|
In the weeks since the Supreme Court decision regarding Dobbs was leaked, our team has been working in a coalition with advocates, colleagues, and national partners to evaluate the impact on our state and contemplate solutions to the challenges we anticipate in the aftermath of overturning Roe v Wade. While Illinois did a great deal of work in anticipation of the eventual fall of Roe, creating safeguards under Illinois law to protect access to reproductive health care in our state via the passage of HB40 which removed our state’s trigger law that would have immediately outlawed abortion in our state when the Dobbs decision was released and provided for coverage for abortion services for state employees and Medicaid recipients, the Reproductive Health Act which established reproductive health care as a fundamental right in Illinois and removed multiple restrictive laws that had been enjoined by the courts from our statutes, and the repeal of the Parental Notice of Abortion Act, we now must look ahead to what will be needed for patients in Illinois and those who are now forced to come to our state to receive care that’s been criminalized in their state.
Several states whose sessions ran longer than ours have taken steps to provide protections for providers and patients, so we have some templates to look to as we plan for our post-Roe response. I have spoken out regularly about the need to ensure that we are providing protections for patients and providers not only in the reproductive health care space but also with regard to gender-affirming care and all the rights based upon the right to privacy that Dobbs eviscerated. The Dobbs decision and Clarence Thomas’ concurring opinion are essentially an engraved invitation to challenge previous decisions including Griswold covering access to birth control, Obergefell establishing marriage equality, and Lawrence which decriminalized same-sex sexual activity. On each of these, Illinois stands out for having created state laws protecting these rights, but those laws are only as strong as the next election. There are 2 Illinois Supreme Court seats on the ballot in November and losing even one of those races will endanger all of these protections we’ve fought so hard to pass.
Immediately after the decision was released, Governor Pritzker held a press conference that I participated in where he announced plans to call the General Assembly back into special session to consider what additional steps our state can take to protect access to reproductive health care. Over the course of the days that followed, there were multiple discussions between leadership in the House and Senate, the Governor’s office, advocates, and members of the General Assembly. While we haven’t yet set a date or announced any specifics as to what will be considered, the Governor, Speaker, and Senate President recently announced a delay in reconvening in order to ensure that our work is productive. It’s critically important to note that this is a marathon and not a sprint. If we convene in a special session, it is not expected to be the full answer to our state’s status as a safe haven for out-of-state patients. Bear with me as I get a bit nerdy in explaining how the legislative rules impact what is and isn’t possible.
First, let’s examine the special session scenario. Our constitution outlines the process and rules for much of what the legislature does. The most significant of these as it pertains to our special session is that any legislation we pass between our regular session adjournment on May 31 and January 1 of the following year is automatically assigned an effective date of July 1 of the following year unless it receives a supermajority vote of 71 votes in the House and 34 votes in the Senate. What this means in practical terms is that any legislation presented in a special session or in Veto Session after the election needs to get a supermajority vote given the need for an immediate effective date. That means that some of the more aggressive legislative ideas being considered would be impractical to consider under those conditions given the challenges of getting the required votes.
That doesn’t mean we shouldn’t or won’t consider some of what we’ve seen other states take on, including funding for practical support for out-of-state patients, protections from prosecution for patients and providers, etc. It just means we have to be smart about how and when we pursue those policies. We also must keep in mind that much of what is being contemplated in expansive access states like ours across the country is really based on our best guesses about how restrictive states will address patients crossing state lines to access care and we are likely to have to come back to address circumstances we haven’t yet contemplated.
Beyond the special session, we have several short-term opportunities that may be more conducive to broader action. While the fall veto session in November will still have the limitations described above with regard to effective dates and supermajorities, there is something to be said for the relief of pressure that will come with being post-general election and the potential for additional votes that could provide.
The best window of opportunity though is in what’s referred to as the Lame Duck session. This traditionally happens at the end of our 2-year term, between January 1 and our swearing-in on January 11th when members who are not returning are still eligible to vote and often are willing to take votes they wouldn’t have when facing reelection. It’s very often an opportunity to pass more challenging bills - the repeal of the death penalty, income tax increases, and civil unions are just a few of the efforts that were passed under these circumstances. Very often, new members at the beginning of a new General Assembly are reluctant to take potentially controversial votes, so it’s often an advantage to run tough bills during this period.
That’s the how and when, but now for the what. What follows is by no means an exhaustive list of what we might consider, and as I mentioned above is certain to change as we get more information on how restrictive states will react to patients leaving the state for care. The policies fall into a few categories: capacity, access, and protection.
Capacity
Capacity refers to the things providers and practical support groups need to handle the anticipated demand for services here in Illinois. Illinois has always been a receiving state for patients from surrounding states with more restrictions and fewer providers, with approximately 10,000 patients seeking care from out of state last year. In the wake of Dobbs, it is anticipated that we could see 20-30,000 more patients seeking care here. Not only do we need to ensure these patients are able to access safe care, but we also need to ensure that our providers are able to continue to serve Illinois patients while meeting the increased demand. This is already an issue as we’ve seen a surge in demand since 2019 when states started passing broader restrictions and bans. This could include facilitating medical professionals from out of state bringing their licenses here and providing care, allowing nurse practitioners to perform more procedures consistent with their training, and providing training to medical students from restrictive states that deny access to training in abortion care.
Access
Access has long been a challenge, well before the right was at risk. I’ve often said that without meaningful access, it’s not appropriate to refer to it as a right in my arguments to ensure Medicaid and state employee insurance coverage. While we are grateful that Illinois is in a position to make it possible for out-of-state patients to seek care here, we are painfully aware that the burdens placed on patients in other states by needing to take off work, travel, and find childcare provide are challenging. Funds to practical support networks and providers helping patients access transportation, lodging, childcare, procedures, and support are essential.
Protection
Protection may be the most complicated part. States such as California, Connecticut, and New York have passed laws that seek to broadly protect patients, providers, and supporters from actions taken by restrictive states in response to seeking or providing care in states like ours. It gets complicated when it comes to issues of full faith and credit and potential unintended consequences, so we are working closely with legal experts to ensure that we achieve our goals without creating new problems. One component of this is contained in HB1464, which passed the House in the Spring but hasn’t been considered by the Senate yet. This bill will provide protection for medical providers in Illinois who hold licenses in other states that might take adverse action against their licenses as a result of them providing abortion care. Under ordinary circumstances, someone who lost a medical license in another state would face consequences here as well. Under HB1464, if the adverse action was related to actions that are legal in Illinois, the medical professional’s Illinois license would not be impacted. The bill as currently written doesn’t cover every medical professional involved in abortion care, so would need to be amended to include pharmacists and social workers and expand to cover gender-affirming care before the Senate considers it.
It gets more complicated from there. One example of this is with regard to warrants. It’s anticipated that there will be warrants issued by restrictive states against patients and providers here in Illinois. Some states’ laws have said they will ignore or deprioritize such warrants and that sounds on its face like a good thing. But, the law of unintended consequences comes into play here. One of the most basic notions of our government is the concept of full faith and credit, meaning that as a nation we respect judicial decisions from other states. If Illinois were to declare that we will not respect warrants from Missouri or Florida or Texas, what’s to stop those states from ignoring other judicial decisions from Illinois, such as second-parent adoptions performed here. Some of the bills in expansive access states include language about deprioritizing such warrants, and it remains to be seen if that will address full faith and credit concerns. In addition, it’s not clear what would happen in the scenario where a patient here from another state who already has a warrant just for crossing state lines is found to have that warrant in a traffic stop - there’s very little information provided to the officer in those circumstances and it’s unclear what if anything we can do under Illinois law, but we’re still working through potential solutions.
Another challenging concept here is the need to provide protections to digital information such as communications, data in apps, and geolocation information. Attorney General Kwame Raoul has spoken extensively about these issues and is working on identifying solutions and providing guidance to patients and providers to protect their data. Massachusetts has made some headway here and could provide a good roadmap.
As a member of the State Innovation Exchange (SiX) Reproductive Freedom Leadership Council for the last 10 years, I have been honored to get to work with legislative leaders advancing and protecting reproductive freedom from all over the country. We have been convening regularly for years and since the leaked draft opinion came out in May have been coming together more frequently to strategize. Recently, we’ve broken down into smaller working groups by levels of restrictions in our states and regions. As a member of the expansive states working group, there isn’t a Midwest region to meet with as Illinois is alone in our region, so I usually join with the east coast group. Here, legislators who are facing similar challenges are able to brainstorm solutions together, share what is and isn’t working in their state, and share resources and research. It has been tremendously helpful to hear from states who have already enacted added protections & learn from their challenges. Because those discussions have been so valuable, I have reached out to engage with legislators in our bordering states facing bans and added restrictions to hear directly from them as stakeholders as we in Illinois contemplate adding protections for patients, supporters, and providers. It is my hope that these discussions will inform our future legislative actions by hearing directly from those most impacted by hostile laws on how we can best provide support in Illinois.
As I said at the beginning of this piece, this is a marathon, not a sprint. We should also be contemplating ways to support in-migration to Illinois from people seeking to relocate in order to maintain access to care or to continue providing care in a state where it is not criminalized. I expect that as we see how restrictive states take steps to criminalize people accessing legal care in our state, we will have to be prepared to continuously update our strategies for protecting those providing or accessing reproductive and gender-affirming care.
| 
