As a series of recent high-profile medication abortion court rulings has gripped the nation, one east-central Illinois city is considering an ordinance that would attempt to prevent the mailing or shipping of abortion pills there.
But civil liberty experts have warned that the measure would be illegal in Illinois — a state considered a stronghold for reproductive rights — and would likely rack up costly legal fees if implemented.
On Tuesday, the Danville City Council is scheduled to vote on the ordinance, which is titled “requiring compliance with federal abortion laws.” It’s unclear how the local ordinance, which directly conflicts with Illinois law, could be legally enforced in this rural city of about 30,000 people located roughly three hours south of downtown Chicago.
Danville Mayor Rickey Williams Jr. said the proposed ordinance invokes the Comstock Act, an 1873 federal law that barred the mailing of contraception, “lewd” writing and every “article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.”
The 19th Century law has been largely considered moot for nearly 50 years, while the 1973 landmark Supreme Court case Roe v. Wade guaranteed the right to an abortion nationwide. But the Comstock Act has been in the spotlight since the high court overturned Roe in June, leaving the matter of abortion rights to be decided by individual states.
“The difficulty here in my opinion is we have state laws and statutes that contradict federal law, specifically the Comstock Act,” Williams said. “We made an oath to uphold the laws of the state of Illinois and the United States, so what do we … do when they contradict one another?”
The controversial proposed ordinance in Danville mirrors a wave of recent anti-abortion ordinances passed by cities, towns and counties, often in a direct attempt to challenge state or federal laws that protect reproductive rights.
Several cities and counties in New Mexico, another state deemed a reproductive rights haven, also recently passed anti-abortion ordinances based on the Comstock Act. But the New Mexico governor in March signed a bill crafted to override local anti-abortion ordinances as well as prevent other counties and municipalities from enacting their own similar measures. The New Mexico Supreme Court in March granted the attorney general’s request to block the local anti-abortion ordinances from being enforced as court challenges continue.
“Our brief demonstrates that the counties and cities violated the state constitution and state law when they passed their ordinances to restrict abortion care and undermine women’s reproductive rights,” New Mexico Attorney General Raúl Torrez said in a written statement.
In Illinois, the Danville city council’s public service committee last week voted in favor of the proposed abortion ordinance that will be before the full council on Tuesday.
The American Civil Liberties Union of Illinois in a letter last week urged Danville leaders to reject the ordinance, saying it was “unlawful and unenforceable” in Illinois.
“It is without question that Illinois law protects reproductive rights –– including the right to obtain an abortion within the state,” the letter said. “The City of Danville is not above this law. Attempts to impose restrictions on access to reproductive health care in Danville will do nothing other than expose the City to significant legal liability and fees.”
Illinois has some of the most progressive abortion laws in the nation, with few restrictions on terminating a pregnancy. The 2019 Reproductive Health Act declared that abortion is a fundamental right in Illinois.
In mid-March, Democratic Gov. J.B. Pritzker celebrated “Abortion Provider Appreciation Day.”
“To the clinic staff and volunteers who help those in need and treat their patients with dignity and compassion: thank you for the critical and lifesaving work you do,” he posted on Twitter.
For years, thousands of abortion seekers have traveled from other states to Illinois to terminate pregnancies here annually, and providers say that traffic has surged since the end of federal abortion protections in June. Planned Parenthood of Illinois has predicted that 20,000 to 30,000 more patients will travel here from out of state each year to have an abortion now that Roe has fallen.
In response, several new clinics have recently opened in Illinois and many existing providers have expanded their hours and services.
Danville’s proposed ordinance targeting the mailing of abortion pills comes on the heels of news that an abortion clinic plans to move from Indiana and open at 600 N. Logan Ave. in Danville, according to City Council minutes. The site is minutes from the border of Indiana, a state where abortion rights have been in flux after the end of Roe.
Last year, Indiana became the first state to enact a near-total ban on abortion post-Roe’s reversal. But enforcement of the law was blocked by the courts shortly after the law went into effect in September, amid legal challenges.
In late March, abortion opponents protested the planned Danville clinic at its proposed location. Some participants carried signs reading “Life: The First Inalienable Right” and “Pray to End Abortion.”
Speakers included Republican state Rep. Chris Miller, who is also chairman of the Illinois Freedom Caucus.
“We’re standing in the shadow of what is expected to be an abortion clinic here in Danville,” Miller said. “The abortion industry in Illinois is booming and this clinic is another example of the expansion of abortion we’re facing here in Illinois. We’re rapidly becoming the baby killing capital of the Midwest.”
Mary Kate Zander, executive director of Illinois Right to Life, told the crowd, “this clinic is unwanted by this community.”
“This is a conservative community,” she said. “It’s a conservative, pro-life community that wants to support women, that wants to support women who are experiencing crisis pregnancies — that is not interested in killing babies.”
She added that “this situation that we find ourselves in is a situation that has been created by far-left politicians who are up near Chicago and don’t know anything about this area, I can promise you.”
“They are disinterested in what the people of this community have to say about abortion,” she said.
Yet some Danville residents support the arrival of an abortion provider in their city.
At a city council meeting in early April, one woman expressed “distress that she feels Danville has become a desert for women’s health care, a hostile environment to women,” according to meeting minutes.
The woman added that “she is here to advocate for safe health care for women,” the minutes said.
The controversy in Danville comes amid a heated national legal battle over the fate of a widely used abortion drug, mifepristone.
In early April, a Trump-appointed judge in Texas ordered a hold on federal approval of mifepristone, which has been permitted for use by the Food and Drug Administration since 2000. The decision was appealed by the maker of the drug and the Biden administration.
The Texas ruling also called into question whether abortion pills can be mailed. Plaintiffs in the case — which was filed by the conservative organization Alliance Defending Freedom on behalf of health care providers — argued the mailing of abortion pills violates the Comstock Act.
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The Texas judge seemed to agree, determining that “Plaintiffs have a substantial likelihood of prevailing on their claim that Defendants’ decision to allow the dispensing of chemical abortion drugs through mail violates unambiguous federal criminal law.”
But the U.S. Supreme Court in late April preserved access to the medication for the time being, rejecting the lower court’s restrictions on mifepristone as the court fight continues.
Medication abortions, which typically consist of a two-drug combination of mifepristone and misoprostol, account for more than half of all pregnancy terminations in the United States. Millions of patients have used mifepristone over the past two decades or so, and the American College of Obstetricians and Gynecologists says medication abortions are safe and effective.
Planned Parenthood of Illinois called the Supreme Court’s recent action “a win not only for Planned Parenthood of Illinois patients but people across the country who deserve to have access to high-quality and effective health care including safe and legal medication abortion.”
“While this is a temporary win for abortion rights, the battle is far from over,” the agency said in a statement. “We will continue to fight and advocate for equitable access to all reproductive and sexual health care services because everyone should have the ability to make a decision that is best for their bodies, their lives, and their futures.”
The Associated Press contributed.
