State agrees to drop enforcement of law aimed at anti-abortion clinics accused of deception
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The state has agreed to drop enforcement of a law backers said was aimed at deterring deceptive practices by anti-abortion pregnancy centers following a legal challenge by anti-abortion groups.
Gov. J.B. Pritzker signed the measure this summer but it was temporarily blocked shortly afterward by a federal judge who in a scathing opinion called the law “both stupid and very likely unconstitutional.”
An agreement between plaintiffs in the lawsuit and Illinois Attorney General Kwame Raoul to make the judge’s decision permanent, which on Tuesday still needed to be signed by a judge, marks a rare victory for anti-abortion groups in a deep blue state with some of the nation’s strongest reproductive rights laws. It’s also a blow to Pritzker, who has promoted Illinois as a national beacon for abortion rights.
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.
Pritzker said Tuesday that he hadn’t spoken with Raoul about the decision to give up defending the law, but that he thought existing state consumer protection laws still could be used to keep so-called crisis pregnancy centers “from providing misinformation, disinformation.”
Nevertheless, the governor stood by his decision to sign the measure.
“It’s a good idea to protect people who are seeking health care from having their health care provider lie to them,” Pritzker said.
Democratic state Rep. Terra Costa Howard of Glen Ellyn, one of the measure’s legislative sponsors, called the agreement a “disappointing setback in our battle to protect every woman’s right to reproductive autonomy and freedom.”
“I am heartbroken by the decision to back down on our promise to Illinois women that these deceptive centers and their staffs will face legal consequences if they tell lies or conceal important health information from the patients who walk through their doors,” Costa Howard said in a statement.
Organizations that challenged the law and 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, 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 in early August, 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, who was appointed to his post by former Republican President Donald Trump, wrote in his decision.
On Monday, Peter Breen, Thomas More Society’s executive vice president and head of litigation, called the 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, who represented NIFLA and the other plaintiffs in the lawsuit. “(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 statement Monday evening, 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.”
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, some 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.
The law was aimed to address nonprofit clinics, sometimes referred to as “limited practice facilities,” that often open near or even adjacent to clinics where abortions are performed. Advocacy groups such as the Chicago Abortion Fund, which provides support to people seeking abortions, said the clinics are known to employ deceptive practices such as false advertising and are vague about what services are provided.
Raoul has said that the 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,” according to Johnston’s ruling.
“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 noted that at least one of the anti-abortion centers said it didn’t know how it could operate in light of the new law, which he wrote prompted at least one center to cancel its sidewalk counseling efforts. 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.”
In a statement following the state’s decision to drop enforcement of the law, Planned Parenthood Illinois Action President and CEO Jennifer Welch said her organization “stands by its patients ability to access reproductive health care including abortion, without being deceived, intimidated or misled.”
The crisis pregnancy center case marks the second time this year the attorney general’s office has opted not to continue defending a recently enacted state law that was challenged on First Amendment grounds.
In May, U.S. District Judge John Tharp Jr. issued a permanent injunction blocking the state from enforcing provisions in a 2021 law that barred judicial candidates from receiving campaign cash from out-of-state contributors and a 2022 law that prohibited contributions of more than $500,000 from a single source to independent expenditure committees supporting judicial candidates.
Ahead of last year’s election, in which Democrats claimed a 5-2 majority on the Illinois Supreme Court, the conservative Liberty Justice Center sued to challenge those provisions on behalf of a former Illinois lawyer who moved out of state and two political action committees that wanted to contribute in excess of the limits.
Weeks before the election, Tharp issued a preliminary ruling, finding that the challengers had “some likelihood of success” in proving their case that the laws were unconstitutional and should be overturned.
In his May 18 order, Tharp noted that the state did not appeal the earlier decision and did not oppose the provisions being permanently blocked.
Pritzker on Tuesday dismissed the idea that he and Democrats in the legislature have overreached by approving laws that the attorney general has declined to defend.
“The people who are on the losing end of a vote in the legislature often decide that their recourse is to take this thing to court because they didn’t win in the battleground of the legislature,” he said. “And so that’s been their choice to do that. They’ve done it on quite a lot of things ... the vast majority of which we have won on, those of us who have advocated for a law.”
The state continues to defend challenges to another Democratic initiative, the ban on certain high-powered guns and high-capacity ammunition magazines. The ban was temporarily blocked on the state and federal levels, but both of those decisions were overturned, one by the state Supreme Court and the other by a federal appellate court panel.
