* Background is here if you need it. Chicago Tribune…

On Tuesday, the Danville City Council is scheduled to vote on the ordinance, which is titled “requiring compliance with federal abortion laws.” It’s unclear how the local ordinance, which directly conflicts with Illinois law, could be legally enforced in this rural city of about 30,000 people located roughly three hours south of downtown Chicago.

Danville Mayor Rickey Williams Jr. said the proposed ordinance invokes the Comstock Act, an 1873 federal law that barred the mailing of contraception, “lewd” writing and every “article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.”

The 19th Century law has been largely considered moot for nearly 50 years, while the 1973 landmark Supreme Court case Roe v. Wade guaranteed the right to an abortion nationwide. But the Comstock Act has been in the spotlight since the high court overturned Roe in June, leaving the matter of abortion rights to be decided by individual states.

“The difficulty here in my opinion is we have state laws and statutes that contradict federal law, specifically the Comstock Act,” Williams said. “We made an oath to uphold the laws of the state of Illinois and the United States, so what do we … do when they contradict one another?”

* The ACLU Illinois argues the Comstock Act is not applicable in Illinois…

The ordinance references the federal Comstock Act, which is a century-and-a-half old federal law that purports to prohibit the sending of abortion-inducing drugs and supplies by mail or common carrier. The ordinance’s attempted reliance on this law is misplaced and misguided.

As the federal Department of Justice has explained, there is over a century of judicial, congressional, and administrative understanding that the Comstock Act’s reach is “narrower than a literal reading might suggest.” Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions, 46. Op. O.L.C. __ (Dec. 23, 2022) at 5. The Comstock Act does not apply where the sender did not intend the materials to be used unlawfully. Id. at 1, 5-11. It is thus impossible for the mailing of abortion-inducing drugs or supplies to violate the Comstock Act in Illinois as abortion care is lawful and affirmatively protected by law throughout the state.

Furthermore, regardless of the meaning or scope of the Comstock Act, this ordinance exceeds Danville’s authority under state law and is preempted by the RHA

* Illinois Newsroom…

“Proposing an unenforceable ordinance is a political maneuver that causes confusion and that harms people seeking care,” Chaundre White, a lawyer with the ACLU of Illinois, said.

Abortion rights advocates are organizing a protest at the Danville City Council meeting on Tuesday where the council could vote on the ordinance. […]

Many residents said they supported the measure because they want to prevent a proposed abortion clinic from opening in Danville.

“It’s not like the passage of this ordinance prevents women from choosing to pursue their rights in very near locations, unfortunately,” said Josh Hayes, a speaker at the meeting. “But I think it’s an opportunity for us to say this is against federal law and not in our community.”

* WCIA reported on last week’s City Council committee meeting…

Mayor Rickey Williams Jr. explained that anyone shipping or receiving abortion pills or abortion-related supplies would be subject to fines of $1,500 per offense. There was discussion over an abortion clinic that may open up in Danville soon. Williams acknowledged that while he doesn’t think the ordinance would stop the clinic from opening, he said it could provide a means by which they couldn’t perform abortions.

Alderman Tricia Teague noted internal counsel estimates that if litigation was brought against the city, it could cost up to $1 million to defend, or more if it goes all the way to the U.S. Supreme Court. […]

Ultimately, the committee voted 3-1 to recommend the ordinance be considered by the full City Council – the first step toward an outcome many who described themselves as pro-life during public comment are hoping for. That same group of speakers called providing abortions a “grisly business” that doesn’t belong in their city, while the other side says it’s necessary health care – telling the government to stay out of the doctor’s office.

Also during the meeting, Williams mentioned receiving a letter from a lawyer who offered to represent the city if it is met with litigation over the proposed ordinance. WCIA reached out to attorney Anthony Mitchell, who said via email: “Yes, I have offered to represent the city at no charge to the city or its taxpayers in any litigation arising out of the ordinance.”

* Smile Politely…

You can read the full language of the ordinance here, beginning on page 123.

The full vote will happen during the Danville City Council meeting on Tuesday, May 2nd, at 6 p.m., at 17 W Main Street, in case you’d like to voice opposition to this action.

It should be noted that Danville currently has a crisis pregnancy center, the Women’s Care Clinic, with a website brimming with misleading information about abortion.

* From the proposal…

C) Except as provided by subsection (D), it shall be unlawful for any person to engage in conduct that aids or abets the violations of 18 U.S.C. § 1461 or 18 U.S.C. § 1462 described in subsection (A).

(D) This section shall not apply to any conduct taken by a hospital, or by any employees, agents, or contractors of a hospital, that is necessary to ensure that a licensed physician is prepared to perform an abortion in response to a medical emergency.

(E) No provision of this section may be construed to prohibit any conduct protected by the First Amendment of the U.S. Constitution, as made applicable to state and local governments through the Supreme Court’s interpretation of the Fourteenth Amendment, or by article 1, section 4 of the Illinois Constitution.

(F) Under no circumstance may the mother of the unborn child that has been aborted, or the pregnant woman who seeks to abort her unborn child, be subject to prosecution or penalty under this section.

(G) Any person found guilty of violating any provision of this section shall be fined $1,500 for each offense. In addition to any fine imposed under this chapter, the offender shall be ordered to pay all of the costs and fees incurred by the City in prosecuting the violation, which shall include but not be limited to the costs associated with an administrative adjudication proceeding or court proceeding, and reasonable attorney’s fees.

*** UPDATE *** AG Raoul…

Illinois Attorney General Kwame Raoul issued the following statement after sending a letter to the mayor of Danville, Illinois regarding a proposed city ordinance that, if enacted, would violate state law.

“Today, I sent a letter to the mayor of Danville urging the city to reject a proposed ordinance that would violate the Illinois Reproductive Health Act by purporting to ban or severely limit access to abortion care in the city of Danville.

“The Reproductive Health Act enshrines the fundamental rights of individuals to make autonomous decisions about their reproductive health. The act clearly states that units of local government cannot limit abortion rights, and Danville has no authority under Illinois law to enact a municipal abortion ban.

“The ordinance proposed in Danville violates state law. I am calling upon the city’s elected officials to refrain from passing or attempting to enforce this unlawful ordinance and avoid exposing the city and taxpayers to unnecessary and potentially costly legal liability.

“Illinois law could not be clearer. Our state is a proud safe haven for access to reproductive health care that respects bodily autonomy and fundamental rights. I will continue to stand up for the rights of everyone in Illinois to access reproductive health care, and my office stands ready to take appropriate action to uphold Illinois law.”

* More…

* Scientific American | This 19th-Century Obscenity Law Is Still Restricting People’s Reproductive Rights: The law forbids the sending of obscene materials through the mail. Comstock was enforcing the law by ordering thousands of items through the mail, from contraceptives and sex toys to erotic images and abortifacients [substances that end a pregnancy]. Then, after receiving the items, he would prosecute the people sending them. He was targeting people who were known to be selling the raw material but also, more importantly, people who were selling any kind of information that was education-related, not obscene—literally things like “Here’s how to make a baby” and also information about birth control and abortion.

* WBBM | ACLU could sue city of Danville over abortion clinic ordinance: “You won’t know until the finality, which could go beyond potentially to the Supreme Court level,” said Alderman Ethan Burt. “My response to that would be are we willing to donate a million dollars to find out? Is it worth a million dollars to find out?” Alderwoman Tricia Teague asked.

* Fox Illinois | Danville committee recommends ordinance restricting abortion to city council :“Illinois law is very clear that Danville does not have the authority to do this. In 2019, the Illinois General Assembly passed the Illinois Reproductive Health Act, which ensures that abortion remains legal in the state of Illinois, that law applies to municipalities like Danville,” explained Ameri Klafeta, director of Women’s and Reproductive Rights Project with ACLU Illinois.