Lawmakers work to repeal Illinois' last abortion restriction, curb vaccine mandate lawsuits
Democrats in the Illinois Senate on Tuesday night voted to repeal the last remaining abortion restriction on the state's books, while Democrats on a House panel approved a measure tightening a decades-old law in hopes of curbing a recent wave of lawsuits challenging employer vaccine mandates in Illinois.
Neither effort has an easy path to Gov. JB Pritzker’s desk but proponents for both are hoping to muscle their legislation through the General Assembly by Thursday, lawmakers’ last scheduled session day in Springfield for the year.
Nixing parental notification for abortions
Roughly eight hours after Senate Democrats unveiled legislation to repealing Illinois’ Parental Notice of Abortion Act on Tuesday, sponsors pushed the measure through the Senate on a narrow roll call, with several members of their own party voting with Republicans in opposition and a handful more Democrats declining to cast a vote.
Illinois is one of 38 states that require the parents or guardians of minors seeking abortions to be notified prior to the procedure. And while Illinois’ parental notification law also includes a pathway for teens to petition a judge if telling their parents would be unsafe — like in abusive homes or cases of rape or incest — proponents for repealing the statute argue the prospect of navigating a court system could deter minors from even trying to use the judicial bypass system, despite its 99.5% rate of success, according to the American Civil Liberties Union of Illinois.
Additionally, keeping the Parental Notice of Abortion Act on the state’s books doesn’t jibe with pro-choice advocates’ goal to make Illinois a safe haven for those seeking abortions.
That ambition has only grown over the past five years since the election of Donald Trump, who used his presidential appointment power to reshape the federal judiciary — especially the U.S. Supreme Court — with conservative judges more likely to rule in favor of shrinking abortion access.
In the aftermath of the Supreme Court declining to intervene before Texas’ new six-week abortion ban law went into effect in September, activists began pressuring Illinois Democrats to rekindle a dormant fight over repealing the state’s final remaining abortion restriction. And on Tuesday, State Sen. Elgie Sims (D-Chicago), who began agitating for the repeal of Illinois’ Parental Notice of Abortion Act pre-pandemic, picked his bill back up.
“We are trying to protect those who cannot stand up for themselves,” Sims said while debating his bill in the Senate Tuesday night. “Those who cannot turn to a trusted adult and say, ‘I am in trouble. I need guidance.’”
While Illinois’ Parental Notice of Abortion Act technically dates back nearly 40 years, decades of court battles prevented the enforcement of both the initial attempt at the law in 1983 and the 1995 statute that still stands today. The law only truly went into effect in 2013.
Despite the law’s relatively short tenure in practical terms, opponents to repealing the law argue that axing Illinois’ current abortion notification requirements for minors would weaken parents’ sovereignty over how they choose to raise their children. And for many families, culture and religion informs those parenting choices — a point driven home by a group of Latino pastors who visited Springfield on Tuesday, urging lawmakers to vote against repealing the parental notice law.
“I’m very angry and upset,” Pastor Jose Acevedo of Chicago’s Iglesia Monte de Sion (Mount Zion Church) told reporters during a Capitol news conference. “Because God gave us, the parents, the right to educate and influence our children, not the government. It was a God-given gift for us — a responsibility.”
Acevedo implied that members of his community would remember how lawmakers voted on repealing Illinois’ Parental Notice of Abortion Act when they go to the ballot box.
“Being a Latino, I grew up in a culture where they always told us to shut up, Acevedo said. “But we’re not quiet anymore…We’re beginning to be educated about what’s going on in our society. And how is that going to translate what we are learning and being educated on? In our votes.”
Other opponents to repealing the law steered clear of using religious beliefs as the basis of their arguments, but rather pointed to a bevy of other state laws that expressly limit teens under 18 from activities like buying lottery tickets and going to tanning salons — or getting tattoos without parental consent. Two years ago, lawmakers raised the legal age for buying tobacco products from 18 to 21.
“We changed it to 21 because we didn’t think that person had the ability to know how to protect their health,” State Sen. Jil Tracy (R-Quincy) “It’s hard to understand why, when we recognize minors are still learning, growing and developing the capacity to make mature decisions and exercise good judgment, we would repeal a law requiring parental notification for a minor to get an abortion.”
As Tracy juxtaposed Democrats’ rationale for repealing the parental notice law with their reasoning behind bumping Illinois’ smoking age to 21, State Sen. Emil Jones III (D-Chicago) nodded along, saying aloud to no one in particular that the Republican was making a good point. But Jones ended up voting in favor of repealing the law after telling NPR Illinois he would watch where his colleagues landed on the Senate’s electronic voting board.
Nearly every member of the Senate’s Black Caucus, including Jones, voted to repeal the Parental Notice of Abortion Act, save for two who didn’t vote at all. And while some members of the House’s Black Caucus have also indicated they may not be on board with repealing the law, the seven moderate white senators who voted against the bill or didn’t cast votes also provide a hint for how the measure will fare in the other chamber.
Support for repealing the parental notification law may not fall neatly on the usual dividing lines over abortion, but votes on other major abortion-related legislation in the past five years do contain some through-lines.
State Sen. Bill Cunningham (D-Chicago), for example, voted against repealing the Parental Notice of Abortion Act on Tuesday evening, which follows a “present” vote on a 2019 law enshrining abortion as a fundamental law in Illinois, and declining to vote on a 2017 measure that allowed abortions to be paid for with federal funds, including Medicaid recipients. The 2017 law, signed by then-Gov. Bruce Rauner to much political fallout for the Republican, also repealed Illinois’ so-called “trigger law,” which would have automatically made abortion illegal in Illinois if the U.S. Supreme Court ever overturned Roe v. Wade.
Cunningham could not be reached for comment after Tuesday night’s vote.
Similarly, State Sen. Rachelle Aud Crowe (D-Collinsville) also voted against repealing the parental notification law after voting “present” on the Reproductive Health Act in 2019. Crowe could not be reached on Tuesday night.
Sims says he hasn’t received any assurances regarding the bill’s passage from Speaker Chris Welch (D-Hillside), who along with Sims, began pushing for repealing Illinois’ Parental Notice of Abortion Act in 2019. After getting elected to lead his caucus in January, Welch didn’t make passing the potentially divisive legislation a priority during lawmakers’ regular spring session.
Still, Sims told NPR Illinois his conversations about the bill with other House members have been positive, saying he hopes to see the other chamber vote to repeal the parental notification law before the end of the week.
Stemming the tide of litigation over COVID mandates
Democrats are also hoping to retool another piece of decades-old law on Illinois books this week, racing to stem the tide of litigation that Pritzker and Attorney General Kwame Raoul are warning could severely hamper Illinois’ recovery from COVID-19.
After a lengthy debate in a virtual committee hearing late Tuesday afternoon, Democrats in the Illinois House approved a tweak to the state’s Health Care Right of Conscience Act, which could see a vote in the full House as early as Wednesday if sponsors can eliminate opposition from skeptics in their own party.
Illinois’ Health Care Right of Conscience Act, or HCRCA, was originally passed in the late 1970s — in the wake of the U.S. Supreme Court’s in Roe v. Wade functionally legalizing abortion — to shield healthcare professionals with religious objections to abortion from being forced to perform the procedure.
But in the last few months, creative attorneys have successfully used the law to argue their clients can’t be fired for refusing to comply with employers’ COVID-19 vaccine mandates if they claim a religious objection to vaccines under the HCRCA.
State Rep. Robyn Gabel (D-Evanston), who is leading the charge to tighten up the decades-old law, said lawmakers have a responsibility to clarify the statute to prevent further exploitation of the loophole.
“The act was not written to interfere with the ability of employers to implement workplace safety measures during a global pandemic, but that’s how people are using it today,” Gabel said.
So far, employing Illinois’ HCRCA has proven an effective legal strategy for a small group of nurses at a Kankakee hospital, who this week won temporary protection from getting fired over their refusal to get their COVID shots. It’s also worked for employees at a trio of medical groups in Quincy, who were spared from terminations over their workplaces’ vaccine mandates earlier this month.
Other lawsuits, including those filed on behalf of teachers, go even further in trying to use the law to get out of regular COVID testing — offered as an alternative to getting vaccinated — and mask wearing at school.
One recent federal case filed last week on behalf of 130 Chicago firefighters and employees at the City’s Water Department seeks a temporary restraining order halting Chicago Mayor Lori Lightfoot’s requirement that all city workers report their vaccination status or risk being put on no-pay status.
It’s unclear how many lawsuits have been filed in Illinois so far using the HCRCA as a legal rationale to beat employers’ vaccine mandates; litigation has been initiated in many of Illinois’ 102 county circuit courts, in addition to federal courts. But since Pritzker is often named as a defendant in the suits, the eight cases the Attorney General’s office is defending the governor in is a decent gauge for the trend.
And Ashley Wright, chief of legislative affairs at the Attorney General’s office, said there’s reason to believe the spigot of litigation is just getting started. Wright told lawmakers Tuesday afternoon that the only way to stem the wave of lawsuits is to approve an amendment to the HCRCA this week, and warned that failure to do so could mean the functional collapse of Pritzker’s many COVID mitigation orders.
“To be clear, if we leave Springfield doing nothing on this issue, we’ll be walking back from all the progress that we’ve made so far…on all the mitigation efforts that we’ve made,” Wright said. “And that includes masks and testing. Not passing this bill ultimately means that the state cannot keep people safe.”
But State Rep. Deanne Mazzochi (R-Elmhurst) seized on that line of reasoning, pointing out that every other vaccine mandate and public health requirement in Illinois has been written into state law. But for the last 19 months, Pritzker has designed his pandemic response around executive orders — an approach that Republicans have repeatedly condemned, and even some Democrats have privately chafed at.
“Why does it surprise you that when the legislature hasn’t specifically put into place a COVID vaccine mandate, that people are turning to the more general Health Care Right of Conscience Act [to find a religious exemption from the vaccine mandates]?” Mazzochi asked Gabel and top staff from Pritzker’s office. “You haven’t done the work to get a specific vaccine mandate enacted into law by this General Assembly.”
But Illinois is not alone in its lack of codified COVID vaccine mandates. Very few states have passed any laws mandating COVID vaccines for even small segments of the population, like medical students. Governors who have signed laws pertaining to vaccine mandates this year have by and large been Republicans whose GOP partners in their state legislatures have approved measures limiting vaccine mandates or prohibiting employers from refusing to hire someone based on their vaccination status.
Right next door to Illinois, for example, Indiana Gov. Eric Holcomb this spring signed a law prohibiting the state or local governments from requiring anyone — including employees — to show proof of vaccination.
However, Illinois does stand alone in the amount of litigation it’s likely to see over vaccine mandates because of the way the HCRCA was written. Ed Yohnka, spokesman for the ACLU of Illinois, said he national organization has not seen any other state’s right of conscience statute being used to escape employer vaccine mandates.
Illinois’ HCRCA is much more broadly written than similar laws in any other state, Yohnka said. His group has long claimed the statute — originally adopted when most hospitals were affiliated with Catholic institutions and abortion was newly legal — was written with an eye toward protecting health care workers and not patients.
The law’s broad wording has invited lawsuits in the past, including a seven-year legal battle over whether pharmacies can be compelled to dispense birth control medication. After losing that battle, the ACLU pushed to tighten up the HCRCA in 2016 for the first and only time before this week’s pandemic-induced effort. The ACLU of Illinois is not taking a position on the current proposal, as Yohnka said his group would rather see the entire law rewritten.
Employers in other states — as well as many state governments themselves — are also facing lawsuits over vaccine mandates. But those cases center around First Amendment and religious discrimination claims under the Civil Rights Act of 1964. While the ACLU’s entire mission is built around the First Amendment and civil rights issues, the organization is siding with COVID vaccine mandates, so long as they include exemptions for legitimate health reasons like an allergy to a vaccine — and not any religious exemptions.
Organized opposition to Democrats’ proposed changes to HCRCA has been swift thanks to social media, culminating in nearly 51,000 witness slips — an astronomical number — filed against the bill ahead of Tuesday afternoon’s hearing. While resistance to the legislation is not purely driven by religious reasons, Gabel spent significant time during the hearing disputing accusations that tightening the HCRCA would spell the end to religious exemptions for vaccine mandates.
“You cannot invoke the Health Care Right of Conscience Act,” Gabel said of employees’ options to not comply with vaccine mandates if the HCRCA is changed this week. “That doesn’t mean you can’t invoke federal laws, particularly for religious exemptions.”
Groups like the Catholic Conference of Illinois are opposed to changing the law, not eager to cede any of the protections afforded to religious health care providers. But Bishop Thomas John Paprocki, who heads the Springfield Diocese of the Catholic Church, told reporters Tuesday he couldn't think of true religious objection to COVID testing.
"The Illinois Health Care Right of Conscience Act was not intended to cover things like testing or taking precautions like wearing a mask. I think that’s just common sense. Catholic hospitals — any hospital for that matter — has to have safety requirements," Paprocki said. "You wouldn’t have a surgeon doing surgery without wearing a mask and scrubbing down."