Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—N.D. Ill.: Illinois abortion information statute violates First Amendment’s Free Speech Clause, (Apr 16, 2025)

By David Yucht, J.D.

Illinois Public Act 99-690 Section 6.1(1) compels speech requiring a discussion about the risks and benefits of childbirth and abortion violating the First Amendment.

A federal court in Illinois held Public Act 99-690 Section 6.1(1) requiring health care professionals to discuss the risks and benefits abortion with pregnant patients, violated the Free Speech Clause of the First Amendment because it was not an informed consent statute, and it compelled speech that was not “incidental” to conduct. However, Section 6.1(3) which regulates professional conduct, instructing clinicians, upon request, to either refer or transfer a patient to another physician, or provide her with a list of potential providers, does not compel speech. Consequently, Section 6.1(3) does not implicate Free Speech Rights. Moreover, because it returns conscientious objectors to their earlier, generally applicable liability exposure, Section 6.1(3) does not violate the Free Exercise Clause (National Institute of Family and Life Advocates, v. Treto, Nos. 16 CV 50310 & 17 CV 4663 (N.D. Ill. Apr. 4, 2025)).

Health Care Right of Conscience Act. Illinois’ Health Care Right of Conscience Act (HCRCA) provides an affirmative defense against liability of health care professionals. Section 4 provides there is no liability for refusing to participate in any “health care service which is contrary to the conscience.” Section 9 extends this protection to owners and operators of health care facilities. The HCRCA was amended through Section 6.1(3) to provide that health care professionals’ conscience-based actions are unprotected unless they “inform,” “give[] information” to, “refer,” or “transfer” patients when they are unable to act or provide information because of a “conscience-based objection. Section 6.1(1) amended the law by requiring health care facilities and personnel to inform a patient of, among other things, “legal treatment” options, and the risks and benefits of the treatment options.” These statutory amendments were challenged by plaintiffs who were successful in obtaining preliminary injunctions. A bench trial was conducted by the court to make a final determination (subject to appeal) of the constitutionality of these amendments.

Free Speech. The court held Section 6.1(1) which required health care professionals to discuss the risks and benefits of abortion with pregnant patients, violated the Free Speech Clause of the First Amendment because it was not an informed consent statute, and it compelled speech that was not “incidental” to conduct. The court noted that a statute qualifies as an informed consent provision—and therefore incidental to conduct—when it requires a health care professional, before he or she performs a medical procedure, to discuss the nature or consequences of the impending medical procedure. The court determined the Section 6.1(1) mandated disclosures were not “informed consent” provisions because pregnancy centers, which are covered by the statute, do not perform abortion services. A provider cannot obtain informed consent for a service they do not perform, and “medical options counseling” involves speech as defined by case law. Because counseling is not a “procedure,” it does not trigger an informed consent analysis but impacts the centers’ right to Free Speech. The judge found the state’s justification was not compelling enough to withstand strict scrutiny analysis applied to speech issues.

However, concluding that Section 6.1(3) did not implicate speech, the court held that Section 6.1(3)’s mandates were constitutionally permissible. Whereas Section 6.1(1) required health care professionals to say something to obtain immunity from liability, Section 6.1(3) explained what must be done to earn immunity after a triggering event occurs, i.e. refer, transfer, or provide written information. The court ruled that those three options were all conduct which do not implicate speech for purposes of the First Amendment as defined in case law. States may regulate speech incidental to professional conduct. In this case, the necessary speech—either writing a list or drafting a referral—bore a direct connection to the underlying conduct that was necessarily effectuated by speaking or writing.

Free Exercise of Religion. The court also concluded Section 6.1(3) does not violate the Free Exercise Clause. The Free Exercise Clause of the First Amendment prohibits the government from making a “law respecting an establishment of religion or prohibiting the free exercise thereof.” However, it does not mean that “an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” A “neutral law of general applicability,” will be upheld if rationally related to a legitimate state interest, even if it incidentally burdens “a particular religious practice.” The HCRCA does not subject conscientious objectors to “unequal treatment” by imposing additional burdens on them over secular providers. Rather, it returns conscientious objectors to their earlier, generally applicable liability exposure.

The case is Nos. 16 CV 50310 & 17 CV 4663.

Judge: Johnston, I.

Attorneys: John W. Mauck (Mauck & Baker LLC) for National Institute of Family and Life Advocate, Tri-County Crisis Pregnancy Center d/b/a Informed Choices, The Life Center, Inc. d/b/a TLC Pregnancy Services and Mosaic Pregnancy & Health Centers and Mosaic Pregnancy & Health Centers. Karyn L Bass Ehler, Office of the Illinois Attorney General, for Mario Treto, Jr.

Companies: National Institute of Family and Life Advocate; Tri-County Crisis Pregnancy Center d/b/a Informed Choices; The Life Center, Inc. d/b/a TLC Pregnancy Services; Mosaic Pregnancy & Health Centers

Cases: CoverageLiability StateLawClaims IllinoisNews