Justices gave abortion law extra push - Parental notification got high court prod

Justices gave abortion law extra push - Parental notification got high court prod
By Michael Higgins
Copyright © 2007, Chicago Tribune
Published May 6, 2007


Illinois Chief Justice Robert Thomas took an active role last year in trying to revive a long-dormant state law that prohibits minors from obtaining abortions without notifying a parent.

Now new court filings show that Thomas and his fellow justices have given the controversial issue another nudge.

In an unusual move, Thomas phoned Atty. Gen. Lisa Madigan in February to dispute assertions her office had made in federal court.

Lawyers for the attorney general had told a federal judge that Illinois' state courts were not ready to administer the 1995 notification law. But Thomas, as the top official overseeing the state courts, told Madigan he disagreed.

Soon after, all seven state Supreme Court justices—including four Democrats—sent Madigan a follow-up letter saying her position was "in error."

The phone call and letter apparently had the desired effect. Madigan's office has filed a second motion before U.S. District Judge David Coar, seeking permission to enforce the Illinois Parental Notice of Abortion Act. The ACLU of Illinois, which opposes the law, is set to file a response May 17.

Legal experts said there's nothing unethical about Thomas' actions or the Supreme Court's letter, but it's highly uncommon—as is much of the history of the notification law.

"It's an extraordinary situation," said Lawrence Rosenthal, a former supervisor in Chicago's Law Department and now a law professor at Chapman University in Orange, Calif. "The sense I certainly get is that the attorney general is doing everything she can to be sensitive to the ACLU's concerns without actually winding up in a situation where she's got the Supreme Court of Illinois accusing her of not discharging her constitutional duties. . . . It's pretty clear that the chief justice is pushing her."

Spurring discussion
The phone call and letter also have reignited debate over how much politics has seeped into the legal process surrounding the notification law.

The 1995 notification law requires a physician to tell a parent, grandparent or legal guardian at least two days before someone younger than 18 gets an abortion.

The law provides exceptions in certain cases, such as when a parent has sexually or physically abused a minor. The law also allows a judge to waive notice if the minor is sufficiently mature or if notification is not in the minor's best interests.

The General Assembly passed the law, but left it to the state Supreme Court to issue key rules that would govern how minors could seek waivers in court.

The Supreme Court, however, never issued rules. Without rules, the ACLU was able to win a 1996 federal court order blocking the law from taking effect.

For a decade, abortion opponents seethed at what they saw as democracy thwarted by the courts, while abortion rights supporters cheered at the derailing of what they argued was an unconstitutional statute.

By September 2006, however, only one of the justices from 1995 remained on the state Supreme Court. Thomas, a former Chicago Bears player who seldom shies away from controversy, had recently been installed as chief jurist.

The Thomas court issued the long-awaited rules governing court waivers, seemingly clearing the way for the notification law to take effect.

Madigan studied the issue for several months. Then her lawyers went before Judge Coar, arguing that they found the law constitutional, but suggesting that state court staffs were not properly trained or equipped to handle waiver requests.

In February, Coar declined to lift the court order, telling the state to come back when it was ready.

That's when Thomas and the other justices took the next step. In their Feb. 27 letter, they told Madigan they "presume, and therefore assert that, as with enactment of any new law, our state courts are prepared."

A legal advocacy group that opposes abortion praised the Supreme Court's letter.

"I think it had to be written," said Tom Brejcha, chief counsel for Thomas More Society. "We think there was a strategy of delay going on here to pave the way for the efforts in Springfield to gut the law."

New bill put forth
This spring, State Rep. John Fritchey (D-Chicago) introduced a bill that would have, for example, broadened the categories of people a minor could notify before getting an abortion to include other relatives, such aunts and uncles.

Some proponents of the 1995 notification law accused Madigan of dragging her feet while legislators pushed through Fritchey's less-strict measure. Fritchey scoffed at allegations of collusion between his office and Madigan's.

In any case, the General Assembly narrowly rejected Fritchey's bill on April 26.

The attorney general, meanwhile, said her litigation was unrelated to anything going on the legislature.

Madigan has no problem taking direction from the Supreme Court on this issue, because "it's entirely within the Supreme Court's province to determine the readiness of the courts," said Ann Spillane, Madigan's chief of staff.

Spillane said Madigan had thought that, because the law had been dormant for so long, the courts might need time to get up to speed. But, she said, "We did not do any real research at all."

ACLU officials, meanwhile, argued that the court's letter deserves little weight because it merely "presumes" that the state's courts are prepared.

"As far as we can tell, nothing has changed as far as the state courts' actual readiness," said Lorie Chaiten, director of the reproductive rights project for ACLU of Illinois. "What the Illinois Supreme Court seems to be saying is, 'Let's try this and see what happens.' "

A spokesman for the state Supreme Court declined to comment.

One of the few other times when state Supreme Court justices wrote to an attorney general also involved the notification law. In 1995, Atty. Gen. Jim Ryan criticized the Supreme Court for failing to promulgate the necessary rules. The court at the time blasted back, writing a letter that instructed Ryan how to defend the law in court.

Judges normally have to be careful not to make out-of-court statements about legal issues that might come before them, but Illinois' code of judicial conduct creates an exception for matters that relate to the administration of the courts, said Les Abramson, law professor at the University of Louisville.

Rosenthal, the former city attorney, agreed that the current court was on safe ground ethically. But he said the tangled 12-year history of the notification law reflects poorly on the state's ability to pass and enforce its laws in an orderly way.

"The whole thing is just a really grim comedy of errors," Rosenthal said. "It's a lousy way to run a railroad."

mjhiggins@tribune.com