Under proposed agreement, state would drop enforcement of law aimed at deterring deceptive anti-abortion practices
The state would drop enforcement of a new law Gov. J.B. Pritzker and legislative backers said was aimed at deterring deceptive practices by anti-abortion pregnancy centers under a proposed agreement between the Illinois attorney general’s office and several organizations that challenged the measure.
A federal judge in August temporarily blocked the law from being enforced in a scathing opinion that called it “both stupid and very likely unconstitutional.”
If finalized and signed by a federal judge, the agreement to make the judge’s decision permanent would mark a rare victory for anti-abortion groups in a deep blue state with some of the nation’s strongest reproductive rights laws, and a blow to Pritzker, who signed the measure into law last summer and who has promoted Illinois as a national beacon for abortion rights.
Illinois Attorney General Kwame Raoul’s office would be “permanently enjoined” from enforcing the law, which is made up of amendments to the state’s Consumer Fraud and Deceptive Business Practices Act, according to a copy of the agreement.
Challengers to the law who are parties to the agreement include the National Institute of Family and Life Advocates, which covers more than 80 of the roughly 100 crisis pregnancy centers in the state, Women’s Health Services and the Pro-Life Action League.
Under the law, passed by the state legislature earlier this year, clinics found to be dissuading “pregnant persons from considering abortion care through deceptive, fraudulent, and misleading information and practices” faced fines of up to $50,000.
Shortly after Pritzker signed the measure, the Thomas More Society, a conservative Chicago nonprofit law firm, filed a federal lawsuit on behalf of the clinics and other anti-abortion advocates, contending the law violated the First Amendment right to free speech.
In agreeing to a preliminary injunction not long after the lawsuit was filed, U.S. District Judge Iain Johnston said the law represented “a blatant example” of government deciding “whose speech is sanctionable and whose speech is immunized.”
The law “is likely classic content and viewpoint discrimination prohibited by the First Amendment,” Johnston, appointed to his post by former Republican President Donald Trump, wrote in court papers to issue his preliminary injunction in the case.
On Monday, Peter Breen, Thomas More Society’s executive vice president and head of litigation, who defended NIFLA and the other plaintiffs in the lawsuit, called the proposed agreement “a significant win for pro-life ministries and free speech in Illinois” that will serve as a warning to other states that try “to target pro-life ministries with discriminatory laws.”
“The federal court was spot on in holding that (the Illinois law) is ‘both stupid and very likely unconstitutional,’” said Breen, also a former Republican state representative from Chicago’s western suburbs, referencing Johnston’s preliminary injunction. “(The law) exempts abortion facilities and their speech, while exclusively regulating pro-life organizations and their speech, in flagrant violation of the First Amendment.”
In a prepared statement Monday evening, Attorney General Raoul did not explain his rationale for entering into the agreement but said it “in no way affects my ongoing work protecting women’s rights to access the full range of reproductive health services.”
“Furthermore, this proposed order does not alter Illinois’ Consumer Fraud and Deceptive Practices Act or my office’s preexisting authority under the act, and I remain committed to protecting consumers against all deceptive practices,” Raoul said. “Patients in Illinois can be assured that as states continue to enact draconian restrictions on access to reproductive health care, I will not waver in my efforts to ensure that Illinois remains an oasis of reproductive freedom in the middle of our nation.”
Pritzker’s office did not immediately respond to questions about the agreement.
Illinois lawmakers passed the measure this spring as part of their efforts to shore up abortion rights throughout the state following the U.S. Supreme Court decision last year overturning Roe v. Wade, which for almost 50 years granted abortion access nationwide with limited exceptions. Since that ruling, many Midwestern states have restricted abortion access while Illinois has maintained strong reproductive rights protections.
Abortion providers have predicted that 20,000 to 30,000 additional patients would be crossing state lines each year to terminate a pregnancy in Illinois, up two to three times the number of patients before Roe was overturned.
Regarding the deceptive practices measure, Pritzker said over the summer that he hoped “the federal courts will recognize … that you can’t lie to misinform people” and steer them away from getting an abortion, though he would wait for a final decision from the courts before determining whether the law needs to be clarified.
Raoul has said that these clinics go to great lengths to deceive people seeking abortion care, though his office did not file an appeal to Johnston’s preliminary injunction.
During testimony over the lawsuit, the plaintiffs argued the potential fines that could be levied under the law “would have a chilling effect on their speech,” Johnston wrote.
“The witness for Plaintiff Pro Life Action League described how the group had stopped the production and distribution of a pamphlet as a direct result of (the law),” the judge noted. “A more unambiguous chilling and self-censorship of protected speech there cannot be.”
Johnston also noted how at least one of the anti-abortion centers didn’t know how it could operate in light of the new law, which he wrote prompted at least one center to cancel its so-called “sidewalk counseling,” while attendance for prayer vigils at one center plummeted. The judge also questioned whether sidewalk counselors are deceptive, saying their “obvious goal” is to convince people to not get an abortion.
“Nobody is confused as to who sidewalk counselors are or what their goal is,” said Johnston. “Indeed, a sidewalk counselor wears a pro-life shirt and sometimes has a depiction of the Virgin Mary holding Baby Jesus with his arms outstretched.”
The deceptive practices law was among several championed by Pritzker and passed by his Democratic allies in the Illinois General Assembly to be challenged on constitutional grounds.
The state’s ban on certain high-powered guns and high-capacity ammunition magazines was temporarily blocked on the state and federal levels, with those challenges being overturned by the state Supreme Court and a three-judge, federal appellate court panel. Further challenges to the ban, however, now await, including through the U.S. Supreme Court.
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