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.
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ICE-PAC Applauds McSweeney Victory: 52nd House District Winner Stands for Mainstream Pro-Life Values of Constituents
Illinois Citizens for Ethics, a statewide political action committee, celebrates the election of David McSweeney as State Representative for the 52nd District. McSweeney defeated Independent Dee Beaubien, who received significant funding from abortion advocacy groups.
“When Beaubien announced her candidacy and Personal PAC said they would spend whatever was necessary to get her elected, we knew we had to get involved in this race,” said Mary-Louise Hengesbaugh, Spokeswoman for ICE-PAC. “Personal PAC’s policy positions are way out of step with the values of the general public. This is a group that supports taxpayer-funded abortion, opposes laws that ensure informed consent for women who are seeking abortions, and opposes a parent’s right to know about a minor daughter’s abortion and won’t endorse candidates unless they fully support this agenda.”
Over the past month, ICE-PAC volunteers worked tirelessly to raise awareness among constituents in the 52nd District of Beaubien’s radical views on abortion, and to encourage them to vote for pro-life McSweeney. “Pro-life and family values are clearly important to the residents of this district, and our message obviously resonated,” Hengesbaugh stated. “McSweeney’s victory proves that supporting common-sense pro-life laws is a winning strategy for those seeking public office in Illinois.”
Hengesbaugh also noted that pro-choice groups donated over $100,000 to Beaubien’s campaign, while ICE-PAC spent a fraction of that – just under $2,000 – on voter education materials. “Personal PAC and Dee Beaubien may have had more money, but ICE-PAC volunteers and David McSweeney worked harder and are more in touch with the residents of the district,” she said. “We believe that the key is voter education, and this outcome confirms that.”
The candidates for the 52nd House District seat say their top priority in Springfield would be improving the state’s economic climate, and yet social issues like abortion at times have taken center stage in the heavily contested race.
Whereas Republican David McSweeney’s negative attacks on opponent Dee Beaubien mainly attempt to align here with Chicago political bosses intent on raising taxes, the independent candidate counters by shining a spotlight on what she labels McSweeney’s “extreme views,” particularly regarding abortion.
“The government has no role when it comes to personal choice,” Beaubien said. “This is the big thing that really distinguishes me from my opponent.”
CHICAGO, IL — Illinois Citizens for Ethics, a new state political action committee, opposes the confirmation of abortion rights leader Terry Cosgrove to the Human Rights Commission.
After he was nominated for the position by Democratic Gov. Pat Quinn, the Democratic-led state Senate today confirmed Cosgrove’s appointment to a term that will expire in January 2013. Thirty members voted in favor, 25 opposed, and two voted present.
Cosgrove has served since 1999 as President and CEO of Personal PAC, a political action committee that provides funding to “radically pro-abortion” candidates in Illinois, said Mary-Louise Kurey, Vice President of Public Relations for Illinois Citizens for Ethics. “In order to receive Personal PAC’s endorsement, candidates must agree with a number of extreme positions, including repealing Illinois Parental Notice of Abortion law for minor girls, and restoring public funding of abortion coverage through the state Medicaid plan. Overwhelming majorities of Illinois voters oppose such radical policies,” said Kurey.
Kurey also said that the appointment of Cosgrove was a conflict of interest and “an example of pay-to-play politics at its worst.” Cosgrove’s group spent more than $400,000 in support of Gov. Quinn’s reelection in November, purchasing mailers, robocalls and TV ads that focused on the strong pro-life views of his opponent Bill Brady. One of Brady’s top campaign officials blamed Personal PAC for Brady’s narrow loss.
“Personal PAC’s philosophy and political tactics are way out of step with the values of the general public,” said Kurey. “The citizens of our state deserve better than the leader of this group.”