six seven three and one one two seven zero four hope clinic for women l t d at all at billy's brad adams at all at least  petitioners asked this court to reverse the judgment of the appellate court first district affirming the order of the circuit court of cook county denying them leave to intervene in the underlying challenge to the only abortion act the notice of abortion act of one nine to intervene both by permission and as of right we stand on our brief with respect to a second to intervene by permission in order to be justified in intervening as of right a petition  must establish three requirements first is application must be timely circuit he must be able to allege that the representation of his interests by existing parties to the case is or maybe inadequate and third he must be able to show that he will be or maybe bound by a judgment in the case that the parties to this case have focused their attention on the second requirement a whether there is an interest that the petitioners have and if so whether that being adequately represented by the defendants in this case the petitioners asserted to interest first under section forty b of the primal notice of abortion act of one thousand nine hundred five they have the authority to institute criminal prosecution against anyone as well as suchan twenty three a fraud of the medical practice act to refer physicians who willfully violate the act to the illinois state medical disciplinary board for possible  now the parties the defendants and the plaintiffs have both said well this is a this is an authority that the general public also has the general public may refer physicians who violate the law to the board there are some significant distinctions here as well the state attorney's referral has to be verified which suggests that the state's attorney has to do some type of at least preliminary investigation to determine whether or not there is a basis for referring to the doctor to for possible discipline obviously this is not a power or authority or duty or obligation that any member of the general public has as a practical matter of course the plane of swer in no position to sue the general public you can't sue the general public but you can sue a class of states attorneys for their authority under this provision of the medical practice act in the corresponding provision of the primal notice of abortion act and in fact that's precisely what the representative of a class of all hundred two states attorneys as a party define that not because of any criminal enforcement authority under the forgery provision but solely exclusively because of his power to refer physicians interests we're going to focus on two of those the smalling first the question is does the only constitution confer a right to abortion now throughout this litigation despite some back and forth that on clarity reasons first of all the only possible sources of such a right are either our due process clause or of the privacy language of our search and seizure provision as our motion to dismiss our proposed motion to dismiss that we filed below under two six fifteen set out in detail there is no basis for that conclusion when you look at the debates of the constitutional convention nine hundred sixty nine nine hundred seventy eight it is clear beyond question that the legislature took a neutral position on the question of abortion the convention took out pro life language that had been submitted by the bill of rights and they refused to consider proposals by a pro choice members of the convention to put any type of pro choice language in the bill of rights committee would not consider it and the convention would either several people who objected to the pro life language admitted on the floor where we would have liked we would have preferred that the convention address this issue and recognize that there are some right to abortion here but that was not pursued because there was no support for it so it's clear again that with respect to due process provision the draft of the all my constitutional convention simply had no to constitutionalized the issue one way or the other they left it up to the general somebody the other position is the privacy language of article one section six now there are multiple reasons why there should have been no concession that this provision arguably supports a right to abortion either first of all unlike the privacy provisions in some state constitutions which are freestanding this is part and parcel of the search and with which we believe the defendants have not adequately represented the interveners interest relates to the interpretation of this court's decision in the family life leak case the defense of taking a position although again of somewhat inconsistent when you go from one clinton to another one brief to another that this or that decision of this court somehow recognized a right to abortion that is not correct either the issue in the family life the case was limited to a federal constitutional issue and a state statutory issue regarding the privacy of medical records it did not involve conduct there is nothing in the opinion that addresses that and is the briefs in that case in the case no on the issue in the family life leak case so we suggest that concession was unnecessary and further we think it would be odd for this court were that issue was not raised it was not argued there was no discussion of the constitutional convention debates there was no citation of relevant authority to suggest this language that your politics rely upon somehow staleness a right to abortion simply is implausible good morning and may please the court michael scotto from the office of the illinois attorney general here on behalf of the defendants applebee's in case number one one two six seven three we're dividing time even we would cooperate so i'll get right to the point on intervention the circuit court did not abuse its discretion in denying the intervenors request to intervene in this case in the appellate court properly or from the exercise of that discretion by the circuit court i'll turn very quickly to the two factors that are in play before this court  the intervention as of right as counsel indicated they involve sufficiency of the interest and the adequacy of the existing representation on behalf of the defendants in the case first as a sufficiency of interest the intervenors clearly fail here they do identify two provisions in section forty and they claim that these give them an interest that goes beyond what the general public enjoys and as this court has held as recently as the bearcat decision in two thousand and two the interest for purposes of intervention as of right does need to go beyond what the general public enjoys they say first their ability to prosecute forgers under section forty b of the notice act but i know what's being prohibited here since under section b of the notice act they can prosecute folks who have falsified or forged waiver forms notice of waiver from those forms are required elsewhere in the act as one of the exceptions under section twenty this is not a circumstance in which if plain prevail the prosecutors will lack a arrow in their quiver an ability to go out and prosecute and to social conduct indeed the conduct itself simply won't exist if the act were to be struck down wholesale as plain there would be no waiver notices there would be no forged waiver notices someone is hard pressed to see where the prosecutors interest comes in in defending the statute which by the way is not being challenged section for you course is not the subject itself of the challenge or other pr with regard to forty eight the power to refer the power to refer exists in all illinois means the medical practice act makes clear anyone can refer to the medical orde any physician who has willfully violated notice law now to be sure there is language in the medical practice act itself that allows does not insist upon but allows states attorneys to do so through verified complaint but again it's difficult to see how that  difference alone is grounds to give them the substantial interest beyond what all citizens enjoy to intervene as of right even if the court disagrees as to interest plaintiffs i'm sorry intervenors have not shown inadequacy of representation here and this is clear for several reasons the court typically considers four factors and looking at adequacy of representation clearly the first is not satisfied here that is do we not share the same interests both the state defendants who are already in the case and the intervenors are both defending the constitutionality of the law against a facial challenge so clearly they have the same interests factual and legal positions being the same intervenors have pointed out a series of instances in which they think the attorney general's office on behalf of defendants ought to have made different decisions but the case law is clear strategic differences of this nature do not rise to the level that require intervention as of right there are disputes clearly over some areas though when we get to the merits i  think and explain the position the defendants have taken on the merits in this case including their position on the due process clause in the privacy clause and truly they do not rise above the level of mere strategic differences finally expertise and vigor of the last two factors the courts have considered in looking at adequacy of representation and i think the complete don't dispute that neither of those are satisfied here there can be no claim that the attorney general's office on behalf of the defendants has the resources and where with all to defend the statute they have done so first through a series of federal cases and now or or levels of federal review and now in the state courts to the illinois supreme court finally i'll just touch briefly on permissive intervention there too even though the prevention intervention is permissive as this court made clear as early as one nine hundred eighty and it's made a decision even as to permissive intervention there has to be a showing that the would be intervene or has interests that go beyond those of the general public not just generalized into fuse interests and for the reasons i mentioned the interveners have failed to satisfy that requirement here unless the court has any questions we would urge the court to affirm the judgment of  discretion in denying intervention here they have not presented and enforceable recognizable right that distinguishes their interests from those of existing parties or an interest greater than those of the general public as mr scotto has just laid out nor have they demonstrated in the adequate representation in adequate representation in the face of the defendant's vigorous defense of the the act here they've also failed to demonstrate that they're necessary parties the mere fact that they were parties to a prior piece of litigation and they were proper parties does not necessarily mean that they are necessary parties here and they fail to meet the standards for necessary parties the circuit court was well within its discretion to deny intervention and instead permit the proposed interven to participate fully as a miki and make their voices heard in that court unless the court has more questions for me i would have nothing further to add and i'll stand on our previous and on the comments that mr scotto made a mistake in let me ask you this  wood if his position interveners those applying for intervention prevail what's next does that mean the case goes back for additional hearings well your honor we would that we would pose that we would ask that the court remand the case to the circuit court for presentation of a factual record i would assume that if the court permitted intervention that the court would determine in what what capacity the proposed intervenors would be permitted to participate except that we believe very strongly that they haven't demonstrated a right to intervene here they haven't demonstrated an interest that distinguishes their situation from those the from that of the defendants they both seek to uphold the statute there's been vigorous defense here there have been numerous amicus briefs submitted as well and they haven't differentiated their situation from that of the general public and so it would be we think inappropriate time with them to intervene and so therefore it's difficult to answer the question of what role they would play and just to be clear for the record i'm not assuming they're prevailing but that's why i said if they were to prevail where do we go now i and i know you opposed it thank you thank you anderson the other of ninety ninety five our appeal becomes moot we recognize that because at that point there is nothing left to discuss however we have suggested that the court may wish to consider still reaching the issue not for purposes of a rematch and or vacating anything but for purposes of providing guidance in future cases under the public interest exception to the mootness rule of the parties have side mr scruggs on the street have said well we don't have any interest apart from the general public well obviously with respect to the criminal provisions we do have an interest the general public cannot bring criminal prosecutions our clients the state's attorneys all states attorneys in the state may do so without mr scotto suggest well this is kind of ancillary to that this case is really about and the whole thing goes out if the law goes out that's true and that's precisely why we are in this case with respect to the criminal inforce the professions that are authority our ability to to prosecute for forgery will be nullified by an inadequate defense of this law that leads to its invalidation so we have nothing in common with the general public on that point and let me add this is a facial challenge to the slaw did not single out this authority as a basis for challenging the act but their relief if you look at the complaint they ask for a declaration that this act is void and of no effect that obviously throws out all provisions of the criminal as well as the regulatory provisions that apply to physicians now turning to the referral authority the state's attorneys have an obligation obviously under the law to enforce it and they have the verified we would simply reiterate the fact that if they have to be verified that presumes that there is some type of investigation going on before they submit something to the disciplinary boy they just can't send in a letter thinking well we think dr solar so didn't properly adhere to the law we think he will fully my letter you can't make that statement under oath unless you have some basis for it now the public obviously is under no obligation to be investigating this but challenge in eighty three law which did have criminal penalties for physicians that was struck down and they say well that's just an oversight the problem with that explanation is there was a different state's attorney in cook county in one thousand nine hundred five it was not richard daley it this is just differences over strategy i realize this could be a matter of degree but we think it goes beyond a matter of strategy when you have conceded a threshold a critical threshold point that is key to the plaintiffs prevailing in this case and that is whether the all right constitution confers a right to abortion there is no basis for making that concession when you look at the historical record and the decisions of this court and in their reply in their answer brief in this court please the court michael scotto in the consolidated case number one one two seven zero four this time on behalf of defendants apple wants there are let me begin by saying that there are number of independent legal barriers to plaintiffs proceeding with their complaint in this case and at the very threshold of that list the very first one is that they must at the beginning of the case show that the illinois constitution provides greater abortion rights than its federal counterpart this is an essential first step if they can't clear that hurdle the rest really doesn't matter and here's why we know that the notice act is constitutional federally we know that because this very law was upheld in two thousand and nine and is a bar case because forty four states nationwide as the u s supreme court counted in two thousand and six have notice or indeed more burdensome consent laws and the u s supreme court has upheld those laws consistently in a string of cases beginning in one nine hundred eighty one indeed as recent as two thousand and six in the supreme court's decision in a yacht the court unanimously includes this language in its opinion it says we have unquestionably there is unquestionably have a right states unquestionably have a right to require parental involvement in the juvenile to abortion decision that was a unanimous language from the u s supreme court in two thousand and six so unless plaintiffs could convince the court that the united states supreme court if asked today would reverse thirty years of jurisprudence would strike down those forty four laws in those states and would undo its language in a ott unless they can make that showing then at the very outset the court must first convince itself that the illinois constitution provides greater rights than its federal counterpart so with that as our beginning i'll turn first to the privacy clause here is where the parties developed a lot of their ink in the briefs and understandably so because the word privacy doesn't appear in the federal constitution but for three independent reasons the privacy clause does not or the privacy language in article one section six does not provide a free standing right to abortion under illinois law and indeed as all explained even if it did that right would be in lockstep with  federal counterpart and for reasons i just mentioned that in itself would be fatal to the complaint why doesn't the privacy of the word privacy include a right to an abortion well as we point out in our briefs this court has said time and again that when looking at what privacy means we look at least two things one of the convention debates and the other is the historical context and on the way the time in this case both of those point in exactly the same direction and that is that the privacy right doesn't speak either way to the abortion issue we know this first and foremost because as we point out on pages eighteen to twenty of our opening brief the convention history could not have been clear the committee chairman for the bill of rights committee  directly whether or not the use of the word privacy would bear at all on the abortion debate and he responded no it to has nothing to do with abortion it's all mention in a moment there was additional debate surrounding due process but as for privacy that was the end of the discussion not a single delegate contradicted question or followed up that pronouncement by the chair of the civil rights committee what we do know from those debates is what they did have in mind including the word privacy they had in mind in the in the quoting now some of the phrases that were used by delegates delegates excuse me technological developments sophisticated devices essentially technological improvements going forward that would permit the government to surveil citizens in ways not yet concept contemplated by the delegates and they were understandably concerned that the existing language if it just tracked the fourth amendment of the us constitution may not be nimble enough to adapt itself to those future advances consistent with that with the exception of family life league which i'm very happy to address in a moment this court has made clear time and time again including its decision in one thousand nine hundred two called nine hundred ninety nine nine hundred ninety one will county grand jury the court is made clear that privacy has come to mean two things in illinois run a right against the invasion of informational privacy and the other the right against taking things for investigatory purposes from the person fingernails hair etc those are the two categories and that's perfectly consistent with the convention history now the other factor this court has said we have to consider in deciding what privacy means is the historical context surrounding the one nine hundred seventy ratification of the constitution well that two points in exactly the same direction for many many years prior to the convention and for three years beyond it until one nine hundred seventy three they were annoyed criminally prohibited abortion it was a crime in illinois until one nine hundred seventy three and in one thousand seven hundred three when this court struck down illinois abortion law in a case called frye this court did so relying entirely on the vend very recently decided us supreme court decision in roe v way there is nothing in the fry to citizen to suggest that the court perceived illinois law as a grounds for its decision in front so there to have historical context the delegates operating in a circumstance in which it is criminally unlawful to perform an abortion and the statement coupled with the statements that were made on the floor paint a compelling picture now rise family life league not an obstacle to this reading but there are three points i'd like to make about family life leaks first to be sure there is a sentence in family life lead after a citation to roe there's a sentence that says that illinois recognizes this privacy rights and it cites two provisions of the only constitution article two and cited article one section six and article one section twelve so section six is the privacy provision the reason we know that the court in all likelihood simply cited the wrong provision in there and to be sure it was cited wrong in the brief in the one nine hundred eighty six briefs on behalf of the the attorney general's office as well the reason is there's no discussion it's a single sentence there's no discussion to suggest the court is undertaking the sort of developed analysis one would know they would undertake if instead with that single sentence the court was announcing a new right to privacy located not in due process where the federal courts had already recognized it but rather in the use of the word privacy in the search and seizure provision just before the word privacy is the phrase search and seizure and just after it is a prohibition on eavesdropping it seems unlikely that the court would have reached that conclusion monumental as it is without a whiff of discussion including a discussion of the very history that i've just gone over history that the court has said time and again one must consider in deciding what the word privacy means beyond this we know that even if only i should let me let me add to that here's why correcting that now and saying that the proper citation should have been to article one section to due process is not going to require the court to overturn anything there are two reasons for that the first is that paragraph of week as we explain in our brief is pure dicta the issue of whether or not a woman's right to an abortion was in play at all in that case is because it was a claim that by disclosing the information that was demanded by plaintiffs in that case it would just swayed physicians from performing abortions and that would have a collateral fact on women wanting to have that procedure that's why the paragraph is there but soon after that paragraph the court makes very clear that it discounts entirely the claim that such a collateral fact would exist so at the end of the day the have the opinion there's no reason in the opinion to have addressed and gone through ultimately where if anywhere there is an abortion right under the federal or the illinois constitution and here's my final point on family life leave at the end of the day it really doesn't matter to this case and that's why the idea that the attorney general's office the defendants have conceded something monumental is misplaced it doesn't matter if family life lee did everything that plaintiffs contend it does if it announced a new a right to abortion or the illinois constitution and if it located that right in the word privacy that did all of that it still doesn't matter because everything around that citation makes perfectly clear that whatever illinois right it's describing is imperfect lock step with federal subsidy of due process now we know that for two reasons we know it because the court cites roe akron center another federal subset of due process case and two state cases both of which rely entirely on federal of due process case law that's reason number one reason number two we know it is because the court doesn't undertake any independent state constitutional law analysis if the court had just announced that there is a privacy right out of lockstep with federal law located in the privacy clause it bears on the abortion question the court would have needed to go further and say and you know as a matter of illinois law either although it may be broader it doesn't cover the circumstance either something needed to be said but instead  court treats the two as entirely identical so because as i've explained they have to at the threshold show that illinois out of lockstep is more protective than federal law it doesn't matter at the end of the day whether family life league erroneous  section two or section six moving on to sort of the third point regarding the privacy clause if at the end of the day the court rejects everything i've just said and concludes that yes there is a privacy sorry an abortion right located in the work privacy article one section six it is not in lockstep not withstanding family life like indeed it's broader than the federal right plaintiff's complaint still fails as a matter of law article one section six makes clear what the standard is when you're dealing with searches and seizures or other violations of that provision it's reasonable this and this law and it's a facial challenge where as we've said this court has said time and again you need to show that it's unlawful and every closely tailored to advance an important state interest that's in the bars decision itself and cannot be challenged collaterally here we know it because the us supreme court has upheld these laws and indeed as i mentioned laws much more troops of than these in the form of consent laws over the past thirty years and that forty four states have laws like this on their books and to boot the u s supreme court as we as we point out in our brief over a series of pages has time and time a used the word reasonable in describing precisely this kind of law so at the end of the day even if the court were to conclude that privacy has a problem the word privacy houses and abortion rights that abortion rights is more protective than the federal right nevertheless it's their facial challenge posed to our future as applied challenge their facial challenge fails as a matter of law i turn briefly to due process and equal protection as well the due process clause is worded subset of li identically to its federal counterpart one is in the passive voice one is in the active voice but both are virtually identical and therefore the presumption is this court made clear in the analysis it laid out  and before that until or the way you go about approaching this sort of provision is you begin from the presumption that it is in lockstep with its federal counterpart and indeed cabals explains how much is needed to overcome that presumption which describes this court's prior decision in washington and that was a case where the court did decide to depart from lockstep and cabal us explains the extraordinary elements that were present in that case that allowed the court to do so none of those are present here in washington the court as the court will recall that involved whether or not actual innocence is a free standing due process claim the supreme court just a couple of years earlier in herrera the u s supreme court had decided that it's not and this court in lockstep on that point but it did so only because three things were present none of which exist here the first the supreme court's decision was deeply divided and the court noted that contrast that to the u s supreme court in two thousand and six in a yacht unanimously saying that states unquestionably have the right to require parental involvement second in washington they had no evidence whatsoever about the framers intent from the convention history it was a blank slate here as i've mentioned quite to the contrary and finally there are the court held that not considering actual innocence as an independent due process violation would shock the conscience again contrast  nearly every state in the country has a law like this in place and every member of the u s supreme court believes it's constitutional so without a lockstep exception under process for reasons i stated at the outset of the argument the claim fails as a matter of law it it's even easier than that as we point out because in fact it's collaterally a stopped they raised a due process challenge in the bars litigation that claim was defeated by the seventh circuit and that again and unless plaintiffs can convince the court that we're out of lockstep not withstanding cabal us and the exception that proves the rule in washington then the claim fails at the outset equal protection we're here there's no dispute  protection we are in lockstep this court has said so expressly on multiple occasions most recently last year in re jonathan c b the court made clear that we are in one step with the federal constitution on equal protection and what that means is that plaintiffs must convince this court in order to rule in their favor as i said earlier that if the u s supreme court were today presented with their complaint raising an equal protection claim that court would unto thirty years of its  overturn the laws of forty four states and go back on what it said unanimously in ayotte in two thousand and six that's what they need to show in order to prevail on equal protection because they're in lockstep the plaintiffs make the point that the u s supreme court has never squarely addressed an equal protection challenge to a notice or consent law that is true to a point but the u s supreme court has made pronouncements that squarely for close any argument that that court would today adopt their equal protection here in madison which was decided in one thousand nine hundred one it's a notice case and it is been cited many times since by the court in the course of dismissing or doing away with the substantive due process theory that was raised the court addressed in equal amounts to an equal protection claim on all fours with the claim that plaintiff's advance here and now it with leave of court i will just read very briefly a short south sentence from the court in that case the plaintiffs claimed that utah allows a pregnant minor to consent to other medical procedures without formal notice to her parents if she carries the child to term that was the basis for part of the subset of due process argument precisely the argument that's being raised here in the guise of the equal protection claim the court responded but a state's interest in full term pregnancies are sufficiently different to justify the line drawn by the statutes so while it was to be sure formally in the guise of a subset of due process claim the court was very clear that this that it would reject this equal protection theory more than that every federal appellate court to address the issue since then all three that we cite in our brief all understand the supreme court to have closed the door on equal protection challenges to notice and consent laws so this court would not only have to say that the u s supreme court didn't mean what it said in matheson but also that every federal  it the supreme court decisions have also gotten it wrong and finally i'll end with rational basis if at the end of the day the court were to conclude that as to this issue we are out of lockstep equal protection with regard to the abortion question if that's the conclusion the court reached rational basis would be the approach there is a suggestion in the brief plaintiff's briefs that there is strict scrutiny would apply because there's a fundamental right at stake this is not the the there is not the fundamental right that the u s supreme court has recognized in d the u s supreme court has rejected time and again the theory that there is a fundamental right triggering strict scrutiny for abortion rather what the supreme court has made clear is that there is a right not to be unduly burdened in the abortion decision and the court has gone on to say in the lobby in one thousand seventy nine and all of the consent notice cases sense that so long as the statute includes a bypass procedure like the one here it isn't an undue burden therefore there can be no question but that rational basis applies and were there any doubt i would again commend to the court we have them in our briefs the supreme court's decision in mocker in seventy seven and harris in one nine hundred eighty both equal protection challenges involving abortion not notice and consent those were funding laws and they were funding laws that discriminated expressly or very obviously against abortion the court rejected the theory that strict scrutiny applied applied a rational basis and upheld both law so again there can be no claim here that even if the court were for the first time to break from lockstep on equal protection that anything other than rational basis applies and as we explained in our brief this law as a facial challenge certainly he's really satisfied the rational basis standard in my remaining moments i'll just touch upon gender equality as our briefs make clear is this court has made clear that provision was included in the constitution in order to ensure that women like other groups were discrimination against women or other you know by on the basis of gender was subject to strict scrutiny all of this court's cases have applied that provision only where there has been discrimination between genders and as we explain brief they haven't done so here as we further explain the cases they cite involving federal title seven law which is an opposite in any event they themselves do not disprove this idea that there has to be gender  and the only interest the state asserts in singling out abortion in this way is to protect minors the complaint provides well planned allegations that when proved will show that the assumptions underlying the general assembly's belief that minors seeking abortion are in need of special regulation are false and that the act actually puts minors in harms way such proof of stablish is significant constitutional wrongs under the illinois constitution and plaintiff's allegations are based on an overwhelming body of scientific study and the prevailing consensus among the leading medical psychological and public health authorities in the country and yet defendants would have this court disregard these allegations and dispose of plaintiff's only constitutional claims on the pleadings because federal courts that did not consider this evidence have upheld similar laws under the u s constitution that result is wrong under any appropriate understanding of this court's power to interpret the and enforce the illinois constitution the plaintiffs have stated a classic equal protection case illinois treat similarly situated people all pregnant minors differently based on how they exercised their fundamental right to abortion the state imposes harmful restrictions on those who seek abortion that it does not impose on those who choose to carry their pregnancies to term and it does so without justification since the act implicates a fundamental right strict scrutiny is indeed the appropriate standard and that imposes on the defendant a heavy burden to justify the discriminatory classification and this is a burden that defendants cannot meet on a motion to dismiss while the state's asserted interest in protecting minors is no doubt compelling in the face of plaintiff's allegations defendants cannot meet their burden of demonstrating that the classification here is narrowly tailored to advance the interest or is the least restrictive means of doing so in passing this act the legislature assumed that abortion imposes serious and long lasting medical and psychological harms and that minors are incapable of making fully informed medical decisions but these assumptions have been discredited by decades of scientific research and the broad consensus of the leading authorities upon which claim to space their allegations plaintiff's allegations show that abortion is far safer from a physical perspective than carrying a pregnancy to term indeed it is one of the safest procedures in  temporary medicine safer than having an injection of penicillin plaintiff's allegations also show that minors who have abortions are as healthy if not healthier from a psychological perspective than those who give birth and the allegations show that minors considering abortion are as capable as adults of making an informed decision and certainly as capable as minors who choose to carry their pregnancies to term the state simply cannot reconcile the classification here where permits pregnant minors to make all of their and far way to your decisions without being forced to involve a parent or the court in short the act frustrates rather than advances the state's asserted purpose of protecting minors by posing significant harm without justification and while the appropriate standard of strict scrutiny we submit that under these allegations this this law could not even pass rational basis but the plaintiffs are not asking the court to strike the law in its entirety at this time we're simply seeking the opportunity to return to the circuit court to present our evidence and to require the state to justify this differential treatment now the state argues mr scotto just argued that there is no fundamental right to abortion that is implicated here but that's not even an accurate statement of federal law this case planned parenthood versus casey that set forth the undue burden standard was very clear unburdened is the test for whether under federal law as for whether a law infringing on the right to abortion is constitutional it is not some sort of threshold hold that there is a fundamental right to abortion mr scotto has cases made against rowan harris purchase mccrae which are the funding cases never called this into question at all and instead simply held that there is no fundamental to have the state pay for your abortion but the court was clear that we're the state places obstacles on the path to abortion that does implicate a fundamental right and it does therefore have to be considered strictly mr scotto argues that rational basis is the appropriate standard here and we disagree with that with that approach but even if it were as this court has made clear there's a judicial obligation to ensure that the power to classify has not been exercised arbitrarily and this court has repeatedly struck laws where one the statute the classification undermines rather than advances the asserted purpose and that would be and there cited in our briefs but in jacobson versus the part that of public aid and invest versus taylor machinery the court has struck lawyers on a rational basis analysis where the same interests  classifying the two classifications differently can be can be asserted with regard to both classifications and that therefore there's no basis to differentiate and the court has said that the even under rational basis review the legislature cannot classify based on unfounded assumptions yes it can engage in rational speculation but rational speculation is simply not the same thing as relying on specious and discredited backs and indicate where the court had done that where the legislature it had had classified marijuana as a narcotic and it had done so on the assumption that marijuana was a gateway drug to heroin use the the court said that was once believed but current science and it reviewed the current science discredits that assumption and therefore the statute has to fall now getting to the lockstep doctrine mr scotto argues that the only way that equal protection claim is to demonstrate that the u s supreme court today would rule differently then it did in its due process cases on an equal protection claim if it were presented but the reality is that the u s supreme court never court with a separate constitution and it has the ability to evaluate the case that gets played presented before them so even though we are typically in lockstep on equal protection with that means is that we apply the same standards and under federal law and under illinois law the standard that gets applied when there is an infringement on a fundamental right is strict scrutiny and as i have stated the defendant simply cannot meet that burden certainly not on a motion to  the u s supreme court's to process cases which defendants were lying on are in fact actually unpersuasive even if the school ronit to look to them because those cases set up this framework for assuming that if you that abortion causes significant harms that hearing a pregnancy to term does not and that therefore there's an appropriate basis to differentiate indeed matheson stated with our a single citation without any support that childbearing think quote few perhaps none of the potentially grave emotional and psychological consequences of the decision to abort your honour's three decades of scientific research has been conducted and published since that assumption was made and that is the same assumption that the only general assembly will write in passing this law here and that in those three decades that assumption has been demonstrated to be simply so that we can go to the circuit court we can put on our evidence the defendants can put on evidence the circuit court can appropriately evaluate expert testimony and determine whether the infringement on this fundamental right can be justified case was cut off prematurely in the circuit court by the circuit court's mistaken belief that somehow the limited lockstep doctrine is a doctrine of preclusion rather than one of constitutional interpretation and so we never had the opportunity to put on the substance we have very detailed allegations allegations which when proved will demonstrate that the underlying assumptions that the only general somebody engaged in passing the statute and creating this discriminate these discriminatory classifications and this differential treatment away and that simply in the face of that proof the law simply won't be able to withstand any level of constitutional scrutiny but we are not asking the court to make that determination at this point we don't believe that the case has been developed appropriately for that to happen the legislature did not consider evidence when it passed the law in one nine hundred ninety five it did not in it hearings there were many many statements made but there was no evidence submitted to the legislature so it was basing its decision to pass the law on these assumptions and granted these are the assumptions that the supreme court made as well but they have been demonstrated to be false and when they fall away in the face of over a quarter of a century of unbelievably developed scientific research and the prevailing opinion of the leading authorities in the country the state you can't stand likely the privacy clause of the illinois constitution protects a fundamental right to abortion and we don't believe that this is a typo we don't believe that this was an error on the part of this court insight into the wrong provision and that they should have been fighting the due process provision and it is unimaginable that both the illinois attorney general who argued this this this claim to the supreme court and to this court somehow accidentally sided the wrong provision of the what i said was that its analysis was based on assumptions that are false and it that it had no citation to support those assumptions and we now have thirty years of science that undercuts that assumption but to answer the question about family life need your honor at the time that the privacy provision was added to the illinois constitution the drafters were very clear that they intended to add broad protections against an undefined away of privacy invasions beyond those protection that were currently protected under the u s and the illinois constitutions and that would evoke over time and be recognized to judicial interpretation privacy is a word that has common meaning and it had common meaning at that time and even t concluded that based on the arguments that were presented by the illinois attorney general it is true since you don't have a chance to get back up i want you to have the opportunity and for this question which really relates to  arguments when we when we look to the time of the illinois constitution abortion was illegal when we look to the legislative comments and in particular committee chairman gert's and this is what mr scotto said i'm not saying it's i just want you to address it that he indicated that the clause had nothing to do with the board your honor at the time of the constitutional convention in fact the question of the legality of abortion in illinois was under question there was a case called over to scott which is cited in our briefs where there was a challenge being brought to the cripplingly criminal abortion law consistent with challenges that were actually being proud of the country and calling into question the validity of and discussions at the constitutional convention it seems clear that what this what the the delegates wanted was an evolving a living constitution that could evolve in a changing society and be interpreted by the courts to write the needs mr good's also stated that all kinds of things might invade our dignity as human beings and i want to stem the tide and the notion that all they were doing by having this word privacy that actually had a common meaning that would include sexual and reproductive conduct by adding this for privacy all they were doing was expanding search and seizure rights seems contrary to actually common sense in that all they had to do to expand search and seizure rights was to had to be resolved in the case once the illinois attorney general raised the argument that in fact the fundamental right to abortion would be invaded were the state required to produce a list of the names of abortion providers because it wouldn't fringe on the rights of their patients and so once that was raised the court here to resolve it it didn't have to go further because it concluded that there was an evidentiary support for it but as just cisco see it stated below  did the right to abortion in the privacy cries point this is an independent and express written the only constitution that doesn't exist in the federal constitution and once it's located in the privacy clause with this court does  analysis the analysis of whether there's been an unreasonable invasion of privacy under the only constitution not under some other reason all this analysis and what this court does is it weighs the level of expectation of privacy and the degree of intrusion into the need for the intrusion and here these allegations taken as true as they must be in this procedural posture demonstrate that on this side of the equation on the need for intrusion there is absolutely nothing there is no need for in intrusion on the fundamental right to a russian war on the right of the young woman not to have to reveal the most private most intimate aspects of her personal life either to her parents or to faced with the status constitutional wrongs look for ways to right those wrongs and actually the case that mr scotto has cited is quite instructive on this point because in the case and by the way at the court did not consider differential treatment of pregnant minors who carried to term from those who have abortion it simply relied on the long standing history of the u s supreme court upholding the statutes in a out the court of appeals had struck the let the court of appeals consider whether there is a narrower form of relief that could write those constitutional wrongs without the need to invalidate it in all of the tepper cations to see that my time is up if i could just right of privacy guaranteed by the united states united states constitution is also secured by the one nine hundred seventy constitution so would it be merely coextensive with the record bat refers back to the woman's right on the woman's decision whether to terminate her pregnancy bat right is what the court what i believe that the court was referring to and it wouldn't be called stance because again we have an independent privacy clause we have one that doesn't exist in the federal constitution it developed the record and then have an appropriate level of appeal thank you thank you mister very briefly here either i want to make a clarification at the outset regarding casey and the fundamental right there's been some back and forth on this and i want to make sure there's no misunderstanding it is not the defendant's position that you have to first show a violation there's no undue burden and then from there proceed on to additional review the point merely is that the u s supreme court has made clear time and time again that the fundamental right is not the right to an abortion per se it's a right the right that's protected and vigorously protected is the right not to have the state unduly burden that decision indeed as casey itself said it's not a right to decide whether to have an abortion without interference from the state rather it's a right not to be unduly burdened likewise in the moher case which as i mentioned was an equal protection case that involved funding the court said the right protects the woman from unduly  interference with their freedom to decide whether to terminate her pregnancy so we agree that once what the federal court has identified as the level of scrutiny or as the right is an undue burden right the supreme court has also said beginning with  seventy nine and right through today has said if there is a judicial bypass and other elements that are absolutely in place here exist then a notice law or consent law is does not provide an undue burden and our point is merely that unless this court recognizes one under the due process clause of the illinois constitution out of lockstep with federal law unless this court for the first time announces a fundamental right to abortion per se that goes beyond what the federal courts have consistently held then strict scrutiny simply doesn't apply rather as the supreme court has said in cases where there isn't an undue burden they're applying rational basis as they did in mock or as they did in harris if if we accept  read not as we make clear first of all it will for multiple reasons and let me take the easiest on them first and it's a point justice thomas touched upon in his question two opposing counsel life league makes clear that it is referring to the privacy right that was recognized in roe is referring to the privacy right that was recognized in akron center which is also the other federal case cited by the supreme court in family life like there's no independent analysis of what privacy means beyond lockstep so even if this court were to conclude that family life league announced a new a right to abortion and it's housed in the privacy clause it would not affect our position before this court at all indeed defendants have made clear throughout the fence because we see the due process clause as in lockstep defendants are of the view that they're the illinois constitution does recognize a right to an abortion that is in lockstep with the fed those federal protections and for the same reasons that the due process claim fails namely the fact that the u s supreme court has rejected claims like this for the last thirty years for that same reason even if family life league were read to announce that right and housing the privacy clause it would not affect rational basis does not is not in the courts were subject to courtroom fact finding but that's precisely what's being asked for here is that we go back to the circuit court and have that court serve as the super legislature and to take in a courtroom fact finding plaintiffs contend that the law but the facts have changed but i would direct the court to our brief at pages thirty three of our opening brief and pages eight and seventeen of our brief and it those portions of the briefs we quote from and identify or p sight to us the series of us supreme court cases where largely dissents in those cases summarize the evidence that was presented and that evidence tracks very closely the nature of the evidence that's being presented here and again at the end of the day the point would have to be that innate in view of these changes or in view of the way the issue is framed here federal courts if we're in lockstep federal courts would also agree that there is an equal protection violation let me make one note about the legislative history there's been discussion about the outdated nature of assumptions and so on but i would at least direct the court's attention to it see nine forty three in the record the house sponsor talks about reasons behind the law as it's being proposed and he mentions the fact and this picks up on a theme that appears on behalf of some of the u s supreme court justices and their opinions as well in their decisions he identifies the the need for medical history to be passed along that unlike with childbirth where at least it would not be irrational on the part of the general assembly to assume parents would be more often aware of the child birth as it's occurring or beforehand with the case of an a bortion notice allows the parents to provide the physician with family medical history with the history of the juvenile's own medical records that's something that certainly was talked about on the floor when the bill was being  discussed turning briefly there was a mention of the fact that germany was but one member of the general some i'm sorry of the constitutional convention while of course that's true the case the plaintiffs cite in their briefs for that proposition is the client follow up company case from hundred seventy nine and in this in that opinion this court does say that you can find different things sometimes in the convention history but i would mention to the court what the what the what this court did in that case on page two hundred and twenty six of the court's opinion in that case it what is it ultimately rely on it relies on statements made by the chairman of the relevant committee and that case it was chairman current chairman of the road revenue and finance committee it was a revenue and finance issue that was before the court involving advil or in taxes and the court did say that you can get you can lose your way of looking at what different people on the convention floor say but they didn't put stock in what the relevant committee chairman said and here that's chairman  and finally with regard to the facial challenge and i'll end with this as we point out in our brief this court does not merely give lip service historically to the statement that in making a facial challenge you have to show that a law is unconstitutional in all of its applications and indeed this court has it here to that consistently in the cases we have cited and this is not an issue of remedy plaintiffs have yet to suggest what that remedy would be on remain and if as they say this is really just about getting in the door and then after showing some problem constitutional deficiency it will be up to the circuit court to craft a nearly tailored remedy i'm hard pressed to figure out what that could be and nor have they yet suggested what that could look like the request here is that  the bypass is fundamentally unsound that is the plaintiff's theory that it is unconstitutional and that it ought to be struck down in toto and so i'm not clear as to how this could be reconciled in the court could say well it's ok we'll look past our repeated oral argument docket for september two thousand and twelve mr marshall the all my supreme court stands