New “Reproductive Health Act” Narrows the Definition of “Viability” and Makes Other Changes to Existing Law, Expanding Late-Term Abortions

OVERVIEW. The Reproductive Health Act, SB 25, HFA 1 (“RHA“) narrows the definition of “viability” of the unborn child, establishes an expansive definition of “health” of the mother, and makes other changes.  These changes make it much easier for abortion providers to perform late-term abortions without any meaningful restrictions or oversight.  In general, once an unborn baby reaches viability, an abortion can only be performed when the abortion is “necessary to protect the life or health of the mother.” Abortions on the pre-viable are not subject to any such standard.  As such, viability is an important milestone to establish some level of consideration for the life of the unborn.  An Executive Summary of key points are as follows.

  • RHA narrows the definition of “viability.”  Under existing law, the term “viability” means “that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.” (Illinois Abortion Act of 1975 as amended) (720 ILCS 510/2(1)).
  • RHA Section 1-10 replaces the term “viability” with “fetal viability” and amends the definition under existing law in four (4) key ways. 

1) RHA allows any health care professional (not just a physician) to make the judgment on viability.  This opens the door for physician’s assistants and advanced practice registered nurses to make these critical decisions.

2) RHA raises the standard and provides that there must be a substantial likelihood (not just a reasonable likelihood) of the sustained survival of the fetus outside the womb. 

3) RHA adds the qualifier that the fetus only has sustained viability outside the womb if the continued life would happen “without the application of extraordinary medical measures.”  Since the term “extraordinary medical measures” is not defined, and since non-physicians can make the judgment, the healthcare professional could make a wide range of biased decisions on the question of what is an extraordinary medical measure (e.g., perhaps considering measures such as phototherapy for jaundice, breathing support, or even an IV as qualifying).

4) RHA repeals a key clarification in existing law, namely that the unborn can attain sustained viability “with or without artificial support.”  In particular, under existing law, the mere fact that the unborn child would need artificial support (even extraordinary measures) would not disqualify the child as being viable. 

  • RHA’s changes to “viability/fetal viability” narrows the definition materially and results in fewer unborn children that qualify as viable. Although it is difficult to quantify given the newness of the language, for illustration purposes, if the application of current law results in unborn children of 22 weeks of gestation to be deemed viable, RHA’s changes raises that standard to perhaps 28 weeks of gestation or higher.  This makes it easier for abortion providers to perform abortions on unborn children of 22 to 28 weeks of gestation without having to justify that the abortion is necessary to protect the life or health of the mother.
  • RHA includes an expansive definition of “health.”  RHA Section 1-10 establishes an expansive definition of “health” to make it easier for an abortion provider to decide, even if the unborn child is viable, that the abortion is necessary for the “health” of the mother.  Current law does not define “health,” but RHA establishes an expansive definition of “health” that includes “all factors that are relevant to the patient’s health and well-being, including, but not limited to, physical, emotional, psychological, and familial health and age.”  In particular, the inclusion of the term “familial” would allow the nurse, physician-assistant, or physician making this critical decision on health to take into consideration factors beyond the mother’s health, such as the health or even squabbling of her siblings, parents, or other family members.       
  • RHA repeals detailed certification and reporting obligations.  Under current law, the physician must certify in a signed writing the medical indicators that support the determination that a post-viability abortion is necessary for the life or health of the mother. (720 ILCS 510/5(2)).  This report, along with specified detailed information – including any complications, whether the abortion resulted in a live birth, and other information – must be reported to the Department of Health. (720 ILCS 510/10). If additional information becomes known after submission of the report (e.g., additional complications), the physician must update the report to the Department of Health within 10 days of becoming aware of the information.  (720 ILCS 510/10).
  • RHA Section 1-25 greatly diminishes these certification and reporting requirements.  Neither the physician, nor any other health care professional, needs to certify in a signed writing as to the medical indicators or other reasons that supported their decision on the question of viability. RHA Section 1-25(b).  It appears there would be some version of reporting obligation that should use a specified Department of Health form, but the obligation does not attach to the physician or other health care professional, and instead is set in the passive voice (so it would be difficult to enforce), namely that a “report of each abortion performed by a healthcare professional shall be made to the Department on forms prescribed by it.”  RHA Section 1-25(b).  With this standard, the receptionist at the abortion clinic could prepare and submit reports. 
  • Surprisingly, the RHA specifies that the Department of Health could not use the abortion provider’s report for any kind of follow-up inquiry or investigation, and instead would only be able to “use the reports for statistical purposes only.”  RHA would also specify that such “reports must be destroyed within 2 years after date of receipt.”  RHA Section 1-25(d).  Clearly, there is no desire to allow the Department of Health to do any actual enforcement or oversight to protect women’s health or safety, even in instances of complications or sub-standard care.
  • RHA repeals penalties for non-compliance by physicians and health care professionals.  RHA also repeals a broad range of express penalties set forth in the Illinois Abortion Act of 1975.  For example, it is a Class 2 felony for a physician to perform an abortion on a viable unborn child without making a determination on the necessity of such procedure for the life or health of the mother.  (720 ILCS 510/5(1)).  RHA repeals these penalties for non-compliance, which further reinforces that there is no desire to establish a meaningful regulatory environment that protects the health of women and girls. 
  • The RHA may even effectively challenge the Parental Notice of Abortion Law.     
  • More ramifications will be listed as the RHA is applied in Illinois.

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