Illinois? No. Not my state.
Adriana Smith could be on life support in Illinois, right now, today. Yes, under our CURRENT LAWS.
By now — unless you have chosen to completely live under a rock and check out of this hellscape we are in (which, yes, I told you not to do that after the Inauguration and now I’m like, I get it) — you’ve heard about Adriana Smith, the woman who is being kept on life support because at 9 weeks pregnant, she complained of headaches and was sent home with some medication, only to die from multiple brain clots. Why is she being kept “alive?” Because she is pregnant. And in America, that means a brain-dead woman’s body can be turned into a life support machine for a fetus. Go read about it if you have not already, it makes me sick and boils my blood.
I have not been able to stop thinking about her and her family. Then, as I scrolled tonight, I saw Dr. Jennifer Lincoln post about advanced directives. What’s that? I had not heard that language before. Perhaps I too live under a rock. I kept reading.
An advanced directive lets you say, in writing, things like: “Do not keep me alive on machines.” Pretty important stuff.
I proceeded to the newsletter. Damn it, I was today years old too.
Phew, Illinois was not listed in the 9 states that invalidate your advanced directive outright. But let me just Google it…
No. Nope. Not my state. Not the beacon of hope —- not the haven for abortion access surrounded by restrictive states. Not the destination for pregnant people staring life threatening conditions in the face and calculating time, distance, and money in an instant. Not my state.
And then….
“If you are pregnant and your health care professional thinks you could have a live birth, your living will cannot go into effect.”
Let’s go to the actual law. Damn it, it’s not a nightmare. It’s real.
“The declaration of a qualified patient diagnosed as pregnant by the attending physician shall be given no force and effect as long as in the opinion of the attending physician it is possible that the fetus could develop to the point of live birth with the continued application of death delaying procedures.”
Yes, this is law in a state that passed the Reproductive Healthcare Act that “sets forth the fundamental rights of individuals to make autonomous decisions about one's own reproductive health, including the fundamental right to use or refuse reproductive health care.”
But those “fundamental rights” come with fine print:
“If the health care professional determines that there is fetal viability, the health care professional may provide abortion care only if, in the professional judgment of the health care professional, the abortion is necessary to protect the life or health of the patient.”
That word—viability—is where the law collapses on itself.
Viability is not a medical term or even one based on science. It originated at the Supreme Court when a law clerk determined “viability” as when the state (ahem, government) interest outweighs that of the pregnant person.
Truly. The law clerk was George Frampton and the Supreme Court Justice was Harry Blackman. “George said to Blackmun, how about we use the point in the middle of a pregnancy called viability as the line where the state’s interest outweighs that of the pregnant person, and states can ban abortion after that point.”
In Illinois, “fetal viability” means that, “in the professional judgment of the attending health care professional, based on the particular facts of the case, there is a significant likelihood of a fetus' sustained survival outside the uterus without the application of extraordinary medical measures.”
Any abortion laws that have a “viability line” are less than ideal and should not be considered progressive. Roe was always the floor, my friends. Never the ceiling. If you are going to come at me about late term abortions, spare me and go read this.
I bring us back to advanced directives and Illinois. And Adriana Smith. She could be kept on life support in Illinois. Right now. Today.
Because of a little-known clause in the Illinois Living Will Act that effectively erases your autonomy if you’re pregnant and find yourself facing a terminal condition.
Illinois must amend this law. We cannot claim to lead in reproductive justice while allowing statutes that reduce pregnant people to incubators—stripping them of legal personhood the moment they conceive. The good news is, we have the political will and the champions to do it. Let’s get it done.
Because until we change this, Illinois is not a haven. It is not an exception. It’s just another state that codifies control over pregnant bodies.
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Sidenote: To the attorneys that follow —- in Illinois, could I give my healthcare power of attorney the right to authorize me to have an abortion? If yes, then could that happen and THEN my living will could go into effect? I should not have to ask these questions because there should not be nuances and exceptions to my right to make decisions about my body and my healthcare, but to best understand the law, I’d like to learn more. Drop a comment!
