The Hope Clinic for Women, Ltd. v. Flores
2013 IL 112673
| Ill. | 2013Background
- Illinois enacted the Parental Notice of Abortion Act of 1995 (the Act); it requires 48 hours’ actual notice to one adult family member before a physician may perform an abortion on an unemancipated minor, with exceptions and a judicial bypass procedure.
- The Act was subject to lengthy federal litigation (Zbaraz series); federal courts enjoined enforcement until Illinois adopted expedited, confidential bypass rules (Ill. S. Ct. R. 303A).
- The Seventh Circuit (Zbaraz V) held the Act facially constitutional under the federal Constitution in 2009.
- Plaintiffs (Hope Clinic and Dr. Cowett) filed suit in Cook County seeking to enjoin enforcement of the Act under the Illinois Constitution (privacy, due process, equal protection, gender-equality), and the circuit court granted defendants’ motion on the pleadings, dismissing the complaint.
- The appellate court reversed and remanded; the Illinois Supreme Court granted review to decide whether the Act is facially invalid under the Illinois Constitution and whether proposed state-county prosecutors could intervene.
- The Illinois Supreme Court held the Act constitutional on all state-constitutional claims and affirmed denial of intervention as moot (because plaintiffs’ suit was properly dismissed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Illinois privacy clause (art. I, §6) protects right to abortion and whether Act unreasonably invades minors’ medical privacy | Privacy clause secures a broader abortion right than federal law; Act unreasonably forces disclosure of intimate medical info | Privacy clause was not adopted to secure abortion rights; even if privacy implicated, Act is a reasonable, not-unreasonable, intrusion for minors | Court: privacy clause does not ground an independent abortion right; intrusion on minors’ medical privacy not unreasonable in all cases — facial challenge fails |
| Whether due process (art. I, §2) bars parental notice requirement for minors | Act unjustifiably burdens minors’ fundamental right to abortion; plaintiffs sought remand for evidentiary development | Under limited lockstep, Illinois due process should be construed like federal due process; federal precedent upholds parental-notice statutes with adequate bypass | Court: follow federal substantive-due-process precedent (Casey, Bellotti, Hodgson); Act survives strict scrutiny because bypass procedure satisfies federal criteria |
| Whether equal protection (art. I, §2) is violated by singling out minors seeking abortion | Act discriminates against minors obtaining abortions vs. minors carrying pregnancies — unequal treatment of similarly situated persons | Parental-notice can be applied to minors and is justified by state interests in protecting minors and parental role; federal precedents permit differential treatment | Court: no state grounds to depart from federal analysis; Act does not violate equal protection |
| Whether Act violates Illinois gender-equality clause (art. I, §18) | Act advances gender stereotypes by conditioning only females seeking abortion on parental notice, treating male minors differently | The statute does not create a sex-based classification tied to gender; any differential treatment relates to the abortion decision, not sex | Court: Act does not violate §18; alleged discrimination is among classes of same gender and not the type of sex-based classification that triggers §18 invalidation |
Key Cases Cited
- Zbaraz v. Madigan, 572 F.3d 370 (7th Cir. 2009) (upholding Illinois Parental Notice Act under federal constitution)
- Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (federal substantive due process protects abortion; state may impose regulations so long as no undue burden)
- Roe v. Wade, 410 U.S. 113 (1973) (federal right to choose to have an abortion)
- Bellotti v. Baird, 443 U.S. 622 (1979) (plurality) (states may require parental involvement for minors if an adequate bypass exists)
- Hodgson v. Minnesota, 497 U.S. 417 (1990) (invalidated two-parent notification; otherwise upheld parental-notice principles)
- Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990) (upholding parental-notice statute with adequate bypass)
- H.L. v. Matheson, 450 U.S. 398 (1981) (upholding notification requirements as serving important state interests)
- Lambert v. Wicklund, 520 U.S. 292 (1997) (criteria for a constitutionally adequate bypass)
- People v. Caballes, 221 Ill. 2d 282 (2006) (articulating Illinois “limited lockstep” approach to cognate state/federal constitutional provisions)
- Kunkel v. Walton, 179 Ill. 2d 519 (1997) (Illinois privacy clause protects reasonable expectation of medical confidentiality)
- In re Lakisha M., 227 Ill. 2d 259 (2008) (reasonableness test for invasions of privacy under Illinois Constitution)
- People v. Ellis, 57 Ill. 2d 127 (1974) (Illinois gender-equality clause applies strict scrutiny to sex-based classifications)