must be free to “continue their life-affirming work without fear of government punishment.
“No one should be forced to express a message that violates their convictions. The court was right to protect pregnancy centers’ freedom to advocate that life is a human right,” Alliance Defending Freedom senior counsel Kevin Theriot said in a statement. “The government can’t compel medical professionals to choose between violating the law and violating the Hippocratic Oath to do no harm.”
The Thomas More Society is planning to appeal the split decision to the U.S. Court of Appeals for the 7th Circuit.
“Thomas More Society will keep fighting to protect our heroic pro-life ministries. Forcing pro-life doctors and pregnancy centers to facilitate abortion unconstitutionally burdens their faith and conscience,” Peter Breen, the group’s vice president and head of litigation said in a statement.
Breen is a former Illinois state representative and was a staunch abortion opponent during his time in the Illinois House.
Gov. JB Pritzker’s office did not immediately respond to requests for comment on the ruling. Illinois Attorney General Kwame Raoul’s office said it was reviewing Johnston’s decision.