Appeal from the Circuit Court of Cook County. No. 09 CH 38661 Honorable Daniel A. Riley, Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.
Justice McBride concurred in part and dissented in part, with opinion. Presiding Justice Garcia specially concurred, with opinion.
Plaintiffs challenge the constitutionality of the Parental Notice of Abortion Act of 1995 (the Act) (750 ILCS 70/1 et seq. (West 2008)), under the Illinois constitution alone.
In the proceedings below, the trial court entered judgment on the pleadings and dismissed plaintiffs' complaint with prejudice. In this consolidated appeal, plaintiffs appeal the trial court's dismissal; and the proposed intervenors appeal the trial court's denial of their petition to intervene.
The legal issues that we are asked to decide on this appeal are fairly straightforward and simple, and do not take us into any political arena. The trial court held that plaintiffs' equal protection and due process claims were barred by collateral estoppel; and that the privacy claim must be dismissed because Illinois privacy law is coextensive with federal privacy law on this issue, and federal privacy law would require dismissal. For the reasons that follow, we conclude, first, plaintiffs' equal protection claim is not barred by collateral estoppel, because the federal opinion which allegedly estopped the claim was not decided on equal protection grounds. Zbaraz v. Madigan, 572 F.3d 370 (7th Cir. 2009). Second, plaintiffs' due process claim is not barred by collateral estoppel, because the federal court was presented with only a very narrow question which is not at issue here. Zbaraz, 572 F.3d at 373, 376. Third, state and federal constitutional clauses may be considered coextensive when the two clauses are worded the same, but this logic does not apply when the Illinois constitution has an express clause, such as a right to privacy clause, which the federal constitution does not.
Therefore, we reverse the trial court's order dismissing the complaint, we affirm the trial court's denial of the petition to intervene, and we remand for further proceedings consistent with this opinion.
The plaintiffs are the Hope Clinic for Women, Ltd. (Hope Clinic) and Dr. Allison Cowett. The Hope Clinic is a licensed private medical clinic located in Granite City, Illinois, that provides reproductive health services, including abortions. Dr. Cowett is a physician licensed to practice medicine in Illinois, as well as an assistant professor at the University of Illinois at Chicago (UIC) and the Director of UIC's Center for Reproductive Health. Dr. Cowett provides a broad range of gynecological and obstetric care, including abortions.
Dr. Cowett, as well as the other physicians who provide medical care at Hope Clinic, are subject to professional discipline and civil penalties for failure to comply with the Act's requirements.
B. Defendants and Proposed Intervenors
Defendants are sued in their official capacity only. Brent Adams is the Acting Secretary of the Illinois Department of Financial and Professional Regulation (the Department). Daniel Bluthardt is a director of a division within the Department, namely the Division of Professional Regulation. The third defendant is the Illinois State Medical Disciplinary Board. All defendants are responsible for imposing professional discipline on physicians who fail to comply with the Act's requirements.
The proposed intervenors, like defendants, seek dismissal of plaintiffs' complaint. The two proposed intervenors are Stewart Umholtz, the State's Attorney of Tazewell County, Illinois, and Edward Deters, the State's Attorney of Effingham County, Illinois.
The Act places on physicians the responsibility of disclosing to a "parent, grandparent, step-parent living in the household, or legal guardian" the fact that their minor or incompetent child is seeking an abortion. 750 ILCS 70/10, 70/15 (West 2008).
If a pregnant minor seeks a physician's help and chooses to continue her pregnancy, no notice is required even when: she has been adjudicated incompetent; complications may endanger her life or health; she is homeless; the resulting child will be severely disabled; or the minor seeks to give the child up for adoption. 750 ILCS 70/15 (West 2008). The Act's stated purpose is to protect the best interests of "immature minors [who] often lack the ability to make fully informed choices that consider both the immediate and long-range consequences." 750 ILCS 70/5 (West 2008) ("Legislative findings and purpose").
Even if the minor seeks to end her pregnancy, no notice is required if the minor has, or has ever had, a husband. 750 ILCS 70/10 (West 2008).
There is no exception for rape or incest, unless it was committed by a parent, guardian, grandparent, or a step-parent living in the household. If the minor is raped by a step-parent, and the minor no longer resides in his household, the parental notice requirements still apply. Also, no exception is provided if the minor's parent or guardian sexually or physically abused someone in the minor's household, other than the minor. 750 ILCS 70/20 (West 2008) (exceptions to notice requirement).
The Act applies both: 1. to minors; and 2. to women who have been adjudicated incompetent and have been appointed a guardian. The Act defines a "minor" as a person, 17 years old or under, who has not been married or declared emancipated. 750 ILCS 70/10 (West 2008).
The Act requires physicians to provide 48-hour actual notice to an adult family member of the intent of the minor or incompetent person to have an abortion. 750 ILCS 70/15 (West 2008). An "adult family member" must be over 21 years old, and can be a parent, grandparent, step-parent living in the household or legal guardian. 750 ILCS 70/15 (West 2008).
The Act requires a physician to make "a reasonable effort" to provide actual notice. 750 ILCS 70/15 (West 2008). "[R]easonable effort" is not defined. 750 ILCS 70/10 (West 2008). Only after the reasonable effort has failed, can the physician turn to constructive notice. 750 ILCS 70/15 (West 2008). The physician must then provide 48-hour constructive notice, which is defined as notice by certified mail to the last known address of the person entitled to notice. 750 ILCS 70/10 (West 2008).
Although the term "reasonable effort" is not defined, a physician may lose his or her license or have it suspended, if he or she is found to have "willfully" failed to provide notice. 750 ILCS 70/40 (West 2008). The Act provides that "[a]ny physician who wilfully fails to provide notice as required under this Act before performing an abortion on a minor or an incompetent person shall be referred to the Illinois State Medical Disciplinary Board for action in accordance with Section 22 of the Medical Practice Act of 1987 (225 ILCS 60/22 (West 2008))."*fn1 The Act also provides physicians with a good-faith defense. 750 ILCS 70/45 (West 2008). If the physician can prove that he or she was acting in good faith when he or she provided notice or relied on an exception in the Act, then he or she cannot be subject to civil or criminal liability or discipline. 750 ILCS 70/45 (West 2008).
The Act defines an abortion as "the use of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a woman known to be pregnant." 750 ILCS 70/10 (West 2008). However, the Act places no express obligation on a physician to ascertain whether his or her patient is pregnant, a minor, or an incompetent.
The Act provides exceptions to notice if the physician finds that there is a medical emergency; or if the minor was the victim of sexual abuse, neglect or physical abuse by a parent, guardian, grandparent, or step-parent living in the minor's household. 750 ILCS 70/20 (West 2008).
To obtain the abuse or neglect exception, the minor must declare in writing that she was the victim of abuse or neglect by a parent, guardian, grandparent, or step-parent living in her household. 750 ILCS 70/20 (West 2008). After the minor places her declaration in writing, the physician may delay notifying state authorities, but only until after the abortion is performed. 750 ILCS 70/20 (West 2008). To obtain the medical emergency exception, the physician must certify in writing that immediate action is required to avert the minor's death, or a substantial and irreversible bodily impairment. 750 ILCS 70/10, 70/20 (West 2008).
The Act also permits a minor or incompetent person to file a petition in court seeking waiver of the notice requirements. 750 ILCS 70/25 (West 2008). The Act does not require the contacted physician to notify the minor of this option or of how or where to file. After a minor or incompetent person successfully files a petition in court, the trial court appoints a guardian ad litem. 750 ILCS 70/25 (West 2008). The trial court then has 48 hours after the filing to issue a ruling. 750 ILCS 70/25 (West 2008).
III. The Claims in the Complaint and Petition
Plaintiffs claimed that the Act violates a number of clauses of the Illinois constitution. All the clauses are part of article 1, which is our state's bill of rights. Specifically, the clauses named by plaintiffs were: 1. the privacy clause (Ill. Const. 1970, art. I, §6); 2. the due process clause (Ill. Const. 1970, art. I, §3. the equal protection clause (Ill. Const. 1970, art. I, §2); and 4. the gender equality clause (Ill. Const. 1970, art. I, §18).
Our due process and equal protection clauses are worded similarly to their federal counterparts. The due process and equal protection section of our Illinois constitution states in full that "[n]o person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws." Ill. Const. 1970, art. I, §2.
By contrast, the privacy and gender equality clauses of the Illinois constitution do not have any explicit counterparts in the federal constitution. Our privacy clause states, in relevant part, that the people of Illinois "shall have the right to be secure in their persons *** against unreasonable *** invasions of privacy." Ill. Const. 1970, art. I, §6. The gender equality section of our constitution states, in full, that "[t]he equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts." Ill. Const. 1970, art. I, §18.
As relief, plaintiffs sought a temporary restraining order, preliminary and injunctive relief, a declaration that the Act is unconstitutional, and such other relief as the court may deem just and proper.
On October 29, 2009, the proposed intervenors filed a petition seeking to intervene. They claimed, first, that they could intervene, "as of right," pursuant to section 2-408(a)(2) of the Code of Civil Procedure (735 ILCS 5/2-408(a)(2) (West 2008)), which authorizes intervention where the representation of existing parties may be inadequate and the intervenors would be bound by any order or judgment in the action. In the alternative, they claimed that they should be allowed to intervene by permission, which permits intervention where the intervenors' claim and the main action have questions of law and fact in common. 735 ILCS 5/2-408(b)(2) (West 2008).
On March 29, 2010, in a 10-page memorandum order, the trial court granted defendants' motion for judgment on the pleadings and dismissed plaintiffs' complaint with prejudice. The trial court also dissolved the temporary restraining order (TRO) that it had previously entered on October 29, 2010. However, the trial court stayed for 60 days both its order and the dissolution of the TRO, in order to allow plaintiffs an opportunity to appeal. On April 28, 2010, the trial court denied plaintiffs' motion to reconsider and to vacate the March 29 judgment. On May 27, 2010, plaintiffs filed a notice appealing the trial court's orders of both March 29 and April 28, 2010.
In its March 29 written order, the trial court held: "Notwithstanding Plaintiffs' compelling evidence that parental notification of abortion for minors will often expose minors seeking an abortion to increased risks and anxieties, this Court, for the reasons set forth herein is compelled to find the Act is constitutional." The written order also stated that "[t]he court finds that the Act will encumber a minor's choice" and that "this court finds that, for many minor women, disclosure will result in worse results, including physical and emotional abuse."
In open court, the trial court elaborated on its written findings. The trial court found that "the evidence makes it clear that it's likely to cause more harm than good." The trial court also held that "[t]his law recognizes that there does exist a class or group of individuals within our State who are minors and who have become pregnant," and that "[t]he Act discriminates between those minors who elect to give birth and those minors who elect to terminate their pregnancy." The trial court observed that "[m]inors who elect to give birth may do so without any State intervention regarding medical choices or parental notification, including consenting to an adoption." By contrast, "[m]inors who seek an abortion must notify their parents or appear before a judge."
Despite finding that the evidence established that the law caused more harm than good*fn2 and that the law discriminated against certain minors within a class,*fn3 the trial court stated that it felt "compelled to find" the law constitutional for the following reasons.
The trial court found, first, that plaintiffs' due process and equal protection claims were barred by prior federal litigation. Second, the trial court held that plaintiffs' privacy claim must be dismissed, because our state's abortion rights are coextensive with federal rights; and because the Illinois constitution bars only unreasonable invasions of privacy and "there are circumstances" when the Act's burden on a minor's abortion rights would not be unreasonable. Third, the trial court found that plaintiffs' gender equality claim must be dismissed, without applying strict scrutiny review. For these reasons, the trial court granted defendants judgment on the pleadings and dismissed plaintiffs' complaint with prejudice.
On November 19, 2009, the trial court denied the motion of the proposed intervenors for leave to intervene. On March 15, 2010, the trial court denied their motion to reconsider, but granted them leave to file their brief as an amicus curiae. On May 28, 2010, the trial court denied their supplemental motion. The trial court's orders indicated that reasons were provided in open court. On May 28, 2010, the proposed intervenors filed a notice of appeal, appealing from these three orders. In ...