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* Pro-life Action League board member Chris Iverson…

As proposed, HB40 purports to do two things: ensure that abortion in Illinois would remain legal even if the U.S. Supreme Court rolls back Roe v. Wade and allow for the use of taxpayer dollars to fund abortions. This is a very strange policy, since fewer than half of Americans find abortion morally acceptable. And, according to another recent poll, Americans do not want to pay for other people’s abortions.

Aware that their bill has unpopular policy results, those advocating the bill created political cover. They dusted off the old law books and found language in a 1975 Illinois abortion law that mentions a general intent to protect unborn humans from abortion. The advocates for HB 40 falsely claim this language amounts to a “trigger law” that will make abortion illegal in Illinois if the Supreme Court overturns the Roe decision. It’s a scare tactic aimed at reducing support for Governor Rauner. If they can get voters upset over this false claim, perhaps these voters will forget the fiscal crisis we are in and vote accordingly.

The truth is that the Illinois Legislative Research Unit in 1989 already studied this question and determined that there is no trigger law. If Roe v. Wade is ever overturned, abortion will be just as legal in Illinois as it is today. It would take an entirely new law at the state level to make abortion illegal. So, then, HB40 would really only do one thing: Require taxpayers to pay for abortions through Medicaid and state workers insurance.

* From a 1989 Tribune article…

A preamble to the 1975 law allowing abortions says if the landmark Roe v. Wade decision is ever reversed or modified, “the former policy of this state to prohibit abortions unless necessary for the preservation of the mother’s life shall be reinstated.”

Despite the strong wording, most Illinois legislators, bolstered by an opinion from the General Assembly`s legislative research unit, say lawmakers would have to pass new bills before abortion could be banned or severely restricted again.

The reference to reverting to the old law “lacks all of the kinds of specific, operative provisions that would be necessary for enforcing such a policy, such as definitions and penalties,” the legislative research unit said in February.

* From a 1991 Tribune article…

Anti-abortion groups would likely go to court to get the 1975 law reinstated [if Roe v. Wade is overturned], but whether they would succeed remains a question. […]

“Abortions will not be illegal because there is no statute in Illinois that makes abortions generally criminal,” [Attorney Paul Linton, counsel for the anti-abortion Americans United for Life] said.

The Illinois Legislative Research Unit of the General Assembly also shares that view. It would take a new law to outlaw abortion here, the research unit concluded in a 1989 study. […]

[Colleen Connell, director of the reproductive rights project of the American Civil Liberties Union of Illinois] of the ACLU maintained that both the preamble and the law are unenforceable.

“The law has a unconstitutional vagueness,” she said. “It doesn’t specifically tell physicians which acts are prohibited and which are not. There’s a long-standing and unquestioned doctrine of criminal law in Illinois that says the law must be very specific.

“What the preamble says is the General Assembly didn’t like abortion, but the preamble has no legal, binding aspect.”

Despite those comments, the ACLU of Illinois is currently advocating for the “trigger” law repeal.

* Why? Well one reason may be found in a subsequent 1997 Illinois Supreme Court opinion…

Under Illinois law, a preamble “is not a part of the Act itself and has no substantive legal force.” Because a preamble customarily precedes the enacting clause, “ ‘[it] is not regarded as being an operative part of statutory enactments.’ ” A preamble cannot, by itself, prescribe rights or establish duties, but may only be used as a tool of statutory construction. [Citations removed.]

* However, that same 1997 opinion says this…

The preamble has long been recognized as one of the quintessential sources of legislative intent. The fact that the preamble often accompanies a bill throughout the legislative process, is voted upon by the members of the General Assembly, and is included in the text which is presented to the Governor for signature highlights the unique character of the preamble in terms of legislative intent. In this regard, we note that a preamble constitutes a stronger expression of intent than does a passing comment made by a single legislator during legislative debates. Thus, we are not confronted with a situation where the contrary legislative intent needed to rebut the presumption of retroactivity is cloaked in doubt or uncertainty.

Equally important, however, is the fact that our decision is faithful to the cardinal rule of statutory construction which dictates that courts must ascertain and give effect to the true intent and meaning of the legislature.

What they were talking about in that case was a preamble which announced the intent of the General Assembly that wasn’t actually in the statute. The statute simply and succinctly repealed the Structural Work Act (”The Structural Work Act is repealed”), but the specifically stated legislative intent was only to bar legal actions going forward (”It is the intent of the General Assembly that any action accruing under the Structural Work Act before the effective date of this Public Act may be maintained in accordance with the provisions of that Act as it existed before its repeal by this Public Act.”). The Supremes went with the legislative intent in the preamble after an injured worker attempted to claim damages from an injury received before the repeal took effect.

* From the legislative intent preamble to the “trigger” statute in question…

It is the intention of the General Assembly of the State of Illinois to reasonably regulate abortion in conformance with the decisions of the United States Supreme Court of January 22, 1973. Without in any way restricting the right of privacy of a woman or the right of a woman to an abortion under those decisions, the General Assembly of the State of Illinois do solemnly declare and find in reaffirmation of the longstanding policy of this State, that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child’s right to life and is entitled to the right to life from conception under the laws and Constitution of this State. Further, the General Assembly finds and declares that longstanding policy of this State to protect the right to life of the unborn child from conception by prohibiting abortion unless necessary to preserve the life of the mother is impermissible only because of the decisions of the United States Supreme Court and that, therefore, if those decisions of the United States Supreme Court are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions unless necessary for the preservation of the mother’s life shall be reinstated.

An ACLU of Illinois spokesman says the group hasn’t changed its position, but that there is just “too much risk” now from legal ambiguities like the one above to allow a judge to decide what happens next should Roe v. Wade be repealed. That’s why they want to repeal the “trigger.”

posted by Rich Miller
Friday, Apr 21, 17 @ 2:30 pm

Comments

Then why did the ACLU not push to repeal the trigger a decade ago when Alito was put on the bench?

Comment by Anon Friday, Apr 21, 17 @ 2:53 pm
allow a judge to decide

ha ha ha ha ha ha ha

Comment by Fav Hum Friday, Apr 21, 17 @ 3:27 pm
“Then why did the ACLU not push to repeal the trigger a decade ago when Alito was put on the bench?”

Justice Ginsburg was ten years younger when Sam Alito took the bench.

– MrJM

Comment by @misterjayem Friday, Apr 21, 17 @ 4:44 pm
With all due respect to the Legislative Research Unit, absent any specific law regarding abortion, given the preamble of the current law, it seems a doctor performing an abortion or her patient would be charged under the murder statute, wouldn’t they?

Comment by Yellow Dog Democrat Saturday, Apr 22, 17 @ 3:46 am