Illinois Supreme Court issues abortion parental consent rules

The action could revive a law that has been on the books but not in effect.

By Amy Lynn Sorrel — Posted Oct. 16, 2006

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In a surprise move, the Illinois Supreme Court in September issued rules for implementing an abortion law that has sat on the shelf for 11 years. The statute requires physicians to notify a minor's parent or legal guardian at least 48 hours before performing the procedure.

Anti-abortion advocates say they want the state to pursue overturning a 1996 federal court order that blocks the law from taking effect. But the Illinois attorney general has not said whether she will take up the matter.

The Parental Notice of Abortion Act of 1995 provides an exception to the notice requirement in cases of a medical emergency, or physical or sexual abuse by a parent. Doctors who do not act in "good faith" to obey the law would face a misdemeanor charge and be reported to the state medical board for disciplinary action.

The statute also allows young women to ask a court to bypass the notice requirement. The implementation delay revolves around this provision. The Illinois Legislature had asked the state Supreme Court to develop regulations that would ensure that the waiver provision was handled in an "expeditious manner."

But the high court at the time refused to create the rules, saying they were not necessary to implement the law. The court's rejection led to the federal injunction by the U.S. District Court for the Northern District of Illinois on Feb. 9, 1996. Without the regulations, the act "remains incomplete and cannot be implemented," Judge Paul E. Plunkett found.

Different court, different decision

Ten years later the state Supreme Court, which has six new members, "obviously thought the court in 1995 was wrong," said court spokesman Joseph Tybor. He said justices unanimously adopted the new rules after researching the issue. In doing so, the high court "is unaware of any other [state] supreme court that has declined to promulgate rules on parental notification when requested to do so by the Legislature."

DuPage County State's Attorney Joseph E. Birkett, a Republican running for lieutenant governor, urged justices in a June letter to revisit the statute. Out-of-state teens are entering Illinois to skirt parental notice or consent laws in effect in the five surrounding states, he said.

Parental involvement is critical to "protecting the interests of young girls who in most situations are not able to weigh the medical, psychological and emotional impact of that decision," Birkett said. He said he is "confident" that the attorney general will act to lift the injunction, and that the rules will pass the constitutional test.

Abortion-rights advocates say that even with a judicial bypass procedure, the law poses a danger to teens and jeopardizes the physician-patient relationship. "The vast majority of young women do involve their parents, and for those who don't, it's usually for a very good reason," said Lorie Chaiten, director of the American Civil Liberties Union of Illinois Reproductive Rights Project.

The federal court issued the injunction in response to a lawsuit the group filed challenging the statute's constitutionality. But the court stopped short of deciding those issues because of the lack of rules regarding judicial bypass, Chaiten explained.

The ACLU of Illinois plans to fight to keep the order in place, but it cannot act until the attorney general goes to court to reopen it, she said.

Cara Smith, spokeswoman for Democratic Illinois Attorney General Lisa Madigan, declined to comment on the Supreme Court's move. "We are reviewing the rules and the law to determine the next step," Smith said.

Under the new Illinois Supreme Court regulations, a judge would have to rule on a waiver within 48 hours. The minor could appeal a "no" decision, and the appeals court would have to rule within three days. The Supreme Court would have five days to decide on any final petition.

The Illinois State Medical Society declined to comment on the court rules, but the group supports parental or legal guardian consent to abortions on minors. Parental notification laws are in effect in 34 states, according to the Guttmacher Institute, a nonprofit organization that supports abortion rights and tracks related policy.

Although the U.S. Supreme Court has not directly addressed judicial bypass, a 1995 decision by the 8th U.S. Circuit Court of Appeals held that a parental notification law must include such a provision to pass constitutional muster.

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