Echoes from the Past:

Will the Current Illinois Supreme Court Reflect the Generally Life-Affirming Voice of its Predecessors?

Summary of the Illinois State Supreme Court Whitepaper

For a PDF copy of the full Illinois Whitepaper, please click here

The Illinois Supreme Court has generally adhered to precedent, and restrained itself by deferring to the legislature. However with the recent replacements of six of the seven court members,

it is difficult to know what to expect.

Life Issues

Abortion

In Illinois abortion is legal according to the Roe v. Wade framework of allowing abortions through the first and second trimester. Furthermore, in People v. Frey, the Court held that a statute that does not comport to Roe’s framework is unconstitutional. The Court however held in The Village of Oak Lawn v. Marcowitz, that having a statutorily imposed waiting period is not unconstitutional because it does not place an impermissible burden on a woman.

In 1995, the Illinois General Assembly passed the Parental Notice of Abortion Act, which requires that when the patient is a minor, an adult family member must be given notice forty-eight hours before the abortion. The Act included exceptions for judicial waivers, which the Court felt was too vague, and refused to enforce. However in 2006, the Court began promulgating this rule of judicial waivers, without any edits to the Act.

Protection of the Unborn from Criminal Violence

The Illinois state “Wrongful Death Act” provides a cause of action for the death of a fetus due to violence to the mother, and the Court in Seef v. Sutkus upheld the constitutionality of the act. While the Court rejected “wrongful life” as a cause of action, in Sieminiec v.Lutheran General Hospital, it accepted “wrongful birth” as a legitimate cause of action because it was recognized by most other courts.

Assisted Suicide

In Illinois, an individual may refuse medical treatment, and the State Probate Act authorizes guardians to refuse medical treatment for individuals they represent. In re Estate of Longeway, the Court interpreted the right to refuse medical treatment as a right to also refuse artificial nutrition and hydration. Of the four essential requirements for exercising the right to refuse medical treatment, one major requirement is that the patient is in a condition that is irreversible, and that the patient’s death is imminent. In order to withdraw artificial life support, however, a court order is necessary, but not mandatory.

Healthcare Rights of Conscience

Illinois law provides rights of conscience protection for physicians, nurses, and others that choose not to participate in abortion proceedings. One of the cases discussing healthcare rights of conscience, Free v. Holy Cross Hospital, dismissed the plaintiff’s action for retaliatory discharge under the Act, because she acted according to ethical concerns rather than sincerely-held moral convictions arising from religious beliefs.

Cloning and Destructive Embryo Research

The Governor of Illinois recently issued an order creating the Illinois Regenerative Institute for Stem Cell Research, which awards grants to medical research facilities for stem cell research. None of the funds may be used for research which involves cloning of human beings, fetuses or from induced abortions. The Court however has not had the opportunity to decide a case relating to embryonic stem cell research.

Judicial Restraint

The Illinois Supreme Court is restrained in its decisions. Although in Best v. Taylor Machine Works, the Court invalidated a legislation, the Court explained that the core provisions of the legislation violated the Illinois constitution, and violated the separation of powers. The Court in Burger v. Lutheran General Hospital, distinguished Best by holding that although a legislation may not violate separation of powers, the judiciary had authority in the situation at hand and therefore could invalidate the legislation. Conversely, in the case of Ex rel. Madican v. Snyder, the Court deferred to the executive branch even though it disagreed with the way the powers were executed. Although the Court seemed restrained in the past, with the new justices, it is difficult to predict whether it will be judicially active or restrained.

The Court

The Illinois Supreme Court consists of seven justices that are elected on a partisan basis from five districts. The initial term length is ten years, and the Court justices fill any vacancies that exist. The Illinois State Supreme Court White Paper contains a table of biographical information for each current member of the Court.