A little-remembered 1975 Illinois law might cause a whole lot of trouble in the coming year or two.
The Illinois Abortion Law of 1975 was passed in reaction to the US Supreme Court's Roe v. Wade opinion, which overruled most state laws banning abortion. Before then, Illinois only permitted abortions 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 United States Supreme Court now has two cases before it which pro-choice groups fear could be used to undermine Roe v. Wade. There is also the possibility that if President Bush's pick to replace Justice Sandra Day O'Connor turns out to be a hardline pro-life justice when he gets to the bench, then Roe v. Wade might not be long for this world.
So, will Illinois automatically revert back to its anti-abortion status if Roe v. Wade is eventually overturned?
Probably not, say representatives from both sides of the issue.
The Illinois Supreme Court has ruled more than once that a statutory preamble, like the one quoted above, is not "a part of the Act itself" and, more importantly, "has no substantive legal force." There's also little doubt that a General Assembly can not legally lock a future Legislature 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 pro-life legislators back then.
But there is undoubtedly a huge political fight ahead and much potential room for mischief.
For instance, the pro-choice group Personal PAC is worried that if Roe is struck down, a pro-life state's attorney will try to enforce the 1975 preamble, regardless of prior Supreme Court rulings, and begin arresting doctors under the old law. Something like 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," said Personal PAC director Terry Cosgrove this week. "It will be big, Rich, I'm telling you," he added.
Cosgrove said the threat of losing abortion rights in Illinois would ultimately be used to "clean house politically, and clean the Senate."
Jill Stanek, a pro-life activist and former legislative candidate, sought to play down any potential controversy over the 1975 law last week. Stanek said she agreed with a pro-choice group's analysis that the law "would not overturn legal abortion in (Illinois) if Roe v. Wade were overturned." Stanek said she believed abortion "could" become an issue if Roe was tossed out, but added, "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 pro-life candidate George Ryan defeated 100 percent pro-life candidate Glenn Poshard).
The Illinois General Assembly, however, is almost equally divided on the issue. The pro-choicers win some, the pro-lifers win some. The moderates in the middle have always been the key. But when an extremely divisive and important issue like this injects itself into the equation, moderates often find themselves losing elections. The system becomes polarized, like it is now in Washington, DC.
Because of Roe, abortion issues at the state level are fought mostly around the edges, but the battles are still extremely mean. When Roe is eventually overturned, however, an all-or-nothing fight to the finish will be dropped into our collective laps - except the fight will most likely never end. The two sides have been battling for over 30 years in Washington, DC, and it's still not over. Most likely, we'll see one side eventually gain dominance here, lose it, then have to start all over again from scratch, and back and forth like that forever.
Rich Miller also publishes Capitol Fax, a daily political newsletter. He can be reached at capitolfax.blogspot.com