COMMENTARY by Daniel T. Zanoza, Executive Director
On Wednesday, January 14th, the Chicago-based Thomas More Society (TMS) will be arguing in the Court of Appeals (7th Circuit) along with Lisa Madigan's Illinois Solicitor General in defense of Illinois' long moribund Parental Notice Law of 1995 which the federal courts enjoined when the Illinois Supreme Court refused to issue necessary procedural rules for "expedited, confidential bypass hearings." TMS's special counsel, Paul Linton, lobbied for a consortium of Illinois pro-life and pro-family groups with DuPage County State's Attorney Joe Birkett, who then petitioned the newly reconstituted Supreme Court (all but one of whose members weren't on the old Court which had refused to issue the rules) to revisit the matter and issue the needed rules. TMS followed up with a more expansive petition, outlining all the relevant history and law, and within a week--in September of 2006--the Justices handed down the needed rules.
But then Illinois' Attorney General, Lisa Madigan, refused to go into federal court promptly to ask that the federal injunction be lifted. Instead, Madigan met and consulted with the ACLU--the opposition in the case--and "bought" their claim that despite the promulgation of the new rules, the Clerks of the Circuit Courts throughout Illinois were unprepared to implement the rules in obedience to the Supreme Court's directive. So, Madigan went into federal court months later (in early 2007) and asked the Judge to keep the ban against enforcement of the parental notification of abortion law in place while a "special master" spent months "investigating" whether and when the Clerks would be prepared to implement the new law. In other words, the federal court would look over the shoulder of Illinois officials and assess whether they were doing their job.
The federal judge threw Madigan's Assistant out of his courtroom, saying the Attorney General should come back when they really wanted the federal ban lifted and were prepared to tell the court that Illinois had a constitutionally adequate parental notice law in effect, with adequate provisions for confidential, expedited "bypass" hearings for those minors who had good reasons to avoid telling their parents (i.e., fear of abuse) or were adult enough, in a Judge's view, to make up their own minds (conditions laid down in U.S. Supreme Court precedents for parental notice or consent laws to 'pass muster').
TMS took steps to see that a transcript of federal court proceedings and a copy of Madigan's submission was transmitted to Chief Justice Thomas of the Illinois Supreme Court, after which he phoned Ms. Madigan to express his concern, and to emphasize the point all seven Justices signed a rather amazing, unprecedented letter to the Attorney General, telling her--in effect--to do her duty and defend the law, as Illinois officials were PRESUMED to be doing what they're told and abiding by the law.
Rather half-heartedly, Attorney General Madigan went back and asked--this time--that the federal ban be lifted. By now it was Spring of 2007 with this law--which was supported by as many as 80% of Illinois citizens, according to opinion polls--still a 'dead letter' some 12 years after its signing into law by then-Governor Jim Edgar in 1995.
Then the ACLU came up with another reason why the law shouldn't be enforced. They said the parental notice law didn't have any provision in it authorizing the court to give consent to an abortion for a minor whom it determined to be mature enough to decide for herself to have an abortion or whose family circumstances made parental notice a serious problem. In its memo, the ACLU cited the specific statutory provision in Illinois law relating to a minor’s consent to surgery, but dismissed that statute--without quoting it--as inadequate to the purpose needed to render the parental notice law constitutional.
"This was pure, unadulterated hogwash--a point on which all legal experts consulted are agreed," said Tom Brejcha, President of the Thomas More Society. Yet in their reply brief, the Attorney General's staff lawyers ignored this new ACLU argument. They never mentioned, Illinois' minor consent to medical treatment statute, let alone quote it.
Federal Judge David Coar kept the case "under advisement" for a long year and only last spring handed down his decision. Coar bought the ACLU's specious argument. Apparently, Judge Coar never looked at the statute himself, but rather took at face value the ACLU's contention that it didn't suffice. Had Judge Coar read that statute--the Illinois minors' consent to medical treatment statute--he would have seen that A PREGNANT MINOR IS ALWAYS DEEMED TO HAVE THE RIGHT TO CONSENT TO ANY FORM OF SURGERY! There is no reason, therefore, for the Parental Notice Act to have a provision in it empowering a court in a bypass hearing to give consent for any minor held entitled to a bypass of the parental notice requirement. The minor already has the power of consent herself.
This is not rocket science. It's statute law 101.
The Thomas More Society urged the Attorney General to seek reconsideration by Judge Coar right away, pointing out this clear error to him without further delay, so Coar could promptly cure this glaring error.
TMS had also requested a meeting with the Attorney General, but Madigan's office ignored the request. When nine business days had gone by--and with one day left before the deadline passed for filing a reconsideration motion--TMS sprung into action. The Thomas More Society recruited two downstate prosecutors (Hon. Stewart Umholtz of Tazewell County and Hon. Edward Deters of Effingham County, both of whom are members of the defendant class, whom the ACLU had joined in the lawsuit) as "intervenors," and filed a motion to intervene along with a motion by the putative intervenors to get Judge Coar to reconsider what TMS attacked as a clearly erroneous decision.
The Attorney General, obviously attempting to head off what the TMS was up to (TMS had told the Attorney General's office they would move to reconsider), filed a notice of appeal on the same day--apparently just minutes ahead of TMS's filing.
Judge Coar denied TMS's motion, saying that the notice of appeal had removed jurisdiction from him and transferred it up to the appellate court.
"We all owe a debt of gratitude to Paul Linton, now our special counsel at the Thomas More Society, who initiated this effort to revive Illinois' parental notice law," Brejcha added. "Some folks have tried very hard to frustrate this effort, but we hope that Wednesday's argument before the Court of Appeals will crown all these pro-life, pro-family efforts with success. We're in the right, and sheer persistence has served us well and by now it's high time that the right should prevail."
There are many pro-life activists who profess to be pleased by Ms. Madigan's efforts to get the Parental Notice Law enforced, when the truth is the Attorney General did everything she could to delay and impede its enforcement in cahoots with the ACLU, and it was only the timely efforts of some diligent pro-life leaders who got Lisa Madigan into gear. But it seems clear, in retrospect, that an aggressive approach by pro-life groups is needed in Illinois to make sure public officials aren't derelict in their duties.
On Wednesday, Illinois residents will find out if justice will prevail on appeal regarding the rights of parents.
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