Our preview of the September term of the Illinois Supreme Court concludes with Hope Clinic for Women v. Adams [pdf]. Although Hope Clinic arises from a constitutional challenge to Illinois’ Parental Notice of Abortion Act, the issues before the Court have little to do with abortion law. Instead, the case raises broad issues about the interpretation of the Bill of Rights of the Illinois state constitution. Depending on how the Court resolves the case, Hope Clinic may affect a whole range of different areas of constitutional litigation.
According to the Parental Notice of Abortion Act, a physician must disclose to a parent, grandparent, step-parent living in the household or legal guardian that his or her minor or incompetent child is seeking an abortion. No notice is required if a pregnant minor seeks medical assistance but chooses to continue her pregnancy, nor is notice required if the minor has, or ever has had, a husband. Plaintiffs challenged the Act on a host of grounds, solely under the Illinois Constitution, including due process, equal protection, privacy and gender equality. The Circuit Court dismissed after concluding that all four of these state constitutional rights were interpreted in lockstep with Federal constitutional law. Accordingly, the due process and equal protection claims were barred by earlier Federal litigation, Zbaraz v. Hartigan. The privacy and gender equality claims failed because they would fail under Federal law.
The Appellate Court reversed. The Court acknowledged that Illinois’ due process and equal protection clauses are similar to their Federal counterparts, but nevertheless concluded that the Circuit Court had missed the forest for the trees: the claim in Federal court was not identical to the one being made in state court. Accordingly, collateral estoppel could not apply simply as a matter of civil procedure law.
As for the privacy and gender equality claims, the Court found guidance in People v. Caballes, the leading authority from the Supreme Court on coordinating state constitutional rights with Federal ones. There, the Court first described a “limited lockstep” approach for state provisions which are substantively identical to Federal ones: the court first looks to federal law, and only if federal law provides no relief does the court turn to state law to determine whether a state departure is warranted based on some specific criterion. But for express provisions of the state constitution with no analogous Federal provision, the Court rejected any kind of lockstep, holding that the state constitution must be interpreted without reference to Federal law.
Although Federal courts do recognize a “penumbral” right to privacy, the Appellate Court followed Caballes in holding that limited lockstep did not apply to Illinois’ right to privacy. Similarly, the Court held that because the Federal constitution included no gender equality guarantee, the Illinois provision had to be interpreted without reference to Federal law. Citing the Supreme Court’s decision in People v. Ellis, the Court held that gender-based distinctions were a suspect classification under Illinois law, necessitating strict scrutiny. Since the Circuit Court had declined to apply strict scrutiny in rejecting the gender equality claim, the Court remanded for reconsideration under that standard.
Presiding Justice Rodolfo Garcia added an interesting special concurrence. First, he concluded that the Zbaraz case was irrelevant, since the limited lockstep constitutional doctrine did not apply to decisions of Federal trial and intermediate courts. Justice Garcia also questioned the majority’s conclusion that Caballes necessarily meant that the limited lockstep doctrine was inapplicable to the state constitutional right to privacy.
Hope Clinic will be argued at the 9:00 am session of the Court tomorrow — Thursday, September 20, 2012.
