merit discussion, especially because this Act may be reenacted in
an effort to comply with constitutional requirements.
We were troubled initially by the first provision of Section 8
providing that "any person . . . who intentionally, knowingly, or
recklessly fails to conform to any requirement of this Act, is
guilty of a Class A misdemeanor." Although Ill.Rev.Stat. ch. 38,
§ 4-4*fn13, defining "intent", and Ill.Rev.Stat. ch. 38, §
4-5*fn14, defining "knowledge", provide relatively clear
examples of proscribed conduct, we have serious doubt that
Ill.Rev.Stat. ch. 38, § 4-6*fn15, defining "recklessness", is
applicable to the term "recklessly fails to conform" as stated in
Section 8. While this may appear to be a mere semantic
difficulty, it should be cleared up to avoid a potential "void
for vagueness" problem. See, e.g., Grayned v. City of Rockford,
408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222
(1972) (impermissibly vague laws offend due process by not giving
a person of ordinary intelligence a reasonable opportunity to
know what is prohibited, by not giving those responsible for
enforcement explicit standards of applying them, and they operate
to inhibit the exercise of freedoms.) Since the "actual notice"
provision itself presents problems, as we discuss infra, the
standard of recklessly failing to conform to it compounds the
The second provision of SB 521's Section 8, regarding civil
actions against those who fail to provide persons with the
requisite information presents a far more serious impediment.
That paragraph states that failure to provide information is
"prima facie evidence of failure to obtain informed consent and
of interference with family relations" in a civil action and,
further, that "the law of this State shall not be construed to
preclude the award of exemplary damages" in appropriate civil
actions. (Emphasis added.) This language raises the possibility
of actions in which there are no compensatory damages and yet,
because of Section 8's wording, a plaintiff may be able to
recover punitive damages without compensatory damages, i.e.
without sustaining any actual damages at all!
Given the express language in the statute that Illinois law
should "not be construed to preclude the award of exemplary
damages," the above result might occur despite the well-settled
law in Illinois that punitive damages may not be awarded in the
absence of actual damages. See, e.g., Jones v. Reagan,
696 F.2d 551 (7th Cir. 1983); By-Prod Corp. v. Armen-Berry Co.,
668 F.2d 956 (7th Cir. 1982); Rhodes v. Uniroyal,
Inc., 101 Ill. App.3d 328, 56 Ill.Dec. 834, 427 N.E.2d 1380
(1981); Ochoa v. Maloney, 69 Ill. App.3d 689, 26 Ill.Dec. 22,
387 N.E.2d 852 (1979). Punitive damages should not go beyond
deterrence and become a windfall. See Lenard v. Argento,
699 F.2d 874 (7th Cir. 1983), cert. denied sub nom Argento Sansone v.
Lenard, ___ U.S. ___, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983).
Additionally, it is equally well-established in Illinois that
punitive or exemplary damages may be awarded when torts are
committed with fraud, actual malice, deliberate violence, or when
the defendant acts willfully and with wanton disregard of the
rights of others. Carter v. Mueller, 120 Ill. App.3d 314, 75
Ill.Dec. 776, 457 N.E.2d 1335 (1983), citing Kelsay v. Motorola,
Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978). Cf.
Hazelwood v. Ill. Central Gulf R.R., 114 Ill. App.3d 703, 71
Ill.Dec. 320, 450 N.E.2d 1199, 1207 (1983) ("the nature of
punitive damages in Illinois is clearly singular — it is
punishment for the defendant") (emphasis in original). Punitive
damages are in the nature of a criminal penalty and are not
favored under the law. Boddie v. Litton Unit Handling Systems, A
Division of Litton Systems, Inc., 118 Ill. App.3d 520, 74 Ill.Dec.
112, 455 N.E.2d 142 (1982).
The exemplary damages provision of Section 8 is further
complicated because of its conjunction with "interference with
family relations", a concept most often associated with the
relationship between spouses —"loss of consortium", see, e.g.,
Martin v. Kiendl Construction Co., 108 Ill. App.3d 468, 63
Ill.Dec. 824, 438 N.E.2d 1187 (1982), and, in the abortion
context, a somewhat nebulous concept.
Our research discloses no abortion statute that provides for
exemplary damages in any civil action, let alone a criminal
statute that attempts to create a tort whose boundaries are vague
and ill-defined. For instance, La.Rev.Stat.Ann. § 40:1299.35.5
(West Supp. 1984) (parental consent statute providing a
constitutionally adequate alternative procedure, Application of
Doe, 407 So.2d 1190 (La. 1981)) provides only that violations of
its provisions result in a fine of not more than $1000 or
imprisonment for not more than two years or both. Id. at §
40:1299.35.18. The North Dakota Abortion Control Act, providing
for notice to parents, provides only for criminal penalties. See
N.D.Cent.Code § 14-02.104 et seq. (The statute, struck down in
Leigh v. Olson, 497 F. Supp. 1340 (D.N.D. 1980) because the notice
provisions applied in every case regardless of the maturity of a
minor, was reenacted. S.L. 1981, ch. 164, § 1.) Tennessee's
notice provision similarly provides for criminal penalties only.
See Tenn.Code Ann. § 39-4-201(b) (1982). See also Utah Code Ann.
§ 76-7-304 (1978) (notification, "if possible", and criminal
penalty for violation) (upheld in H.L. v. Matheson, 450 U.S. 398,
101 S.Ct. 1164, 67 L.Ed.2d 388 (1981)); Mass.Gen.Laws Ann. ch.
112, §§ 12N, 12T (West Supp. 1981); Ohio Rev.Code Ann. §
Still another source of potential confusion engendered by SB
521 is its requirement and definition of "actual notice". Section
3(c) states that actual notice is "giving notice directly or by
telephone." But this leaves numerous questions unanswered. Is a
physician expected to seek out the parents at their home or place
of work in order to effect direct notice? How many times must he
or she try to reach them by telephone before the physician can be
said to "recklessly fail" to give notice?
There is no constructive notice provision in SB 521 which would
permit a physician to fulfill the notice requirement by certified
mail to the last known address of the parents. This provision,
present in other notification statutes, can alleviate the
vagaries of telephone notice and furnish conclusive and
relatively speedy proof of notice. Cf. Ind.Code § 35-1-58.5-2.5
(48 hour constructive notice provision held presumptively
constitutional in Indiana Planned Parenthood v. Pearson,
716 F.2d 1127, 1143 (7th Cir. 1983); Me.Rev.Stat. Ann. Tit. 22, §
1597.2.A,B (1980) (if 24 hours actual notice is not possible,
written notice by certified mail to last known address, mailed 48
hours before the abortion); N.D.Cent.Code § 14-02.1-03.1 (same).
The difficulty posed by SB 521's Section 3(c) is that actual or
telephone notice may never be effectuated, thus either postponing
for a significant period of time or effectively denying
altogether, a minor's access to abortion. This delay is
particularly egregious in the abortion context where time is
truly of the essence. We believe that an alternative provision,
allowing for constructive notice in the event direct or telephone
notice is unavailing within a short period of time is desirable,
if not necessary, to remedy the defect.*fn16
Plaintiffs' motion summary judgment is granted. Defendant are
enjoined from enforcing any provisions of the Parental Notice
Abortion Act of 1983. An appropriate order will enter.
PARENTAL NOTICE ABORTION ACT
PUBLIC ACT 83-890
SENATE BILL 521
AN ACT relating to notice of abortions performed on minors and
incompetents, and to repeal Section 3.3 of the "Illinois Abortion
Law of 1975", veto overridden November 20, 1975, as amended.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
[S.H.A. ch. 38, ¶ 81-61]
Section 1. Short title. This Act shall be known and may be
cited as the Parental Notice of Abortion Act of 1983.
[S.H.A. ch. 38, ¶ 81-62]
Section 2. Legislative purpose and findings. (a) It is the
intent of the legislature in enacting this parental notice
provision to further the important and compelling State interests
of: 1) protecting minors against their own immaturity, 2)
fostering the family structure and preserving it as a viable
social unit, and 3) protecting the rights of parents to rear
children who are members of their household.
(b) The legislature finds as fact that: 1) immature minors
often lack the ability to make fully informed choices that take
account of both immediate and long-range consequences, 2) the
medical, emotional and psychological
consequences of abortion are serious and can be lasting,
particularly when the patient is immature, 3) the capacity to
become pregnant and the capacity for mature judgment concerning
the wisdom of an abortion are not necessarily related, 4) parents
ordinarily possess information essential to a physician's
exercise of his best medical judgment concerning the child, and
5) parents who are aware that their minor daughter has had an
abortion may better ensure that she receives adequate medical
attention after her abortion. The legislature further finds that
parental consultation is usually desirable and in the best
interests of the minor.
[S.H.A. ch. 38, ¶ 81-63]
Section 3. Definitions. For purposes of this Act, the following
definitions will apply:
(a) "minor" means any person under the age of 18;
(b) "emancipated minor" means any minor who is or has been
married or has by court order otherwise been freed from the care,
custody, and control of her parents;
(c) "actual notice" means the giving of notice directly, in
person or by telephone;
(d) "abortion" means the use of any instrument, medicine, drug
or any other substance or device with intent to terminate the
pregnancy of a woman known to be pregnant with intent other than
to cause live birth;
(e) "incompetent" means any person who has been adjudged a
disabled person and has had a guardian appointed for her as
provided under Section 11a-3(a)(1) or Section 11a-3(3) of the
Probate Act of 1975.*fn1