“Stupid” and “very likely unconstitutional.”
That’s how United States District Judge Iain D. Johnston described Illinois’ Public Act 103-0270 in his ruling granting five pro-life groups a preliminary injunction against the new law.
The legislation, written by Illinois Attorney General Kwame Raoul and signed into law by Governor J.B. Pritzker, amends the state’s existing Consumer Fraud and Deceptive Business Practices Act by specifically limiting “deceptive acts and unfair practices” by pregnancy resource centers that don’t provide abortions.
National Institute of Family and Life Advocates (NIFLA), Women’s Help Services, Rockford Family Initiative, Relevant Pregnancy Options Center, and Pro-Life Action League — and their clients — sued Raoul the day the bill became law, alleging it violates their first and 14th amendment rights.
This uniquely frightening law was passed and put under injunction with almost no word from national and pro-life media, begging the question, how can legislation like this be passed?
More importantly, how could we not know about it?
The Law
Public Act 103-0270’s section on legislative intent claims “limited services pregnancy centers” — or pregnancy centers that don’t perform, provide or refer patients to get abortions or abortifacients — have “repeatedly misled” people trying to get abortions.
The law purports to stop these alleged deceptions by preventing “limited services pregnancy centers,” from:
“Engag[ing] in unfair methods of competition or unfair or deceptive acts or practices, including the use or employment of any deception, fraud, false pretense, false promise, or misrepresentation, or the concealment, suppression, or omission of any material fact, with the intent that others rely upon the concealment, suppression, or omission of such material fact:
- To interfere with or prevent an individual from seeking to gain entry or access to a provider of abortion or emergency contraception;
- To induce an individual to enter or access the limited services pregnancy center;
- In advertising, soliciting, or otherwise offering pregnancy-related services; or
- In conducting providing, or performing pregnancy-related services.”
Deputy Attorney General of Policy Ashley Hokenson, who represented Raoul in legislative hearings on the bill, admitted the existing Consumer Fraud and Deceptive Business Practices Act already limits pregnancy resource centers from engaging in deceptive practices, according to transcripts reviewed by the court. Instead, said Hokenson, the amendment clarifies the existing legislation.
Raoul is in charge of enforcing the law, and violators can be punished with an injunction, dissolution, or up to $50,000 in fines.
Free Speech Violations
The Court granted the five plaintiffs a preliminary injunction, which stops Raoul from enforcing the law while the plaintiffs’ court case is ongoing, after determining the law violates the First Amendment and would cause — or had already caused — the plaintiffs irreparable harm.
Johnston opens his ruling with a bang, writing:
“[Public Act 103-0270] is likely unconstitutional because it is a blatant example of government taking the side of whose speech is sanctionable and whose speech is immunized — on the very same subject no less.”
Johnston further elaborates the act “is likely classic content and viewpoint discrimination prohibited by the First Amendment.”
Content discrimination laws forbid certain messages or ideas, rather than general topics. The contested law prohibits “speech that emphasizes the negative effects of abortion,” Johnston notes, rather than abortion itself. Further, the law bans the plaintiffs’ pro-life message, but specifically exempts pro-abortion messages.
Viewpoint discrimination regulates speech based on speaker, rather than subject. The ruling concludes the law can penalize pregnancy resource centers and pro-life sidewalk counselors for “alleged untruthful statements” and “omitting ‘material facts,’” while abortion providers face no risk of civil penalties. Johnston stresses this point, writing:
“As the Court stated during the hearing without any pushback by Defendant Raoul’s counsel, SB 1909 immunizes abortion providers from asserting something as untruthful as this: ‘Abortions cure male pattern baldness.’”
Content and viewpoint discrimination laws are only constitutional if legislators prove they serve a compelling government interest and violate as few rights as possible — Raoul’s law, explains Johnston, does neither.
While regulating deception in health care is a legitimate government interest, the ruling concedes, Raoul produced no evidence to show pregnancy resource centers have acted deceptively.
Here, Johnston is referencing evidence from the complaint claiming that, when one of the plaintiffs submitted a Freedom of Information Act (FOIA) request to the attorney general’s office asking for copies of every “report” and “complaint” made against pregnancy resource centers in the last ten years,
“The Attorney General could not produce even one verifiable complaint from clients of Illinois pro-life pregnancy centers to its office for alleged violations of the Deceptive Business Practices Act, contrary to [Deputy Attorney General] Hokenson’s testimony. The production instead included a handful of documents about squabbles between pro-life advocates and abortion facility staff, with none of the incidents resulting in any arrests or legal action.” (Sec. 111)
The lack of complaints against pro-life pregnancy centers revealed by the FOIA request directly contradicts statements made by Raoul and other legislators justifying the amendment’s creation.
When questioned about the FOIA request in legislative hearings, Hokenson claimed she had “conversations with members, one-to-one, about a complaint from their district that wouldn’t necessarily go through our consumer complaint form,” according to testimony referenced in the complaint. Raoul has never addressed the FOIA request and presented no evidence during the hearing.
Even if Raoul could produce evidence showing pro-life pregnancy centers are misleading consumers, writes Johnston, the amendment would be unconstitutional because it violates more rights than it needs to. The unamended Consumer Fraud and Deceptive Business Practices Act “would address the alleged concerns…without blatant content and viewpoint discrimination,” Johnston explains, making it a better, more narrowly tailored way to protect people from deceptive clinics.
Johnston repeatedly argues the amendment is detrimental and unnecessary, referencing Hokenson’s acknowledgement that the un-amended Deceptive Business Practices already prevents pregnancy resource centers from acting deceptively. In the ruling’s introduction, Johnston writes:
“[Public Act 103-0270] is stupid because its own supporter admitted it was unneeded and was unsupported by evidence when challenged.”
In a later footnote commenting on Raoul’s decision to “clarify” the Deceptive Business Practices Act, Johnston opines:
“The Germans have a word called ‘verschlimmbesserung.’ This noun essentially translates into English as ‘to the moment something is made worse by improvement.’ The verb form is ‘verschlimmbessern.’ As shown in this Order, in the most charitable light, Defendant Raoul engaged in verschlimmbessern.”
Irreparable Harm
To obtain a preliminary injunction, plaintiffs must prove they have been— or will be — irreparably harmed by the legislation in question.
Rockford Family Initiative, which recruits pro-life sidewalk counselors from prayer vigils, reported a 70% drop in attendance after the law passed. The organization later canceled sidewalk counselor training after volunteers expressed concern about being fined.
NIFLA and Women’s Health Services reportedly worry how the Attorney General’s Office will determine what information is “truthful,” and what counts as “omission of facts.” Both organizations reportedly stopped or considered stopping pamphlets for fear the content, though approved by licensed medical directors, would violate the new amendment.
According to transcripts referenced by the complaint, senators and representatives repeatedly questioned Hokenson about the bill’s enforcement, including whether stating life begins at conception, disputing the pro-abortion claim that giving birth has a 14-times higher risk of death than getting an abortion, or failing to include positive facts about abortion in written materials would violate the law.
To each question — and at least 14 others like them — Hokenson replied, “[We] would evaluate on a case-by-case basis.” (Sec. 106-107)
Having found their “factual testimony to be credible,” the court ruled the plaintiffs’ right to free speech had been irreparably harmed by Public Act 103-0270, and accepted their rights would likely be further violated given that Hokenson, “refused to answer direct questions about the bill’s impact on Plaintiffs’ and free speech concerns.”
Why It’s Important
It’s unusual — and problematic — that Attorney General Raoul wrote the law, a fact documented in the complaint, Johnston’s ruling, and an op-ed Raoul published in the Chicago Sun-Times the day the act became law. This means Raoul is both author and sole enforcer of the law, which constitutes a conflict of interest.
This entanglement is even more troubling given Johnston’s repeated acknowledgement of Raoul’s pro-abortion bias, noting, “Defendant Raoul held a press conference extoling the need and virtues of [the act] while flanked by Planned Parenthood leadership and others representing the pro-choice movement,” and ultimately concluding:
“There is ample evidence in the record before the Court at this time that [the act] was adopted because of Defendant Raoul’s disagreement about the content of Plaintiffs’ speech.”
Raoul makes little to no attempt to hide his position.
“As attorney general, defending access to reproductive care and protecting patient privacy are among my top priorities,” Raoul writes in his op-ed before summarizing his efforts to make it easier to get abortions in Illinois.
Further, in a statement released the day the amendment became law, Raoul claims, “The mission of most crisis pregnancy centers is to convince pregnant people to carry to term and not have an abortion,” and, “Many [crisis pregnancy centers] provide misleading information overstating the risks associated with abortion, including conveying false claims that abortion causes cancer or infertility.”
The press release also features a quote from Representative Terra Costa Howard, one of the bill’s sponsors, who calls pregnancy resource centers “fake clinics” that are “set up specifically to deceive patients who are seeking reproductive healthcare.”
In both pieces, Raoul take an unapologetically pro-abortion stance and makes definitive statements about pregnancy resource centers’ alleged deceptions, which the plaintiffs’ complaint categorically denies and FOIA proceedings reviewed by Judge Johnston show are unverified, if not false.
Illinois’ legislature shouldn’t have considered, let alone passed, legislation written by a member of the judicial branch. Considering Raoul’s well-known bias and sole authority to enforce the law, legislators should have run as fast as they could in the other direction.
They seemed to embrace it instead.
Consider the explicitly biased language of the law’s section on legislative intent, which makes three assertions about pro-life pregnancy resource centers:
- That they have “repeatedly misled” people looking for abortions using “deceptive, fraudulent, and misleading information and practices.” These materials are later labelled “grossly inaccurate” and “misinformation.”
- That they “aim to dissuade pregnant persons from considering abortion care…without any regard for a pregnant person’s concerns or circumstances.”
- That they use “misinformation” with “the intention to cause undue delays and disruption to protected, time-sensitive, reproductive health care services.”
Each statement is portrayed as fact applying to every pro-life pregnancy resource center — but all are demonstrably false.
The first assertion is amply refuted in the plaintiffs’ complaint, which describes the rigorous processes their pro-life materials undergo to ensure accuracy, not to mention a detailed account of the FOIA proceedings showing the attorney general’s office received no complaints about pro-life pregnancy resource centers under the Deceptive Business Practices Act.
The other two assertions presume to know every pregnancy resource centers’ intentions, which legislators have no way of knowing or verifying.
The wording of this section, forever memorialized in bill text, could be copied and re-written into an opinion piece for a pro-abortion organization.
Perhaps Judge Johnston’s langauge is an equal and opposite reaction to the law’s wording. Regardless, the rulining is unusual forceful. Preliminary injunctions are an “extraordinary remedy,” notes Johnston, which means they are not given easily. But his wording doesn’t show he had difficulty granting the plaintiffs’ request. Rather, his language seems uniformly frustrated with Raoul.
Besides calling the law “stupid” and “very likely unconstitutional,” including a footnote about a German word describing how Raoul made an existing law worse by amending it and verbally concluding the amendment allows abortion providers to say anything, including, “abortions cure male pattern baldness,” Johnston also writes the following:
“With only very minor exceptions discussed later, Defendant Raoul did not defend the merits of [the act] — understandably so.
“Defendant Raoul held a widely covered press conference at Planned Parenthood upon [the act]’s enactment. This is the same Planned Parenthood that is engaged in a raging debate about what assertions are truthful, which is the core of [the act].
“Again, despite being questioned about the lawsuit at the press conference that he attended with Planned Parenthood, being served the week before the preliminary injunction hearing, and receiving notice of the hearing two days before the hearing, Defendant Raoul presented no evidence or witnesses, including Deputy Attorney General Hokenson or anybody from Planned Parenthood. Court decisions are rendered on evidence presented to the Court. As we all hopefully understand at this point in this nation’s history, press conferences and press releases don’t work in court.”
As a person who respects rule of law and advocates for the lives of unborn children, I am immeasurably grateful for Judge Johnston’s emphatic — if unusual — rebuke. We should give thanks that our country has honorable officials.
I am equally appalled that elected representatives, regardless of their political party, so blatantly violated the First Amendment and the state’s separation of powers. America’s government only works if officials agree to uphold the safeguards making democracy and debate possible.
Most acutely, I am convicted that I didn’t know this legislation was drafted, let alone passed and placed under injunction; I only learned about the case when the Wall Street Journal published an opinion on the ruling — nine days after it occurred.
Policy is a sticky and difficult subject, even for people who report on it. But if pro-life supporters choose to ignore their political surroundings, pro-abortion activists can launch full-scale legal attacks to cripple the tools and rights we use to protect life.
“Illinois not for profit organizations provide life-affirming help through their meaningful and important work of providing compassion and competent advice, care and support to the thousands of women facing difficult or untimely pregnancies across the state each year,” emphasizes Vice-President of Advocacy for Children at Focus on the Family Robyn Chambers, “Their rights deserve to be protected.”
The pro-life movement cannot protect the lives of unborn children if it cannot recognize when its advocates’ rights are under attack. Every believer, myself included, must be aware of the policies being passed in their backyards — and make it known when something so egregious is being implemented.
Related articles and resources:
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