When Roe goes
Speculation about impact of 30-year-old state law resurfaces
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.