• Greg Bishop | Illinois News Network
State Rep. Peter Breen, R-Lombard, talks with reporters after an appellate court hearing on taxpayer funded abortions
Anti-abortion groups are asking an Illinois appellate court to end the state's controversial practice of using tax dollars to pay for elective abortions, claiming lawmakers abused the legislative process to get the bill passed last year.
At issue is whether elected officials violated the law by passing a bill to fund abortions without passing a revenue estimate and by abusing the legislative process.
The case challenging House Bill 40, which was signed by the governor in September 2017 and went into effect Jan. 1, was spurred on by anti-abortion groups. A Sangamon County Circuit Court judge dismissed the case in December just before the measure was to take effect, deeming it a political issue. The group has appealed that decision.
The measure allows the use of tax dollars to cover abortions for those on Medicaid and on state employee health insurance.
After a hearing Wednesday in front of the 4th District Appellate Court in Springfield, state Rep. Peter Breen, who is also an attorney for the anti-abortion group Thomas More Society, said the crucial question is about the Legislature spending within its means.
“This issue is certainly on the backdrop of abortion, but is about broader fiscal sanity for the state of Illinois,” said Breen, R-Lombard. “Are we actually going to have a budget process that works. If you set a ceiling [of spending], then the legislators have to get together to meet the ceiling. They can’t just spend whatever they want. We’ve got to get together and make the hard decisions.”
Breen has contended that the failure of lawmakers to pass a revenue estimate resolution violated the state constitution, which says, “Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.” He also claimed that failure to pass a revenue estimate violated the Commission on Government Forecasting and Accountability Act.
Deputy Solicitor General Brett Legner, representing the state in the case, told the court that the law requiring a revenue estimate resolution is directory, not mandatory. Legner said there is no consequence spelled out in the state constitution or in the COGFA Act if no revenue estimate is passed. It’s informational only, he said.
“When the constitution says ‘shall,’ most of us understand that to mean you do it and if you don’t do it you’re in trouble,” Breen said after the hearing. “So this idea … that the balanced budget requirement was optional, or not something that is effective, that doesn’t comport with the language of the constitution.”
Legner said the remedy for lawmakers not following through with a revenue estimate should be at the ballot box, something Breen said is unrealistic as statewide voters don’t elect individual legislators.
The three justice panel asked both Legner and Breen questions about the balanced budget language in the state constitution and the COGFA Act. They also delved into the issue of how HB40 made it to the governor’s desk months after the end of session last year.
Breen said the justices were getting after the right issues.
“I thought it was a great point that the justices were looking at the fact that the bill dies if it’s subject to a motion to reconsider,” Breen said outside the courtroom. “And the Attorney General’s office didn't have an answer for how do you then say it’s a bill somehow or that it’s passed?”
Breen has claimed the bill’s Jan. 1, 2018, effective date is not legal. He said lawmakers abused the legislative process by placing a procedural hold on HB40 after it passed in early May last year. The measure had passed both chambers with the required simple-majority, but the motion to reconsider filed by state Sen. Don Harmon, D-Oak Park, kept the bill from being sent to the governor within 30 days of passing the General Assembly as is required by the state constitution.
The hold was eventually lifted by Harmon on Sept. 25, 2017, more than four months after it passed both chambers and months after the end of session. The bill was then sent to the governor, who signed it into law Sept. 28, 2017.
While motions to reconsider are standard practice, Breen said it was abused in this instance.
“That is a tactic that’s being used by some to hold bills to put the governor, in this case it’s a Republican governor, in other cases it could be a Democratic governor, in a bad political position,” Breen said. “So there’s no reason the legislature should be encouraged in that particular practice.”
Legner said the issue is not relevant and one of semantics. He said during the hearing that previous case law indicates a bill’s effective date depends on when the bill is passed by both chambers, not the last day of action. He said the motion to reconsider being placed before the end of session and lifted months after did not change the language of the bill at all and therefore was a legitimate move.
The justices said they are taking the case under advisement.
It’s unclear when the appellate court will issue a ruling, but it could come before the November midterm elections. The appellate decision won't be the final word in the case. Both sides are expected to take the case to the next stage, be it a circuit court trial or to the state Supreme Court.