A federal appellate court in Chicago heard oral arguments on April 10 in a case challenging an Illinois law that requires pro-life physicians and pregnancy centers to provide patients with referrals to abortion providers upon request.
The issue is significant because it concerns the balance between state requirements for medical professionals and protections for free speech and conscience rights. The outcome could affect how similar laws are enforced across the country.
Erin Hawley, counsel for Alliance Defending Freedom, appeared before a three-judge panel of the Seventh U.S. Circuit Court of Appeals to argue against the law on behalf of pro-life physicians and pregnancy centers. The case, Shroeder et al v. Treto Jr., focuses on a provision left intact by U.S. District Judge Iain D. Johnston after his split decision one year ago.
Judge Johnston previously struck down part of Illinois’ 2016 Health Care Right of Conscience Act that required pro-life practitioners to share information about “the benefits of abortion” following an ultrasound or risk losing their conscience protection rights. However, he upheld another amendment that attorneys from the Thomas More Society said undermined those protections by requiring referral for abortion services. Johnston wrote that this provision “merely regulates professional conduct, instructing clinicians, upon request, to either refer or transfer a patient to another physician, or at least provide her with a list of potential providers,” arguing it does not “compel speech.” A preliminary injunction blocking enforcement has been in place since 2017.
Hawley said outside court that she believes the district court was wrong regarding referrals: “The district court found that a referral was conduct (behavior), but, of course, it’s speaking words.” She added: “It also conveys a message — as the pregnancy center experts expressed at trial — that the person you’re recommending is capable of performing the surgery and it vouches for them… So we think…that referrals are…speech that are protected by the First Amendment.” Hawley further argued refusal to refer should be protected under free speech rights.
She also expressed hope for success based on a recent Supreme Court ruling which found Colorado’s ban on conversion therapy unconstitutional due to free speech concerns. In Chiles v. Salazar decided March 31, justices ruled talk therapy related to sexual orientation change efforts was protected as free speech.
Patrick Gillen, senior counsel at Thomas More Society representing Dr. Ronald Schroeder and two pregnancy support organizations in Illinois since filing suit in 2017, said he hopes judges will recognize similarities between this case and recent Supreme Court decisions like Chiles v. Salazar: “There’s no more telling sign of a society and a culture in crisis than the effort to suppress dissent,” Gillen said.
Gillen indicated they are prepared to take their challenge all the way to the Supreme Court if necessary: “With these cases…it becomes vitally important to push back against what I call a totalitarian impulse on the part of state [governments]…on matters of life and death importance.”
