Don’t You Believe It! was an American radio program from the late 1930s and early 1940s that presented unique facts and sought to debunk popular myths. Today a similar analysis is appropriate for a piece of state legislation covering the subject of abortion, which was enacted in 2019 in Illinois entitled the Reproductive Health Act (RHA).
Upon review of the Illinois law, one will find that the cutoff line for abortions appears to be drawn at fetal viability. While the law does contain a post-viability exception, at first glance it appears to be somewhat typical. Recently, in the wake of the overturning of Roe with the Dobbs decision, the act has led more than a few commentators (both pro-abortion and pro-life) to describe the Illinois RHA as imposing a partial ban on abortions, and as containing some gestational restrictions.
My advice: don’t you believe it!
Rhetorical Smoke and Mirrors
As background, it should be noted that the infamous Supreme Court case of Roe v. Wade gave a similar appearance of moderation in 1973 when it purported to draw the line for abortions at viability. The key to the operation of Roe, however, was in the potential exceptions it provided for post-viability abortions. To understand how Roe worked in practice, one must first appreciate that the historic post-viability exception “for the preservation of the life of the mother” was modified by Roe to also include consideration of the “health” of the mother. Next, the authors made sure to draft a broad definition of the term “health,” which they placed in the companion case of Doe v. Bolton, rather than in Roe. That definition provided a long list of exception factors, to include physical, emotional, psychological, familial, and age, all of which were relevant to the medical analysis of a particular patient.
By combining an expanded exception with a broad definition of the key term used in that exception, the line which was initially drawn to limit abortions was eventually erased in practice. Although the appearance of a line set at viability remained in place, late-term abortions eventually became permissible “exceptions” due to the application of multiple exception justifications. “Smoke and mirrors” is a term often used to describe this type of strategy, and Roe provides a textbook example of the concept.
Similar to Roe (which was technically not law, but nevertheless acted for many years as a sort of “judicial law” in violation of the concept of separation of powers), the Illinois RHA draws a line at viability, but provides a “health of the patient” exception accompanied by a broad definition of that term. Also similar to Roe, under Illinois law: 1) abortion is a fundamental right; and 2) unborn humans do not have any independent legal rights within the state (which is necessary to clarify, since there are two humans directly involved in every abortion decision). Working together, these various definitions and positions make post-viability abortions legal in the state of Illinois.
The Illinois RHA did not merely copy the clever strategy of the Roe/Doe combination and its unique definition of terms, but instead went even further in its approach. Specifically, the Illinois law added an additionally unique definition of viability. Historically, viability from a legal perspective was generally understood to mean when an unborn child had the capability for life outside of the mother’s womb using all presently available medical technologies. However, under the 2019 Illinois law, the term “fetal viability” is defined to require that unborn babies have “a significant likelihood of…survival outside the uterus without the application of extraordinary medical measures.”
Consequently, because babies who are born prematurely would in almost all cases require extraordinary care, they cannot by definition be considered as “viable” under the law. In other words, only healthy babies born to term will qualify. By applying this carefully crafted narrow definition of viability, the limitation as contained in the RHA becomes of little or no practical relevance. Nevertheless, as in Roe, the appearance of a limit on abortions remains within the language of the RHA, leading to frequent misunderstandings of how the law operates in practice.
The Details, the Definitions, and the Deception
Appreciating the deceptive nature of the viability reference in the RHA, the true operation of the law begins to make more sense once it is known that the state is seeking to become a mecca for abortions for out-of-state residents. This is no secret. Additionally, Illinois has recently passed another distinctive law (Senate Bill (SB) 1909, which is currently awaiting signature by the Governor) that targets pregnancy care centers with fines for providing “deceptive” information. At its core, SB 1909 appears intended to silence these centers, or worse, to ultimately put them out of business.
Taking all of these realities into consideration, as well as the recent removal of parental notice requirements, Illinois actually does not apply any material restrictions and/or gestational limits on abortions in practice, and seeks to promote abortions to the fullest extent possible. Consequently, it is increasingly likely that the state may have achieved the distinction of being the most hostile environment in the U.S. for yet-to-be-born human infants. This is an unfortunate and despicable honor for Illinois.
There is no doubt that laws are often drafted in ways which are intended to appear reasonable to the mainstream, and to hide positions that are less popular. This can often result in theory/optics and practice/reality not being aligned. Such is the case in Illinois. In light of what has been revealed above, when you encounter anyone who tells you that the laws of the state of Illinois place restrictions and/or gestational limits on abortion, don’t you believe it.
Photo Credit- Bellvue News-Democrat