Reply Brief of Pltfs Appellants 1.25.11

Transcript

1 No. 10-1463 APPELLATE COURT OF ILLINOIS IN THE DISTRICT JUDICIAL FIRST CLINIC FOR WOMEN LTD.; THE HOPE M.D., M.P.H., COWETT, ALLISON Plaintiffs-Appellants, County Cook of Court Appeal from Circuit CH Circuit Number 09 38661 Trial Judge: Hon. Daniel A. Riley BRENT et ADAMS, al., Defendants-Appellees. with No. 10-1576 Consolidated HOPE FOR WOMEN LTD.; CLINIC THE COWETT, M.D., M.P.H., ALLISON Plaintiffs-Appellees, Circuit Court of Cook County from Appeal v. Number Circuit 38661 CH 09 Hon. Trial Judge: Daniel A. Riley etal., ADAMS, BRENT Defendants-Appellees, and STEWART UMHOLTZ OF: APPEAL EDWARD DETERS, Intervenors-Appellants. Proposed REPLY BRIEFOF PLAINTIFFS-APPELLANTS IN CASE NO. 10-1463 Lorie A. Chaiten Roach Kathleen L. Dalven Jennifer Leah Bartelt B. Rachel Niewoehner Kolbi-Molinas Alexa Krista Stone-Manista* Malhotra Geeta Civil American Liberties Baldwin Roger Foundation Sidley Austin LLP Foundation Union Inc. ACLU, of Street Dearborn South One (pro hac vice) 180 N. Michigan Avenue, Suite 2300 Chicago, IL 60603 Floor 125 Broad Street, 18th Chicago, IL 60601 (312)853-7000 New York, NY 10004 (312)201-9740 (212)549-2500 to the Bar in the State of California ♦Admitted Attorneys for Plaintiffs-Appellants in Case No. 10-1463 ORAL ARGUMENT REQUESTED

2 TABLE OF CONTENTS AND AUTHORITIES POINTS ii 1 ARGUMENT TO THE LIMITED I. APPROACH DEFENDANTS DISTORT LOCKSTEP THE ILLINOIS CONSTITUTION 1 INTERPRETING THE CIRCUIT COURT II. IN DISMISSING PLAINTIFFS' EQUAL ERRED PROTECTION 3 CLAIM PLAINTIFFS' THE COURT ERRED III. DISMISSING CIRCUIT IN ILLINOIS PRIVACY CLAIM 8 A. As Defendants Concede and the Illinois Supreme Court Has Held, the Privacy Clause Protects the Fundamental Right to Abortion 8 Clause B. to Limit the Scope of the Privacy Effort Is Without Defendants' Support 10 C. The Act Cannot Pass Scrutiny 12 D. The Circuit Court Erred in Dismissing Plaintiffs' Privacy Claim Based on Its Belief That It Could Not Grant Relief for the Constitutional Mistaken Wrongs Demonstrated 14 IV. THE CIRCUIT COURT ERRED IN DISMISSING PLAINTIFFS' ILLINOIS DUE PROCESS CLAIM 17 V. THE CIRCUIT COURT ERRED IN DISMISSING PLAINTIFFS' GENDER EQUALITY CLAIM 19 CONCLUSION 20

3 POINTS AND AUTHORITIES 1 ARGUMENT DISTORT THE LIMITED LOCKSTEP APPROACH DEFENDANTS I. THE CONSTITUTION 1 INTERPRETING TO ILLINOIS Caballes, 221 111. 2d 282 (2006) 1,2 People v. v. Nesbitt, 111. App. 3d _ (2nd Dist. 2010) 1 People 938 N.E.2d 600, _ v. 163 III. 2d 414 (1994) 2, 3 McCauley, People v. Ellwood, 141 111. 2d 244 (1990) 2 Rollins Comm. for Rights v. Edgar, 174 111. 2d 1 (1996) 2, 3 Educ. v. 171 111. 2d 475 (1996) 2,3 People Washington, THE CIRCUIT COURT ERRED IN DISMISSING PLAINTIFFS' II. PROTECTION CLAIM 3 EQUAL 4 v. Twp, 167 111. Herzog (1995) Lexington 2d 288 Zbaraz v. Madigan, 572 F.3d 370 (7th Cir. 2009) 4 Nowakv. St. Rita High Sch., 197 111. 2d 381 (2001) 4 Comm. for Rights v. Edgar, 174 111. 2d 1 (1996) 4, 5, 6 Educ. v. 450 U.S. 398 (1981) 5 H.L. Matheson, v. Minnesota, 497 U.S. 417 (1990) Hodgson 5 San Indep. Sch. Dist. v. Antonio 411 U.S. 1 (1973) 5 Rodriguez, People v. Caballes, 221 111. 2d 282 (2006) 5 Aid, Family v. Dep V of Public League 112 111. 2d 449 (1986) 6 Life Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) 6 Harris McRae, 448 U.S. 297 (1980) 6 v. Maher v. Roe, 432 U.S. 464 (1977) 6 People v. Kohrig, 113 111. 2d 384 (1986) 7 ii

4 Cutinello v. 161 111. 2d 409 (1994) 7 Whitley, v. McCabe, 111. 2d 338 (1971) 7, 8 People 49 CIRCUIT III. IN DISMISSING PLAINTIFFS' COURT ERRED THE 8 CLAIM ILLINOIS PRIVACY Defendants Concede and the A. Supreme Court Has Held, the As Illinois Clause Protects the Fundamental Right to Abortion 8 Privacy League v. Dep 't of PublicAid, 112 Family Life 2d 449 (1986) 8, 9 111. Roe Wade, 410 U.S. 113 (1973) 9 v. rel. State ex Stephan v. Harder, 641 P.2d 366 (Kan. 1982) 9 Medical Association v. State, 27r4 N.W.2d 84 (Minn. 1978) 9 Minnesota Defendants' B. Scope of the Privacy Clause Is Effort to Limit the Support Without 10 In re LakishaM., 227 111. 2d 259 (2008) 10 People v. Caballes, 221 111. 2d 282 (2006) 10 Kunkel v. 179 III. 2d 519 (1998) 10 Walton, 2d v. Works, 179 111. Mack 367 (1997) 10 Best Taylor v. Nesbitt, 938 N.E.2d 600, _ 111. App. 3d_ (2nd People 2010) 10 Dist. 3 Illinois Constitutional Convention, Record of Proceedings 11,12 Sixth Sixth Illinois Constitutional Convention, Record of Proceedings 11 6 People v. Kohrig, 113 111. 2d 384 (1986) 11 112 Family v. Dep't of Public Aid, League 111. 2d 449 (1986) 11 Life People v. Washington, 171 III. 2d 475 (1996) 11 People Krueger, 175 111. 2d 60 (1996) 12 v. Planned Parenthood of Cent. N.J. v. Farmer, 762 A.2d 620 (N.J. 2000) 12 in

5 Stallman v. 125 111. 2d 267 (1988) 12 Youngquist, 260 111. 12 In re Baby Boy Doe, App. 3d 392 (1st Dist. 1994) Act C. Scrutiny 12 Cannot The Pass Caballes, 111. 2d 282 (2006) 13 v. People 221 111. In re a Minor, (1992) 13 149 2d 247 Parenthood Cent. N.J. v. of 762 A.2d 620 (N.J. 2000) 13 Planned Farmer, Family Life League Dep 7 of PublicAid, 112 111. 2d 449 (1986) 13 v. 260 III. App. 3d 392 (1st Dist. 1994) 13 In re Baby Boy Doe, v. Walton, 111. 2d 519 (1998) 13 Kunkel 179 153 13 2d449(1992) Ryan, 111. Kingv. v. People 49 111. 2d 338 (1971) 14 McCabe, The Circuit Court Erred in D. Plaintiffs' Privacy Claim Based on Dismissing Its Belief That It Could Not Grant Mistaken for the Constitutional Relief Wrongs Demonstrated 14 Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006)... 14, 15 In re D, 349 III. App. 3d 941 (2nd Dist. 2004) 15, 17 Amanda 197 2d 317 (2001) 15 InreH.G., 111. Re Branning, 285 111. App. 3d 405 (4th Dist. In 16 1996) Planned of Se. Pa. v. Parenthood 505 U.S. 833 (1992) 16 Casey, Zbaraz v. Madigan, 572 F.3d 370 (7th Cir. 2009) 17 PLAINTIFFS' IV. COURT ERRED IN DISMISSING CIRCUIT THE ILLINOIS DUE PROCESS CLAIM 17 People v. Washington, 171 III. 2d 475 (1996) 18 People McCauley, 163 111. 2d 414 (1994) 18 v. 3 Sixth Illinois Constitutional Convention, Record of Proceedings 18 iv

6 Family Life v. Dep't of Public Aid, 112 III. 2d 449 (1986) 18 League PLAINTIFFS' V. COURT ERRED IN DISMISSING CIRCUIT THE GENDER EQUALITY CLAIM 19 Lane v. Lane, 35 III. App. 3d 276 (1st Dist. 1975) 19 Erickson Board of Educ, Proviso Twp. High Sch., 120 111. App. 3d 264 v. (1st Dist. 1983) 19 Higgins 19 New Balance Athletic Shoe, Inc., 194 v. 252 (1st Cir. 1999) F.3d

7 ARGUMENT Plaintiffs' allegations demonstrate that the Parental Notice of Abortion well-pled Act of 1995 without justification, burdensome and discriminatory (the "Act") imposes, choose fundamental right to on pregnant minors who to exercise their requirements abortion. Defendants have not disputed a single fact, nor do they contend that the not well-pled. Instead, Defendants put allegations are unprecedented somehow forth the Constitution's Privacy, view that Illinois courts, presented with claims under the Illinois Equal Protection, Due Process and Gender Equality Clauses, must blindly adhere to the results of federal cases interpreting federal due process rights, without any independent See Brief of analysis of the Illinois claims. ("D.Br.") at 11-13. Defendants-Appellees Neither the power the Illinois judiciary to interpret the state Constitution nor the of of constitutional rights the people of this state is so anemic. DEFENDANTS DISTORT THE LIMITED LOCKSTEP APPROACH TO I. THE ILLINOIS CONSTITUTION. INTERPRETING the limited lockstep Under to interpreting the Illinois Constitution, approach unique provisions, such as the Privacy Clause, are interpreted without reference to federal law. See v. Caballes, 221 111. 2d 282,289 (2006); People v. Nesbitt, 938 N.E.2d People 111. Dist. __ (2nd 600, 604, _ 2010) ("[T]he fact that article I, section 6's search App. 3d with seizure and read in limited lockstep provision the fourth amendment to the federal is constitution does not require that the privacy clause of our constitution must be (emphasis interpreted with federal law.") accordance omitted). Thus, while Defendants in urge this Court to relegate Illinois' privacy protections to the status of the court created of federal right premised on the penumbras privacy the federal Bill of Rights, Illinois

8 precedent requires of Illinois' unique and explicit Privacy Clause, interpretation by federal law. unlimited contrast, a provision of the Illinois Constitution has a counterpart in the Where, by the Illinois Constitution, the of U.S. Constitution, Illinois courts look to the language intent and state tradition, history and values to assess whether and how to drafters' provision into their analysis of the Illinois incorporate precedent interpreting the federal generally apply 221 2d at 289-314. While Illinois courts Caballes, constitutional right. 111. the same analysis and standards as the U.S. Supreme Court in these situations, they are of Illinois law not bound by federal case results, nor do they dispense with all analysis role federal precedent will play, as Defendants and the See People v. McCauley, urge. 163 2d 414,436 (1994) ("in the context of deciding State guarantees, Federal 111. are the precedential ly controlling; they merely guide authorities interpretation of State not ("While Rollins Ellwood, 141 III. 2d 244,275 (1990) law"); this court may ... look for v. guidance and inspiration to constructions of the Federal due process clause by the Federal courts, the conclusions on how the due process guarantee of the Illinois Constitution final v. be are for this court to should see also Comm. for Educ. Rights construed draw."); Edgar, 111. 2d 1,32-40 (1996) 174 extensive independent analysis of state (performing equal protection claim even though U.S. Supreme Court had rejected a similar federal equal protection People v. Washington, 171 111. 2d 475,480-89 (1996) claim); law extensive of federal and state (conducting and concluding that Illinois due analysis process rights were more protective than federal). Finally, argument that limited lockstep somehow means federal due Defendants' process see, are dispositive of all of Plaintiffs' Illinois constitutional claims, decisions

9 e.g., D.Br, 11-12, fails under leading Supreme Court precedent. For example, in at federal precedent dictated that neither the Eighth Amendment nor federal Washington, procedural due process encompassed a right to bring post-conviction, free-standing innocence. Yet, that fact did not bar the Illinois Supreme of Court's claims consideration claims. Rather, the Court constitutional each Illinois constitutional state of evaluated claim at issue and concluded that Illinois provided procedural and substantive due not afforded process federal law. 171 111. 2d at 485-89. protection under in the Illinois Supreme McCauley, upheld waiver of a Similarly, Court right to counsel under federal Fifth Amendment precedent but conducted defendant's an independent under Illinois' comparable right against self incrimination. And, analysis federal holding precedent supported departure from Illinois law under article I, after that 10, the Court pursued a section evaluation of Illinois due process principles, separate which, concluded, led to the distinct result it the defendant's waiver was not that constitutionally valid. 163 III. 2d at 440-45; see also Comm. for Educ Rights, 174 111. 2d 1 (notwithstanding Supreme Court rejection of federal equal protection claim, U.S. education Supreme claims under Illinois evaluates article and Equal Illinois Court Clause). There simply is no Illinois Protection to support Defendants' position precedent that, federal courts have upheld since involvement statutes on federal due parental process grounds, each of Plaintiffs' Illinois constitutional claims is barred. II. THE COURT ERRED IN DISMISSING PLAINTIFFS' EQUAL CIRCUIT CLAIM. PROTECTION Plaintiffs have demonstrated, the As court erred in applying collateral circuit estoppel to their Illinois equal protection claim. Brief of Plaintiffs-Appellees ("P.Br.") at show 36-40. do not even attempt to Defendants that identical issues, actually litigated and

10 decided in a prior action, are again before the court, as they must for collateral estoppel to apply. v. Lexington Twp., 167 III. 2d 288,295 (1995). Indeed, they concede See Herzog ot Zbaraz Madigan, that no equal protection claim was "actually litigated" at any phase v. D.Br, at 40 ("[the plaintiffs] never saw fit to 572 F.3d 370 (7th Cir. 2009). See Zbaraz protection] equal before the district court or on appeal in the Seventh [an litigate claim concession defeats their claim and the circuit court's ruling, for Circuit"). Defendants' collateral unlike resjudicata, estoppel does not apply to matters that could have been, but 197 litigated. v. St. Rita not Sch., Nowak 111. 2d 381, 390 (2001).1 were High arguments on the merits are equally unpersuasive. Defendants do not Defendants' that the Act creates two classes of pregnant teens and discriminates based on dispute Plaintiffs' of right. Nor do they dispute abortion allegations showing that the exercise the discriminatory treatment of teens who choose abortion is Act's justification. without Rather, argument rests on a cramped conception of Illinois' their lockstep limited doctrine which would bar consideration of state constitutional claims. Although the "analysis applied" when evaluating equal protection claims is the same under the U.S. and Illinois Constitutions (e.g., classifications based on race are both 111. to Comm. for Educ. Rights, 174 scrutiny), 2d at 33 (internal quotations subject strict Illinois courts do not, as Defendants omitted), blindly reach the same result as contend, The Circuit's decision on federal due Seventh grounds, in no way resolved the process central question of Plaintiffs' equal protection claim: the constitutionality of allowing minors who their pregnancies to make all medical decisions while imposing continue safer restrictions those who choose the far harmful abortion option. No party presented on such arguments to the Seventh Circuit and nothing in the court's decision suggests that it at considered decided them. Compare D.Br, or 40 with Zbaraz, 572 F.3d 370.

11 the federal Id. at 33-40.2 For example, in assessing a state equal protection claim courts. Committee for Rights, the Illinois Supreme Court acknowledged that the in Educational U.S. Supreme Court had rejected a similar challenge to Texas' school funding scheme on federal equal protection grounds; the U.S. Supreme Court had held that education was not a fundamental funding scheme right for purposes of equal protection and Texas' federal San Antonio lndep. Sch. Dist. v. Id. survived rational basis review. at 33-34 (citing U.S. 1 (1973)). If Defendants' view of the limited lockstep doctrine were Rodriguez, 411 correct, this would have marked the end of the Illinois Supreme Court's analysis and to its decision.3 Instead, the Court performed a separate analysis would have dictated whether education was a fundamental right under the Illinois Constitution and determine in contrast to federal constitutional precedent, entitled to strict scrutiny. Id. thus, 34-37. at Finding no Illinois right to education, the Court conducted a rational basis fundamental While considering federal Rodriguez decision persuasive, the Court review. the performed extensive analysis before reaching its conclusion upholding nonetheless an funding scheme. Id. at 37-40. That analysis Illinois' have been unnecessary, and would This is doomed in any event, because the U.S. Supreme argument has never ruled Court on an equal protection challenge to a parental involvement law. See D.Br, at 44 (acknowledging that H.L. v. Matheson, 450 U.S. 398 (1981) was "not squarely addressing an equal [claim]"); cf id. at 41 (describing Hodgson v. Minnesota, 497 U.S. protection claims (1990), sustained a notice law "against having that included an equal 417 as challenge," but failing to acknowledge that the equal protection claim that had protection been the lower court was not before the before Court, id. at 433 n.19); see also Supreme P.Br, at 42-43 & 43 n.21. Moreover, for the reasons explained in Plaintiffs' opening brief, on the court cases Defendants cite, see D.Br. 41-45, are neither binding federal lower Illinois see P.Br, at 43, norof any courts, value. Id. at n.20. persuasive Defendants appear to conflate the limited lockstep and lockstep approaches. See lockstep Caballes, 2d at 307 ("Under the 111. approach, the state constitutional 221 analysis begins and ends with consideration of the U.S. Supreme Court's interpretation of the textual provision at issue.") (internal quotations omitted).

12 indeed inappropriate, Defendants were correct that federal court decisions upholding if involvement laws did not even rule on equal protection grounds) deprive parental (which evaluate this Court of its ability to claim. See D.Br, a state equal independently protection at 41-42. fundamental Because the Act classifies minors based on how they exercise the right to abortion, and because the Illinois Supreme Court reviews classifications affecting fundamental rights under a strict scrutiny standard, the Act is subject to such scrutiny. See Comm. for Educ. Rights, 174 111. 2d at 35 (fundamental see also 17-19,46-47; P.Br. at by Illinois Constitution "include the expression of ideas, participation rights protected in political travel among the states and privacy with regard to the most intimate the process, Dep't personal life"); Family Life League v. of one's of Public Aid, 112 111. and aspects 449,454 (1986) (fundamental right to abortion 2d Illinois Constitution).4 And, this under is a of scrutiny the Act cannot survive. P.Br, at 24-31,41-42. level an attempt evade strict scrutiny, Defendants make the extreme argument that the In to argument implicates right. D.Br, at 42. Their fundamental appears to be based on Act no tautology that an abortion the implicates a fundamental right and therefore is restriction subject strict scrutiny only if the restriction is unconstitutional. For example, to fundamental Defendants a "regulation implicates a that right" only if it "imposes an claim undue burden on a woman's ability" to have an abortion. Id. But this is not even a correct statement of law, no less Illinois law. Under federal law, undue burden is the test federal type whether is unconstitutional - it is not some restriction of threshold trigger that a of a must meet before it is subjected to heightened scrutiny. See, e.g., Planned restriction of Pa. Parenthood v. Casey, 505 U.S. 833, 878 (1992) ("An undue burden exists, and Se. purpose therefore of law is invalid, if its provision or effect is to place a substantial a obstacle in the path ofa woman " (emphasis added)); see also id. at 877 (explaining that undue burden standard is "shorthand" for the conclusion that a restriction is (1980) Nor v. McRae, 448 U.S. 297 Harris and Maher v. Roe, 432 unconstitutional). do U.S. (1977), help. There, the U.S. Supreme Court held that because the choice not to 464 fund abortions through Medicaid simply '"made childbirth a more attractive alternative .. was ., [ ] imposed no restriction on access to abortions that was not already there,'" it but U.S. subject rational basis review. Harris, 448 to at 314 (quoting Maher, 432 U.S. at

13 But regardless, the Act cannot satisfy even lower tier rationality review. The allegations establish that abortion is safer than continuing a pregnancy; that minors who of procedures that are choose to remain pregnant are permitted to consent to a whole host far riskier than abortion; that minors are capable making informed decisions; and that of all legislature's of purported justifications apply with equal or greater force to minors the who exercise these same rights by choosing to continue a pregnancy and have a child. Faced with these facts, P.Br, resort to arguing that the Court at 8-13,26-30.5 Defendants the Act because a legislator might irrationally believe should to all the uphold - contrary evidence abortion is available - that than a pregnancy to dangerous continuing more argument makes a mockery term. real science and Illinois' guarantee of equal But this of protection. Defendants' argument fails to differentiate between a statute based on speculation," D.Br, at 46 "rational Cutinello v. Whitley, 161 111. 2d 409 (1994)), (quoting which be upheld under rational basis review, and a statute based on specious and may See facts, survive even deferential review. cannot People v. McCabe, discredited which 111. 2d 338,341-350 (1971). As the Illinois Supreme Court 49 held, even under has rational review, "there is a judicial obligation basis insure that the power to classify has to not been exercised arbitrarily " Id. at 341. Specifically, a court must "judge whether 474). Here, "restriction on access to abortions that was not the Act is clearly a direct there." already 5 true must all well-pled allegations This take notwithstanding amici efforts to Court as them. See P.Br, at 16; see dispute People v. Kohrig, 113 111. 2d 384,406 (1986) also (striking of amicus brief, because portions safety statistics relied on [therein] "certain were not presented in the trial courts"); contrast Brief Amicus Curiae Stewart Umholtz, et Defendants' al. Amicus Curiae Brief of Illinois Legislators. In any event, 36-37; at amicVs here on methodologically reliance studies, unsupportable statistics, and unsound distortions of the relevant issues, see amicus curiae Brief of American College of way Obstetricians et al., in no Gynecologists, undermines the well-pled allegations, and 8-13,26-30. on the most comprehensive scientific evidence. See id.; P.Br, at based

14 the data presently available provides basis for the... classification," id. at a reasonable and where not, the law must fall. Id. at 350. 342, it does demonstrate, there is no rational, let alone As the allegations here overwhelmingly basis for requiring parental notification for minors who choose abortion compelling, of minors who continue their pregnancies. See at 26- while not requiring the same P.Br, 30. Accordingly, whether the test is rational basis or something more exacting, the Act teens seeking abortion equal protection of the laws.6 denies pregnant CIRCUIT III. ERRED IN DISMISSING PLAINTIFFS' THE COURT CLAIM. PRIVACY ILLINOIS As Defendants Concede and the Illinois Supreme Court Has Held, the A. Privacy Clause Protects the Fundamental Right to Abortion. argument with respect to Plaintiffs' privacy claim, Defendants' Illinois' that express Clause provides no protection for abortion, is foreclosed both by Privacy Court's own by the Illinois Supreme and decision in Family Life Defendants' admission 112 111. 2d 449. Indeed, as Defendants are League, to concede, in that case, constrained the Attorney General, citing the Privacy Illinois "urged that the right to an Clause, abortion guaranteed by the U.S. Constitution 'was also secured by the drafters of the 1970 Illinois D.Br, at 16 n.3. And in its decision, the Illinois Supreme Constitution.'" agreed. that 111. 2d at 454 (citing Privacy Clause in holding Court "the fundamental 112 right which privacy constitutional encompasses a woman's decision to terminate her of [was] secured by the drafters of the 1970 Constitution"). pregnancy... Notably, Defendants do not contend, as they do with Plaintiffs' privacy claim, that, if this Court an equal protection violation, a "no set of circumstances" test would finds finding require could they, as a Nor that the Act unconstitutionally dismissal. discriminates against one class of minors based on how they exercise their fundamental all right the Act denies equal protection in means of its applications. See P.Br, at 42 n.19.

15 Defendants' arguments avoid Family Life League are unconvincing. As an to matter, Defendants' that Family Life League involved only "public initial contention [private] at D.Br, at 16, is disingenuous of best. While the state information," disclosure Court "public argument, the Supreme disclosure" dismissed it as "impotent" the raised addressing the protections of Roe v. Wade, 410 U.S. 113 (1973), or the before ever Privacy See Illinois 112 111. 2d at 454. Moreover, the state's argument for the Clause. of a fundamental abortion under the Privacy Clause was central to its recognition right to of information about abortion providers would lead to defense that disclosure identifying that would deter physicians from offering abortions, thus depriving women of harassment See access to such care and the ability to exercise their fundamental right. at 454-55. id. Court's Defendants' remarkable assertion that the Supreme statement is dicta that this Court is free to ignore fares no better. This is evident from contrasting the Court's of the state's initial argument - dismissal the disclosure of private information - in about which the Court dismissed the claim without even discussing the right at issue - with its discussion of the state's argument about the infringements on the right to second in the Court clearly identified the right, as well as the source of the abortion, which and only then rejected the claim because it was unsupported by the record. In protection, any event, quibbles the Defendants may have with the depth of the Supreme whatever nor this Court's fact remains that neither Defendants the Court is free to ignore analysis, the Court's holding that the Privacy Clause protects the fundamental right to abortion.7 366 State Stephan v. Harder, 641 P.2d rel. (Kan. 1982), and Minnesota Medical ex Association v. State, 274 N.W.2d 84 (Minn. 1978), "confirm[]" nothing. D.Br, at 16-17. because Those rejected arguments like the state's in Family Life League, cases there was no evidence of harassment. That they failed to evaluate their own states' constitutions

16 B. Defendants' to Limit the Scope of the Privacy Clause Is Without Effort Support. In their effort to avoid their own Family Life concession and the Supreme Court's League decision, Defendants attempt to narrow the Privacy Clause to protection against Even searches and seizures." D.Br, at 14-15. to if Defendants "intrusions unlawful related their own cases repudiate this claim. See argument, were not foreclosed from making this while the Illinois Supreme Court has linked the search and seizure provision id. Indeed, Fourth the it has consistently treated the Privacy Clause as a separate with Amendment, M., independent See, e.g., In re Lakisha right. 227 111. 2d 259,279 and constitutional Caballes, 221 111. 2d at 317.8 As the (2008); of Appeals recently confirmed: Court [T]he that article I, section 6's search and seizure provision is read in limited fact constitution with amendment to the federal fourth does not require lockstep the the privacy clause of our constitution must be interpreted in accordance with that law. federal other words, Caballes does not require application of limited In of analysis determining the parameters when the Illinois Constitution's lockstep privacy provision. Nesbitt, 938 N.E.2d at 604 (emphasis omitted) (Privacy Clause "is broadly written, with no definition the types of privacy intended to be protected").9 limiting addition, Defendants' to limit the Privacy Clause erroneously conflates In effort search distinct three article I, section 6: (1) clauses and seizure in the traditional the of nothing about the meaning says the Illinois Privacy Clause and in no way undermines of the Supreme Court's holding here. Illinois 2d See Kunkel v. 8 179 111. also 519, 537 (1998) (Constitution's protection of Walton, personal privacy "is stated broadly and without restrictions"); Best v. Taylor Mach. Works, 179 2d 367,451 (1997) ("the protections afforded by the Illinois Constitution 111. Federal beyond guarantees of the the Constitution") (internal quotation omitted). go As the Privacy Clause is to be interpreted without regard to federal law, Defendants' involvement effort decisions striking parental distinguish laws under other states' to constitutions that, like Illinois', contain an express right to privacy or inalienable rights clause, D.Br, at 25, also fails. See P.Br, at 27-31. 10

17 sense; (2) the modern of "governmental interceptions of communications"; and problem privacy. 3 Sixth Constitutional Convention, Record of Proceedings (3) the right to Illinois The drafters were clear that the Privacy Clause protected ("Proceedings") at 1523-25. of communications" something more than the "search and seizure" and "interceptions is to clauses, provision id. cover those at 1535 ("[T]he purpose obviously of this covered by the other parts of the proposed section 6"), and that they situations that aren't that would evolve with a changing society. 6 were crafting broad protections Proceedings "infringements on individual of at 31-32 (delegates concerned with the whole range expected would "increase privacy" becomes more complex"). they as our society Defendants' contention that the Privacy Clause provides no protection Nor can against "interference [one's] conduct," D.Br, at 15, be taken seriously. Were with affords right, mean that the Privacy Clause would no protection for a host Defendants it personal and private behavior, including, for of the right of couples to use example, contraception. a result runs directly counter Such the drafters' intention to protect a to "zone of privacy" that includes both "thoughts and highly personal behavior." 6 Proceedings at 32 added).10 (emphasis Illinois' longstanding for reproductive autonomy in its statutes, Finally, support is and see P.Br, at 22-24, law not undermined by long-overturned common tradition, restraints, see D.Br, abortion 21-22." Cf Family Life League, 112 111. 2d at 454; at That Supreme Court refused to protect the the to 'do one's thing' on an "right expressway" in Kohrig, 113 111. 2d at 396 (no Privacy Clause protection for right not to cite wear - the only example Defendants seatbelt) - does not repudiate this clear a statement of the Committee, let alone overrule Family Life League sub silentio. In state tradition and values, Illinois courts include recent cases and examining enactments. See, e.g., Washington, 171 111. 2d at 486 (in breaking lockstep, relied on 11

18 Stallman v. 125 111. 2d 267,278 (1988) (rejecting cause of action by fetus Youngquist, against pregnant woman for prenatal injuries, because such action would invade pregnant woman's "right to bodily autonomy" by subjecting to state scrutiny "all the decisions a Baby Boy Doe, 260 woman must make in attempting to carry a pregnancy to term"); In re (1st Dist. 1994) ("[T]he state right of privacy 111. App. 3d 392, 399 [constitutional] fundamental rights, such as the right to autonomy."). substantive protects reproductive Illinois' rich common law tradition of support for privacy and bodily autonomy, is fully Family Life League's holding that the right to reproductive autonomy is consistent with as fundamental the Constitution's Privacy Clause.12 protected by Act Pass Scrutiny. The Cannot C. no argument to Defendants Plaintiffs' assertion that if the Privacy present rebut protects abortion as a fundamental right Clause which, as shown, it does - government - interference that right is subject to strict scrutiny. Nor do Defendants offer any with scrutiny. to that the Act fails strict showing See P.Br, at 24-31. Thus, rejoinder Plaintiffs' judicial decisions); People v. Krueger, 175 recent 2d 60, 76 (1996) (same). Both 111. Krueger Washington also relied on decisions and other states in deciding whether to from depart from federal law in Illinois. Washington, 171 III. 2d at 489; Krueger, 175 111. 2d at 76. And, Defendants seek to dismiss as irrelevant the New Jersey Supreme Court's while 762 in of Cent. N.J. v. Farmer, Parenthood A.2d 620 (N.J. 2000), decision Planned New Jersey "adopts a looser lockstep approach," D.Br, at 25, the Supreme Court because Krueger on in a decision from the New Jersey high court in departing from federal relied law in that case. Krueger, 111. 2d at 76. 175 to erroneously that Defendants drafters intended argue "give the General Assembly the unfettered authority to regulate abortion." D.Br, at 20. To the contrary, the drafters created constitutional that would limit the legislature and evolve through judicial rights (The interpretation. 3 Proceedings at 1533,1538 e.g., courts will "ultimately [] See, decide what this constitution means"; its meaning will be "subject to interpretation and [] (courts construed to come."); id. at 1379 years look to "community mores and a for growing sense of what constitutes justice" in interpreting constitution); see also P.Br, at 22 n.8. 12

19 since Defendants' sole argument to support dismissal of Plaintiffs' privacy claim is Plaintiffs' privacy claims must be reinstated. foreclosed, the Act were judged under a reasonableness standard, it would if However, even Id. The Privacy Clause provides "a continuum fail. of protections... depending privacy of the on the degree action. Caballes, 221 111. 2d at 322. of intrusiveness" government's justification Thus, the greater the privacy interest infringed upon, the greater the state's In must be. For example, in re a 111. 149 2d 247 (1992), the Illinois Supreme Minor, the identities of minor Court upheld a statute allowing a court to prohibit disclosure of abuse against a challenge based on freedom of the press. The Court recognized of victims under the Privacy Clause, minor victims hada that, interest" in protecting "compelling their from disclosure and concluded that there was no government interest that identities the compelling privacy interest. Id. at 256-57.13 outweighed minors' privacy interest here - the fundamental right to decide, The interference without and from threats, coercion and abuse, free to continue a pregnancy - is clearly whether compelling. See Family Life League, 112 111. 2d at 454; Baby Boy Doe, 260 III. App. 3d at 399. And, courts have routinely invalidated under the Privacy Clause state action Illinois is 537-40 less invasive than the Act. See, e.g., Kunkel, 179 111. 2d at that (striking far statute injury personal down plaintiffs to disclose medical information to requiring 111. party's King v. Ryan, 153 opposing 2d 449,464-65 (1992) (striking down attorneys); statute authorizing breathalyzer test of individual involved in motor vehicle accident). Notably, the Jersey Supreme Court engaged in the same balance of interests New (reasonableness Defendants see Def.Br. at 26 here, determined by "balancing the urge need for official intrusion against the constitutionally protected interest of a private equal citizen"), striking New Jersey's parental notification law on in protection grounds in Farmer, 762 A.2d 609. 13

20 Thus, even if determined that the Act should be judged against Illinois' this Court standard, it would interest in protecting reasonableness fail. While the state has an that the Act harms, rather than minors, the allegations See protects show young women. Brief P.Br. 26-29; see also et. and Gynecologists, American College of of Obstetricians make no attempt to show that the Act in fact advances its purported Defendants al. instead, interests, reiterate its requirements and conclude - without support - but merely "reasonable." that they are Indeed, their sole D.Br, for upholding the Act at 26. argument federal courts have done so. This cannot suffice, for even is that the the governing when standards same, and here they are not, Illinois courts do not blindly defer to are the Court courts' constitutional claims. Rather, this of has an obligation to federal analysis an examination of the facts and independently conduct the claim. See supra at 1- analyze 3. Defendants' argument is entirely Moreover, regard for the varying factual without records among the cases. This distinction is all the more striking where, as here, the Court is bound Plaintiffs' well-pled allegations supported by evidence that did not exist at by time 347 the initial federal decisions. See McCabe, 49 111. 2d at the (rejecting under of basis that argument rational marijuana use leads to heroin addiction because review thesis, once broadly entertained, has recently encountered serious challenge"). "[tjhis D. The Circuit Court Erred in Dismissing Plaintiffs' Privacy Claim Based on Its Mistaken Belief That It Could Not Grant Relief for the Constitutional Wrongs Demonstrated. dismissal, cannot the circuit Defendants support based on the erroneous court's view that it was powerless, as a matter of law, to grant relief for the constitutional cases violations P.Br, at 31-36. As an initial matter, Defendants have no response to here. New like v. Planned Parenthood of Northern Ayotte England, 546 U.S. 320 (2006), 14

21 which demonstrate operates unconstitutionally even that where courts find that a statute of cases," they have an obligation to fashion a remedy. at in a "very small percentage Id. Defendants 328. that there is no constitutional make the circular Instead, argument there at 33. Of there D.Br, remedy if course is no wrong. But that here. violation is no about whether the circuit court was says to deprive Plaintiffs the nothing correct to provethat a exists simply because it believed that Plaintiffs could opportunity wrong that the Act operates unconstitutionally in every circumstance. not show can Defendants distinguish cases showing that Illinois Nor do not rigidly courts adhere the "no set of circumstances" test. See, e.g., D.Br, at 31-32. Defendants do not to that them cases decline to apply the test, but instead attempt to discredit dispute these for assertions they are about whether a with fact can serve as a proxy that predicate another fact or whether the statute's presumed had a proper fit. Defendants classification offer no explanation of why this matters or why such cases would be exempt if, as Defendants suggest, courts rigidly adhered to the no set of circumstances test. Illinois one. these no different from the instant are For example, in In Furthermore, cases Amanda D., 349 111. App. 3d 941 (2nd Dist. 2004), a predicate fact (prior conviction re certain for served as a proxy for another (unfit to parent) without an adequate crimes) contest fit. at 948-50. Some parents could Id. the presumed fact of unfitness constitutional in a best interest hearing, but some who were fit to parent, would nevertheless lose parental rights. Faced with this substantive constitutional wrong, the court struck the Id. would statute face, even though every application its not be unconstitutional. Id. at on 953-54 (burden of proving "that no individual is a member of both the proxy class and also the of unfit parents" is "too high"); see class In re H.G., 197 111. 2d 317, 329-30 15

22 (2001) (facially law that equated child's time in foster care with parental invalidating unconstitutionally in every and unfitness, even though law did not operate circumstance some parents could prove fitness in a best interest hearing). Here, the Act presumes that a of making an informed decision pregnant minor who chooses abortion is incapable involvement, well-pled allegations demonstrate that that without yet, the or court parental See P.Br, at 13, 29-30. Moreover, while of is not the case for the majority young women. prove in a bypass minors that the parental notice requirement should can seek to hearing apply them Oust as the parents in Amanda D. to H.G. could argue fitness in a best not and hearing), the allegations show that even the best run bypass process subjects such interest minors to harms, including medically risky delay, risk of breach of unacceptable and abuse. P.Br, at 10-12.14 confidentiality See of acceptance argument would provide Illinois women Moreover, Defendants' even less protection under the state Constitution than that provided by the with U.S. Supreme which strikes restrictions on abortion in their entirety if they operate Court in unconstitutionally "large fraction of the cases a which [they are] relevant." See in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992). Defendants do not dispute this rule, but argue that, even if Illinois law "offers additional substantive federal test. it room for application of the large fraction no D.Br, at 33 n.6. They rights," provides 14 the court in In Re Branning, 285 111. While 3d 405 (4th Dist. 1996), quotes the no App. set circumstances language, see D.Br, at 32, of does not apply the test and indeed it facially invalidates a law even though there were some, and perhaps many, constitutional applications. In the court held that a statute permitting court authorization of Branning, the electroconvulsive without a finding that (ECT) individual was unable to make therapy a rational decision for himself violated substantive due process on its face, despite that sought some whom authorization for ECT was for would not be able to make individuals decisions for themselves and therefore their substantive due process rights would not be violated. 285 111. App. 3d at 412. 16

23 offer no authority for this proposition and fail to explain how the Illinois Constitution could offer greater rights but lesser remedies to enforce those rights. Defendants' attempt to rely on a Finally, number suggest of that federal cases to "parental involvement laws are well suited to as applied challenges." D.Br, at 32-33 572 F.3d at 388, in which the court comments that an as applied challenge Zbaraz, (citing by "individual women who have and attempted to participate in bypass proceedings found them wanting," would suffice). However, neither Defendants nor these decisions could conceivably provide a remedy for someone who has explainhow such a challenge been by the risks of the bypass process itself- someone who, for harmed inherent of her thrown home afterher parents learned was attempts to access example, out of her bypass process, or someone who was unable the seek and obtain a judicial waiver in to time avail herself of abortion services and was thus forced to carry an unwanted to to challenge The courts' offhand statements that an as-applied pregnancy will term. cannot without of how such suffice, challenge would function in practice, consideration a justify harms that enforcement the the Act will impose.15 of IV. THE CIRCUIT COURT ERRED IN DISMISSING PLAINTIFFS' ILLINOIS DUE CLAIM. PROCESS Illinois circuit in holding that Plaintiffs' erred Due Process Clause The court was collaterally estopped, and when the well-pled facts here claim scrutinized under are Illinois reviewing government interference with a fundamental right, precedent error the of the circuit court's ruling is apparent. Defendants attempt to distinguish Amanda D. by arguing that an as applied challenge But would impossible there. D.Br, at 32-33. been that is precisely the point. As have Ayotte teaches, where as applied reliefis inappropriate or ineffective, a court has an law obligation remedy the constitutional wrong through facial invalidation even if the to one is unconstitutional in every not of its potential applications. 17

24 Illinois courts do not, as Defendants urge, blindly adopt the results of federal due Illinois law and, where of without process cases conducting their own analysis Washington, appropriate, departing from U.S. Supreme Court analysis and results. See McCauley, 111. 2d at 440; supra at 2-4. This alone defeats 111. 163 171 2d at 488-89; at 45-46. See collateral estoppel. P.Br, here would be "fundamentally precedent As to the merits, adherence to federal fail to respect unfair," express right to privacy and would countermand would Illinois' interference fundamental right be reviewed under Illinois precedent dictating that with a drafting See at scrutiny. Moreover, the P.Br, history is consistent with strict 46-47. recognition judicial the abortion right. The delegates resoundingly rejected due process of rights unborn," 3 Proceedings at 1523, and clearly anticipated that constitutional for "the would Id. defined through ongoing judicial interpretation. rights at 1501 (due process be id. on the [S]upreme [C]ourt is doing"); depends at 1533 (courts will "ultimately [] "what decide what this constitution means"); id. at 1538 (Constitution will be "subject to interpretation and construed for years to come"); id. at 1374 (cases will interpret [\ relying sense "community mores and a growing Constitution, of what constitutes on that's - justice due process of law - what the process that's going on, and it constitutes isn't going to stop with our proceedings"). Here, although no specific reference to abortion was in the Due Process Clause, the Illinois Supreme Court has since included fundamental that 1970 Constitution protects "a the constitutional right of privacy held which encompasses a woman's decision of whether to terminate her pregnancy." Family judicial Life 112 III. 2d at 454. This League, interpretation of what rights are fundamental 18

25 under the Illinois Constitution constitutional provisions and, in gives life to the bare the Due Process Clause. of drafters' keeping with the intent, shapes the content CIRCUIT ERRED IN DISMISSING PLAINTIFFS' GENDER THE COURT V. EQUALITY CLAIM. burdens young women who choose to terminate their unconstitutionally The Act pregnancies based on the gender-based stereotype that it is natural or normal for a woman to become a mother, while the decision to end a pregnancy is an unnatural one requiring state intervention. P.Br, at 48-49. Defendants' citation to v. Lane, 35 111. App. 3d Lane 276 (1st Dist. 1975), stereotype-based simply does not stand for the proposition that classifications persons of the same gender are beyond the reach discriminatory between Article I, Section 18. And, Defendants' contention that of VII cases "have no Title bearing on the state gender equality clause," D.Br, at 48, is likewise belied by this Court's precedent. See Erickson v. Board of Education, Proviso Township High School, 120 111. 3d 264 (1st Dist. 1983) (relying on Title VII jurisprudence to resolve a App. the brought Article I, Section 18). Because under burdens the Act places on young claim women who choose to have abortions are rooted in "stereotyped expectations" about how New women to behave, Higgins v. supposed Balance Athletic Shoe, Inc., 194 and girls are F.3d 252,261 n.4 (1st Cir. 1999), the Act discriminates on the basis of gender in violation of Article I, Section 18. 19

26 CONCLUSION For the reasons stated in Plaintiffs' opening brief and herein, Plaintiffs court's judgment and remand for request that this Court reverse the circuit respectfully proceedings.l6 further Dated: January 25,2011 Respectfully submitted, CJlftjt^ One of the Attorneys for Plaintiffs- Appellants 1-10-1463 in Lorie Chaiten A. Kathleen L. Roach Dalven Jennifer Bartelt Leah Niewoehner B. Rachel Kolbi-Molinas Alexa Krista Stone-Manista* Geeta Malhotra Civil Liberties American Roger Baldwin Foundation Sidley Austin LLP Union Foundation ACLU, Inc. of One Dearborn South (pro hac vice) 180 N. Michigan Avenue Street Floor Broad 125 18th Street, Suite 2300 Chicago, IL 60603 York, 10004 New NY Chicago, IL 60601 (312)853-7000 (212)549-2500 (312)201-9740 California to the Bar in the ♦Admitted of State unrebutted also that, based on the request proof submitted in Plaintiffs respectfully of Plaintiffs' Motion for support Restraining Order and Preliminary Temporary Injunction App'x of Plaintiffs-Appellants, Vol. (Separate at A93-29I), this Court 2, continue during remand, should it rule in favor of Plaintiffs in this appeal, the temporary continued restraining by the circuit court and entered by stipulation of the parties, order which is set to expire upon this Court's ruling. (Record on Appeal, Vol. 5, at COl 144.) 20

27 CERTIFICATE OF WITH SUPREME COURT RULE 341(c) COMPLIANCE I certify that this brief conforms to the requirements Rules 341(a) and (b). The of length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule compliance, of points and authorities, the Rule 341(c) certificate of 341(h)(1) statements of service, and those matters to be appended to the brief under Rule 342(a), the certificate is 20 pages. fylAj fJn*J= Lorie Chaiten One of the Attorneys for Plaintiffs- Appellants in 1-10-1463

28 CERTIFICATE OF SERVICE 25,2011,1 I hereby certify that on January caused true and correct copies of the of in No. 10-1463 to be served by the Reply Plaintiffs-Appellants foregoing Brief following methods upon: Three U.S. Mail, postage prepaid: Copies By Priority Defendants-Appellees for Attorneys Proposed Intervenors- Attorneys for Attorney Lisa Madigan, General Appellants in No. 10-1576 Scodro, A. Solicitor General Thomas Brejcha Michael Notz, Deputy Solicitor General Elinor Jane Breen Peter Assistant Attorney General Brett E. Legner, Thomas Society More Illinois Attorney General's Office 29 S. 440 Suite Street, LaSalle James Center Thompson R. Chicago, IL 60603 Floor West Randolph Street, 100 12th Chicago, IL 60601 One Copy By Priority U.S. Mail, postage prepaid: Additional counsel for Proposed Intervenors-Appellants Paul Benjamin Linton, Special Counsel Thomas More Society Keystone Avenue 921 Northbrook, 60062 \ IL Iffy £/i*fc= Attorneys for Plaintiffs- Ofo0/6fthe in No. Appellants 10-1463 Lorie A. Chaiten Dalven Jennifer Bartelt Leah Kolbi-Molinas Alexa Stone-Manista* Krista American Foundation Union Liberties Civil ACLU, Inc. of Roger Baldwin Foundation (pro hac vice) 180 North Michigan Ave., Suite 2300 125 Broad Street, 18th Floor Chicago, IL 60601 New York, NY 10004 (312)201-9740 (212)549-2500 ♦Admitted to the Bar in the State of California Kathleen Roach L. Rachel B. Niewoehner Geeta Malhotra Sidley Austin LLP One South Dearborn Street Chicago, Illinois 60603 (312)853-7000

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