Score a victory for reproductive justice in the Illinois Appellate Court on Friday! Ruling that an unimplanted, fertilized egg is not a "human being" for purposes of a wrongful death action, the Illinois Appellate Court today reversed a 2005 decision by a Cook County Judge.

The decision strikes a blow for scientific sanity and access to reproductive health care. Had the lower court's decision been allowed to stand, an Illinois couple would have been able to sue their fertility clinic for tens of thousands of dollars because the clinic inadvertently had destroyed unimplanted eggs stored at the facility. The lower court had accepted the argument that a human being is created when an egg is fertilized, regardless of whether the fertilized egg is implanted in a woman's body or left in a Petri dish. Left undisturbed, the lower court's decision could have limited the ability of women in Illinois to contraceptive services and genetic testing. Moreover, the decision would curb the ability of couples in Illinois to use reproductive technologies, such as in vitro fertilization, in starting a family.

In reaching its conclusion, the Appellate Court properly noted that the Illinois law cited by the Cook County Judge was never intended to grant rights to an unimplanted, fertilized egg. This built on an argument that the American Civil Liberties Union of Illinois advanced in an amicus curiae brief filed in the case. Specifically, the ACLU noted that the decision permitting the wrongful death action to go forward relied on antiquated, scientifically-invalid Illinois abortion laws that long ago were blocked from enforcement by federal courts. Federal courts blocked these laws because defining a fertilized egg as a "human being" would have banned abortion, some forms of birth control and many forms of assisted reproduction and genetic testing.

The importance of this decision can be seen in large measure by the efforts of abortion opponents. Many anti-abortion extremists hailed the lower court's decision in 2005 as an important step in their concerted campaign to block access to reproductive health care and contraceptive services in our state.

The rhetoric used in Illinois around this decision fits a disturbing trend that we have seen across the nation - namely, that anti-abortion extremists now are focusing their attention increasingly on limiting access not simply to abortion but to contraception as well. In Colorado, for example, a ballot measure set to be decided this November would grant "personhood" to a fertilized egg, meaning that many forms of contraception that could prevent a fertilized egg from attaching to the uterus could be targeted for legislative bans. This effort seems to reveal the real agenda of the anti-abortion activists - to allow government bureaucrats - not women - the power to make decisions about birth control, abortion, genetic testing and pregnancy.

In this effort, the anti-abortion extremists seem to be getting a big assist from the out-going Bush Administration. Recently, the Department of Health and Human Services issued a proposed regulation that would allow physicians and health care workers to refuse to provide medical care. A close reading of the proposed regulations reveals that they could permit a physician or health care worker who personally objects to contraception or other reproductive health care to deny meaningful information and care to their patients about important reproductive health options. We are pleased that the Illinois court put the brakes on this movement in Illinois today.

SB 2399 – Public Act 95-0927

Sponsored by Senator Link and Representative Ryg, Senate Bill 2399 created the Illinois Genetic Information Privacy Act, which bars employers from using genetic information in hiring, firing, demoting or otherwise retaliating against job applicants or employees based on their or their family members’ genetic testing results. The measure also harmonizes definitions in state law relating to genetic privacy with those in more recent federal laws, making the legislation as current as possible.

Learn more about the right to keep your genetic information private.

By Harvey Grossman, Legal Director

It was disappointing last week to watch the president sign legislation designed to deny my clients their day in court. That, however, is precisely what President Bush attempted to do when he signed into law the so-called FISA Amendment Acts (FAA) last Thursday. For the past year or so, I have served as a co-lead coordinating counsel for the nearly 40 cases currently challenging the nation's largest telecoms' collaboration with the government in spying on innocent Americans without a warrant. These cases now pending in the courtroom of Judge Vaughn Walker in the Northern District of California were the subject of great controversy during the debate and passage of the FAA.
The controversy derives from the fact that the FAA provides a "get out of jail free card" for the telecoms. It is an attempt to see that neither the phone companies nor members of the Bush administration will ever be held accountable for their decision to invade the privacy of millions of innocent Americans under the guise of investigating terrorism. The law hailed by the president last week says that in order to gain legal immunity for their actions, the telecoms simply must show that they received a request from the government to do the spying, not that the request itself was lawful. This provision is ludicrous, since everyone involved in the debate knows that the government made such a request to the phone companies. The real question is: Was the request lawful? This is the question asked by our litigation - one ignored by Congress and the White House.
Still, we expect that the Bush administration will move quickly to dismiss all the pending cases relying on the provisions of the FAA.
We intend to challenge all efforts to dismiss our cases. We believe that our clients deserve their day in court. Moreover, we believe that pursuing these cases is the only way that the American people will ever know the scope and breadth of the White House's illegal spying program - since Congress rejected even a straightforward proposal to delay providing immunity to the telecoms until after the Congress conducted a full-fledged investigation of the president's illegal program.
Most important, we believe the provision of the FAA providing the telecoms with immunity violates the fundamental constitutional principle of separation of powers. Under our system, Congress simply cannot substitute their judgment for an independent federal judge in a matter that is pending before the court. We trust our courts to find facts and apply those facts to the law, carefully and without political posturing or bias. In this instance, Congress did not change the substance of the law; they simply chose to forgive the telecoms for breaking that law, suggesting that there are mitigating circumstances (although those "mitigating" factors surely have been overstated) that must be taken into consideration.
This is not a decision for the Congress. This is the role of the courts, where we look forward to vigorously defending our position.
Crossposted at the ACLU Blog Of Rights