Nat'l Inst. of Family &Life Advocates v. Raoul

685 F.Supp.3d 688

NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, et al., Plaintiffs, v. Kwame RAOUL, in his official capacity as Attorney General of the State of Illinois, Defendant.

No. 23 CV 50279

United States District Court, N.D. Illinois, Western Division

Signed August 4, 2023

Brennan Tyler Brooks, Thomas L. Brejcha, Jr., Peter Christopher Breen, Thomas More Society, Chicago, IL, for Plaintiffs.

Darren Bernens Kinkead, Marci L. Sahinoglu, Mary Alice Johnston, R. Douglas

Rees, Office of the Illinois Attorney General, Chicago, IL, for Defendant.

RULE 65 PRELIMINARY INJUCTION ORDER

Iain D. Johnston, United States District Judge

"Justice Scalia once said that he wished all federal judges were given a stamp that read 'stupid but constitutional.' " Brown v. Chicago Bd. of Educ., 824 F.3d 713, 714 (7th Cir. 2016). SB 1909 is both stupid and very likely unconstitutional. It is stupid because its own supporter admitted it was unneeded and was unsupported by evidence when challenged. It is likely unconstitutional because it is a blatant example of government taking the side of whose speech is sanctionable and whose speech is immunized—on the very same subject no less. SB 1909 is likely classic content and viewpoint discrimination prohibited by the First Amendment.

This order is entered under Federal Rule of Civil Procedure 65(d). Plaintiffs' motion for a preliminary injunction is granted. Defendant and those persons identified in Rule 65(d)(2) are bound by this order; specially, Illinois Attorney General Kwame Raoul, his officers, agents, servants, employees, and attorneys, as well as other persons who are in active concert or participation with those persons. Until further order of this Court or a superior court, Defendant and the persons bound by this order are enjoined from enforcing SB 1909 amending the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act), 815 ILCS 505/1 et seq. Plaintiffs need not post a bond. See Allen v. Bartholomew Cnty. Court Servs. Dep't., 185 F. Supp. 3d 1075, 1087 (S.D. Ind. 2016); Bader v. Wernert, 178 F. Supp. 3d 703, 745 (N.D. Ind. 2016) (no reason to require bond when no danger that opposing party will incur any damages from the injunction). The reasons why this preliminary injunction is issued are stated below.

PARTIES

Plaintiffs are religious non-profit corporations and organizations. They are all pro-life entities. One plaintiff—National Institute of Family and Life Advocates (NIFLA)—appears to be an umbrella organization composed of members that are pregnancy centers and pregnancy resource centers, which are often referred to as "crisis pregnancy centers." Plaintiffs provide some services and resources. For example, they provide pregnancy testing, information on prenatal development, childbirth, parenting, and child development. They also provide items new parents would need, such as diapers, car seats, baby food, wipes, and baby clothes. There is no charge for the services or resources. At least three of the Plaintiffs are small budget, non-profit organizations funded entirely by charitable contributions and, to some extent, grants. One Plaintiff employs two nurses, but volunteers make up nearly all the ranks of these three Plaintiffs. Obviously, because of their nature and purpose, they don't offer information or resources about abortions. One of the Plaintiffs is Rockford Family Initiative, which is an organization that holds prayer vigils and whose members perform what is commonly referred to as "sidewalk counseling." It likewise does not charge for services and is comprised of volunteers. Plaintiffs allege and the Court finds that Plaintiffs would fall under the definition of "limited services pregnancy centers" under SB 1909.¹

The defendant is Kwame Raoul. He is the Illinois Attorney General. According to the Verified Complaint, he is being sued in his official capacity. The Illinois Attorney General is the chief legal officer for the state under the Illinois Constitution. Ill. Const. Art. V § 15. The Verified Complaint alleges—and the Court finds—that Defendant Raoul and at least one member of his staff were the chief drafters and supporters of SB 1909. The evidence shows that Defendant Raoul obtained sponsors in both the Illinois House and Senate for SB 1909, and that a member of Defendant Raoul's staff (Deputy Attorney General for Policy Ashley Hokenson) was the primary witness at the legislative hearings. Defendant Raoul attended at least one of the legislative hearings while she testified in support of SB 1909. According to Ms. Hokenson, Defendant Raoul became interested in drafting this type of legislation based on the following incident: Defendant Raoul visited a Planned Parenthood abortion clinic in Fairview Heights, Illinois, and his driver was nearly stopped by a pro-life sidewalk counselor on a public right-of-way who was wearing a brightly colored vest and a "check-in" sign was located on the public right-of-way.

ACT AND STATUTE AT ISSUE

On at least one occasion, Deputy Attorney General Hokenson publicly represented that the Consumer Fraud Act applied to Plaintiffs alleged deceptive practices without the need to amend the Consumer Fraud Act with SB 1909. Despite this public representation, Defendant Raoul decided that the Consumer Fraud Act needed some "clarity" on the subject.² His efforts resulted in SB 1909. At the time of the signing of SB 1909 by Governor Pritzker, Defendant Raoul held a press conference extoling the need and virtues of SB 1909 while flanked by Planned Parenthood leadership and others representing the pro-choice movement.

The Consumer Fraud Act covers a lot of oceanfront, prohibiting activities ranging from attempting to pass off food as Halal to advertising for live musical performances by tribute bands. See 815 ILCS § 505/2LL; 815 ILCS § 505/2XX. But it's focus is on—as the name implies—deceptive and fraudulent business practices. Indeed, the Consumer Fraud Act focuses on trade and commerce. 815 ILCS 505/2. The Consumer Fraud Act defines "trade" and "commerce" to "mean the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated." 815 ILCS § 505/1(g).

SB 1909 amended the Consumer Fraud Act. The target of SB 1909 is on "limited services pregnancy centers" (Centers). So, it makes some sense to determine what type of organizations are covered under SB 1909. Centers are defined by both what they do and what they don't do. First, as to what they do, Centers offer or provide "pregnancy-related services" to individuals who are, or believe they are, pregnant. "Pregnancy-related services" means "any medical service, or heath counseling service, related to the prevention, preservation, or termination of pregnancy." Second, as to what they don't do, notably, Centers don't provide abortions, provide or prescribe emergency contraception, or provide referrals for these types of services. Centers are also defined by what they are and what they aren't. Centers "include" "an organization or facility that has employees, volunteers, or agents who are [licensed] health care professionals." But Centers aren't licensed health care professionals or licensed hospitals. Critically, SB 1909 specifically excludes from its scope abortion providers. SB 1909 does this by definition: " 'Limited services pregnancy center' means an organization or facility, including a mobile facility, that . . . does not directly provide abortions or provide or prescribe emergency contraception, and has no affiliation with an organization or provider who provides abortions or provides or prescribes emergency contraception."

Now that we know who's in and who's out, it makes sense to determine what the targets of SB 1909 can't do under pain of up to a $50,000 penalty, injunction or dissolution. Centers are prohibited from engaging in certain acts. Specifically, Centers "shall not engage in unfair methods of competition or unfair or deceptive acts or practices." These prohibited acts include both affirmatively making statements as well as omitting information. Specifically, these methods, acts, or practices, include "the use or employment of any deception, fraud, false pretense, false promise, or misrepresentation." Moreover, as to omitting information, Centers are specifically prohibited from omitting "any material fact, with the intent that others rely upon the concealment, suppression, or omission of such material fact."

But these prohibited methods, acts, and practices must be done with the intention "to interfere with or prevent an individual from seeking to gain entry or access to a provider of abortion or emergency contraception;" [or] "to induce an individual to enter or access the [Center]."

The full body of SB 1909 is attached as an appendix to this Order.

PLAINTIFFS' CLAIMS AND REQUESTED RELIEF

Plaintiffs' verified complaint asserts claims based on Freedom of Speech, Free Exercise of Religion, Equal Protection, Due Process (Void for Vagueness), "Patients' Right to Continue Pregnancy", and Freedom of Expressive Association. The Verified Complaint seeks injunctive relief in the form of a temporary restraining order, preliminary injunction, and permanent injunction, a declaration that SB 1909 violates the First and Fourteenth Amendment on its face and as applied to Plaintiffs, and an award of nominal damages, attorneys' fees, and costs.

STANDING

When seeking a preliminary injunction, it is the plaintiff's burden to demonstrate standing, which is "at least as great as the burden of resisting a summary judgment motion." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 907 n.8, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). A plaintiff must present by affidavit or other evidence specific facts rather "than general factual allegations of injury." Speech First, Inc. v. Killeen, 968 F.3d 628, 638 (7th Cir. 2020) (citations omitted)...