Illinois Law on Abortions

DISCUSSION

I. ILLINOIS STATUTES AND CASE LAW

A. ABORTION PARENTAL CONSENT ACT, ILL. REV. STAT., CH. 38, §81-54

The Abortion Parental Consent Act prohibited abortions for women under 18 and unmarried except in the following circumstances:

1. After the minor has given written, informed consent, given freely without coercion, and given 48 hours prior to the abortion; and

2. The minor has obtained either the written consent of both of her parents, or the written consent of an available parent or guardian, or in lieu of that written consent, the minor has had a judicial hearing, after notice of that hearing is sent to her parents, and the judge finds that the pregnant minor fully understands the consequences of an abortion to her and her unborn child.

B. Wynn v. Carey, 599 F.2d 193 (7th Cir. 1979), affirming Wynn v. Scott, 448 F.Supp. 997 (1978)

In Wynn v. Carey, the entire Abortion Parental Consent Act was found to be void, and permanently enjoined from enforcement. The reasons given for the injunction was that the 1977 Act was void on it face because it did not provide a judicial remedy in lieu of parental consent which would not be unduly burdensome; it violated Equal Protection in that it did not include married minors; and it forced parental notice of a hearing even where the minor is mature, or the minor is immature and not capable of informed consent, but the abortion is in the minor's best interests.

C. PARENTAL NOTICE OF ABORTION ACT OF 1983, Ill. Rev. Stat. ch. 38, §81-61

This Parental Notice Act was enacted on November 2, 1983, and provided that no person shall perform an abortion upon an unemancipated minor unless:

a. 24 hours actual notice is given to both parents, or to an available parent, guardian, or person in loco parentis; or

b. If the minor objects to notice being given to her parent(s), a minor may petition the Circuit Court for waiver of the notice requirement. The Act spelled out a procedure for waiver of notice whereby the minor is entitled to court appointed counsel, the proceedings would be confidential and ensure anonymity of the minor, the court must rule within 48 hours of the time of the minor's application, and notice would be waived if:

- the minor is mature and well-informed enough to make the abortion decision on her own, or

- notification would not be in the best interest of the minor.

D. Zbaraz v. Hartigan, 763 F.2d 1532 (7th Cir. 1985)

The requirement of notification to a minor's parents was enjoined in 1984 by the decision of Zbaraz v. Hartigan. The injunction was affirmed by the Seventh Circuit in 1985, and was affirmed by the Supreme Court of the United States. Zbaraz was class action suit challenging the constitutionality of the Act of 1983. The Seventh Circuit Court of Appeals held that a mature minor or immature minor whose best interest is to have an abortion has a constitutional right to have an abortion without notifying her parents. A state may enact a parental notification law if it is not unduly burdensome by providing an exception to the parental notification for mature minors and immature minors whose best interests require an abortion.

E. PARENTAL NOTICE OF ABORTION ACT OF 1995

This Parental Notice Act was enacted on June 1, 1995, and provided that no person shall perform an abortion upon an unemancipated minor unless:

a. 24 hours actual notice is given to one parent, or to an available parent, guardian, or person in loco parentis; or

b. If the minor objects to notice being given to her parent, a minor may petition the Circuit Court for waiver of the notice requirement. The Act provides for a procedure for waiver of notice whereby the minor is entitled to court appointed counsel, the proceedings would be confidential and ensure anonymity of the minor, the Court must rule within 48 hours of the minor's application, and notice would be waived if:

1. The minor is mature and well-informed enough to make the abortion decision on her own; or

2. Notification would not be in the best interest of the minor.

F. Zbaraz v. Ryan, 84 C 771 (June 1995)

The Parental Notice of Abortion Act of 1995 is now under an injunction. The injunction will be in effect until such time that the Illinois Supreme Court promulgates rules for appellate review of a minor's petition to secure an abortion without parental notice. The issuing of the injunction is currently under appeal.

Therefore, the current state of the law in Illinois is that there is no requirement of parental consent or of parental notification for a minor to obtain an abortion.

II. A HOSPITAL MAY HAVE A MEDICAL AND A LEGAL OBLIGATION TO ADVISE A MINOR OF HER TREATMENT ALTERNATIVES AND HOW TO ACCESS SUCH TREATMENT AS SHE DESIRES

Statutory law in Illinois allows a pregnant minor to otherwise consent to her own health care. 325 ILCS 10/1. The issue which arises in such a circumstance is whether or not the minor is capable of giving consent to her medical care. If hospital staff believes that a minor is competent, and if the hospital staff agrees that the minor's choice of medical care is a good decision, then the minor has the right to consent to her own medical care.

Because there is no parental consent or notification statutes in Illinois, it would be a breach of the minor's right of privacy to notify her parents of her abortion decision without that minor's permission. Furthermore, such notification would violate the patient/provider confidentiality.

A hospital has a twofold obligation to a pregnant minor. When the circumstances are such that a minor is around 13 weeks pregnant, time is of the essence. A health care provider has a medical obligation to see that this minor is advised of her treatment alternatives. This is especially critical when the minor is hospitalized and may be receiving treatment that involves drugs. Ingestion of drugs during certain times of a pregnancy may have a very detrimental effect on the fetus. Furthermore, it is easier, less expensive, and safer to the minor to get an abortion before the sixteenth week of pregnancy. Therefore, a hospital should act to advise the minor of treatment alternatives immediately before obtaining an abortion becomes more difficult.

A hospital may also have a legal obligation to advise a pregnant minor of her treatment alternatives if the hospital breached the rights of the minor by notifying her parents of her abortion decision without her permission. Hospital staff may feel hesitant in assisting a minor with her choice of treatment after her parents have said that they are opposed to the minor having an abortion. This may be the case even if the minor herself informed her parents of her decision to have an abortion. However, hospital staff should keep in mind their medical obligation to the minor.

III. A STATE MAY NOT DENY FEDERAL FUNDING FOR AN ABORTION ON THE BASIS THAT THE EXPECTANT MOTHER'S LIFE IS NOT AT STAKE.

In 1976, eleven years after the creation of the Medicaid program, Congress passed the Hyde Amendment, a rider attached to the appropriations bill for the Departments of Labor and Health, Education and Welfare (HEW). Congress has subsequently altered the Hyde Amendment several times. The language in the 1995 Hyde Amendment states:

None of the funds appropriated under this Act shall be expended for any abortion except when it is made known to the Federal entity or official to which funds are appropriated under this Act that such procedure is necessary to save the life of the mother or that the pregnancy is the result of an act of rape or incest.

Under the plain language of the 1995 Hyde Amendment, states are not required to fund abortions when the pregnancy is not the result of rape or incest and the expectant mother's life is not at stake. Although the 1995 Hyde Amendment relieves states of having to fund abortions for which federal funding is unavailable, it does not alter states' obligations with respect to abortions for which federal funding is available.

The 1995 Hyde Amendment has allowed courts of various jurisdictions to deny enforcement of State legislation restricting abortion funding to those instances when the expectant mother's life is at stake.

A. Hern v. Beye, 57 F.3d 906 (10th Cir. 1995).

The Tenth Circuit Court of Appeals affirmed the District Court of Colorado's decision to enjoin the enforcement of a Colorado statute which restricted the use of abortion funds to instances where the expectant mother's life is at stake. The Tenth Circuit found that when a state singles out one particular medical condition and restricts treatment for that condition to life and death situations it has crossed the line between permissible discrimination based on degree of need and entered into forbidden discrimination based on medical condition. The Tenth Circuit held that a state law that categorically denies coverage for a specific, medically necessary procedure except in those rare instances when the patient's life is at stake is not a reasonable standard consistent with the objectives of the Act.

B. Utah Women's Clinic, Inc. et al v. Graham, et al.892 F. Supp. 1379 (D. Utah 1995)

The plaintiffs, reproductive health care services providers, brought a declaratory judgment action challenging the validity of Utah's abortion funding statute. The plaintiffs asserted that the statute contravened the federal Medicaid statute, and the 1995 Hyde Amendment, by failing to provide funding for abortions in cases of rape or incest, and, therefore, that the statute was invalid. The court issued a permanent injunction against the state's enforcement of the abortion funding statute for so long as the state accepted federal funding. The court found that although the plain language of the 1995 Hyde Amendment related only to the availability of federal funding for abortion and did not mandate states to fund all abortions for which federal funding was available, the court enjoined the State of Utah from enforcing its abortion funding restriction to the extent that it conflicted with federal Medicaid law.

C. Hope Medical Group for Women, Inc. v. Edwards, 63 F.3d 418 (5th Cir. 1995)

The plaintiffs, a medical clinic and a physician, brought suit on behalf of their Medicaid eligible patients. The plaintiffs sought an injunction against the State of Louisiana's enforcement of a Louisiana statute limiting Medicaid funding for abortions to cases in which an abortion was necessary to save the life of the mother. The Fifth Circuit affirmed the imposition of an injunction against the state's ban on Medicaid funding for abortions in rape and incest cases, so long as the state received federal funds under Title XIX. The court reasoned that, although the Hyde Amendment permitted the use of federal funds for abortions in rape and incest cases, the plain language of the amendment contained no language obligating state Medicaid programs to fund abortions under these circumstances. However, the court proceeded to find that the state funding restriction violated Title XIX as an arbitrary restriction based on a recipient's condition or diagnosis.

D. Little Rock Family Planning Services v. Dalton, 60 F. 3d 497 (8th Cir. 1995)

In a consolidated action, the Eighth Circuit Court of Appeals addressed an amendment to the Arkansas State constitution and a Nebraska State regulation that prohibited state funding for abortion except to save the life of the mother. The Circuit Court of Appeals affirmed the District Courts' decisions to strike the prohibition, holding that to deny state funding to Medicaid-eligible women for abortions in cases of rape or incest is a violation the Hyde Amendment. The Circuit Court rejected the defendants' argument that the Hyde Amendment is an appropriations measure that merely prohibits the use of federal funds for certain medical services. The Court reiterated a prior holding that the Hyde Amendment substantively amended the Medicaid statute. The court also confirmed that the Hyde Amendment does not affect states' underlying obligation imposed by Title XIX and federal Medicaid regulation to fund abortions for which federal reimbursement is available.

CONCLUSIONS

1. Because there is no requirement of parental consent or notification in Illinois, a pregnant minor may consent to her own health care if she is competent to make such decisions.

2. As a health care provider, a hospital may have an obligation to advise a pregnant minor of her treatment alternatives. A hospital should not impede the pregnant minor from making an immediate, informed decision, as time is of the essence in a pregnancy situation. As a health care provider, the hospital may have an obligation to facilitate the minor's safe treatment.

3. A state may not condition the availability of federal funding for an abortion to situations where the expectant mother's life is at stake.

On a writ of certiorari to the United States Supreme Court, the Court held in Dalton v. Little Rock Family Planning Services, 516 U.S. 474 (1996), that Arkansas’ Amendment 68 can be enjoined only to the extent that it imposes obligations inconsistent with Title XIX. The Court also held that because Amendment 68 was challenged only insofar as it conflicted with Title XIX, it was improper to enjoin its application to funding that does not involve the Medicaid program. The Court reversed the decision of the Eighth Circuit.