Illinois has long been an oasis for people who are seeking abortions as neighboring states have restricted access.
Now, with the unprecedented leak of the U.S. Supreme Court’s draft decision to potentially leave abortion access up to individual states, a renewed light is shining on Illinois’ status.
Chief Justice John Roberts on Tuesday confirmed the authenticity of the draft opinion, though he noted it is not the final opinion of the court.
“If this becomes the final ruling of the Supreme Court, and states are allowed to have whatever abortion policy they like, Illinois becomes incredibly significant in the national landscape,” said Katie Watson, a bioethicist at Northwestern University’s Feinberg School of Medicine.
Here is what to know about Illinois’ abortion laws and what is at stake.
What is law in Illinois when it comes to abortion access?
In 2019, Illinois passed a law signed by Gov. JB Pritzker that effectively keeps abortions legal should Roe v. Wade be overturned. Dubbed the Reproductive Health Act, the law established a “fundamental” right to abortion in Illinois, required health insurers to cover them, stripped husbands of a legal ability to block their wife’s abortions and safeguarded physicians from licensure sanctions or criminal penalties if they performed abortions, among other protections for abortion rights.
What restrictions are there in Illinois when it comes to abortions?
Illinois bans abortions at the point of so-called “fetal viability” — when a fetus can survive outside the uterus — which typically occurs between 24 and 28 weeks, according to the Kaiser Family Foundation.
That means people must carry a fetus for the final 12-16 weeks of their pregnancies.
A person’s doctor determines when viability is, and Illinois makes exceptions to the ban if an abortion is necessary to preserve a patient’s life or health.
Illinois recently struck down what many abortion-rights advocates saw as a restriction for people seeking the procedure: a requirement that doctors notify the parents of a minor seeking an abortion. That law is set to be repealed on June 1.
How can abortion remain legal in Illinois if the Supreme Court decides to knock down Roe V. Wade?
Currently, Roe v. Wade prevents individual states from banning abortions outright, not from protecting abortion rights. The new draft opinion that was leaked to Politico says individual states would decide whether to restrict abortions, and Illinois law protects an individual’s right to make choices about reproductive health.
How vulnerable is Illinois’ law to legal challenges?
The law is not vulnerable to a court challenge because it is not part of the Illinois constitution, Watson said. But it is vulnerable to repeal if it does not have lawmakers’ support.
“Elections always matter,” she said.
And any federal legislation that would ban abortions could supercede Illinois law, Watson added.
In a statement, Illinois Attorney General Kwame Raoul, who is tasked with defending state laws in court, said: “As neighboring states take draconian steps to eliminate reproductive freedoms, we have taken action to fight abortion access restrictions and are proud that Illinois will remain a reproductive health care ‘oasis.’ ”
In 2020, just over 46,000 people had abortions in Illinois, according to the state public health department. Of those, nearly 10,000 patients — about one in five — came from other states.
Can anyone who helps people get abortions in Illinois be sued for doing so, from the receptionist to the nurse and doctor at a clinic?
Watson said that’s not likely because other states do not have jurisdiction over Illinois residents.
“It’s one thing to say, if you do this here, you are subject to our laws,” Watson said. “But you’re a free person in the United States who can travel. So if you’re in a state where gambling is illegal, we all understand that you can fly to Las Vegas and have a gambling weekend. And when you come back, they don’t arrest you in your home state.”
Still, it could create a chilling effect, Watson said, if everyone from doctors to fundraisers for abortion access are targeted in Illinois.
On Tuesday, State Rep. Kelly Cassidy, D-Chicago, signaled intentions to strengthen protections and resources for people traveling from states that may ban abortion if Roe v. Wade is overturned.
“In theory, like, ‘Hey, Alabama family, you’re a teacher, we could make it easier for you to transfer your license and become an Illinoisan,’ ” Cassidy said. “We can ensure that there are resources available for patients who maybe used their last penny to get here from Texas. Can we make coverage available?”
Earlier this year, the Illinois House of Representatives approved a bill that would offer protection for nurses from being punished for providing abortion services. That measure still needs to pass the Senate.
On the other side, abortion-rights opponents are gearing up to lobby against new proposals aimed at strengthening abortion rights in the wake of the potential U.S. Supreme Court ruling.
And while abortion rights are already codified in state law in Illinois, opponents are hoping to use the potential ruling to impact public opinion across the state.
“I mean, number one is going to be trying to increase our presence outside of the abortion facilities,” said Eric Scheidler, executive director of the Chicago-based Pro-Life Action League. “I think that as Illinois becomes more and more of an abortion destination state, as we see out-of-state abortions continue to rise, they’re going to skyrocket if neighboring states limit abortion, and I think the people in Illinois will begin to see more clearly, the devastation of abortion.”
Peter Breen, an attorney with the Thomas More Society, a Chicago-based anti-abortion law firm, echoed Schiedler’s sentiment. He said he hopes as other Midwestern states restrict abortion access, pressure will mount on Illinois legislators.
“Nearly all of our neighboring states will significantly restrict abortion down to either, you know, heartbeat or possibly just a full ban on abortions,” Breen said. “And so I think the legislators in Illinois are going to have to justify themselves …when neighboring states have much more significant restrictions on the procedure.”