Amy Gehrke

Former Executive Director of Illinois RTL

Owner

Thriving Hero Consulting  | 11 May 2023

From unlawful protests outside the homes of U.S. Supreme Court Justices to violent attacks on churches and pregnancy resource centers, abortion advocates have shown they will stop at nothing to make abortion on demand with zero restrictions the law of the land. Throughout this legislative session, Illinois lawmakers have shown that they, too, will stop at nothing to promote a radical abortion agenda, even if their efforts are blatantly unconstitutional and threaten to cost Illinois taxpayers millions of dollars.

 

Illinois Senate Bill 1909 passed in the Illinois House on the evening of May 10 by a party-line vote of 72-40. This bill is a direct, unwarranted attack on the pregnancy resource centers of Illinois. Illinois abortion advocates say this bill, labeled the “Deceptive Practices of Limited Services Pregnancy Centers Act,” is a necessity as pregnancy resource centers regularly give women inaccurate information and engage in “deceptive practices”.[i]

 

What sort of “inaccurate” information do the bill’s authors claim is being spread by pregnancy resource centers? The legislative intent of the bill states:

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[Pregnancy Resource Centers] pay for advertising, including online and on billboards and public transportation, that is intended to attract consumers to their organizations and away from medical providers that offer comprehensive reproductive care. The advertisements and information given by these organizations provide grossly inaccurate or misleading information overstating the risks associated with abortion, including conveying untrue claims that abortion causes cancer or infertility and concealing data that shows the risk of death associated with childbirth is approximately 14 times higher than the risk of death associated with an abortion.[ii]

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Anyone active in the pro-life arena knows that this supposedly “inaccurate” information is the topic of much debate between pro-abortion and pro-life activists (Although there is abundant evidence that abortion does, indeed, increase the risk of cancer[iii] and cause a myriad of complications.[iv]  Also, the claim that abortion is safer than childbirth is dubious, at best[v]). Herein lies one of the major problems with the bill: The Illinois legislature is attempting to shut down this debate and force the pro-life individuals staffing pregnancy resource center to advocate for abortion, a clear violation of their First Amendment rights.

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SB 1909 not only targets the work of pregnancy resource centers, it also seeks to stop the efforts of pro-life sidewalk counselors by asserting that they engage in “deceptive practices,” as well. In a March 31, 2023, press release Illinois Attorney General, Kwame Raoul, claimed,

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I experienced deceptive crisis pregnancy center tactics firsthand on a visit to a Planned Parenthood health center in Illinois. People who appeared as though they might work there were outside attempting to divert us away from the health center…This is an extreme violation of trust and patient privacy that should not occur in our state.[vi]

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Sidewalk counselors, like the ones the Attorney General encountered, who remain on public property are protected by the First Amendment so long as they are not harassing, blackmailing, or making false statements covered by other laws.[vii] Furthermore, Attorney General Raoul is targeting two very different groups under one mantel: Pro-Life pregnancy resource centers and groups such as Coalition Life, Sidewalk Advocates for Life, and others that minister to women in public areas outside abortion clinics.

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As Peter Breen of the Thomas More Society said in his testimony opposing SB 1909 during a hearing in the Illinois Health Care Availability and Accessibility Committee, the government has every right to regulate deceptive business practices, but that regulation must be neutral without favoring one interest over another.[viii] SB 1909 only applies to pro-life organizations. Furthermore, this legislation is completely unnecessary. The Illinois Consumer Fraud & Deceptive Business Practices Act exists to protect Illinois consumers from all deceptive business practices.[ix]

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Breen stated in his testimony that one of their clients submitted a Freedom of Information Act to the Attorney General’s office for all complaints against pregnancy resource centers in Illinois over the past 10 years. This FOIA request revealed that the Illinois Attorney General’s office has received zero complaints from members of the public against any Illinois Pregnancy Resource Center under the Illinois Consumer Fraud & Deceptive Business Practices Act. Breen stated in his testimony:

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In the First Amendment context, the burden is on the government to show that it needs whatever new regulation being proposed, but here, in addition to there being no actual complaints, the Attorney General’s Office has not used its immediately available alternate legislative means, including the existing Consumer Fraud & Deceptive Business Practices Act.[x]

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In addition to engaging in alleged “deceptive practices,” Illinois pregnancy resource centers can also be civilly liable for any, “concealment, suppression, or omission of a material fact.” The language of SB 1909 is incredibly broad, giving no guidance as to what, exactly, a “material fact” is. It is widely believed among pro-life advocates and attorneys in Illinois that the bill is intended to force Illinois pregnancy resource centers into referring women for abortions.[xi]

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SB 1909 would allow the Illinois Attorney General to file a complaint against any Illinois pregnancy resource center, “if it is in the public interest,” rather than based on a specific complaint. Furthermore, the bill allows any “aggrieved party” – regardless of whether they are a client of the center in question, to sue a PRC for violation of the law.[xii] In short, it would be open season on the pregnancy resource centers of Illinois if this bill becomes law, allowing pro-abortion elected officials, advocates, and ordinary citizens to claim they’ve been “aggrieved” by a PRC.

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What will happen to a PRC if it is investigated or found to be in violation of SB 1909? First, the attorney general would be able to request a court order to “impound” all the records of the PRC while the investigation takes place. If the PRC is found to be in violation of the law, they could face injunctions and civil penalties up to $50,000. Under the law, which would be effective immediately upon the governor’s signature, plaintiffs can recover their attorney’s fees, however, there is no provision for pregnancy resource centers to recover their fees if an erroneous suit is filed.[xiii]

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The Thomas More Society has stated that it is prepared to file suit to stop enforcement of the bill should it become law.[xiv] The chances are good that this litigation will be successful.

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In 2016, SB 1564 passed the Illinois General Assembly. A portion of this bill required that PRCs provide clients with a list of providers they “reasonably believe” may offer certain services, including abortion. In response to several lawsuits filed against the law injunctions were issued and it has not been implemented. The courts, in several cases, found the law mandated speech in violation of the First Amendment.[xv]

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In 2018, the U.S. Supreme Court ruled in NIFLA v. Becerra that the State of California was violating the First Amendment rights of the state’s pregnancy resource centers with the so-called “Reproductive FACT Act. This law required the centers to provide clients with information on how to obtain state-funded abortions. Anne O’Connor, NIFLA Vice President and co-counsel on behalf of NIFLA’s member centers says:

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NIFLA v. Becerra is not just about whether or not to hand out abortion information on a piece of paper or post it on the walls of our pro-life centers. It is about the right belonging to all American citizens to be free from government-compelled speech, and from being coerced into promoting a message that contradicts their values.[xvi]

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There is little question that SB 1909 compels government-mandated speech and singles out pro-life pregnancy resource centers for scrutiny. Why would Illinois lawmakers advance legislation that has little or no chance of being upheld by the courts? According to James Gehrke, J.D., an attorney with the consulting group, Thriving Hero, “These legislators bear no personal responsibility if the legislation winds up in the courts. Illinois taxpayers will foot their legal bills and pregnancy resource centers will be on the hook for theirs. Abortion advocates in the Illinois legislature will have achieved their goal of creating legal chaos that makes it difficult, if not impossible, for Illinois pregnancy resource centers to operate.”

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Over 18,000 Illinois residents have filed “witness slips” in opposition to SB 1909, while only 3,945 have filed slips in support of it. Clearly, this meant nothing to Illinois Democrats who voted in favor of the bill after minimal floor debate. Illinois Governor J.B. Pritzker is expected to sign the bill into law.

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Amy Gehrke served as the Executive Director of Illinois Right to Life from 2020-2022. She is now the owner of Thriving Hero, a consulting firm dedicated to meeting the unique needs of pro-life nonprofit organizations and pregnancy resource centers. She can be reached at agehrke@thrivinghero.org.

 

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[i] Misner, L. (2023, April 26). “State Bill Would Force Pro-Life Centers to Offer Abortion Information” Illinois Baptist (IBSA Newsjournal), https://illinoisbaptist.org/bill-would-force-pro-life-centers-to-offer-abortion-information/

[ii] Villanueva, C. (2023, March 22), Full Text of SB 1909, 103rd General Assembly, Illinois General Assembly, https://www.ilga.gov/legislation/fulltext.asp?DocName=10300SB1909sam001&GA=103&SessionId=112&DocTypeId=SB&LegID=146759&DocNum=1909&GAID=17&SpecSess=&Session=

[iii] Brind, J., Chinchilli, V.M., Severs, W.B., and Summy-Long, J. (1996, October 5). “Induced Abortion as an independent risk factor for breast cancer: a comprehensive review and meta-analysis,” Journal of Epidemiology and Community Health, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1060338/

[iv] Skop, I. (2022, December 8). “Immediate Physical Complications of Induced Abortion,” Charlotte Lozier Institute, https://lozierinstitute.org/immediate-physical-complications-of-induced-abortion/

[v] “Abortion is Not Safer for Women Than Childbirth,” National Institute of Family and Life Advocates, https://nifla.org/abortion-not-safer-women-childbirth/

[vi] Office of the Illinois Attorney General Kwame Raoul (203, March 31) “Attorney General Raoul Applauds Senate Passage of Legislation to Address Deceptive Practices by Pregnancy Resource Centers,” https://illinoisattorneygeneral.gov/news/story/attorney-general-raoul-applauds-senate-passage-of-legislation-to-address-deceptive-practices-by-crisis-pregnancy-centers

[vii] “A Legal Guide for Sidewalk Counselors – Compassion, Counseling, and the Constitution,” Alliance Defending Freedom and Forty Days for Life, https://adflegal.blob.core.windows.net/mainsite-new/docs/default-source/documents/resources/campaign-resources/life/sidewalk-counselors/a-legal-guide-for-sidewalk-counselors.pdf

[viii] Breen, P. (2023, April 25). “Prepared testimony in opposition to SB 1909,” The Thomas More Society, https://thomasmoresociety.org/wp-content/uploads/2023/04/SB1909-Testimony-TMS.pdf

[ix] Illinois Compiled Statutes, “Consumer Fraud and Deceptive Business Practices Act,” Illinois General Assembly, https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2356&ChapterID=67

[x] Breen, P. (2023, April 25). “Prepared testimony in opposition to SB 1909,” The Thomas More Society, https://thomasmoresociety.org/wp-content/uploads/2023/04/SB1909-Testimony-TMS.pdf

[xi] Zander, M. (2023, February 28). “Bill Alert: Ten Things You Need to Know About SB 1909 and HB 2463,” Illinois Right to Life Action, https://illinoisrighttolifeaction.org/2023/02/28/bill-alert-ten-things-you-need-to-know-about-sb-1909-and-hb2463/

[xii] Ibid

[xiii] Ibid

[xiv] Barnas, J. (2023, April 27). “Thomas More Society’s Peter Breen Testifies Against Illinois Bill Targeting Pro-Life Pregnancy Help Centers,” Thomas More Society, https://thomasmoresociety.org/thomas-more-societys-peter-breen-testifies-against-illinois-bill-targeting-pro-life-pregnancy-help-centers/

[xv] Catholic Conference of Illinois (2023, March 28). “Fact Sheet on SB 1909, Amendment 1,” https://www.ilcatholic.org/cci-fact-sheet-on-sb-1909-and-hb-2463-deceptive-practices-of-limited-services-pregnancy-centers-act/

[xvi] NIFLA, “NIFLA v. Becerra – Supreme Court Case Information,” https://nifla.org/nifla-vs-becerra/

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