Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil case The Hope Clinic for Women, Ltd., v. Flores and the criminal case People v. Lacy.

CIVIL

The Hope Clinic for Women, Ltd., v. Flores

By Alyssa M. Reiter, Williams, Montgomery & John Ltd.

The Illinois Supreme Court has upheld the constitutionality of the Parental Notice of Abortion Act of 1995 (generally, but with certain exceptions, prohibiting a physician from performing an abortion upon an unemancipated minor unless notice is given to an adult family member) against challenges that it is facially invalid, violating the privacy, due process, equal protection, and gender equality clauses of the Illinois Constitution of 1970. 

The parties agreed that a right to abortion exists under the Illinois Constitution but disputed whether that right arose from the privacy clause (which is in the state constitution but not the federal constitution) or from the due process clause.

The Court reviewed the history of the privacy clause and determined that any right to abortion in Illinois “is clearly not grounded in the privacy clause of our state constitution.” 

The Court then considered whether a right to abortion derives from Illinois’ due process clause.  The Court applied the “limited lockstep” doctrine, whereby when provisions of our state constitution are nearly identical to those of the federal constitution, our Court will depart from the United States Supreme Court’s construction of the provision only if there is indication that the provisions of the state constitution were intended to be construed differently.  The Court undertook that analysis and concluded that our state due process clause provides protections regarding abortion equivalent to those provided by the federal due process clause.

The Court then addressed whether the 1995 Act violates a woman’s right to an abortion.

As to the privacy clause claim, the Court agreed that the notice provision interferes with the minor’s right to keep medical information confidential.  However, “plaintiffs cannot show that the Act’s intrusions on a minor’s privacy are unreasonable -- at least not in all cases, which is all that is necessary to defeat a facial challenge.”  The Court found the Act narrowly crafted to achieve its aim of promoting minors’ best interests through parental consultation.

In construing the due process challenge, the Court considered at length the effect that a Seventh Circuit opinion upholding the 1995 Act from a federal constitutional challenge had on this state constitutional challenge.  Although the due process clauses are parallel, and although Illinois follows the limited lockstep approach, it does not abandon its judicial function.  Further, a Seventh Circuit opinion is merely persuasive not binding on the Illinois Supreme Court. After considering the due process issue on its merits, however, the Court found no reason to depart from lockstep and adopted the reasoning of the United States Supreme Court in holding that the 1995 Act does not violate due process or equal protection.

The Court also rejected the various arguments as to how the Act allegedly violated the gender equality clause. 

While Justice Thomas concurred in the finding that the Act is not unconstitutional, he wrote separately to disagree with the conclusion that the due process clause of the Illinois Constitution contains a right to abortion coextensive with the right to abortion in the federal constitution.

CRIMINAL

People v. Lacy

By Kerry J. Bryson, Office of the State Appellate Defender

In a case of first impression, the Court was called upon to interpret a portion of the Speedy Trial Statute, specifically 725 ILCS 5/103-5(c). Section 103-5(c) provides, in relevant part, that "the court may continue the cause for not more than an additional 60 days" where "the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day."

The Court was confronted with the question of whether the State is limited to a total of 60 days worth of continuances under the statute or whether the State may obtain multiple continuances totaling more than 60 days, so long as no single continuance individually exceeds 60 days. The Court looked to the plain language of the statute and concluded that the use of the phrases "such evidence"  and "that evidence" made it "clear that the 60-day time period is tied to the specific evidence for which the continuance is being sought." Thus, each continuance under the statute may be for a term of not more than 60 days; there is no 60-day-total limitation. Had the legislature intended that the State be limited to no more than 60 days total, it could have said so according to the Court.

The Court went on to note that the requirements of the statute -- that the evidence be material, that the State demonstrate its exercise of due diligence in attempting to obtain the evidence, and that there are reasonable grounds to believe the evidence will be available later -- safeguard against the State unnecessarily prolonging a case. In fact, the Court noted that if the State is aware that two different witnesses are unavailable, due diligence requires the State to disclose the unavailability of both in a single request for continuance; the State cannot piggyback one continuance onto the other in such a situation. The Court also explained that its holding satisfied the constitutional speedy trial rights because the inability to obtain the testimony of a material witness or to obtain material evidence is a "presumptively valid reason for delay."

Justice Garman dissented, expressing her belief that the majority's interpretation of the statutory language was incorrect. Justice Garman concluded that the phrase "not more than an additional 60 days" is ambiguous, allowing the Court to go on to consider the purpose of the statute. Contrary to the majority's conclusion, Justice Garman opined that had the legislature intended to provide a 60-day continuance for each witness and each item of evidence, it could have stated as much in the statute. Justice Garman found it "telling" that the legislature had not included such a provision.

Under the Court's opinion, multiple 60-day continuances are available to the State under section 103-5(c). It remains, however, that such continuances may only be granted if the State can meet the stringent requirements of the statute -- demonstrating materiality, due diligence, and reasonable grounds to believe the evidence will be available on a later day -- for each witness and item of evidence for which a continuance is sought.