A little-remembered 1975 Illinois law may
cause a whole lot of trouble in the coming year or two.
The Illinois Abortion Law of 1975 was passed
in reaction to the U.S. Supreme Court’s Roe v. Wade opinion,
which overruled most state laws banning abortion. Before then,
Illinois only permitted abortion to save the life of the mother.
The statute’s preamble included this
unusual language: “[I]f those decisions of the United States
Supreme Court are ever reversed or modified or the United States
Constitution is amended to allow protection of the unborn then the
former policy of this State to prohibit abortions unless necessary
for the preservation of the mother’s life shall be
reinstated.”
The Supreme Court now has two cases before it
that pro-choice groups fear could be used to undermine Roe. There is also the
possibility that if President George W. Bush’s pick to
replace Justice Sandra Day O’Connor turns out to be a
hardline anti-abortion justice when he gets to the bench, Roe may not be long
for this world.
So will Illinois automatically revert to its
anti-abortion status if Roe is overturned?
Probably not, say representatives from both
sides of the issue.
The state Supreme Court has ruled more than
once that a statutory preamble, such as the one quoted above, is
not “a part of the Act itself” and, more important,
“has no substantive legal force.” State lawmakers
cannot lock future General Assemblies into an “if this
happens, then this will happen” change. And the 1975 law
didn’t specifically call for a reimposition of penalties for
violating the old prohibition. It was apparently merely a feel-good
exercise for anti-abortion legislators back then.
But undoubtedly a huge political fight lies
ahead, with much potential room for mischief.
For instance, the pro-choice group Personal
PAC is worried that if Roe is struck down, an anti-abortion state’s
attorney will try to enforce the 1975 preamble, regardless of prior
Supreme Court rulings, and begin arresting doctors under the old
law. That could cause a huge controversy in what has become a
fairly pro-choice-leaning state.
Even if that doesn’t happen, the
pro-choice forces intend to use the 1975 law as a major political
hammer in Illinois if Roe is struck down. “There will be a bill in the
General Assembly the day Roe v. Wade is overturned,” says Personal PAC
director Terry Cosgrove. “It will be big, I’m telling
you.”
The threat of losing abortion rights in
Illinois, Cosgrove says, would ultimately be used to “clean
house politically and clean the Senate.”
Jill Stanek, an anti-abortion activist and
former legislative candidate, sought to play down any potential
controversy over the 1975 law last week. Stanek agrees that the law
“would not overturn legal abortion in [Illinois] if Roe v. Wade were
overturned.” Abortion, she says, “could” become
an issue in Illinois if Roe is tossed out, but, she adds, “I doubt
the Abortion Act of 1975 will.”
Polls have consistently found that about 60
percent of the American people don’t want to see Roe overturned. That
number is probably higher in Illinois, which is a bit more liberal
than the rest of the country. Illinois has elected one pro-choice
governor after another for decades (except in 1998, when moderately
anti-abortion candidate George Ryan defeated 100 percent
anti-abortion candidate Glenn Poshard).
The Illinois General Assembly, however, is
almost equally divided on the issue, and the moderates in the
middle have always been the key. But when an extremely divisive and
important issue such as this one is injected itself into the
equation, moderates often find themselves losing elections. The
system becomes polarized, as it is now in Washington, D.C.
Because of Roe, abortion issues at the state level are fought
mostly around the edges, but the battles are still extremely mean.
If and when Roe is eventually overturned, an all-or-nothing fight to the
finish will be dropped into our collective laps — except that
the fight will most likely never end.
This article appears in Aug 4-10, 2005.
