Credit: Illustration by Verónica Martinez for Injustice Watch

This story was originally published by Injustice Watch, a non-partisan, not-for-profit, multimedia journalism organization based in Chicago.

CHICAGO — For more than half a century, Democrats have held control of the Illinois Supreme Court, but abortion-rights advocates fear that if Republicans win both contested seats on the Nov. 8 ballot, the state’s status as a Midwest safe haven for abortion access could be at risk.

After the landmark 1973 Roe v. Wade ruling was overturned in June by the U.S. Supreme Court, the legality of abortions became a matter for states to decide.

If Democrats lose their 4-3 majority on the Illinois Supreme Court, abortion-rights advocates raised concerns that a Republican majority on the state’s highest court threatened some of the most comprehensive reproductive health care rights in the country.

Among the most at risk could be teenagers, especially those of color, who face the most obstacles to obtaining an abortion, advocates said.

The most vulnerable law, advocates said, could be the Youth Health and Safety Act, which was signed into law last year and repealed a state law requiring that people younger than age 18 notify a parent or legal guardian at least 48 hours before receiving an abortion. A Republican majority on the state supreme court could increase the chances of a successful court challenge of the repeal, they cautioned.

Anti-abortion organizations also have pending lawsuits challenging other expanded abortion policies, including at least one that might be heard after the November election.

“I think that we should always be concerned that anti-abortion organizations in Illinois are seeking to undo the progress that we have made in recent years,” said Emily Werth, a senior staff attorney at the ACLU of Illinois whose work focuses on women’s and reproductive rights.

“We thought precedent and settled law would protect Roe v. Wade, but clearly it did not,” said Illinois State Rep. Anna Moeller, D-Elgin. “We can’t assume that they would be protected at the state level, as well.”

Redrawn state supreme court districts shake up race

The contested state supreme court races are taking place in the 2nd and 3rd districts, both traditional Republican strongholds whose electoral maps, however, were redrawn last year by Democratic officials for the first time in more than 50 years, leaving them concentrated in the Chicago suburbs.

“They’re actually both fairly balanced districts,” said Albert Klumpp, a judicial elections analyst. “A strong candidate from either party could win in either district.”

The most significant move of the remap shifted DuPage County into the 3rd District from the 2nd District. As a result, Lake, Kane, McHenry, Kendall, and DeKalb counties make up the 2nd District. Democrats have carried all those counties but McHenry in elections since 2016.

The new 3rd District includes DuPage, Will, Kankakee, Grundy, Iroquois, LaSalle, and Bureau counties.

In the 2nd District, the Democratic candidate, Lake County Judge Elizabeth Rochford, faces Republican Mark Curran, a former Lake County sheriff, for an open seat created as part of the redistricting.

Justice Michael Burke, a Republican appointed to the Illinois Supreme Court’s 2nd District seat when Justice Bob Thomas retired in 2020, faces Democrat Mary Kay O’Brien, an appellate court judge and a former state representative, in the redrawn 3rd District.

Rochford and O’Brien have won endorsements from abortion-access advocacy organizations, such as Planned Parenthood Illinois Action, the Illinois National Organization for Women, and Personal PAC. On the other hand, Curran and Burke were each rated “qualified” in a voter guide from Illinois Right to Life Action, an anti-abortion lobbying and activist organization.

Curran has been vocal about his anti-abortion stance on social media. During his losing bid to unseat Democratic U.S. Sen. Dick Durbin in 2020, he voiced support in a Facebook post for the anti-abortion movement before an upcoming U.S. Supreme Court hearing. And earlier this year on the day that Roe was overturned, Curran posted several photos showing him with a leading anti-abortion leader in Illinois.

In an interview with Injustice Watch, Rochford criticized Curran for having no judicial experience and for what she called his “very strong political agenda.”

“I think the combination of those two things is dangerous because they’re going to put you in a position where you don’t have the requisite experience and have a focus on an agenda, on accomplishing certain things,” Rochford said.

Curran did not return repeated messages seeking his comment.

Curran did not take part in bar association evaluations, leading to automatic not-recommended ratings from the Illinois State Bar Association, the Lake County Bar Association, and the DuPage County Bar Association.

But his name recognition from his time as sheriff and statewide run for the U.S. Senate could give him a leg up over Rochford, a longtime county judge, according to Klumpp.

“Most voters know little or nothing about judicial candidates,” Klumpp said. “So the partisan judicial contests that appear on November ballots are overwhelmingly decided simply by party identification.”

O’Brien’s campaign has accused Burke of having anti-abortion ties. An ad funded by her campaign committee painted Burke as being “supported by extreme groups that want to ban abortion for all Illinois women.”

Ethics laws prohibit judicial candidates from publicly disclosing their stances on issues that they may have to decide on from the bench. But O’Brien said she views her endorsements from groups that support abortion access and other issues as a way for her to communicate her values.

“There isn’t a lot we can say about ourselves, so you have to depend on advocacy through the groups that have interviewed you,” O’Brien told Injustice Watch. “I am proud of the endorsements that I have.”

While Burke’s campaign website does not list endorsements from specific anti-abortion advocacy groups, it does show support from dozens of local elected officials who have expressed anti-abortion views. O’Brien, meanwhile, touts endorsements from Illinois-based abortion advocacy organizations, such as Planned Parenthood Illinois Action and Personal PAC.

Facebook post from April shows Burke attending the Illinois Right to Life’s Leaders for Life Banquet, an event sponsored by several Catholic and local organizations, including the Thomas More Society, a Chicago-based law firm that filed a pending lawsuit seeking to limit insurance coverage of abortions in Illinois.

Burke could not be reached for comment, but in a July interview, he acknowledged that he was an “originalist” while discussing the overturning of the Roe decision.

“I’m more of a textualist,” Burke said on the “Public Affairs” TV program. “I like to look at the texts of (constitutions and statutes), and if they’re clear and unambiguous, they should be applied as written.”

In her interview, O’Brien raised concerns with that view, saying, “That is saying the right (to an abortion) isn’t enumerated in the Constitution, and I believe that to be flawed reasoning.”

Burke said in a Chicago Tribune article his views on abortion have been blown out of proportion and that he will never talk about his personal stance on the issue. Instead, he has focused his campaign on promises of being “tough on crime and corruption.”

Abortion access for young people at risk

Hannah Baity, a sophomore at the University of Illinois Springfield who has been advocating for reproductive rights since 2017, is worried that all the work that has been done in recent years could be unraveled if both Republican candidates for the state supreme court win.

She recalled her surprise last year as she watched on livestream as the Illinois House of Representatives passed the Youth Health and Safety Act, which repealed the law requiring minors wanting an abortion to notify a parent or legal guardian. In recent years, about 1,000 to 2,000 Illinois residents younger than age 18 have abortions in the state each year, according to data from the Illinois Department of Public Health.

Baity said she sat in silence, not fully believing what had happened, until celebratory texts from other organizers came pouring in.

“Many people don’t believe that young people are capable or competent of making any sort of important choices,” she told Injustice Watch. “(But) they’re the only ones who can make these important decisions about their bodies because they’re the ones who have to live with them.”

Now, advocates fear that the same law, which just took effect in June, could be the most vulnerable if control of the Illinois Supreme Court shifts to Republicans.

Advocates for youths noted that abortion is a time-sensitive issue and that obstacles such as parental notification cause delays that can put teens at higher risk than they already are when becoming pregnant at a young age. Adolescents have increased risk for premature babies, infant death, and other medical challenges, according to experts.

The old parental notification law was unnecessary, they said, because so many minors seeking an abortion notify a trusted adult anyway. Before that law took effect in 2013, the Hope Clinic for Women in downstate Granite City, for instance, said more than 85% of the minors seeking an abortion in its clinic had involved a parent.

Before the law’s repeal, the ACLU of Illinois represented pregnant teens seeking abortions before judges deciding whether their parents had to be notified. Yet judges granted the vast majority of the teens’ “bypass requests.”

Werth of the ACLU of Illinois said some minors don’t notify a parent because they fear being kicked out of the family home or forced to give birth. Others come from a physically or emotionally abusive home.

The majority of the young clients served by the ACLU of Illinois were people of color, said Werth, who noted that communities of color overall face some of the biggest barriers to access to reproductive health care for a variety of reasons, including systemic discrimination in the health care system.

“I think it’s easy for us oftentimes to forget about the specific and unique barriers that young people under 18 face in terms of abortion access,” she said. “This is one of the most vulnerable groups, vulnerable to political forces taking away their rights or putting obstacles in their way to try to prevent them from accessing care.”

Eric Scheidler, executive director of Pro-Life Action League, scoffed at concerns by abortion advocates that a Republican win of both Illinois Supreme Court races could lead to a ban on abortions in the state.

“There’s no pathway for a ban on abortion through the Illinois state supreme court, certainly not from one election,” he told Injustice Watch.

But Scheidler said a Republican majority on the state’s highest court could result in what he called “a fairer hearing if there are any cases pushing back against some of those more extreme measures.”

“But the propaganda I’m seeing about abortion rights being imperiled in Illinois because of these two races seems just absurd to me, absolutely absurd,” he said.

IIllustration by Verónica Martinez for Injustice Watch

Illinois an abortion safe haven in the Midwest

Advocates said the threat to abortion access in Illinois if Republicans win control of the Illinois Supreme Court has regional, if not national, implications.

Every state bordering Illinois has either banned abortion, is in the process of trying to ban it, or has harsh restrictions in place. Since Roe’s overturning in June, the number of women traveling to Illinois from out of state for abortions has skyrocketed. Planned Parenthood of Illinois anticipated a jump to about 20,000 out-of-state patients per year in their clinics alone, according to NBC News. In 2020, the entire state had fewer than 10,000 out-of-state abortions, according to the Illinois Department of Public Health.

Alison Dreith, director of strategic partnerships at Midwest Access Coalition, which assists with access to abortion care, said restrictions on abortion in Illinois would have repercussions for state residents and people from neighboring states.

“Illinois is blue in a sea of red,” she said.

Megan Jeyifo, executive director of the Chicago Abortion Fund, which helps those facing barriers to accessing abortion care, said abortion policies in Illinois don’t just have to be protected but expanded. She wants the state to invest in more providers and clinics offering abortions, especially with the influx of women coming here from out of state.

State Rep. Moeller told Injustice Watch that she is part of a working group looking into additional ways to support access to reproductive health care in Illinois. As part of that, she said, legislators are working on a bill to protect doctors and nurses providing abortions in Illinois from bordering states considering laws criminalizing their conduct.

Jeyifo said supporters of abortion access want it free of all hurdles, including stigma.

“I had an abortion when I was 16, and it was something I was very ashamed of for a really long time,” she said. “Part of the reason I was ashamed of it was because it was so hard to get, so I assumed something had to be wrong with me or wrong with getting an abortion.”

Young people should also not be stigmatized if they choose to continue their pregnancy to term, Jeyifo said.

“The whole point of that is that (a) young person should be able to make that decision for themselves,” she said.