NO.

10-1463

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT

The Hope Clinic for Women, Ltd., Allison Cowett, M.D., M.P.H.,
Plaintiffs-Appellants

vs.

Brent Adams, Acting Secretary of the Illinois Department of Financial & Professional
Regulation, in his official capacity, et al.,
Defendants-Appellees.

Appeal from the Circuit Court of Cook County, Illinois, County Department, Chancery Division
Circuit Court No. 09 CH 38661 Hon Daniel A. Riley, Judge Presiding
______________________________________________________________________________
______________________________________________________________________________

BRIEF AMICUS CURIAE OF STEWART UMHOLTZ, STATE’S ATTORNEY,

TAZEWELL COUNTY, EDWARD DETERS, STATE’S ATTORNEY,
EFFINGHAM COUNTY, CHARLES H. BURCH, STATE’S ATTORNEY,
CALHOUN COUNTY, MICHAEL McINTOSH, STATE’S ATTORNEY,
LOGAN COUNTY, MATTHEW S. WILZBACH, STATE’S ATTORNEY,
MARION COUNTY, THOMAS R. WISEMAN, STATE’S ATTORNEY,
CRAWFORD COUNTY, JOSEPH P. BRUSCATO, STATE’S ATTORNEY,
WINNEBAGO COUNTY, JAMES A. MACK, STATE’S ATTORNEY,
PUTNAM COUNTY, PATRICK WINDHORST, STATE’S ATTORNEY,
MASSAC COUNTY, ALBERT G. ALGREN, STATE’S ATTORNEY,
WARREN COUNTY, AND SCOTT McCLINTOCK, STATE’S ATTORNEY,
HENDERSON COUNTY, IN SUPPORT OF DEFENDANTS-APPELLEES.

Paul Benjamin Linton Thomas Brejcha

Special Counsel President & Chief Counsel
The Thomas More Society The Thomas More Society
921 Keystone Avenue 29 S. La Salle Street, Suite 440
Northbrook, Illinois 60062-3614 Chicago, Illinois 60603
(847) 291-3848 (tel) (312) 782-1680 (tel)
(847) 412-1594 (fax) (312) 782-1887 (fax)

Peter Breen
Executive Director & Legal Counsel
The Thomas More Society
29 S. La Salle Street, Suite 440
Chicago, Illinois 60603
(312) 782-1680 (tel)
(312) 782-1887 (fax)
 TABLE OF CONTENTS

POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. THE ILLINOIS SUPREME COURT HAS NOT RECOGNIZED A

RIGHT TO ABORTION UNDER THE ILLINOIS CONSTITUTION
THAT IS SEPARATE FROM, AND INDEPENDENT OF, THE
RIGHT TO ABORTION THAT THE UNITED STATES SUPREME
COURT HAS DERIVED FROM THE LIBERTY LANGUAGE OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION . . . . . . . 4

II. THIS COURT IS NOT REQUIRED TO RECOGNIZE A RIGHT

TO ABORTION UNDER THE ILLINOIS CONSTITUTION
MERELY BECAUSE THE UNITED STATES SUPREME COURT
HAS DERIVED A RIGHT TO ABORTION FROM THE LIBERTY
LANGUAGE OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

III. THE DUE PROCESS GUARANTEE OF THE ILLINOIS

CONSTITUTION, ARTICLE I, § 2, DOES NOT CONFER A
RIGHT TO ABORTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

IV. THE PRIVACY GUARANTEE OF THE ILLINOIS

CONSTITUTION, ARTICLE I, § 6, DOES NOT CONFER A
RIGHT TO ABORTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

V. THE ILLINOIS PARENTAL NOTICE OF ABORTION ACT OF

1995 DOES NOT VIOLATE THE EQUAL PROTECTION
GUARANTEE, ART. I, § 2, OF THE ILLINOIS
CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

i
 VI. THE ILLINOIS PARENTAL NOTICE OF ABORTION ACT OF
1995 DOES NOT DISCRIMINATE ON ACCOUNT OF SEX IN
VIOLATION OF ART. I, § 18, OF THE ILLINOIS
CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

VII. THE ILLINOIS PARENTAL NOTICE OF ABORTION ACT OF

1995 IS RATIONALLY RELATED TO MULTIPLE
LEGITIMATE STATE PURPOSES . . . . . . . . . . . . . . . . . . . . . . . 36

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

ii
 POINTS AND AUTHORITIES

I. THE ILLINOIS SUPREME COURT HAS NOT RECOGNIZED A

RIGHT TO ABORTION UNDER THE ILLINOIS CONSTITUTION
THAT IS SEPARATE FROM, AND INDEPENDENT OF, THE
RIGHT TO ABORTION THAT THE UNITED STATES SUPREME
COURT HAS DERIVED FROM THE LIBERTY LANGUAGE OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSTITUTION . . . . . . . . . . 4

Cases

City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) . . . . . . . . . 6

Family Life League v. Dep’t of Public Aid, 112 Ill.2d 449 (1986) . . . . . . . . . . . . 4, 5, 6, 7

In re Baby Boy Doe, 260 Ill.App.3d 392 (1st Dist. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . 7

In re Estate of Longeway, 133 Ill.2d 33 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

In re Fetus Brown, 294 Ill.App.3d 159 (1st Dist. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. R.G., 131 Ill.2d 328 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. Geever, 122 Ill.2d 313 (1988), appeal dismissed, Geever v. Illinois,
488 U.S. 920 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. Shum, 117 Ill.2d 317 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Planned Parenthood v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6

Siemenic v. Lutheran General Hospital, 117 Ill.2d 230 (1987) . . . . . . . . . . . . . . . . . . . . . 7

Stallman v. Youngquist, 125 Ill.2d 267 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statutes

U.S. CONST . amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ILL. CONST . art. I, § 6 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6

iii
ILL. CONST . art. I, § 12 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6

5 ILCS 160/3(b) (West 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. THIS COURT IS NOT REQUIRED TO RECOGNIZE A RIGHT TO

ABORTION UNDER THE ILLINOIS CONSTITUTION MERELY
BECAUSE THE UNITED STATES SUPREME COURT HAS
DERIVED A RIGHT TO ABORTION FROM THE LIBERTY
LANGUAGE OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Cases

Barger v. Peters, 163 Ill.2d 357 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill.2d 390 (2006) . . . . . . . . . . . . . . 15

District of Columbia v. Heller, 128 S.Ct. 2783 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Ex parte Tucci, 859 S.W.2d 1 (Tex. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12

Kalodimos v. Village of Morton Grove, 103 Ill.2d 483 (1984) . . . . . . . . . . . . . . . . . . . 15

Mahaffey v. Attorney General, 564 N.W.2d 104 (Mich. Ct. App. 1997) . . . . . . . . . . . . 14

Moe v. Secretary of Administration & Finance, 417 N.E.2d 387 (Mass. 1981) . . . . . . . 14

Moran v. Burbine, 475 U.S. 412 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

People v. Levin, 157 Ill.2d 138 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

People v. McCauley, 163 Ill.2d 414 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

People v. Moss, 206 Ill.2d 503 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

People ex rel. Daley v. Joyce, 126 Ill.2d 209 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Planned Parenthood v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Planned Parenthood League of Massachusetts, Inc. v. Attorney General,

677 N.E.2d 101 (Mass. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iv
Preterm Cleveland v. Voinovich, 627 N.E.2d 570 (Ohio Ct. App. 1993),
rev. denied, 624 N.E.2d 194 (Ohio 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14

Pro-Choice Mississippi, v. Fordice, 716 So.2d 645 (Miss. 1998) . . . . . . . . . . . . . . . . . . 14

Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Sanders v. State, 585 A.2d 117 (Del. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Serna v. Superior Court, 707 P.2d 793 (Cal. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Singer v. United States, 380 U.S. 24 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Sitz v. Dep’t of State Police, 506 N.W.2d 209 (Mich. 1993) . . . . . . . . . . . . . . . . . . . . . 12

Smith v. Employment Division, 721 P.2d 445 (Or. 1986),

rev’d, 494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

State v. Williams, 728 N.E.2d 342 (Ohio 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Taylor v. State, 639 N.E.2d 1052 (Ind. Ct. App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Texas v. Johnson, 491 U.S. 397 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

West v. Thompson Newspapers, 872 P.2d 999 (Utah 1994) . . . . . . . . . . . . . . . . . . . . . . 13

Statutes

U.S. CONST . art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

U.S. CONST . amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

U.S. CONST . amend. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

U.S. CONST . amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

U.S. CONST . amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ILL. CONST . art. I, § 4 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ILL. CONST . art. I, § 10 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ILL. CONST . art. I, § 13 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

v
ILL. CONST . art. I, § 22 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

OHIO CONST . art. I, § 1 (West 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Other Authorities

Ronald K.L. Collins, Reliance on State Constitutions–

Away From a Reactionary Approach, 9 HASTINGS CONST . L. Q. 1 (1981) . . 10-11

Jennifer Friesen, STATE CONSTITUTIONAL LAW [:] LITIGATING INDIVIDUAL RIGHTS,

CLAIMS AND DEFENSES (4th ed. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hans Linde, E Pluribus – Constitutional Theory and State Courts,

18 GA . L. REV . 165 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Earl M. Maltz, False Prophet–Justice Brennan and the Theory of State Constitutional
Law, 15 HASTINGS CONST . L. Q. 429 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

III. THE DUE PROCESS GUARANTEE OF THE ILLINOIS CONSTITUTION,

ARTICLE I, § 2, DOES NOT CONFER A RIGHT TO ABORTION . . . . . 15

Cases

Kalodimos v. Village of Morton Grove, 103 Ill.2d 483 (1984) . . . . . . . . . . . . . . . . . . . . 21

Lewis E. v. Spagnolo, 186 Ill.2d 194 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Caballes, 221 Ill.2d 282 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. DiGuida, 152 Ill.2d 104 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17

People v. McCauley, 163 Ill.2d 414 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. McDonald, 168 Ill.2d 420 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

People v. Tisler, 103 Ill.2d 226 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 22

People v. Washington, 171 Ill.2d 475 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People ex rel. Daley v. Joyce, 126 Ill.2d 209 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Planned Parenthood v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

vi
Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 22

Sayles v. Thompson, 99 Ill.2d 122 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Zbaraz v. Hartigan, 572 F.3d 370 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Statutes

U.S. CONST . amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ILL. CONST . art. I, § 2 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Other Authorities

R ECORD OF P ROCEEDINGS, S IXTH ILLINOIS C ONSTITUTIONAL C ONVENTION

(1969-1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 20, 21

IV. THE PRIVACY GUARANTEE OF THE ILLINOIS CONSTITUTION,

ARTICLE I, § 6, DOES NOT CONFER A RIGHT TO ABORTION . . . . . 22

Cases

Best v. Taylor Machine Works, 179 Ill.2d 367 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Earll v. People, 99 Ill. 123 (1881) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Illinois NORML, Inc. v. Scott, 66 Ill.App.3d 633 (1st Dist. 1978) . . . . . . . . . . . . . . . . . 26

Illinois State Employees Ass’n v. Walker, 57 Ill.2d 512 (1974) . . . . . . . . . . . . . . . . . . . . 29

In Re A Minor, 149 Ill.2d 247 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

In re C.E., 161 Ill.2d 200 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

In re Estate of Longeway, 133 Ill.2d 33 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

In re Lakisha M., 227 Ill.2d 259 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

In re May 1991 Will County Grand Jury, 152 Ill.2d 381 (1992) . . . . . . . . . . . . . . . . 24, 26

King v. Ryan, 153 Ill.2d 449 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Kunkel v. Walton, 179 Ill.2d 519 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

vii
People v. Caballes, 221 Ill.2d 282 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 25

People v. Cornelius, 213 Ill.2d 178 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

People v. Frey, 54 Ill. 2d 28 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

People v. Geever, 122 Ill.2d 313 (1988), appeal dismissed, Geever v. Illinois,
488 U.S. 920 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

People v. Kohrig, 113 Ill.2d 384 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

People v. Ledesma, 206 Ill.2d 571 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24

People v. Madison, 121 Ill.2d 195 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

People v. McGee, 268 Ill.App.3d 32 (2d Dist. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

People v. Watson, 214 Ill.2d 271 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

People ex rel. Hanrahan v. White, 52 Ill.2d 70 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Planned Parenthood v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 30

Statutes

U.S. CONST . amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

ILL. CONST . art. I, § 6 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Act of Jan. 30, 1827, § 46, ILL. REV . CODE at 131 (1827), repealed and replaced
by an Act of Feb. 26, 1833, § 46, ILL. REV . CODE at 179 (1833) . . . . . . . . . . . . . 29

Act of Feb. 18, 1867, Ill. Laws § 89 (1867) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-30

ILL. REV . STAT . ch. 38, § 3 (1874), carried forward as ILL. REV . STAT .
ch. 38, ¶ 23-1 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Other Authorities

R ECORD OF P ROCEEDINGS, S IXTH ILLINOIS C ONSTITUTIONAL C ONVENTION

(1969-1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27-28

viii
V. THE ILLINOIS PARENTAL NOTICE OF ABORTION ACT OF 1995
DOES NOT VIOLATE THE EQUAL PROTECTION GUARANTEE,
ART. I, § 2, OF THE ILLINOIS CONSTITUTION . . . . . . . . . . . . . . . . . . . 31

Cases

American College of Obstetricians & Gynecologists v. Thornburgh,

737 F.3d 283 (3rd Cir. 1984), aff’d, 476 U.S. 747 (1986) . . . . . . . . . . . . . . . . . . 33

Bellotti v. Baird, 443 U.S. 622 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

General Motors Corp. v. State of Illinois Motor Vehicle Review Board,

224 Ill.2d 1 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

H.L. v. Matheson, 450 U.S. 398 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

Hodgson v. Minnesota, 853 F.2d 1452 (8th Cir. 1988), aff’d, 497 U.S. 417 (1990) . . . . 33

Maher v. Roe, 432 U.S. 464 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Planned Parenthood League of Massachusetts v. Bellotti,

641 F.2d 1006 (1st Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Statutes

ILL. CONST . art. I, § 2 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32

ILL. CONST . art. I, § 6 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

VI. THE ILLINOIS PARENTAL NOTICE OF ABORTION ACT OF 1995

DOES NOT DISCRIMINATE ON ACCOUNT OF SEX IN VIOLATION
OF ART. I, § 18, OF THE ILLINOIS CONSTITUTION . . . . . . . . . . . . . . . 34

Cases

Back v. Hastings on Hudson Union Free School District,

365 F.3d 107 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Lane v. Lane, 35 Ill.App.3d 276 (1st Dist. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

People v. Ellis, 57 Ill.2d 1270 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

ix
Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . 35

Statutes

U.S. CONST . AMEND . XIV, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

ILL. CONST . art. I, § 18 (West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

VII. THE ILLINOIS PARENTAL NOTICE OF ABORTION ACT OF 1995

IS RATIONALLY RELATED TO MULTIPLE LEGITIMATE STATE
PURPOSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Cases

American Academy of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997) . . . . . . 38, 39-40

American College of Obstetricians & Gynecologists v. Thornburgh,

737 F.3d 283, 296 (3rd Cir. 1984), aff’d, 476 U.S. 747 (1986) . . . . . . . . . . . . . . 40

Bellotti v. Baird, 443 U.S. 622 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-37, 40

Committee for Educational Rights v. Edgar, 174 Ill.2d 1 (1996) . . . . . . . . . . . . . . . . . . 38

Hodgson v. Minnesota, 853 F.2d 1452 (8th Cir. 1988),

aff’d, 497 U.S. 417 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

In re T.W., 551 So.2d 1186 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Miller v. Rosenberg, 196 Ill.2d 50 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

North Florida Women’s Health & Counseling Services, Inc. v. State of Florida,
866 So.2d 612 (Fla. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Planned Parenthood League of Massachusetts v. Bellotti,

641 F.2d 1006 (1st Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41

Planned Parenthood League of Massachusetts, Inc. v. Attorney General,

677 N.E.2d 101 (Mass. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Planned Parenthood of Central New Jersey v. Farmer, 762 A.2d 620 (N.J. 2000) . . . . 38

State v. Planned Parenthood of Alaska, 171 P.3d 577 (Alaska 2007) . . . . . . . . . . . . . . . 38

x
Wicklund v. State, 1998 Mont. Dist. LEXIS 227 (1st Dist. Feb. 13, 1998) . . . . . . . . . . . 38

Statutes

750 ILCS 70/5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Other Authorities

Stanley K. Henshaw and Kathryn Kost, “Parental Involvement in Minors’ Abortion

Decisions,” 24 Family Planning Perspectives 196 (1992) . . . . . . . . . . . . . . . . . 37

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

xi
 INTEREST OF THE AMICI

Amici curiae are Stewart Umholtz, State’s Attorney of Tazewell County, Edward

Deters, State’s Attorney of Effingham County, Charles H. Burch, State’s Attorney,

Calhoun County, Michael McIntosh, State’s Attorney, Logan County, Matthew S.

Wilzbach, State’s Attorney, Marion County, Thomas R. Wiseman, State’s Attorney,

Crawford County, Joseph P. Bruscato, State’s Attorney, Winnebago County, James A.

Mack, State’s Attorney, Putnam County, Patrick Windhorst, State’s Attorney, Massac

County, Albert G. Algren, State’s Attorney, Warren County, and Scott McClintock,

State’s Attorney Henderson County. As State’s Attorneys, amici curiae have both direct

(criminal) and indirect (referrals for disciplinary action) authority to enforce the

provisions of the Parental Notice of Abortion Act of 1995 (the Act), 750 ILCS 70/1 et

seq. (West 2009). With respect to the former (prosecution of criminal offenses), § 40(b)

of the Act provides:

Any person, not authorized under this Act, who signs a waiver of
notice for a minor or incompetent person seeking an abortion, is guilty of a
Class C misdemeanor.

750 ILCS 70/40(b).

With respect to the latter (referrals for disciplinary action), § 40(a) provides:

Any physician who willfully 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.

750 ILCS 70/40(a).

Section 22 of the Medical Practice Act authorizes the Illinois State Medical

1
Disciplinary Board to take disciplinary action against a physician for willful failure to

provide notice when notice is required under the Parental Notice of Abortion Act of 1995.

225 ILCS 60/22(A)(40) (West Supp. 2010). Section 23(A)(4) of the Medical Practice Act

expressly authorizes any State’s Attorney to “report to the Disciplinary Board through a

verified complaint” any physician who has willfully failed to provide notice when notice

is required under the parental notice act. 225 ILCS 60/23(A)(4).

The authority of amici to enforce the Parental Notice of Abortion Act of 1995–

both by criminal prosecutions of those who impersonate persons entitled to waive notice

under the Act and by referral to the State Medical Disciplinary Board of physicians who

willfully fail to provide the notice required by the Act–will be affected by the outcome of

this litigation. To assist this Court in addressing the multiple legal issues presented by

plaintiffs’ appeal, amici respectfully submit this brief.

2
 INTRODUCTION

The Parental Notice of Abortion Act of 1995, which is the subject of this appeal,

has not been in effect for a single day since it was enacted fifteen years ago. According to

statistics provided by the Illinois Department of Public Health on its official website,

between 1995, the year in which the Act was enacted, and 2009, the last year for which

date is available, more than 54,000 abortions were performed on resident minors (females

under the age of 18) in Illinois. Of those 54,055 abortions, 4,707 were performed on girls

who were fourteen years of age or younger at the time of the abortion. Not one of those

54,055 minors was legally required to notify either of her parents (or anyone else entitled

to notice under the Act) of her decision to obtain an abortion. During the same fifteen-

year (inclusive) period, almost 60,000 abortions were performed in Illinois on non-

resident women and girls. Because Illinois is the only State in the Midwest without a

parental notice or consent law in effect, it is reasonable to assume that many of those

60,000 abortions were performed on non-resident minors who were seeking to evade the

parental notice or consent laws of their own States. It is also reasonable to assume that at

least some of the minors who have obtained abortions in Illinois during the last fifteen

years would not have done so if the Act had been in force. As to those minors and their

unborn children who would not have been aborted had the Act been in effect, the impact

of the delay in its enforcement is self-evident. For the sake of pregnant minors who

would benefit from their parents’ advice and counsel in deciding whether to obtain an

abortion, for the sake of their parents’ rights to provide such advice and counsel and for

the sake of the minors’ unborn children, this Court should uphold the Act.

3
 ARGUMENT

I.

THE ILLINOIS SUPREME COURT HAS NOT RECOGNIZED A RIGHT TO

ABORTION UNDER THE ILLINOIS CONSTITUTION THAT IS SEPARATE
FROM, AND INDEPENDENT OF, THE RIGHT TO ABORTION THAT
THE UNITED STATES SUPREME COURT HAS DERIVED FROM THE
LIBERTY LANGUAGE OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

At the outset it must be emphasized that, contrary to the understanding of the

parties and the circuit court, see C1150, the Illinois Supreme Court has not held that the

Illinois Constitution protects a right to abortion that is separate from, and independent of,

the right to abortion recognized in Roe v. Wade, 410 U.S. 113 (1973), as modified by

Planned Parenthood v. Casey, 505 U.S. 833 (1992). In Family Life League v. Dep’t of

Public Aid, 112 Ill.2d 449 (1986), upon which plaintiffs rely, see Plaintiffs’ Br. at 16, 17,

22 n. 8, the supreme court noted that 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.” Id. at 454. “That right of privacy guaranteed by the

penumbra of the Bill of Rights of the United States Constitution,” the court added in

dicta, “was also secured by the drafters of the 1970 Constitution of the State of Illinois.”

Id. (citing art. I, §§ 6 (privacy) and 12 (certain remedy) of the Illinois Constitution). As

the context of the opinion indicates, id., what was “secured” by the drafters of the 1970

Illinois Constitution was a right to privacy, not a right to abortion which, at the time the

state constitution was adopted, was a crime except to save the life of the mother.

Whether § 6 secures rights relating to privacy of conduct is discussed later in this brief

4
(see Argument IV, infra).1 No such issue was presented in Family Life League, which

rejected an informational privacy defense raised on behalf of abortion providers and their

patients who sought to resist disclosing the names of physicians who received public

funds for abortion services.2 That defense relied upon Roe v. Wade and a privacy

exemption in the Illinois State Records Act, 5 ILCS 160/3(b) (West 2005), not upon any

provision of the Illinois Constitution. Family Life League, 112 Ill.2d at 453-59.

Significantly, none of the briefs submitted to the supreme court argued that the

Illinois Constitution protects a right to abortion. Rather, they merely pointed out that art.

I, § 6, protects privacy of information, not privacy of conduct. For example, the Brief of

Amicus Curiae Roger Baldwin Foundation of ACLU, Inc., (No. 62137) argued that

“[d]isclosure of the woman’s identity, were it to occur, would infringe upon the right of

privacy guaranteed not only by the Constitution of the United States, . . . but also by

Article I § 6 of the Constitution of Illinois which provides that: ‘[t]he people shall have

1
Plaintiffs do not develop any argument relating to § 12, and amici do not discuss
it further in this brief.
2
Plaintiffs’ selective quotation from the Illinois Supreme Court’s decision in
Stallman v. Youngquist, 125 Ill.2d 267 (1988), see Plaintiffs’ Br. at 22, in support of their
privacy claim is misleading. In Stallman, the state supreme court held that it would not
recognize a common law cause of action for prenatal injuries brought on behalf of an
unborn child against its mother. In a passage quoted by the plaintiffs, the court said,
“Judicial scrutiny into the day-to-day lives of pregnant women would involve an
unprecedented intrusion into the privacy and autonomy of the citizens of this State.” 125
Ill.2d at 279-80. Plaintiffs omitted to quote, however, the very next sentence in the
opinion: “This court holds that if a legally cognizable duty on the part of pregnant
women to their developing fetuses is to be recognized, the decision must come from the
legislature only after thorough investigation, study and debate.” Id. at 280 (emphasis
added). In other words, the court did not hold that there is a state constitutional
impediment to recognition of such a cause of action, only that it must come from the
legislature, not the judiciary.

5
the right to be secure . . . against . . . invasions of privacy.’” Br. at 8 (emphasis added).

The ACLU did not argue (or even claim) that the Illinois Constitution protects a right to

abortion. Similarly, the Illinois State Medical Society argued in a single sentence (and

without citation of relevant authority) that disclosure of the names of the physicians who

perform abortions would violate both the United States and Illinois Constitutions. Brief

for Appellee Illinois State Medical Society at 20. Once again, no argument was made

that the Illinois Constitution protects a right to abortion–the focus was on privacy of

information, not privacy of conduct. And, finally, in a passage to which, in the trial court,

plaintiffs attributed an exaggerated significance, see C477, the Attorney General made the

following statement on behalf of his clients:

In Roe v. Wade, 410 U.S. 113 . . . (1973), the Supreme Court first
recognized a fundamental constitutional right of privacy which
encompasses a woman’s decision whether or not to terminate her
pregnancy. See City of Akron v. Akron Center for Reproductive Health,
462 U.S. 416 . . . (1983). The 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 Illinois Constitution. Ill. Const. Art. I, §§ 6 and
12.

Brief of Defendants-Appellees Illinois Department of Public Aid, et al., at 15 (reproduced

at C520). The Attorney General did not state that either art. I, § 6, or art. I, § 12, of the

Illinois Constitution protects a right to abortion, but only that they protect a right of

privacy, the nature of which was not discussed in the Attorney General’s brief.

None of the briefs filed in the Family Life League case–either in the Appellate

Court or the Supreme Court–argued that the Illinois Constitution protects a right to

abortion. It is not surprising, therefore, that the Illinois Supreme Court did not decide

6
whether the state constitution protects such a right. Since Family Life League was

decided almost twenty-five years ago, the Illinois Supreme Court has not cited it even

once for the proposition plaintiffs attribute to it. Moreover, in later cases, the court has

identified abortion as a right protected only by the federal, not the state, constitution. See

In re Estate of Longeway, 133 Ill.2d 33, 43-44 (1989); People v. Geever, 122 Ill.2d 313,

340 (1988), appeal dismissed, Geever v. Illinois, 488 U.S. 920 (1988); People v. R.G.,

131 Ill.2d 328, 342 (1989); People v. Shum, 117 Ill.2d 317, 359 (1987); Siemenic v.

Lutheran General Hospital, 117 Ill.2d 230, 256 (1987) (plurality).

To suggest that, in Family Life League, the Illinois Supreme Court recognized,

casually and in an offhand manner, a state right to abortion without reviewing the relevant

debates at the Illinois Constitutional Convention of 1970, without the issue being

addressed in the briefs and without any citation of authority, does scant justice to the

court or its members. Whether the Illinois Constitution protects an independent right to

abortion presents a question of first impression which can be answered only on the basis

of a careful examination of the state constitution, in light of the history of its adoption and

its subsequent interpretation, not on the basis of misunderstood obiter dicta in a case that

did not decide (or purport to decide) that issue.3

3
For that reason, plaintiffs’ reliance on In re Baby Boy Doe, 260 Ill.App.3d 392
(1st Dist. 1994), Plaintiffs’ Br. at 17-18, 23, which simply repeated the dicta in Family
Life League, is misplaced. Neither Family Life League nor Baby Boy Doe, which, like In
re Fetus Brown, 294 Ill.App.3d 159 (1st Dist. 1997), also cited by plaintiffs (Br. at 23).
concerned the right to refuse unwanted medical treatment, not a right to abortion,
examined the proceedings of the Illinois Constitutional Convention. Examination of
those proceedings, however, demonstrates that the framers consciously choose not to
incorporate a right to abortion. See Argument III, infra,

7
 II.

THIS COURT IS NOT REQUIRED TO RECOGNIZE A RIGHT TO ABORTION

UNDER THE ILLINOIS CONSTITUTION MERELY BECAUSE THE
UNITED STATES SUPREME COURT HAS DERIVED A RIGHT TO
ABORTION FROM THE LIBERTY LANGUAGE OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.

For the reasons set forth in the previous argument, it is apparent that the Illinois

Supreme Court has not recognized a right to abortion that is separate from, and

independent of, the right to abortion recognized by the United States Supreme Court in

Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505

U.S. 833 (1992). Nor is either this Court or the Illinois Supreme Court required to

recognize a right to abortion under the state constitution merely because such a right has

been recognized under the federal constitution.

There are two principled approaches in considering the relationship between

similar state and federal constitutional guarantees (e.g., due process and equal protection).

A state court may conclude, after a careful analysis of the relevant constitutional text, the

history of its adoption and its judicial interpretation, that a given state constitutional

guarantee should be construed consistently with the corresponding federal guarantee.

Under this approach, often referred to as “lockstep” analysis (because the state

constitution is said to march in “lockstep” with the federal constitution), a state

constitutional right would not be recognized unless there is a corresponding federal

constitutional right; and, if there is such a right, the state right would be coextensive with

the federal right, neither broader nor narrower. Alternatively, a state court may conclude,

8
in light of its text, history and interpretation, that the state guarantee should be construed

independently of the federal guarantee. Under this approach, known as independent state

constitutionalism, whether a state right would be recognized (and its scope) would not

depend upon whether there is a corresponding federal right. The asserted right might not

exist at all under the state constitution and, if it does, it could be broader or narrower than

the federal right. What is not principled, however, is to combine the two approaches and

to say, on the one hand, that federal constitutional law will be controlling in determining

whether a given right is protected by the state constitution (thereby establishing, as a

matter of state law, a federal “floor” of protection), but, on the other hand, that federal

law will not be controlling in determining the scope of that same right (allowing for a

higher state “ceiling” of protection). That hybrid approach results in what may be fairly

described as “cafeteria constitutionalism,” which is unprincipled in theory and unsound in

practice, as Professor Earl Maltz has recognized:

The image of federal constitutional law as a “floor” in state court

litigation pervades most commentary on state constitutional law.
Commentators contend that in adjudicating cases, state judges must not
adopt state constitutional rules which fall below this floor; courts may,
however, appeal to the relevant state constitution to establish a higher
“ceiling” of rights for individuals . . . .

Certainly, as a matter of federal law, state courts are bound not to

apply any rule which is inconsistent with decisions of the Supreme Court;
the Supremacy Clause of the Federal Constitution clearly embodies this
mandate. It would be a mistake, however, to view federal law as a floor
for state constitutional analysis; principles of federalism prohibit the
Supreme Court from dictating the content of state law. In other words,
state courts are not required to incorporate federally-created principles into
their state constitutional analysis; the only requirement is that in the event
of an irreconcilable conflict between federal law and state law principles,
the federal principles must prevail.

9
 * * * * *

[S]uch courts [i.e., those state courts which do not follow the
lockstep analysis] must undertake an independent determination of the
merits of each claim based solely on principles of state constitutional law.
If the state court begins its analysis with the view that the federal practice
establishes a “floor,” the state court is allowing a federal governmental
body–the United States Supreme Court–to define, at least in part, rights
guaranteed by the state constitution. Thus, to avoid conflict with
fundamental principles of state autonomy, a state court deciding whether
to expand federally recognized rights as a matter of state law must employ
a two-stage process. The court first must determine whether the federally
recognized rights themselves are incorporated into the state constitution
and only then must determine whether those protections are more
expansive under state law.

Earl M. Maltz, False Prophet–Justice Brennan and the Theory of State Constitutional

Law, 15 HASTINGS CONST . L. Q. 429, 443-44 (1988) (emphasis in original).

Other commentators have also recognized that “[i]ndependent interpretation, as a

matter of constitutional principle, must be a two-way street.” Ronald K.L. Collins,

Reliance on State Constitutions–Away From a Reactionary Approach, 9 HASTINGS

CONST . L. Q. 1, 10 (1981).

[T]here is no constitutional impediment preventing state courts from

granting a lesser degree of protection under state law, provided only that
these courts then proceed to apply the command of the Federal
Constitution as interpreted by the United States Supreme Court. In other
words, the logic of principled interpretation at the state level
. . . demands that any given argument be tested on its own merits
independently of what level of constitutional protection could result. In
some instances, it may well be that the logical scope of a state
constitutional premise does not extend so far as to afford an equivalent or
greater measure of protection than that allotted under the Bill of Rights.

. . . . Considerations of text, logic, history and consistency may

prompt [state] judges to reject [certain] federally protected “rights,” but
only as questions of state law. These federal “rights” would not suffer in
that the same state judges would then have to yield to the dictates of

10
 federal law and acknowledge the claims presented. Accordingly, the
constitutional premises upon which the state law is grounded would not be
sacrificed merely because federal decisional law pointed in another
direction.

Id. at 15-16 (emphasis in original). As a well known proponent of independent state

constitutional analysis has said, “The right question is not whether a state’s guarantee is

the same or broader than its federal counterpart as interpreted by the Supreme Court. The

right question is what the state’s guarantee means and how it applies to the case at hand.”

Hans Linde, E Pluribus – Constitutional Theory and State Courts, 18 GA . L. REV . 165,

179 (1984). The author of the leading text on state constitutional law agrees:

Using independent interpretation a court might reach the same or a

different result than the federal one, using the same or different standards
or theories. An independent opinion may even conclude that a state
provision is “less” protective than the federal counterpart is presumed to
be. The state court must then reach any federal fourteenth amendment
challenges to the alleged deprivation.

Jennifer Friesen, STATE CONSTITUTIONAL LAW [:] LITIGATING INDIVIDUAL RIGHTS,

CLAIMS AND DEFENSES (4th ed. 2008), Vol. I, at pp. 44-45.

State reviewing courts have recognized that, under an independent state

constitutional analysis (as opposed to “lockstep” analysis), federal constitutional rights

are not necessarily incorporated into state constitutions. In Ex parte Tucci, 859 S.W.2d 1

(Tex. 1993), the Texas Supreme Court recognized the distinction between independent

state constitutional analysis and the command of the Supremacy Clause:

When both federal and state constitutional claims are raised, a state court
may not, under the supremacy clause, U.S. Const. art. VI, cl. 2, afford less
protection to individual rights than that guaranteed by our national Bill of
Rights. In that sense, the prior writings of this court are fully accurate
regarding a “federal safety net”–a floor for our liberties and a potentially

11
 higher state ceiling. It is also true that an independent state judiciary may
interpret its fundamental law as affording less protection than our federal
charter.

Id. at 13 (plurality opinion) (emphasis added).

The Michigan Supreme Court has explained that,

Where a right is given to a citizen under federal law, it does not follow that
the organic instrument of state government must be interpreted as
conferring the identical right. Nor does it follow that where a right given
by the federal constitution is not given by a state constitution, the state
constitution offends the federal constitution. It is only where the organic
instrument of government purports to deprive a citizen of a right granted
by the federal constitution that the instrument can be said to violate the
[federal] constitution.

Sitz v. Dep’t of State Police, 506 N.W.2d 209, 216-17 (Mich. 1993). “[A]ppropriate

analysis of our constitution does not begin from the conclusive premise of a federal floor

. . . . As a matter of simple logic, because the texts were written at different times by

different people, the protections afforded may be greater, lesser, or the same.” Id. at 217.

The Indiana Court of Appeals has said that “Indiana courts have the obligation to

determine whether an act is protected by the Indiana Constitution, independently of

whether the act is protected by federal constitutional guarantees.” Taylor v. State, 639

N.E.2d 1052, 1053-54 (Ind. Ct. App. 1994). Accordingly, “The protections provided by

the Indiana Constitution may be more extensive than those provided by its federal

constitutional counterparts. [Citations omitted]. Those protections may be less extensive;

or they may be coterminous.” Id. at 1053. Other state courts are in accord with these

views. See, e.g., Serna v. Superior Court, 707 P.2d 793, 798-800 (Cal. 1985) (deciding

that, as previously construed by the state supreme court, state constitutional standard was

12
less exacting than Sixth Amendment right to a speedy trial); Sanders v. State, 585 A.2d

117, 147 n. 25 (Del. 1990) (“[s]ince the Delaware Constitution is an organic body of law,

there is no reason why it cannot be interpreted to provide fewer protections than the

Federal Constitution”) (emphasis in original); Smith v. Employment Division, 721 P.2d

445 (Or. 1986), rev’d, 494 U.S. 872 (1990) (state violated First Amendment right to free

exercise of religion, but not state free exercise clause, by denying unemployment

compensation to drug counselor fired for religious use of peyote); West v. Thompson

Newspapers, 872 P.2d 999, 1004 n. 4 (Utah 1994) (“[t]he scope of state constitutional

protection for expression may be broader or narrower than the federal, depending on the

state constitution’s language, history, and interpretation”).

An understanding of the proper relationship between state and federal

constitutional analysis, with respect to state courts that interpret state constitutional

provisions independently of corresponding provisions of the federal constitution, leads to

but one conclusion: That a right is protected by the federal constitution does not require a

state court, as a matter of state law, to extend protection to the same right.

In a decision rejecting a state constitutional challenge to Ohio’s abortion informed

consent statute, the Ohio Court of Appeals noted that although a state court is “not free to

find constitutional a statute that violates the United States Constitution, as interpreted by

Planned Parenthood on the basis that the [state] [c]onstitution is not violated,” it need not

“follow the undue burden test of Planned Parenthood [in construing] the [state]

[c]onstitution.” Preterm Cleveland v. Voinovich, 627 N.E.2d 570, 577 n. 9 (Ohio Ct.

App. 1993), rev. denied, 624 N.E.2d 194 (Ohio 1993). “Instead, the state may use either

13
a lesser or greater standard.” Id. at 575 n. 5.4 In a similar vein, the Massachusetts

Supreme Judicial Court, in interpreting the Massachusetts Constitution, refused to

employ the Supreme Court’s (now abandoned) “rigid formulation” of balancing the

interests at stake in the abortion debate, preferring instead a “more flexible approach to

the weighing of interests that must take place.” Moe v. Secretary of Administration &

Finance, 417 N.E.2d 387, 402-04 (Mass. 1981) (striking down restrictions on public

funding of abortion). See also Planned Parenthood League of Massachusetts, Inc. v.

Attorney General, 677 N.E.2d 101, 103-04 (Mass. 1997) (upholding parental consent

statute, but limiting statute to one-parent consent). Finally, both the Mississippi Supreme

Court and the Michigan Court of Appeals have conducted independent analyses of their

state constitutions, the former concluding that the Mississippi Constitution confers a state

right to abortion, Pro-Choice Mississippi, v. Fordice, 716 So.2d 645, 650-54 (Miss.

1998). the latter concluding otherwise under the Michigan Constitution. Mahaffey v.

Attorney General, 564 N.W.2d 104, 109-11 (Mich. Ct. App. 1997).

In sum, depending upon text, history and interpretation, a state court may

reasonably and legitimately either follow Supreme Court precedent construing a federal

constitutional guarantee in construing a similar guarantee in the state constitution, with all

4
In Preterm Cleveland, the Ohio Court of Appeals recognized a state
constitutional right to abortion under art. I, § 1, of the Ohio Constitution. Id. at 575.
Although denying review of the lower court’s judgment (which upheld the informed
consent statute), the Ohio Supreme Court, in a later unrelated case undermined the basis
for the court of appeals decision. See State v. Williams, 728 N.E.2d 342 (Ohio 2000). In
Williams, the Ohio Supreme Court held that the language of art. I, § 1, “is not an
independent source of [judicially enforceable] self-executing protections. Rather, it is a
statement of fundamental ideals upon which a limited government is created.” Id. at 354.

14
the limitations that implies, or it may construe the state constitution independently of the

federal constitution. But, if it chooses the latter course, then Supreme Court precedents

should not dictate the interpretation of the state constitution. Depending upon the text,

history and interpretation of the particular constitutional guarantee at issue, the rights

secured by the Illinois Declaration of Rights may be broader,5 narrower6 or the same7 as

the corresponding rights secured by the Bill of Rights.

5
Compare People ex rel. Daley v. Joyce, 126 Ill.2d 209, 211-22 (1988) (state
constitutional right to jury trial, Ill. Const. art. I, § 13, is a personal right guaranteed to
the defendant who has the unilateral right to waive trial by jury and have his case heard
by the court without the consent of the State), with Singer v. United States, 380 U.S. 24
(1965) (upholding federal rule of criminal procedure making defendant’s waiver of his
Sixth Amendment right to trial by jury conditional upon the consent of the government);
and People v. McCauley, 163 Ill.2d 414, 423-24 (1994) (state constitutional right against
self-incrimination, Ill. Const. art. I, § 10, does not permit police “to delude custodial
suspects, exposed to interrogation, into falsely believing they are without immediately
available legal counsel and to also prevent that counsel from accessing and assisting their
clients during interrogation”), with Moran v. Burbine, 475 U.S. 412 (1986) (contra on
similar facts) (interpreting Fifth Amendment right against compelled self-incrimination).
6
Compare Kalodimos v. Village of Morton Grove, 103 Ill.2d 483, 491-500 (1984)
(village ordinance banning possession of handguns by municipality’s residents did not
violate state constitutional right of individuals to bear arms, Ill. Const. art. I, § 22), with
District of Columbia v. Heller, 128 S.Ct. 2783 (2008) (ban on possession of handguns by
residents of the District of Columbia violated right to bear arms guaranteed by the Second
Amendment); and City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill.2d 390, 446-48
(2006) (implying that free speech guarantee of Illinois Constitution, art. I, § 4, does not
protect expressive conduct, as opposed to “speaking, writing and publishing”), with Texas
v. Johnson, 491 U.S. 397, 402-05 (1989) (First Amendment right to freedom of speech
extends to expressive conduct) (striking down flag-burning statute).
7
See Barger v. Peters, 163 Ill.2d 357, 359-60 (1994) (state and federal
prohibitions of ex post facto laws are to be construed in the same manner); People v.
Moss, 206 Ill.2d 503, 535 (2003) (state and federal double jeopardy clauses are to be
construed in the same manner); People v. Levin, 157 Ill.2d 138, 159-60 (1993) (same).

15
 III.

THE DUE PROCESS GUARANTEE OF THE ILLINOIS CONSTITUTION,

ARTICLE I, § 2, DOES NOT CONFER A RIGHT TO ABORTION.

Plaintiffs argue that the due process guarantee of the Illinois Constitution, art. I,

§ 2, confers a right to abortion that is separate from, independent of and broader in scope

than the right to abortion recognized by the United States Supreme Court in Roe v. Wade,

410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992).

Plaintiffs Br. at 45-48; see also, id., at 19-24. Article I, § 2, of the Illinois Constitution

provides, in part: “No person shall be deprived of life, liberty or property without due

process of law . . . .” ILL. CONST . art. I, § 2 (West 2006). Assuming that plaintiffs’

argument is not barred on res judicata or collateral estoppel grounds, amici respond that

art. I, § 2, confers no right to abortion, much less one that is broader in scope than the

right recognized in Roe v. Wade. Accordingly, plaintiffs’ challenge to the Parental Notice

of Abortion Act based on the due process guarantee of art. I, § 2, should be rejected.

In interpreting related provisions in the Illinois and United States Constitutions,

the Illinois Supreme Court has adopted a “limited lockstep approach.” People v.

Caballes, 221 Ill.2d 282, 310 (2006). Under that approach,

“We must 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
construed differently than are similar provisions in the Federal
Constitution, after which they are patterned.”

Id. (quoting People v. Tisler, 103 Ill.2d 226, 245 (1984). See also People ex rel Daley v.

Joyce, 126 Ill.2d 209, 213 (1988) (following Tisler); People v. DiGuida, 152 Ill2d. 104,

16
118 (1992) (same). If, with respect to the issue of abortion, the due process guarantee of

the Illinois Constitution (art. I, § 2) is interpreted in “lockstep” with the Due Process

Clause of the Fourteenth Amendment, then plaintiffs’ challenge to the parental notice act

necessarily fails, as art. I, § 2, would provide no greater protection to abortion than is

afforded by § 1 of the Fourteenth Amendment and the federal due process claim has

already been resolved adversely to plaintiffs in a final judgment of the court of appeals.

Zbaraz v. Hartigan, 572 F.3d 370 (7th Cir. 2009).

Amici recognize that, on rare occasion, the Illinois Supreme Court “has interpreted

our state due process clause to provide greater protections than its federal counterpart

where we found an appropriate basis to do so.” Lewis E. v. Spagnolo, 186 Ill.2d 194, 227

(1999) (citing People v. Washington, 171 Ill.2d 475, 489 (1996) (“as a matter of Illinois

constitutional jurisprudence . . . a claim of newly discovered evidence showing a

defendant to be actually innocent of the crime for which he was convicted is cognizable

as a matter of due process”); People v. McCauley, 163 Ill.2d 414, 440-45 (1995) (state

due process should protect against deliberate attempts to deny counsel to criminal

suspects)). But nothing in the language of art. I, § 2, suggests that the Illinois due process

guarantee should be given a broader construction, with respect to abortion, than has been

given to the federal Due Process Clause by the Supreme Court. More significantly, a

review of “the debates and the committee reports of the constitutional convention,”

Tisler, 103 Ill.2d at 245, which plaintiffs largely ignore in their brief, leaves no doubt that

the framers of the 1970 Illinois Constitution did not intend to incorporate a right to

abortion into art. I, § 2. Accordingly, plaintiffs’ claim that state due process is more

17
protective of abortion than federal due process must be rejected.

The original draft of art. I, § 2, proposed by the Bill of Rights Committee, added

the phrase, “including the unborn,” after the word “person.” VI R ECORD OF

P ROCEEDINGS, S IXTH ILLINOIS C ONSTITUTIONAL C ONVENTION (hereafter R ECORD

OF P ROCEEDINGS) 18 (1969-1970). This language was “meant to assure than an

unborn person cannot be deprived of life, liberty or property by the State without due

process of law.” Id. at 19. A minority of the committee opposed this additional

language. Id. at 127-36. Their reasons for doing so are revealing on the question of

whether the due process language, as ultimately adopted, embraces an abortion right.

The Minority Report stated that the chief, if not the only, effect of including these

words would be “to prohibit the General Assembly from enacting any laws to permit

abortions, except presumably abortions which are now permitted under Illinois law where

necessary to preserve the life of the mother.” Id. at 130. The authors of the Minority

Report argued that “the subject of abortion law should be left to the legislature, which

can study and evaluate the pertinent medical and social facts and policy consideration[s].”

Id. at 131 (emphasis added). In presenting their arguments on the convention floor, the

delegates who signed the Minority Report left no doubt regarding the legislature’s

authority to prohibit abortion. Delegate Wilson said:

It is the position of the minority that the legislature should be left free to
deal with the question of abortion under the due process clause as it now
stands, and that no further impediments on the power of the legislature to
act freely should be inserted in the due process clause in the form of these
words. It is not the position of the minority that the constitution should
speak to the question of abortion by putting into the constitution some

18
 provision that presumably would authorize or make more constitutional
. . . the enactment of what I will refer to as liberalized abortion laws. It is our
position that the constitution should not address itself to the issue of abortion at
all, but that this should be left to be acted upon by the legislature under the
existing language of the due process clause.

III RECORD OF PROCEEDINGS at 1504. (emphasis added). He emphasized that

this whole matter should be left to the legislature to act upon . . . . The
legislature, I think, has shown the capacity and the will to act in the field
of abortion law; and we feel perfectly confident in leaving this to the
legislature and not trying to constitutionalize it. There are too many
imponderables. The whole subject is too dynamic and too volatile . . . .
[T]he world is changing; and we feel that this should be left to the
legislature.

Id. at 1504-05 (emphasis added).

Delegate Weisberg echoed these sentiments:

The minority believes . . . that this subject is peculiarly appropriate and

necessary to leave to the legislature. There are serious problems here. It
has been pointed out more and more frequently in recent years that there
are serious medical and social problems which the Constitutional
Convention . . . is not equipped to study and evaluate.

Id. at 1505 (emphasis added).

Most of the delegates who spoke in favor of the Minority Report expressed the

view that the Constitutional Convention should not attempt to deal with the question of

abortion, but should leave it up to the legislature to act as it might deem appropriate. Id.

at 1511-12 (remarks of Delegate Foster); 1513 (remarks of Delegate Pappas); 1514

(remarks of Delegate Raby); 1516-17 (remarks of Delegate Kelley), 1519 (remarks of

Delegate Howard), and 1522 (remarks of Delegate MacDonald). After extended debate,

the Convention adopted the Minority Report and deleted the phrase, “including the

unborn,” from proposed art. I, § 2. Id. at 1523. No delegate suggested that art. I, § 2,

19
shorn of this language, would constitutionalize a right to abortion. Delegate Kinney, who

voted in favor of the Minority Report, directly spoke to this question:

If there is any mischief in the proposed phrase [i.e., “including the

unborn”] and its deletion, if it is to be deleted, it may lie in opening a line
of argument that by [its] deletion this Convention has expressed itself in
favor of unlimited legalized abortion. To foreclose that possibility, I wish
to set the record straight on my vote. I do not adopt this position.

Id. at 1521.

And neither did the Convention. Three member proposals were submitted which

would have limited the General Assembly’s authority to prohibit abortion. Member

Proposal No. 387 provided: “The State shall make no law decreeing who is to be born

and who is to die.” VII RECORD OF PROCEEDINGS at 3012. Member Proposal No. 407

provided: “No penalty may be imposed by law upon any person in connection with an

abortion performed by a licensed physician with the consent of the woman upon whom it

is performed and, if she is an unmarried minor, the consent of her parents or guardian.”

Id. at 3021. And Member Proposal No. 506 provided: “That any female by giving her

consent and approval shall not be denied the right to comply with advice given by

qualified medical authorities. The General Assembly shall define qualified medical

authorities.” Id. at 3069. None of these proposals was adopted by either the Bill of

Rights Committee or the Convention itself.

Several delegates, including Elmer Gertz, the Chairman of the Bill of Rights

Committee, acknowledged that neither the Bill of Rights Committee nor the Convention

would recognize abortion rights. For example, Delegate Raby stated, “[I]f I had my way

in this Convention we would write a constitutional provision . . . which would prevent the

20
legislature from writing any laws that dealt with the question of whether a woman could

or could not have a child. I . . . came to grips with the fact that this Convention was not

in a mood to do that.” III RECORD OF PROCEEDINGS at 1514. Later in his remarks on the

issue, Delegate Raby reiterated his thought: “While I would hope that this Convention

would have faced this issue [abortion] squarely–would have included in the constitution a

prevention [sic] from the legislature acting on this matter, . . . I recognize that that is not

possible.” Id. Delegate Kelley said much the same: “Whereas this proposal [Member

Proposal 407] reflects my philosophy in regard to abortion, I am not at this time

suggesting that we adopt such. I am suggesting that we not preclude the General

Assembly from enacting such legislation in the future.” Id. at 1516. And it is apparent

from the remarks of Delegates Gertz (id. at 1500) and Wilson (id. at 1504) that the Bill of

Rights Committee defeated proposals to restrict the legislature’s authority over abortion.

A review of the record of the proceedings of the 1970 Illinois Constitutional

Convention leaves no doubt that the Convention did not intend to recognize abortion

rights in the language of the due process clause of art. I, § 2. That is significant because

“[t]he meaning which the delegates to the convention attached to a provision in the

Constitution before sending it to the voters for ratification is relevant in resolving

ambiguities which may remain after consulting the language of the provision.”

Kalodimos v. Village of Morton Grove, 103 Ill.2d 483, 493 (1984) (citations omitted).

“The reason is that it is only with the consent of the convention that such provisions are

submitted to the voters in the first place.” Id. See also People v. McDonald, 168 Ill.2d

420, 455 (1995) (“this court will consider the intent of the framers in determining how to

21
construe State constitutional provisions”); People v. Tisler, 103 Ill.2d 226, 254 (1984)

(Ward, J., concurring) (“it is generally accepted that courts must look to the intent of the

adopters and framers as controlling”). “The meaning of a statute or constitutional

provision depends upon the intent of the drafters at the time of its adoption, and it is a

long-standing principle of statutory construction that it is the court’s duty to ascertain and

effectuate that intent.” Sayles v. Thompson, 99 Ill.2d 122, 125 (1983) (citations omitted)

(emphasis added). In light of the Constitutional Convention’s refusal to incorporate a

right to abortion in art. I, § 2, of the Illinois Constitution (or any other provision of the

Declaration of Rights), it cannot be said that the state due process guarantee confers a

right to abortion, much less one that is broader in scope than the right to abortion

recognized by the Supreme Court in Roe v. Wade, 410 U.S. 113 (1973). Accordingly,

plaintiffs’ due process argument should be rejected.

IV.

THE PRIVACY GUARANTEE OF THE ILLINOIS CONSTITUTION,

ARTICLE I, § 6, DOES NOT CONFER A RIGHT TO ABORTION.

Plaintiffs argue further that the privacy guarantee of the Illinois Constitution,

art. I, § 6, confers a right to abortion that is separate from, independent of and broader in

scope than the right to abortion recognized by the United States Supreme Court in Roe v.

Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833

(1992). Plaintiffs Br. at 16-36. Article I, § 6, of the Illinois Constitution provides, in

part: “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

22
interceptions of communications by eavesdropping devices or other means.” ILL. CONST .

art. I, § 6 (West 2006). Assuming that plaintiffs’ argument is not barred on res judicata

grounds, amici respond that art. I, § 6, confers no right to abortion, much less one that is

broader in scope than the right recognized in Roe v. Wade. Accordingly, plaintiffs’

challenge to the Parental Notice of Abortion Act based on the privacy guarantee of art. I,

§ 6, should be rejected.

The Illinois Supreme Court has observed that, in addition to restating the right to

be secure against unreasonable searches and seizures in “more modern usage,” § 6 “was

substantively changed by inclusion of two new clauses, each of which created a right not

expressly stated in the 1870 constitution-the right to be secure against unreasonable

invasions of privacy by the state and the right to be secure against unreasonable

interceptions of communications by the state.” People v. Caballes, 221 Ill.2d 282, 293

(2006). Neither of those clauses, nor any other language in § 6, confers a right to abortion.

The first clause of § 6, securing the right of the people against unreasonable

searches and seizures, is concerned with how evidence of criminal conduct is discovered,

see People v. McGee, 268 Ill.App.3d 32, 42 (2d Dist. 1994) (“judiciary cannot, and

should not, tolerate evidence-gathering practices [that] violate the constitution”), not

whether the underlying conduct is constitutionally protected. See, e.g., People v.

Ledesma, 206 Ill.2d 571, 582 (2003) (“fundamental purpose” of the Fourth Amendment

and art. I, § 6, of the Illinois Constitution “is to safeguard the privacy and security of

individuals against arbitrary invasions by government officials” and “[w]e must carefully

balance the legitimate aims of law enforcement against the right of our citizens to be free

23
from unreasonable government intrusion”). Thus, although the first clause may protect

aspects of privacy (“the right [of the people] to be secure in their persons, houses, papers

and other possessions against unreasonable searches [and] seizures”), that privacy interest

relates solely to the means by which incriminating evidence is obtained. The

exclusionary rule, which has been adopted to enforce

§ 6 and bars admission of illegally obtained evidence, is primarily directed at and is

intended to deter police misconduct. People v. Madison, 121 Ill.2d 195, 208 (1998)

(referring to “the central purpose of deterring police misconduct which underlies the

exclusionary rule”). The third clause of § 6, securing the right of the people against

unreasonable interceptions of communications by eavesdropping or other means, has no

bearing on determining what conduct may be criminalized.

The second clause of § 6, however, secures the right of the people against

unreasonable “invasions of privacy.” This language, the Illinois Supreme Court has held,

“recognizes a zone of privacy not found in the Fourth Amendment and, therefore, affords

protections that go beyond the guarantees of the Federal Constitution.” King v. Ryan, 153

Ill.2d 449, 464 (1992).8 Plaintiffs argue that the second clause of art. I, § 6, protects an

independent state right to abortion. Plaintiffs’ Br. at 17-24. Their argument is flawed in

multiple respects.

8
Both the Fourth Amendment and art. I, § 6, of the Illinois Constitution prohibit
“searches” and “seizures” that are “unreasonable.” People v. Watson, 214 Ill.2d 271, 280
(2005). Section 6, however, “extends the ‘reasonableness’ requirement to ‘invasions of
privacy’ and, as a result, provides citizens of this state with broader protection from
unreasonable intrusions than the [F]ourth [A]mendment.” Id. at 280-81 (citing In re May
1991 Will County Grand Jury, 152 Ill.2d 381 (1992)).

24
 First, the overriding concern of the drafters of § 6 was protecting an individual’s

privacy interest in confidential information and personal communications. III RECORD OF

PROCEEDINGS at 1525, 1530 (remarks of Delegate Dvorak), 1529 (remarks of Delegate

Foster), and 1535 (remarks of Delegate Gertz). Review of the debate fails to reflect any

intent on behalf of the drafters to limit the legislature’s power to prohibit abortion or any

other conduct not given express constitutional protection.

Second, the Illinois Supreme Court has implied that the privacy language of § 6 is

limited to informational privacy and privacy with respect to the gathering of physical

evidence, not privacy of conduct. See In re Lakisha M., 227 Ill.2d 259, 279 (2008)

(“claims alleging a violation of our state privacy clause require a two-fold inquiry: first,

whether the party has a reasonable expectation of privacy in the information he seeks to

protect and, second, whether the statute unreasonably invades that expectation of

privacy”) (emphasis added). The court has noted that “[c]ases in which the privacy clause

has been found to apply have involved either private records or documents or information

of the type typically contained therein or an invasion of the actual physical body of the

person.” People v. Caballes, 221 Ill.2d at 327. This is borne out by the case law.

In each case in which the Illinois Supreme Court has upheld a privacy claim under

art. I, § 6, the claim involved either informational privacy or privacy with respect to the

gathering of physical evidence. See, e.g., Kunkel v. Walton, 179 Ill.2d 519, 537-40 (1997)

(protecting confidentiality of personal medical information); Best v. Taylor Machine

Works, 179 Ill.2d 367, 449-49 (1997) (same); King v. Ryan, 153 Ill.2d at 464-65 (statute

authorizing chemical testing of driver without any indication that the driver had been

25
drinking was unconstitutional); In re May 1991 Will County Grand Jury, 152 Ill.2d at

394-400 (in the absence of probable cause, hair samples could not be subpoenaed from an

individual under investigation but not charged with any offense); In re A Minor, 149

Ill.2d 247 (1992) (under art. I, § 6, minors have a “compelling interest” in avoiding public

disclosure of physical and sexual abuse allegations involving their parents). The court,

however, has consistently rejected privacy of conduct claims under § 6. See, e.g., In re

C.E., 161 Ill.2d 200, 212-13 (1994) (declining to decide whether there is a federal or state

right to privacy that encompasses a right to refuse medical treatment); In re Estate of

Longeway, 133 Ill.2d 33, 44 (1989) (same); People v. Geever, 122 Ill.2d 313, 327 (1988)

(no privacy right to private possession of child pornography), appeal dismissed, Geever v.

Illinois, 488 U.S. 920 (1988); People v. Kohrig, 113 Ill.2d 384, 396 (1986) (no privacy

right not to use seat belts). See also Illinois NORML, Inc. v. Scott, 66 Ill.App.3d 633,

636-38 (1st Dist. 1978) (no privacy right to private use and possession of cannabis). In

Longeway, the court said that, in the absence of “a clear expression of intent from the

drafters of our 1970 State constitution, we . . . abstain from expanding the privacy

provision of our State constitution to embrace this right [to refuse life-sustaining medical

treatment].” Longeway, 133 Ill.2d at 44. There was no “clear expression of intent from

the drafters” that the privacy provision “embrace[s]” a right to abortion.

Third, and most important, the drafters themselves unequivocally disavowed any

intent that the privacy language of art. I, § 6, would affect the legislature’s authority with

respect to abortion. This is evident from an exchange between Fr. Francis Lawlor, one of

the delegates to the Convention, and Elmer Gertz, chairman of the Bill of Rights

26
Committee, on the floor of the Convention. The exchange is brief, but illuminating:

FR. LAWLOR: “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
shall not be violated, has absolutely nothing to do with the question of
abortion.”

MR. GERTZ: “It certainly has nothing to do with the question of

abortion.”

III RECORD OF PROCEEDINGS at 1537.

Apparently embarrassed by the obvious implications of this exchange for their

argument based on the privacy language of art. I, § 6, plaintiffs bury Chairman Gertz’s

answer in a footnote and attempt to dismiss its significance by ignoring his leading role as

Chairman of the Bill of Rights Committee of the 1970 Illinois Constitutional Convention

and a well known civil libertarian. Plaintiffs’ Br. at 22 n. 8. That will not do. The

stubborn fact remains that the Convention was unambiguously informed by the Chairman

of the Bill of Rights Committee that the privacy language of art. I, § 6, had “nothing to do

with the question of abortion.” It was with that express understanding that the privacy

language was adopted. Indeed, given the Convention’s determination not to incorporate

either a pro-life or a pro-choice position in the state constitution (see Argument III,

supra), Chairman Gertz’s answer to Fr. Lawlor’s question simply reflected the views of

the Convention as a whole. To suggest otherwise, see Plaintiffs’ Br. at 22 n. 8 (claiming

that Chairman Gertz’s view was not reflected “in the text of the Privacy Clause, in the

Committee Reports, or in the floor statements provided by any of the other more than one

hundred delegates”), does violence to the historical record. It must be emphasized,

27
moreover, that Chairman Gertz’s statement that the privacy language of art. I, § 6, had

“nothing to do with the question of abortion” came two pages after the vague language,

also from Chairman Gertz, on which plaintiffs rely. See Plaintiffs’ Br. at 21, quoting Mr.

Gertz that “All kinds of things might invade our dignity as human beings . . . . I want to

stem the tide.” III RECORD OF PROCEEDINGS at 1535.

Plaintiffs also rely on a comment in the report of the Bill of Rights Committee

that, in drafting art. I, § 6, the Committee “concluded that ‘it was essential to the dignity

and well being of the individual that every person be guaranteed a zone of privacy in

which his thoughts and highly personal behavior were not subject to disclosure or

review.’” Plaintiffs’ Br. at 21, quoting VI RECORD OF PROCEEDINGS at 32 (emphasis

added). Plaintiffs’ reliance on the committee report is misplaced. First, the emphasized

language focuses on privacy in “disclosure or review” of one’s “thoughts” and “highly

personal behavior,” not whether one’s “behavior” is subject to regulation and/or

prohibition by the State (e.g., personal use of illegal drugs, prostitution, suicide and

assisted suicide). Second, even assuming that the Committee had in mind some forms of

conduct (which, as shown above, is not borne out by the case law interpreting art. I, § 6),

abortion could not have been one of them, given the same Committee’s recognition of the

due process rights of unborn children. Id. at 18-20. Finally, any question regarding the

possible application of § 6 to abortion was dispelled by Chairman Gertz’s assurance to

the Convention reviewing the work of the Bill of Rights Committee that § 6 “had nothing

to do with the question of abortion.”

In light of the Convention’s repudiation of specific abortion rights language,

28
Chairman Gertz’s reply should come as no surprise to anyone. Here, as in Illinois State

Employees Ass’n v. Walker, 57 Ill.2d 512, 523 (1974), “[I]f any doubt exists as to the

ultimate meaning of section 6, it is dispelled, insofar as this case is concerned, by the

proceedings of the Convention.” Nothing in the language of art. I, § 6, reasonably may be

construed to confer a right to abortion.

Finally, plaintiffs argue that “Illinois has a rich tradition of safeguarding

individual privacy, particularly as it relates to nondisclosure of private, medical

information and the right of pregnant women to bodily autonomy and independent

medical decision making.” Br. at 22. From this tradition, plaintiffs concoct a right of

“pregnant minors . . . to make personal decisions, including those involving their

reproductive lives.” Id. at 23. Conspicuous by its absence from plaintiffs’ account of our

state legal traditions is any discussion of the history of abortion regulation in Illinois. An

examination of that history paints a strikingly different picture of our legal traditions.

From 1827, only nine years after Illinois was admitted to the Union, until 1973,

when Roe v. Wade was decided, it was the public policy of Illinois to protect unborn

human life by prohibiting abortion. Act of Jan. 30, 1827, § 46, ILL. REV . CODE at 131

(1827), repealed and replaced by an Act of Feb. 26, 1833, § 46, ILL. REV . CODE at 179

(1833). More than 100 years ago, the Illinois Supreme Court recognized the purpose

underlying this policy when it characterized abortion as “a grave crime, involving the

destruction of an unborn child.” Earll v. People, 99 Ill. 123, 132 (1881). Except for a

brief, seven-year period between 1867 and 1874, when abortion was allowed “for bona

fide medical or surgical purposes,” Act of Feb. 18, 1867, Ill. Laws § 89 (1867), Illinois

29
prohibited abortion at any stage of pregnancy unless the mother’s life was endangered.

ILL. REV . STAT . ch. 38, § 3 (1874), carried forward as ILL. REV . STAT . ch. 38, ¶ 23-1

(1971). After the 1970 Illinois Constitution went into effect and before Roe v. Wade was

decided, the Illinois Supreme Court refused to graft “psychiatric or mental [health]”

exceptions onto the statute, specifically noting that the General Assembly had repeatedly

rejected bills that would have allowed abortions for such reasons. People ex rel.

Hanrahan v. White, 52 Ill.2d 70 (1972). When, after Roe, the Illinois Supreme Court

declared the state abortion law unconstitutional, it did so strictly on the basis of the

Supremacy Clause, and not upon any independent state ground. People v. Frey, 54 Ill.2d

28 (1973). The “state history, law and tradition” of Illinois support, not oppose, the

regulation of abortion.

Even assuming, contrary to the history of the Illinois Constitutional Convention,

that the privacy language of art. I, § 6, extends to conduct, as well as information and

evidence gathering, and that such conduct includes abortion, the standard for evaluating

restrictions on conduct protected by § 6 is the rational basis standard, not strict scrutiny,

as the language of § 6 itself plainly indicates (prohibiting “unreasonable searches,

seizures, invasions of privacy [and] interceptions of communication by eavesdropping

devices or other means”) (emphasis added). See People v. Cornelius, 213 Ill.2d 178, 193

(2004) (“[o]nly unreasonable invasions of privacy are constitutionally forbidden”)

(emphasis added). For the reasons set forth in Argument VII, infra, the Parental Notice of

Abortion Act of 1995 easily satisfies that standard.

30
 V.

THE ILLINOIS PARENTAL NOTICE OF ABORTION ACT OF 1995

DOES NOT VIOLATE THE EQUAL PROTECTION GUARANTEE, ART. I, § 2,
OF THE ILLINOIS CONSTITUTION.

Plaintiffs argue further that the Parental Notice of Abortion Act of 1995 violates

the equal protection guarantee (art. I, § 2) of the Illinois Constitution. Plaintiffs’ Br. at

36-44. Article I, § 2, provides, in relevant part: “No person shall . . . be denied the equal

protection of the law.” ILL. CONST . art. I, § 2 (West 2006). Assuming that plaintiffs’

argument is not barred on res judicata or collateral estoppel grounds, amici respond that

nothing in the Parental Notice of Abortion Act violates state equal protection principles.

Accordingly, plaintiffs’ challenge to the Act based on the equal protection guarantee of

art. I, § 2, should be rejected.

Plaintiffs argue that the Act impermissibly discriminates between pregnant minors

who carry their pregnancy to term, who are not required to notify their parents of their

decision to give birth, and pregnant minors who choose abortion, who are required to

notify their parents of their decision to undergo an abortion. Plaintiffs’ Br. at 36-37.

“This classification scheme, which implicates a fundamental right, cannot survive the

strict scrutiny imposed under Illinois law.” Id. See also, id., at 41 (“the Act affects

fundament rights and classifies minors on how they exercise those rights; strict scrutiny

thus applies”). For the reasons set forth in the two preceding arguments, however, there

is no “fundamental right” to obtain an abortion under either the due process (art. I, § 2) or

privacy (art. I, § 6) guarantee of the Illinois Constitution. Hence, the appropriate standard

of judicial review is rational basis, not strict scrutiny.

31
 Plaintiffs nevertheless argue that the classification in the Act cannot survive even

rational basis review. Plaintiffs’ Br. at 37, 41. Plaintiffs, however, have not cited a single

state or federal court decision striking down, on rational basis review, a parental notice or

consent statute on the ground that the statute improperly distinguishes between pregnant

minors who elect to carry their pregnancy to term and those who choose abortion.

In H.L. v. Matheson, 450 U.S. 398 (1981), the Supreme Court rejected the same

argument that plaintiffs advance here. In Matheson, a pregnant minor who challenged

Utah’s parental notice statute argued that the statute was unconstitutional “because Utah

allows a pregnant minor to consent to other medical procedures without formal notice to

her parents if she carries the child to term.” 450 U.S. at 412. The Court rejected this

argument in language that is directly applicable to plaintiffs’ challenge here:

[A] [S]tate’s interests in full-term pregnancies are sufficiently different to

justify the line drawn by the statutes. Cf. Maher v. Roe, 432 U.S. 464,
473-474 (1977). If the pregnant girl elects to carry her child to term, the
medical decisions to be made entail few–perhaps none–of the potentially
grave emotional and psychological consequences of the decision to abort.

Id. at 412-12 (emphasis in original).

The Court’s opinion in Matheson, rejecting the minor’s equal protection

argument, is significant because, with respect interpreting the equal protection guarantee

of art. I, § 2, of the Illinois Constitution, Illinois courts follow federal precedents

interpreting the Equal Protection Clause of the Fourteenth Amendment. See General

Motors Corp. v. State of Illinois Motor Vehicle Review Board, 224 Ill.2d 1, 31 (2007) (“in

applying an equal protection analysis, we apply the same standard under both the United

States Constitution and the Illinois Constitution”). Although plaintiffs dispute whether

32
H.L. v. Matheson actually decided an equal protection (as opposed to a due process)

issue, see Plaintiffs’ Br. at 43 n. 21, the opinion in Matheson speaks for itself.9

Moreover, at least two federal courts of appeals have relied upon Matheson in rejecting

the same equal protection argument plaintiffs press upon this Court. See American

College of Obstetricians & Gynecologists v. Thornburgh, 737 F.3d 283, 296 (3rd Cir.

1984), aff’d, 476 U.S. 747 (1986); Hodgson v. Minnesota, 853 F.2d 1452, 1466 (8th Cir.

1988), aff’d, 497 U.S. 417 (1990). Even before Matheson was decided, a third federal

court of appeals, relying upon Bellotti v. Baird, 443 U.S. 622 (1979), had concluded that a

State may distinguish “between minors choosing abortion and minors choosing

childbirth.” Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006,

1012 (1st Cir. 1981). According to the First Circuit, “the views expressed in Bellotti II

implicitly assume that the decision to have an abortion poses risks to the physical, mental,

or emotional well-being of a minor which are greater than the risks posed by the decision

to bear a child.” Id. “Accepting this implicit conclusion, as we must, we hold that the

distinction between abortion and childbirth created by this statute is rationally related to

the legitimate state interest in protecting the well-being of minors.” Id. at 1012-13.

Given the congruence in state and federal equal protection analysis, the rejection of

plaintiffs’ equal protection argument on federal constitutional grounds requires its

rejection on state constitutional grounds, as well. The Parental Notice of Abortion Act of

1995 does not violate art. I, § 2, of the Illinois Constitution.

9
One of the amicus briefs submitted in support of the appellants in H.L. v.
Matheson made the same equal protection argument plaintiffs advance here. See Brief of
Coalition for the Medical Rights of Women, et al., at 25-31. That argument was rejected.

33
 VI.

THE ILLINOIS PARENTAL NOTICE OF ABORTION ACT OF 1995

DOES NOT DISCRIMINATE ON ACCOUNT OF SEX IN VIOLATION OF
ART. I, § 18, OF THE ILLINOIS CONSTITUTION.

Finally, plaintiffs argue, without citation of relevant authority, that the Parental

Notice of Abortion Act of 1995 discriminates on account of sex in violation of art. I, § 18,

of the Illinois Constitution. Plaintiffs’ Br. at 48-49. Article I, § 18, provides: “The 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 . art. I, § 18 (West 2006).

Assuming that plaintiffs’ argument is not barred on res judicata grounds, amici respond

that nothing in the Parental Notice of Abortion Act discriminates on account of sex.

Accordingly, plaintiffs’ argument based on art. I, § 18, should be rejected.

Plaintiffs’ abbreviated sex discrimination argument proceeds on the same factual

basis as their equal protection argument, to wit, that the Act impermissibly distinguishes

between pregnant minors who decide to carry their child to term and those who decide to

undergo an abortion. According to plaintiffs, “the Act discriminates on the basis of sex

by permitting teens who conform to the view that women should put childbearing and

motherhood above all else to act without parental involvement, while requiring those

who, by having an abortion, challenge this version of women’s duties, to additional

burdensome barriers.” Br. at 48. Plaintiffs’ argument thus predicates a sex

discrimination claim, not upon a classification that treats men and women differently, but

upon one that treats two groups of women differently. Such a claim is not cognizable

under art. I, § 18.

34
 The purpose of art. I, § 18, “was to guarantee rights for females equal to those of

males.” People v. Ellis, 57 Ill.2d 127, 130 (1974). Consistent with its purpose, all of the

statutes that have been declared unconstitutional under art. I, § 18, in the forty years since

the present state constitution was adopted have discriminated between men and women.

See, e.g., People v. Ellis (striking down provision in Juvenile Court Act providing

different ages at which boys and girls could be prosecuted as adults).

Apropos of the exact argument plaintiffs raise in their appeal, this Court has held

that a classification that distinguishes between different groups of the same sex does not

implicate the equality of rights guarantee of art. I, § 18. See Lane v. Lane, 35 Ill.App.3d

276, 281-82 (1st Dist. 1975) (a rule of law that, for purposes of their right to continue to

receive alimony payments following their divorce, women who become members of a

religious order would not be treated in the same manner as those women who enter the

labor market and become gainfully employed, does not discriminate on account of sex in

violation of either the Equal Protection Clause of the Fourteenth Amendment or art. I,

§ 18, of the Illinois Constitution). Lane requires rejection of plaintiffs’ sex discrimination

argument.10 The Illinois Parental Notice of Abortion Act of 1995 does not discriminate

on the basis of sex in violation of art. I, § 18, of the Illinois Constitution.

10
The public employment discrimination cases cited by plaintiffs and decided
under the federal Equal Protection Clause and Title VII of the Civil Rights Act are readily
distinguishable. See Plaintiffs’ Br. at 48-49, citing Price Waterhouse v. Hopkins, 490
U.S. 228, 250 (1989); Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004); Back v.
Hastings on Hudson Union Free School District, 365 F.3d 107 (2d Cir. 2004). None of
these cases considered the validity of a statute that classifies between different members
of the same sex.

35
 VII.

THE ILLINOIS PARENTAL NOTICE OF ABORTION ACT OF 1995 IS

RATIONALLY RELATED TO MULTIPLE LEGITIMATE STATE PURPOSES.

Plaintiffs argue that the Illinois Parental Notice of Abortion Act of 1995 fails to

meet even the rational basis standard of review. Plaintiffs’ Br. at 24-31. Assuming that

plaintiffs’ challenge to the Act is not barred on res judicata or collateral estoppel

grounds, amici respond that the Act is rationally related to multiple legitimate state

purposes. Accordingly, plaintiffs’ argument should be rejected.

In enacting the parental notice statute, the Illinois General Assembly found that

notification of a family member, as defined in the Act, “is in the best interest of an

unemancipated minor.” 750 ILCS 70/5 (first paragraph). The purpose of the Act is “to

further and protect the best interests of the minor.” Id. The Legislature found further that

“[t]he medical, emotional and psychological consequences of abortion are sometimes

serious and long-lasting, and immature minors often lack the ability to make fully

informed choices that consider both the immediate and long-range consequences.” Id.

(second paragraph). “Parental consultation is usually in the best interest of the minor and

is desirable,” the General Assembly found, because “the capacity to become pregnant and

the capacity for mature judgment concerning the wisdom of an abortion are not

necessarily related.” Id. (third paragraph). The Supreme Court has long recognized the

legitimacy of these reasons for requiring parental consent or notice. See Bellotti v. Baird,

443 U.S. 622, 634 (1979) (plurality op.) (referring to “the peculiar vulnerability of

children; their inability to make critical decisions in an informed, mature manner; and the

36
importance of the parental role in child rearing”). Although plaintiffs dispute the findings

set forth in the Act, see Plaintiffs’ Br. at 24-3111, their dispute is ultimately over the

policy choice made by the General Assembly, which is a matter for the Illinois

Legislature, not the courts, to decide.

Plaintiffs argue that the Act does not meet the rational basis standard of review

principally because it requires parental notice of a pregnant minor’s decision to obtain an

abortion, but not of other decisions relating to her health. Plaintiffs’ Br. at 26 (“the Act’s

discriminatory and restrictive treatment of minors who choose abortion lacks even a

rational connection to the asserted ends”). But plaintiffs have cited no case in which a

parental consent or notice statute has been declared unconstitutional on this ground by

any state or federal court under the rational basis standard of review. In each case cited

11
Plaintiffs claim a “parade of horribles” would materialize if the Act were
allowed to go into effect. See Plaintiffs’ Br. at 10-12. But when the affidavits and
sources cited in support of these claims are closely examined, it is apparent that the
alleged “harms” are based upon hypothetical speculation and personal anecdotes. For
example, none of the plaintiffs’ affiants was able to document that the delay in obtaining
an abortion attributed to a notice or consent law has actually resulted in medical harm to
any minor. To take but one other example, Dr. Cowett relied upon a study of parents’
reactions to finding out that their unmarried minor daughter had become pregnant. See
C106-07, ¶ 30. Nowhere in her affidavit is it disclosed that the study “was conducted in
states without parental involvement laws in effect.” Stanley K. Henshaw and Kathryn
Kost, “Parental Involvement in Minors’ Abortion Decisions,” 24 Family Planning
Perspectives 196, 196 (1992) (emphasis added). In other words, there was no evidence
that the reactions reported in the study were attributable to a parental involvement law.
Nor, given the limitations of the study, could there have been. To suggest that negative
parental reactions would be aggravated by the enactment and enforcement of a parental
consent or notice law is sheer speculation unsupported by fact. A detailed critique of the
inadequacies of plaintiffs’ “evidence” lies outside the scope of this brief. Nevertheless, it
must be noted that plaintiffs presented no statistical studies documenting any of the
“harms” that are allegedly caused by parental involvement laws. Given the number of
such laws that have been enacted in the United States and the length of time that they
have been in force, in some cases for decades, the absence of such evidence is telling.

37
by the plaintiffs–American Academy of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997);

In re T.W., 551 So.2d 1186 (Fla. 1989); Planned Parenthood of Central New Jersey v.

Farmer, 762 A.2d 620 (N.J. 2000); Wicklund v. State, 1998 Mont. Dist. LEXIS 227 (1st

Dist. Feb. 13, 1998)–as well as two others not cited by plaintiffs–see State v. Planned

Parenthood of Alaska, 171 P.3d 577 (Alaska 2007), and North Florida Women’s Health

& Counseling Services, Inc. v. State of Florida, 866 So.2d 612 (Fla. 2003)–a state

parental consent or notice law was declared unconstitutional under the strict scrutiny

standard of judicial review which, for the reasons set forth in the preceding arguments, is

inapplicable to review of the Illinois Parental Notice of Abortion Act. Significantly, in

none of these cases did the state court hold that the parental consent or notice law under

review would have been struck down under the rational basis standard.

“Under the rational basis test, judicial review of a legislative classification is

limited and generally deferential.” Committee for Educational Rights v. Edgar, 174 Ill.2d

1, 37 (1996) (citation omitted). “The challenged classification need only be rationally

related to a legitimate state goal . . . “ Id. (citation omitted). “A legislative classification

must be upheld if any set of facts can reasonably be conceived which justify

distinguishing the class to which the state applies from the class to which the law is

inapplicable.” Miller v. Rosenberg, 196 Ill.2d 50, 59 (2001) (citation omitted). The

General Assembly reasonably could have believed that, in most instances, it would be in

the best interest of an immature pregnant minor to notify one of her parents or legal

guardian (or other “adult family member,” as defined in the Act), before undergoing an

abortion. With respect to pregnant minors who are mature enough to decide to have an

38
abortion without notifying their parents, or those minors for whom notice would not be in

their best interest, the Act provides an alternative–the judicial bypass.

In Planned Parenthood League of Massachusetts, Inc. v. Attorney General, 677

N.E.2d 101 (Mass. 1997), the Massachusetts Supreme Judicial Court rejected an equal

protection challenge to a statute that, as limited by the court, required a minor to obtain

the consent of one parent before undergoing an abortion (subject to a judicial bypass):

The claim that a pregnant unmarried minor is denied equal

protection of the laws fails because the classification made by [the consent
statute] has a rational basis. The differences between an adult and a
minor; between married, widowed, or divorced pregnant minors and an
unmarried minor; and between the special considerations applicable to an
abortion as opposed to some other intrusive medical procedure justify the
special treatment that [the consent statute] accords to an unmarried
pregnant minor who seeks to terminate her pregnancy.

Id. at 106 n. 10.

The rationale for distinguishing between pregnant unemancipated minors who

choose abortion and those pregnant unemancipated minors who choose to carry their

pregnancies to term was developed at length in Justice Mosk’s dissent in American

Academy of Pediatrics v. Lungren, 940 P.2d 797, 864-65 (Cal. 1997).12

[T]he Legislature could legitimately require that a pregnant

unemancipated minor’s interest in consenting to medical treatment differs
depending on whether she chooses to carry her fetus to term or to obtain
an abortion. It could reasonably, and neutrally, determine, as a matter of
policy, that in the case of an unemancipated minor who is pregnant and
intends to bear a child the public health interest in allowing her to obtain

12
AAP v. Lungren, as amici have noted, was decided under the strict scrutiny
standard of review, not the rational basis standard. Id. at 818-19. In the original opinion
in Lungren, which was vacated on rehearing following a change in personnel on the
California Supreme Court, Justice Mosk wrote the majority opinion upholding the
parental consent statute.

39
 medical care for herself and her fetus is overriding, regardless of parental
approval and whether or not the unemancipated minor is mature. It is
widely accepted that early prenatal care can reduce medical risks and
assure a healthy outcome for both mother and child. At the same time, the
Legislature could neutrally determine that voluntary abortion, which
ordinarily involves an optional surgical procedure with significant
consequences, requires mature consent or a determination that it is in the
unemancipated minor’s best interest.

Id. at 865 (emphasis in original).

Federal cases are in accord. See Hodgson v. Minnesota, 853 F.2d 1452, 1466 (8th

Cir. 1988), aff’d, 497 U.S. 417 (1990); American College of Obstetricians &

Gynecologists v. Thornburgh, 737 F.3d 283, 296 (3rd Cir. 1984), aff’d, 476 U.S. 747

(1986); Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1012

(1st Cir. 1981). Bellotti is particularly instructive. Responding to the argument that a

parental consent statute draws an impermissible distinction between “minors seeking

abortion and minors seeking other forms of medical care,” the First Circuit stated:

Having accepted as rational the legislature’s implicit conclusion that

abortion may pose risks to the well-being of a minor greater than those
posed by childbirth, we think little more need be said on the issue; it
follows a fortiori that abortion may be rationally thought to pose risks,
albeit not specifically medical ones, greater than the risks posed by other
medical procedures. Moreover, the Court in Bellotti II [Bellotti v. Baird,
443 U.S. 622 (1979)] explicitly accepted the rationality of this distinction
by sustaining the requirements that both parents consent to a minor’s
abortion decision while only one parent’s consent was required for all
other procedures. Bellotti II, [443 U.S.] at 648-49 . . . . While the court
did not discuss the equal protection clause in this context, its holding
seems strongly if not necessarily to imply that that clause would not serve
to invalidate such a provision. Noting that the burden imposed by this
requirement was minimized by the availability of the judicial consent
alternative, the Court relied for its holding on the simple assertion that
“[t]he abortion decision has implications far broader than those associated
with most other kinds of treatment.” Id. at 649 . . . .

40
641 F.2d at 1013 (citations omitted). The court therefore held that “the distinction drawn

by this statute between abortion and other medical procedures sought by minors is

rationally related to the state’s legitimate interest in protecting the well-being of minors,

and does not deny minors choosing abortion the equal protection of the law.” Id.

The classifications in the Parental Notice of Abortion Act of 1995 between

abortion and childbirth, and between abortion and all other medical procedures to which a

minor may consent without notification of her parents, are reasonably related to

legitimate state interests. That is sufficient to sustain their constitutionality under the

Illinois Constitution. Accordingly, plaintiffs’ argument that the Act fails to satisfy the

minimum requirements of rational basis review should be rejected.

41
 CONCLUSION

For the foregoing reasons, amici curiae respectfully request that this Honorable

Court affirm the judgment of the Circuit Court of Cook County in Appeal No. 1-10-1463.

Respectfully submitted,

_____________________________ ______________________________

Paul Benjamin Linton Thomas Brejcha

Special Counsel President & Chief Counsel
The Thomas More Society The Thomas More Society
921 Keystone Avenue 29 S. La Salle Street, Suite 440
Northbrook, Illinois 60062-3614 Chicago, Illinois 60603
(847) 291-3848 (tel) (312) 782-1680 (tel)
(847) 412-1594 (fax) (312) 782-1887 (fax)

____________________________

Peter Breen
Executive Director & Legal Counsel
The Thomas More Society
29 S. La Salle Street, Suite 440
Chicago, Illinois 60603
(312) 782-1680 (tel)
(312) 782-1887 (fax)

42
 Certificate of Compliance

Pursuant to Supreme Court Rule 341(c), I certify that this brief conforms to the
requirements of Rules 341(a) and (b). The length of this brief, excluding the pages
containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities,
the Rule 341(c) certificate of compliance and the certificate of service, is 42 pages.

______________________________
Paul Benjamin Linton
One of the Attorneys for the Amici