New “Reproductive Health Act” Narrows the Definition of “Viability” and Makes Other Changes to Existing Law, Expanding Late-Term Abortions
OVERVIEW. The Reproductive Health Act, SB 25, HFA 1 (“RHA“) narrows the definition of “viability” of the unborn child, establishes an expansive definition of “health” of the mother, and makes other changes. These changes make it much easier for abortion providers to perform late-term abortions without any meaningful restrictions or oversight. In general, once an unborn baby reaches viability, an abortion can only be performed when the abortion is “necessary to protect the life or health of the mother.” Abortions on the pre-viable are not subject to any such standard. As such, viability is an important milestone to establish some level of consideration for the life of the unborn. An Executive Summary of key points are as follows.
- RHA narrows the definition of “viability.” Under existing law, the term “viability” means “that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.” (Illinois Abortion Act of 1975 as amended) (720 ILCS 510/2(1)).
- RHA Section 1-10 replaces the term “viability” with “fetal viability” and amends the definition under existing law in four (4) key ways.
1) RHA allows any health care professional (not just a physician) to make the judgment on viability. This opens the door for physician’s assistants and advanced practice registered nurses to make these critical decisions.
2) RHA raises the standard and provides that there must be a substantial likelihood (not just a reasonable likelihood) of the sustained survival of the fetus outside the womb.
3) RHA adds the qualifier that the fetus only has sustained viability outside the womb if the continued life would happen “without the application of extraordinary medical measures.” Since the term “extraordinary medical measures” is not defined, and since non-physicians can make the judgment, the healthcare professional could make a wide range of biased decisions on the question of what is an extraordinary medical measure (e.g., perhaps considering measures such as phototherapy for jaundice, breathing support, or even an IV as qualifying).
4) RHA repeals a key clarification in existing law, namely that the unborn can attain sustained viability “with or without artificial support.” In particular, under existing law, the mere fact that the unborn child would need artificial support (even extraordinary measures) would not disqualify the child as being viable.
- RHA’s changes to “viability/fetal viability” narrows the definition materially and results in fewer unborn children that qualify as viable. Although it is difficult to quantify given the newness of the language, for illustration purposes, if the application of current law results in unborn children of 22 weeks of gestation to be deemed viable, RHA’s changes raises that standard to perhaps 28 weeks of gestation or higher. This makes it easier for abortion providers to perform abortions on unborn children of 22 to 28 weeks of gestation without having to justify that the abortion is necessary to protect the life or health of the mother.
- RHA includes an expansive definition of “health.” RHA Section 1-10 establishes an expansive definition of “health” to make it easier for an abortion provider to decide, even if the unborn child is viable, that the abortion is necessary for the “health” of the mother. Current law does not define “health,” but RHA establishes an expansive definition of “health” that includes “all factors that are relevant to the patient’s health and well-being, including, but not limited to, physical, emotional, psychological, and familial health and age.” In particular, the inclusion of the term “familial” would allow the nurse, physician-assistant, or physician making this critical decision on health to take into consideration factors beyond the mother’s health, such as the health or even squabbling of her siblings, parents, or other family members.
- RHA repeals detailed certification and reporting obligations. Under current law, the physician must certify in a signed writing the medical indicators that support the determination that a post-viability abortion is necessary for the life or health of the mother. (720 ILCS 510/5(2)). This report, along with specified detailed information – including any complications, whether the abortion resulted in a live birth, and other information – must be reported to the Department of Health. (720 ILCS 510/10). If additional information becomes known after submission of the report (e.g., additional complications), the physician must update the report to the Department of Health within 10 days of becoming aware of the information. (720 ILCS 510/10).
- RHA Section 1-25 greatly diminishes these certification and reporting requirements. Neither the physician, nor any other health care professional, needs to certify in a signed writing as to the medical indicators or other reasons that supported their decision on the question of viability. RHA Section 1-25(b). It appears there would be some version of reporting obligation that should use a specified Department of Health form, but the obligation does not attach to the physician or other health care professional, and instead is set in the passive voice (so it would be difficult to enforce), namely that a “report of each abortion performed by a healthcare professional shall be made to the Department on forms prescribed by it.” RHA Section 1-25(b). With this standard, the receptionist at the abortion clinic could prepare and submit reports.
- Surprisingly, the RHA specifies that the Department of Health could not use the abortion provider’s report for any kind of follow-up inquiry or investigation, and instead would only be able to “use the reports for statistical purposes only.” RHA would also specify that such “reports must be destroyed within 2 years after date of receipt.” RHA Section 1-25(d). Clearly, there is no desire to allow the Department of Health to do any actual enforcement or oversight to protect women’s health or safety, even in instances of complications or sub-standard care.
- RHA repeals penalties for non-compliance by physicians and health care professionals. RHA also repeals a broad range of express penalties set forth in the Illinois Abortion Act of 1975. For example, it is a Class 2 felony for a physician to perform an abortion on a viable unborn child without making a determination on the necessity of such procedure for the life or health of the mother. (720 ILCS 510/5(1)). RHA repeals these penalties for non-compliance, which further reinforces that there is no desire to establish a meaningful regulatory environment that protects the health of women and girls.
- The RHA may even effectively challenge the Parental Notice of Abortion Law.
- More ramifications will be listed as the RHA is applied in Illinois.
MAKE SURE TO SEND A COMMENT TO YOUR LEGISLATORS.
Illinois State Rep. Tom Morrison of Palatine, whom ICE-PAC helped elect, recently introduced two important pieces of pro-life legislation:
- A requirement that women be required to wait 24 hours and be offered an image from their ultrasound before having an abortion (see the bill here)
- A requirement that any abortion clinic must have the operating physician present after the abortion until the patient goes home following the procedure, and that a physician performing abortions must have admitting privileges at a nearby hospital (see the bill here)
Read more details in the Daily Herald by clicking here.
The Illinois Supreme Court today heard arguments over the constitutionality of a seventeen-year-old parental notification law that never went into effect because of a legal challenge brought immediately upon enactment. The case has bounced around the state’s courts ever since.
In 1995 the Illinois legislature passed the “Parental Notice of Abortion Act,” which was so permissive that even the then-Governor, pro-abortion Jim Edgar, agreed to affix his signature. In June of that year, the ACLU quickly persuaded a federal judge to grant a restraining order just hours after Edgar had signed the measure into law.
Under the law, when the girl is under 18, two days before an abortion is to be performed the abortionist must tell a parent, step-parent living in the household, grandparent, or legal guardian. A judge can waive notice if he/she determines the minor is “sufficiently mature” to make the abortion decision or if notification is not in her “best interest.”
The justices heard arguments this morning in a law suit brought by the ACLU to declare the law unconstitutional. According to the Thomas More Society, which seeks to intervene in defense of the law, “The ACLU brings claims that the law is a violation of the Illinois State Constitution of 1970, even though the Act was upheld as constitutional after a lengthy federal litigation that concluded three years ago.”
On Tuesday, February 21, House Bill 4085, the Ultrasound Opportunity Act, passed a House committee by a vote of 10 to 2. The bill now goes to the full House of Representatives for their consideration. We expect a vote in the next few weeks. This bill simply requires that a woman seeking an abortion, after 7 weeks gestation, be offered the opportunity to receive and view an ultrasound of her baby by the physician who is to perform the abortion, the referring physician, or another qualified person working in conjunction with either physician.
Please contact your Illinois State Representative now and ask him or her to “vote YES on House Bill 4085, for informed consent and for the opportunity for women to see an utlrasound of their unborn babies.” If you do not know who your state representative is, you can look it up at www.ilga.gov and click on Legislator Lookup in the bottom right column. Thanks for all you do in support of life.
An abortion industry special interest bill known as the Reproductive Health and Access Act was introduced in the Illinois General Assembly in both 2009 (HB 2354) and 2010 (HB 6205). Dubbed “Illinois FOCA” for its similarity to the federal Freedom of Choice Act, the bill would have repealed parental notice for minors undergoing abortions, introduced limits on liability for abortion providers who harm women, expanded taxpayer funding for abortion, and repealed conscience protections for healthcare professionals who do not wish to be complicit in the practice of abortion.
ICE-PAC participated in a statewide effort to defeat this bill. We delivered this letter to every member of the Illinois General Assembly on March 18, 2009 as they began deliberations on the bill. Ultimately, in both the 2009 and 2010 legislative sessions, the bill was not called for a vote due to lack of support.
During the campaign season leading up to the 2008 general elections, Francis Cardinal George, Archbishop of Chicago, issued this statement regarding the connection between social justice and the protection of life. Specifically, the Archbishop clarified that the abortion issue is central to Catholic Church teaching on a just social order. His words affirm the special importance of pro-life efforts among other issues of public policy.
During the 2008 primary elections, State Representative Paul Froehlich came under attack from the pro-choice lobby for his pro-life stance on issues like parental notice and embryonic stem-cell research. On January 31, 2008, we submitted this letter to the Daily Herald rebutting these public attacks and supporting Representative Froehlich’s re-election. He won his primary, as well as a victory for pro-life values.
U.S. Supreme Court Recognizes That States Have Legitimate Authority to Protect Women and Unborn Human Life
Abortion is commonly thought of as primarily an issue for the U.S. Supreme Court, and many pro-life efforts focus on the goal of overturning the Roe v. Wade decision. However, until that goal is realized, there is much that pro-lifers can do to protect human life through their local governments. Specifically, the U.S. Supreme Court has recognized that states have the right to enact laws that limit and regulate the practice of abortion.
In this focus article, Brian Hengesbaugh of the ICE-PAC Board of Directors explains why the time is right for Illinois to adopt these kinds of laws, and why the efforts of groups like ICE-PAC are worthwhile.
ICE-PAC was closely involved with the effort to defeat House Bill 317 in the spring of 2007. This bill, if passed, would have repealed Illinois’ parental notice law for abortions performed on minors.
On March 21, 2007, we sent a letter to all members of the General Assembly exposing the flaws in HB 317.
In late April 2007, we sponsored telephone and direct-mail campaigns in critical districts to solidify the vote against HB317. Our flyer opposing the repeal of the Parental Notice of Abortion was mailed on March 23, 2007.
The floor vote on HB 317 took place on April 26, 2007. We have recorded how all Illinois House members voted. A “yes” vote is a vote to repeal Parental Notice law, and a “no” vote is a vote to uphold it.