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Hope Clinic for Women, Ltd. v. Flores

Supreme Court of Illinois

July 11, 2013

THE HOPE CLINIC FOR WOMEN, LTD., et al., Appellees,
v.
MANUEL FLORES, Acting Secretary of the Illinois Department of Financial and Professional Regulation, et al., Appellants (Stewart Umholtz, State's Attorney, Tazewell County, Illinois, et al., Proposed Intervening Appellants).

BURKE, JUSTICE delivered the judgment of the court, with opinion. Freeman, Garman, and Theis, Justices concurred in the judgment and opinion. Thomas, Justice specially concurred, with opinion, joined by Kilbride, Chief Justice and Karmeier, Justice.

OPINION

BURKE, JUSTICE

¶ 1 On October 13, 2009, plaintiffs, The Hope Clinic for Women, Ltd., and Dr. Allison Cowett, filed suit in the circuit court of Cook County seeking to enjoin enforcement of the Parental Notice of Abortion Act of 1995 (the Act) (750 ILCS 70/1 et seq. (West 2010)). Plaintiffs alleged that the Act is facially invalid, violating the privacy, due process, equal protection, and gender equality clauses of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §§ 2, 6, 12, 18). Defendants, Manuel Flores, in his capacity as Acting Secretary of the Illinois Department of Financial and Professional Regulation; Daniel Bluthardt, in his capacity as Director of the Division of Professional Regulation of the Illinois Department of Financial and Professional Regulation; and the Illinois State Medical Disciplinary Board, moved for judgment on the pleadings (735 ILCS 5/2-615(e) (West 2010)) or, in the alternative, dismissal of the complaint (735 ILCS 5/2-619(a)(4) (West 2010)). Stewart Umholtz, as State's Attorney of Tazewell County, and Edward Deters, as State's Attorney of Effingham County, petitioned the circuit court for leave to intervene in the matter. 735 ILCS 5/2-408(a)(2) (West 2010).

¶ 2 On March 29, 2010, after hearing argument, the circuit court upheld the facial validity of the Act, granted defendants' motion for judgment on the pleadings, and dismissed plaintiffs' complaint with prejudice. The circuit court then denied the proposed intervenors' petition as moot.

¶ 3 Plaintiffs and the proposed intervenors appealed the circuit court's orders. The appellate court reversed the dismissal of plaintiffs' complaint and remanded for further proceedings, but affirmed the order denying the proposed intervenors' petition to intervene. 2011 IL App (1st) 101463.

¶ 4 Petitions for leave to appeal were filed in this court by the proposed intervenors in No. 112673, and defendants in No. 112704. We granted the petitions and consolidated the appeals for review. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010).

¶ 5 BACKGROUND

¶ 6 Before addressing the issues raised in this appeal, it is important to set forth the long history of litigation associated with this case. The Illinois legislature enacted the Parental Notice of Abortion Act of 1995 (the Act) after it repealed the Parental Notice of Abortion Act of 1983 (the 1983 Act). See Ill. Rev. Stat. 1985, ch. 38, ¶ 81-61 et seq.; Pub. Act 83-890 (eff. Jan. 31, 1984). The 1983 Act became law on November 2, 1983, over the veto of then-Governor Thompson. The 1983 Act prohibited "unemancipated minors and incompetents" from obtaining an abortion unless both parents, or the legal guardian, were given notification. A putative class of physicians who provided or sought to provide abortions filed suit in the United States District Court for the Northern District of Illinois challenging the constitutionality of the 1983 Act under the federal constitution. See Zbaraz v. Hartigan, 584 F.Supp. 1452, 1454 (N.D. Ill. 1984) (Zbaraz I).

¶ 7 The federal district court, after reviewing relevant federal case law, held the 1983 Act to be constitutionally defective because: (1) it required a waiting period of at least 24 hours after notice was given to the minor's parents; (2) the judicial procedures for obtaining a waiver of the notification requirement, i.e., the "judicial bypass" procedures, failed to provide for expeditious appellate review of notification decisions; and (3) the judicial bypass procedures did not assure the minor's or the incompetent's anonymity at either the trial or appellate level. Id. at 1459, 1461-62.[1] Although the plaintiffs also had argued the unconstitutionality of other provisions within the Act, the court found these other provisions to be constitutionally sufficient. The court did, however, identify other problems with the statute which the plaintiffs had not raised. Id. at 1462-67.

¶ 8 Having ruled the Act unconstitutional, the district court permanently enjoined the defendants in that case—Neil Hartigan, in his official capacity as then-Attorney General of Illinois, and Richard M. Daley, in his official capacity as then-State's Attorney for Cook County and as representative of all State's Attorneys of all the counties of Illinois—from enforcing the provisions of the Act.

¶ 9 The district court's decision was affirmed in part and vacated in part by the Seventh Circuit Court of Appeals. See Zbaraz v. Hartigan, 763 F.2d 1532 (7th Cir. 1985) (Zbaraz II). The Seventh Circuit affirmed the district court's holding that the requirement of a 24-hour waiting period was unconstitutional, but found that portion of the Act to be severable. Id. at 1534. As to the "judicial bypass" procedures, however, the court vacated the district court's finding of unconstitutionality, but continued to enjoin enforcement of the statute "until the Illinois Supreme Court promulgates rules which assure the expeditious and confidential disposition of the waiver of notice proceedings at trial and on appeal." Id. at 1535, 1540-41. The court explained that, because time is of the essence in abortion decisions, the absence of rules providing for an expedited appeal was a fundamental defect requiring the statute to be enjoined. Id. at 1544 (relying on American College of Obstetricians & Gynecologists, Pennsylvania Section v. Thornburgh, 737 F.2d 283, 297 (3d Cir. 1984)). The cause was remanded to the district court "for a determination of the constitutionality of the waiver of notice proceedings when such rules are enacted." Id. at 1545.

¶ 10 The Seventh Circuit's opinion was affirmed by the United States Supreme Court, without opinion, "by an equally divided court." Hartigan v. Zbaraz, 484 U.S. 171, 172 (1987) (per curiam) (Zbaraz III).

¶ 11 Subsequently, then-Attorney General Neil Hartigan and then-State's Attorney Cecil Partee petitioned the federal district court to review the constitutionality of the 1983 Act in light of Illinois Supreme Court Rule 307(e), which had been promulgated by this court to provide for an expedited and confidential appeal of a waiver of notice decision. The district court found, however, that the bypass procedure, as set forth in Rule 307(e), was insufficient and did not cure the failure of the Parental Notice of Abortion Act of 1983 to provide a constitutional alternative to parental notification. The district court held that the safeguards for confidentiality and anonymity were insufficient to protect an unemancipated minor seeking to have an abortion throughout the waiver process, that is, from the moment a waiver petition is filed until the completion of any appeal. Accordingly, the court refused to lift the permanent injunction. See Zbaraz v. Hartigan, 776 F.Supp. 375 (N.D. Ill. 1991) (Zbaraz IV).

¶ 12 On June 1, 1995, the Illinois General Assembly repealed the 1983 Act and replaced it with the Parental Notice of Abortion Act of 1995. See 750 ILCS 70/1 et seq. (West 1996). The 1995 Act prohibits a physician from performing an abortion upon an unemancipated minor or "incompetent person" unless "48 hours actual notice" is given to "an adult family member." 750 ILCS 70/15 (West 1996). The Act provides for certain exceptions to the notice requirement when:

"(1) the minor or incompetent person is accompanied by a person entitled to notice; or
(2) notice is waived in writing by a person who is entitled to notice; or
(3) the attending physician certifies in the patient's medical record that a medical emergency exists and there is insufficient time to provide the required notice; or
(4) the minor declares in writing that she is a victim of sexual abuse, neglect, or physical abuse by an adult family member as defined in this Act. The attending physician must certify in the patient's medical record that he or she has received the written declaration of abuse or neglect. Any notification of public authorities of abuse that may be required under other laws of this State need not be made by the person performing the abortion until after the minor receives an abortion that otherwise complies with the requirements of this Act; or
(5) notice is waived under Section 25 [procedure for judicial waiver of notice]." 750 ILCS 70/20 (West 1996).

¶ 13 The 1995 Act, like the 1983 Act, requested the Illinois Supreme Court "to promulgate any rules and regulations necessary to ensure that [judicial waiver] proceedings under this Act are handled in an expeditious and confidential manner." See 750 ILCS 70/25(g) (West 1996).

¶ 14 Six days later, on June 7, 1995, the plaintiffs amended their complaint in federal district court to challenge the constitutionality of the 1995 Act. On June 9, 1995, an "Agreed Preliminary Injunction" order was entered, which enjoined enforcement of the 1995 Act until the Illinois Supreme Court had the opportunity to promulgate rules for implementing the judicial bypass procedures, as requested in section 25(g) of the Act. See Zbaraz v. Madigan, No. 84 C 771, 2008 U.S. Dist. LEXIS 15559 (N.D. Ill. Feb. 28, 2008).

¶ 15 On December 22, 1995, the defendants in this new suit (then-Attorney General Ryan and then-Cook County State's Attorney O'Malley) notified the federal district court that the Illinois Supreme Court had declined to promulgate judicial bypass rules as requested by the legislature. Accordingly, on February 9, 1996, a permanent injunction order was entered, barring enforcement of the 1995 Act.

¶ 16 Ten years later, on September 20, 2006, this court adopted Illinois Supreme Court Rule 303A, entitled "Expedited and Confidential Proceedings Under the Parental Notification of Abortion Act." This rule provides: "Upon the filing of a petition in the circuit court for judicial waiver of notice under the Parental Notification of Abortion Act, the circuit court shall rule and issue written findings of fact and conclusions of law within 48 hours of the time that the petition is filed ." Ill. S.Ct. R. 303A(a) (eff. Sept. 20, 2006). The rule also provides for confidentiality throughout the proceedings, [2] the right to an expeditious appeal, and the appointment of counsel upon the request of the minor. Ill. S.Ct. R. 303A(b), (d), (f) (eff. Sept. 20, 2006).

¶ 17 Soon thereafter, Lisa Madigan, in her capacity as Attorney General of Illinois, and Anita Alvarez, in her capacity as State's Attorney of Cook County, filed a motion in the federal district court seeking to have the February 9, 1996, permanent injunction order dissolved. Plaintiffs objected, arguing that the new statute remained unconstitutional on its face.

¶ 18 On February 28, 2008, the federal district court denied the defendants' motion, declining to lift the injunction. See Zbaraz v. Madigan, 2008 U.S. Dist. LEXIS 15559. The court rejected all of the plaintiffs' allegations of unconstitutionality but one—the court found that the statute effectively denied abortions to "immature, best interest" minors because they, due to their immaturity, would be legally prohibited from consenting to an abortion and, thus, were left in "legal limbo."

¶ 19 The defendants filed an appeal from this decision in the Seventh Circuit Court of Appeals. On the same day that the defendants' appeal was filed, Stewart Umholtz, as State's Attorney of Tazewell County, and Edward Deters, as State's Attorney of Effingham County, filed a motion in the federal district court seeking to intervene in the case. They also asked the district court to reconsider its earlier ruling that the 1995 Act was unconstitutional. Both motions were denied and the proposed intervenors appealed to the Seventh Circuit. The Seventh Circuit consolidated this appeal with the one brought by the defendants.

¶ 20 On review, the Seventh Circuit reversed the district court's denial of the defendants' motion to dissolve the permanent injunction barring enforcement of the statute. Zbaraz v. Madigan, 572 F.3d 370 (7th Cir. 2009) (Zbaraz V). In its decision, filed on July 14, 2009, the court of appeals held that the Act, as supplemented by the judicial bypass procedures for obtaining a waiver of the parental notification requirement, was constitutional on its face. With regard to the proposed intervenors' appeal, the court affirmed the district court's denial of the motion to intervene, finding that the motion was untimely and, further, that the interests of the proposed intervenors were adequately represented by the defendants. Id. at 377-78.

¶ 21 Three months later, on October 13, 2009, The Hope Clinic for Women and Dr. Allison Cowett filed a complaint in the circuit court of Cook County against the Acting Secretary of the Illinois Department of Financial and Professional Regulation (Manuel Flores[3]); the Director of the Division of Professional Regulation of the Illinois Department of Financial and Professional Regulation (Daniel Bluthardt); and the Illinois State Medical Disciplinary Board. Plaintiffs sought a declaratory judgment, a temporary restraining order, and preliminary and permanent injunctions against the enforcement of the Parental Notice of Abortion Act of 1995. Plaintiffs alleged that the Act is facially invalid because it violates the fundamental rights of minors who seek abortions to privacy (count I), due process (count II), equal protection (count III), and gender equality (count IV), as guaranteed by the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §§ 2, 6, 12, 18). Shortly after plaintiffs filed suit, Stewart Umholtz, as State's Attorney of Tazewell County, and Edward Deters, as State's Attorney of Effingham County, petitioned the circuit court for leave to intervene in the matter as of right, or by permission.

¶ 22 On November 4, 2009, the circuit court entered a temporary restraining order enjoining defendants from enforcing the Act. Thereafter, defendants, represented by Attorney General Lisa Madigan, filed a motion for judgment on the pleadings or, in the alternative, dismissal pursuant to sections 2-615(a) and (e), 2-619(a)(4), and 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-615(a), (e), 2-619(a)(4), 2-619.1 (West 2008)).

¶ 23 On March 29, 2010, in a memorandum opinion and order, the circuit court granted defendants' motion and dismissed plaintiffs' complaint with prejudice. The court held that plaintiffs were collaterally estopped from litigating their due process and equal protection claims by Zbaraz V because our state due process and equal protection clauses have been interpreted in limited lockstep with the nearly identical due process and equal protection clauses within the federal constitution. The circuit court also dismissed plaintiffs' privacy claim, finding that the burden which the Act places on a minor's right to an abortion would not be, in all circumstances, constitutionally unreasonable. Finally, the court dismissed plaintiffs' gender equality claim, finding that this provision of the Illinois Constitution is not implicated by the Act. In light of its decision to dismiss plaintiffs' complaint with prejudice, the circuit court denied the proposed intervenors' petition to intervene as moot.

¶ 24 Plaintiffs and the proposed intervenors appealed. The appellate court reversed the circuit court's dismissal of plaintiffs' complaint and remanded for further proceedings. 2011 IL App (1st) 101463. With respect to the proposed intervenors' appeal, however, the appellate court affirmed the circuit court's decision to deny the petition to intervene. Id. ¶ 133.

¶ 25 We granted petitions for leave to appeal brought by defendants and the proposed intervenors and consolidated them for our review. In addition, we allowed amicus curiae briefs in support of defendants to be filed by: (1) the Christian Medical and Dental Associations, the American Association of Pro Life Obstetricians and Gynecologists and the Catholic Medical Association; (2) Illinois legislators, represented by Americans United for Life; and (3) Illinois State's Attorneys from 21 different counties (including Stewart Umholtz and Edward Deters), represented by the Thomas More Society.

¶ 26 We also allowed amicus curiae briefs in support of plaintiffs to be filed by: (1) the American College of Obstetricians and Gynecologists, the American Medical Women's Association, the American Psychiatric Association, the Illinois Academy of Family Physicians, the Illinois Chapter of the American Academy of Pediatrics, the Illinois Psychiatric Society, the Illinois Public Health Association, and the Society for Adolescent Health and Medicine; and (2) the Chicago Alliance Against Sexual Exploitation, the Chicago Coalition for the Homeless, the Healthy Teen Network, the Illinois Chapter of the National Association of Social Workers, the Illinois Coalition Against Sexual Assault, the National Association of Social Workers, the National Center for Youth Law, Sargent Shriver National Center on Poverty Law, the Teen Living Programs, UCAN, and the Women's Center, Inc.

¶ 27 ANALYSIS

¶ 28 In No. 112704, defendants, through their attorney, Lisa Madigan, Attorney General of Illinois, appeal the appellate court's reversal of the circuit court's finding that the Parental Notice of Abortion Act of 1995 is facially valid under the Illinois Constitution of 1970. In No. 112673, Stewart Umholtz, as State's Attorney of Tazewell County, and Edward Deters, as State's Attorney of Effingham County, appeal the appellate court's judgment affirming the circuit court's denial of their petition to intervene. We will address defendants' appeal first.

¶ 29 I. No. 112704

¶ 30 A. Standard of Review

¶ 31 As noted above, plaintiffs' complaint challenges the constitutionality of the Parental Notice of Abortion Act of 1995, arguing that the Act is facially invalid under the due process, equal protection, privacy, and gender equality clauses of our state constitution.[4] Plaintiffs contended that, under our state constitution, minors, like adults, have a fundamental right to make reproductive decisions for themselves and that the Parental Notice of Abortion Act of 1995 places an unjustifiable burden on a minor's exercise of that fundamental right by preventing her from obtaining an abortion in Illinois unless a parent or guardian is first given notice of the minor's intention to have an abortion or the minor obtains a judicial waiver of the notice requirement. The circuit court found the Act to be constitutionally valid on its face, granted defendants' motion for judgment on the pleadings and dismissed plaintiffs' complaint with prejudice. The appellate court reversed the dismissal and remanded for trial.

¶ 32 What we consider in this appeal is the correctness of the circuit court's grant of judgment on the pleadings. Judgment on the pleadings is properly granted if the pleadings on file disclose no genuine issues of material fact so that the movant is entitled to judgment as a matter of law. Pekin Insurance Co. v. Wilson, 237 Ill.2d 446, 455 (2010). Because the circuit court ruled as a matter of law, our review of its judgment is de novo. Id.

¶ 33 We note, further, that when assessing the constitutional validity of a legislative act, we must begin with the presumption of its constitutionality. Arangold Corp. v. Zehnder, 187 Ill.2d 341, 351 (1999). The burden of rebutting this presumption is on the party challenging the validity of the statute and any doubts must be resolved in favor of finding the law valid. In re R.C., 195 Ill.2d 291, 296 (2001); People v. Inghram, 118 Ill.2d 140, 146 (1987). This burden is particularly heavy where, as here, a facial challenge is raised. A facial challenge to a legislative act is the most difficult challenge to mount successfully because the challenger must establish that under no circumstances would the challenged act be valid. Davis v. Brown, 221 Ill.2d 435, 442 (2006). The fact that the statute might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid. Id. As we said in Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill.2d 463, 473 (2009), "[f]acial invalidation is, manifestly, strong medicine that has been employed by the court sparingly and only as a last resort." (Internal quotation marks omitted.)

¶ 34 B. The Right to Abortion Under Our State Constitution

¶ 35 As a threshold matter, we observe that the parties to this appeal do not dispute that a right to abortion exists under our state constitution. They disagree, however, on the origin and scope of that right.

¶ 36 Plaintiffs, relying on Family Life League v. Department of Public Aid, 112 Ill.2d 449 (1986), maintain that the fundamental right to make reproductive decisions for one's self, which was first recognized under the federal constitution in Roe v. Wade, 410 U.S. 113 (1973), is a privacy right and that this right is secured for Illinois citizens, including minors, by our state constitution's privacy clause. Plaintiffs further maintain that because our state constitution contains an explicit right of privacy which the federal constitution does not have, the right to an abortion under our state constitution is broader than the right to an abortion under the federal constitution. For this reason, plaintiffs argue that the Illinois parental notification statute is unconstitutional as a matter of state constitutional law, regardless of what federal courts have said about such statutes as a matter of federal constitutional law.

¶ 37 Defendants, on the other hand, argue that plaintiffs' reliance on Family Life League is misplaced. According to defendants, "Faithful application of the constitutional language, the records of the constitutional debates, and Illinois' history and experience shows that it is Illinois' due process clause, not its [privacy clause contained within the] search and seizure clause, that protects reproductive rights." Subsequent to Roe, the United States Supreme Court identified the federal right to abortion as a substantive due process right. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Defendants contend that, because our due process clause is nearly identical to the due process clause in the federal constitution, and because we interpret cognate provisions of our state and federal constitutions in limited lockstep (see People v. Caballes, 221 Ill.2d 282 (2006)), we should follow the United States Supreme Court and find that a right to abortion derives from our due process clause. Additionally, defendants contend that there are no state grounds to depart from lockstep and, thus, the right to abortion under our state constitution is coextensive with the right to abortion under the federal constitution. Therefore, just as federal courts have upheld parental notification statutes under the federal constitution, this court should uphold the Illinois parental notification statute as a matter of state constitutional law.

¶ 38 Like defendants, we find plaintiffs' reliance on Family Life League for the proposition that a right to abortion in Illinois is guaranteed by our constitution's privacy clause to be problematic for a number of reasons. First and foremost, in Family Life League this court was never asked to decide whether a right to abortion exists under our state constitution. Family Life League was a mandamus action in which an anti-abortion group sought to force the Department of Public Aid to disclose, pursuant to the State Records Act (Ill. Rev. Stat. 1979, ch. 116, ¶ 43.4 et seq.), the names of providers who had furnished abortion services under the Illinois Medicaid program; the number of abortions they performed; and the amounts they were paid for such services. Family Life League, 112 Ill.2d at 451-52. Arguing against disclosure, the Department contended that making the requested records available could indirectly infringe on the recipient's privacy rights. Id. at 454. The Department's theory was that divulging provider information might have an inhibiting effect on the number of providers willing to participate in the Medicaid abortion program and, as a result, "violate the holding in Roe v. Wade." Id. at 454.

¶ 39 This court rejected the Department's claim, but before doing so, made the following statement: "In Roe v. Wade, the Supreme Court first recognized a fundamental constitutional right of privacy which encompasses a woman's decision of whether to terminate her pregnancy. That right of privacy guaranteed by the penumbra of the Bill of Rights of the United States Constitution was also secured by the drafters of the 1970 Constitution of the State of Illinois. Ill. Const. 1970, art. I, secs. 6, 12." Id. at 454.

¶ 40 It is not clear from the opinion what prompted the court to make the above statement. However, we find it highly unlikely that the court intended, by this statement, not only to decide the rather weighty question of whether our state constitution guarantees the right to abortion, but also to conclude that such a right is guaranteed by our privacy clause, without providing any analysis to support such findings. In any event, to the extent that Family Life League might be interpreted as having made such findings, we find them to be dicta. As noted above, the Department's claims were based on the federal right to abortion and there was no need for the court to determine whether a state constitutional right existed.

¶ 41 There are additional reasons why we reject plaintiffs' contention that a right to abortion in Illinois is guaranteed by our state constitution's privacy clause. The privacy clause was added to article I, section 6, of the Illinois Constitution of 1970. That section, which is often referred to as the "search and seizure provision, " provides as follows:

"The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means." (Emphasis added.) Ill. Const. 1970, art. I, § 6.

¶ 42 The privacy clause is unique to the Illinois Constitution, there being no cognate provision in the federal constitution. Accordingly, we interpret the provision without reference to a federal counterpart. See Caballes, 221 Ill.2d at 289. Also, in Caballes we noted that "the protection against unreasonable invasions of privacy 'is stated broadly, ' and '[n]o definition of types of privacy' intended to be protected 'is offered.' " Id. at 317 (quoting ILCS Ann., Ill. Const. 1970, art. I, § 6, Constitutional Commentary, at 522 (Smith-Hurd 1993)). Thus, in deciding the meaning of the privacy clause in our constitution, we look to the intent of the drafters.

¶ 43 Having reviewed the committee reports and transcripts of the debates at the constitutional convention, we find a variety of reasons were given for adding this privacy language. The delegates, themselves, struggled to define with precision the parameters of the right which they proposed to be added to article I, section 6. Mr. Gertz, chairman of the Bill of Rights Committee, stated the following:

"We recognize in our report that in this kind of crowded, complicated world that there are necessarily a lot of invasions of privacy—that some of those invasions are reasonable. All we are saying, without spelling out in detail, is that a halt ought to be called somewhere to these invasions of privacy. The individual ought not to be completely at the mercy of the state. In every area we're trying to have the individual have a certain amount of dignity and have a certain amount of freedom from governmental interference of any kind." 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1535 (hereinafter Proceedings).

¶ 44 Another delegate, Mrs. MacDonald, indicated that the additional language was necessary to address concerns that new, sophisticated technologies were being developed, or might be developed in the future, which the government could use to invade a citizen's privacy. 3 Proceedings 1534. Mr. Dvorak, who gave the opening presentation on article I, section 6, discussed the two proposed additions to the search and seizure clause— "invasion of privacy" and "interceptions of communications by eavesdropping devices." With regard to the invasion of privacy language, he said:

"But there is the area of privacy still existing in very particular instances. For instance, we have now the concept of a general information bank whereby the state government or the federal government can take certain pertinent information about each and every one of us based on, for instance, our social security number—know our weight, height, family ages, various things about us—and this is not acceptable to—was not acceptable—or the theory or thought of such a thing—was not acceptable to the majority of our committee in approving section 6." 3 Proceedings 1525.

¶ 45 A comprehensive determination of all of the types of invasions of privacy the new clause was intended to protect against need not be made here because, whatever its purpose, it is clear that the privacy clause was not added to our constitution to address abortion rights. On this point the intent of the drafters was explicitly stated. At the Constitutional Convention, one of the delegates, Fr. Lawlor, posed a question to Mr. Gertz, chairman of the Bill of Rights Committee:

"FATHER LAWLOR: Mr. Chairman—or rather Mr. Gertz—I would very much appreciate it if you would assure the entire delegation here that the right of the people to be secure in their persons against unreasonable invasions of their privacy has absolutely nothing to do with the question of abortion.
MR. GERTZ: It certainly has nothing to do with the question of abortion." 3 Proceedings 1537.

¶ 46 In light of the above, we must conclude that any right to abortion in Illinois is clearly not grounded in the privacy clause of our state constitution. Therefore, we now consider whether, as defendants argue, a state constitutional right to abortion derives from our due process clause.

¶ 47 The due process clause of our state constitution is found in article I, section 2 (Ill. Const. 1970, art. I, § 2), and the language of our due process clause is nearly identical to its federal counterpart. As explained in Caballes, this court has adopted the "limited lockstep" approach for interpreting cognate provisions of our state and federal constitutions. Under this approach, when the language of the provisions within our state and federal constitutions is nearly identical, departure from the United States Supreme Court's construction of the provision will generally be warranted only if we find " 'in the language of our constitution, or in the debates and the committee reports of the constitutional convention, something which will indicate that the provisions of our constitution are intended to be ...


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