Illinois renounces 'stupid and very likely unconstitutional' law against pro-life speech

Why is one solidly blue state backing off its alleged persecution of pro-life pregnancy centers and another ramping up the scrutiny?

The diametrically opposed actions by Illinois and Washington relate to the timing of legal challenges against the states' efforts, but may also illustrate that laws explicitly targeting pro-life speech are more vulnerable in court than those simply repurposed against pregnancy centers.

Blue states were not deterred by a Supreme Court ruling in 2018 that found California's speech-based regulation of pro-life pregnancy centers likely unconstitutional, later subject to permanent injunction by a lower court.

They kept passing similar laws in the name of combating misinformation, then getting sued, including Vermont the same week Illinois Democratic Gov. J.B. Pritzker signed the state's Senate Bill 1909 this summer.

The legislation amended the Prairie State's Consumer Fraud and Deceptive Practices Act to regulate the speech of "limited service pregnancy centers" that don't provide or refer patients for abortions or emergency contraception.

Only these organizations are liable for $50,000 penalties for "unfair methods of competition or unfair or deceptive acts or practices," both in their speech and their omission of "any material fact," intended to "interfere with" someone seeking abortion or "induce" them to enter the pro-life centers.

Illinois Attorney General Kwame Raoul agreed to a permanent injunction against enforcement of the statute against the National Institute of Family and Life Advocates, which operates 81 clinics throughout the state and local centers and so-called sidewalk counseling organizations, all religious ministries represented by the Thomas More Society.

The settlement agreement must be approved by U.S. District Judge lain Johnston, who issued an unusually snarky preliminary injunction against the law just eight days after it took effect, calling SB 1909 "both stupid and very likely unconstitutional."

The attorney general's staffer and primary witness at legislative hearings "publicly represented" that the generic statute didn't need amendments to apply to deceptive practices by pro-life centers, but the law on its face applies to "business practices," not religious ministries, Johnston wrote.

The plaintiffs testified that the law's passage prompted them to halt distributing pamphlets and training in sidewalk counseling, their "[p]rayer vigil attendance plummeted" and they feared Raoul would come after them for not including "the positive effects of abortion" in their literature, the President Trump appointee said.

Raoul also celebrated the law at a location of Planned Parenthood, which is immunized from the Consumer Fraud Act under the law. "Only fools would not have their First Amendment rights chilled under these circumstances," Johnston wrote.

"This law is just one of a number of illegal new laws enacted across the country that restrict pro-life speech – we hope this permanent injunction, with full attorney’s fees, serves as a warning to other states that would seek to follow Illinois and try to silence pro-life viewpoints," Peter Breen, head of litigation for the Thomas More Society, said in a release.

The public interest law firm is challenging a different Illinois law, the subject of a six-year injunction, that compels pro-life doctors and pregnancy centers to refer women seeking abortions to such providers.

Johnston presided over a bench trial this fall and the parties are still filing briefs, as recently as Nov. 30, with a ruling yet to come.

Raoul's office didn't respond to Just the News on why it settled rather than continue defending the law and appealing a final loss to the 7th U.S. Circuit Court of Appeals.

He issued a statement saying the agreement "in no way affects my ongoing work protecting women’s rights to access the full range of reproductive health services" or alters "my office’s preexisting authority" under the consumer fraud statute.

Washington Attorney General Bob Ferguson, who is also running for governor, took a different tack against "Christian pro-life medical nonprofits," according to a lawsuit on their behalf by the Alliance Defending Freedom, which is also representing NIFLA in the Vermont challenge.

The Evergreen State's top lawyer, who is "prolific in his pronouncements of hostility toward and suspicion of pregnancy resource centers" like California-based Obria Group and its Washington affiliate, is grossly exceeding his authority "under the pretense" of investigating possible violations of the state Consumer Protection Act, the Nov. 29 suit says.

Starting in May 2022, Ferguson demanded 13 years of documents and information from Obria through "civil investigative demands," violating the four-year statute of limitations, the plaintiffs allege. Among his targets is Obria's representations related to "abortion pill reversal," a procedure of disputed efficacy for which the plaintiffs refer interested women but don't themselves perform.

A federal judge blocked Colorado's law prohibiting "medication abortion reversal" in October, finding it violates a Catholic healthcare clinic's free-exercise rights.

The CIDs are also aimed at exposing "nonpublic communications and processes that have no bearing on those matters" according to the suit.

The AG has publicly accused pro-life medical centers in general of misusing patient data while turning a blind eye to "well-publicized incidents of data breaches at Planned Parenthood locations," the plaintiffs say.

They filed a motion for preliminary injunction the same day, claiming that Ferguson is now "burdening [Obria's partners] with discovery obligations solely because they chose to associate with the ministry," even after Obria has produced 1,500 pages of documents.

The "wildly expensive demands" chill Obria's speech, harm its freedom of association and seek privileged documents in violation of the First Amendment and constitute "unreasonable searches and seizures" under the 14th Amendment, the motion states.

The parties had a scheduling conference Monday morning, according to the court docket. Ferguson's office must file its combined motion to dismiss and response to the injunction motion by Jan. 22. Oral argument won't happen until Feb. 29.

Ferguson's office didn't respond to a Just the News query. It confirmed the Obria investigation to the Daily Caller News Foundation but not whether it had received a complaint or evidence that Obria had violated state law. 

"We are deeply concerned about any effort to deceive pregnant Washingtonians about their reproductive health care options," a spokesperson told the outlet. "We are confident we will prevail in this case, just as we have defeated other efforts to stop our investigations."