dissenting:
I respectfully dissent. I do not believe that the disclosure of the names of abortion providers and the amount of public funds they receive infringes on welfare recipients’ freedom to make a decision to have an abortion.
The majority concludes that the welfare recipients’ privacy rights are affected after a series of premises, the most important of which is based on assumption and speculation. The majority begins with the accepted premises that a woman’s decision to abort her pregnancy involves her fundamental right to privacy (Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705), that she must be able to effectuate her decision and consult with her doctor without interference (Whalen v. Roe (1977), 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869), and that her doctor must be freely able to practice medicine in order to advise her about the abortion decision. The majority then infers a fourth premise that disclosing to the public the names of doctors who provide welfare abortions will result in harassment of these doctors. Consequently, they cannot advise their patients and the patients’ rights are infringed. In support of this fourth premise, the majority appends a series of media reports about the recent violent attacks on abortion clinics. Although I agree that “the terrorism of abortion clinics by anti-abortion vigilante groups [is] very real,” I cannot assume, without support in the record, that plaintiffs are such a group or that by releasing public expenditure information to plaintiffs such “terrorist acts” will result or that plaintiffs would “arbitrarily restrain” the practices of doctors performing the welfare recipients’ abortions.
The State Records Act provides that records of the use of public funds are public records available for inspection. The Act does not require that persons requesting information must provide their reasons for doing so. Certainly, by providing such access, the legislature intended that persons would act upon the information. Plaintiffs have not indicated, nor must they indicate, what purpose they have in seeking the names of abortion providers. It seems more probable that, rather than arbitrarily restraining the doctors’ practices, the court could as easily surmise that plaintiffs intend to exercise their fundamental rights to speak out freely against abortion.
In support of the department’s and the medical society’s positions, the Roger Baldwin Foundation of the ACLU asserts the position that access to public expenditure records should be restricted. In addition to the argument accepted by the majority, the ACLU maintains that by providing plaintiffs with the information they requested, the State would be assisting in the invasion of welfare recipients’ rights of privacy in violation of the Records Act. The ACLU brief also takes the illogical leap that an informed public will commit unlawful acts to hinder a woman’s personal choice regarding an abortion.
The Supreme Courts of Minnesota and Kansas were both presented with the identical argument that disclosure of doctors’ names would interfere with their patients’ decision to seek an abortion. (Minnesota Medical Association v. State (Minn. 1978), 274 N.W.2d 84; State ex rel. Stephan v. Harder (1982), 230 Kan. 573, 641 P.2d 366.) Both courts rejected such speculation. The Minnesota court stated:
“The disclosure sought to be prevented in this case would not constitute such an ‘otherwise unconstitutional restriction.’ Disclosure places no burden on the doctor, does not destroy the confidentiality of his relationship with patients, and does not restrict his freedom to exercise his medical judgment.” (274 N.W.2d 84, 92.)
The courts also noted that disclosure might in fact aid women who were seeking doctors willing to perform an abortion.
Furthermore, a woman’s right to privacy to decide whether to have an abortion without interference is not absolute. The United States Supreme Court has upheld the States’ rights to refuse to provide Medicaid funds for nontherapeutic abortions. (Maher v. Roe (1977), 432 U.S. 464, 53 L. Ed. 2d 484, 97 S. Ct. 2376; Beal v. Doe (1977), 432 U.S. 438, 53 L. Ed. 2d 464, 97 S. Ct. 2366.) Although welfare recipients may freely decide whether to have an abortion, the Illinois Department of Public Aid only pays for abortions “necessary for the preservation of the life of the woman seeking such treatment.” (Ill. Rev. Stat. 1983, ch. 23, par. 5 — 5.) Obviously the refusal to pay seriously interferes with a poor woman’s decision to abort, but such interference is valid. Assuming that there is any interference with the personal decision of a woman because the State has released the names of doctors who provide abortions, I would find that the countervailing rights of the parties seeking such information should prevail. Despite the majority’s attempt to qualify its holding, I believe that it sets a dangerous precedent to shroud information about public expenditures in a cloak of secrecy or to require that persons requesting such information provide an acceptable reason for their request.
Since I agree with that portion of the majority opinion which finds defendants’ remaining arguments to be without merit, and because I believe disclosure of the information requested by plaintiffs does not interfere with welfare recipients’ fundamental rights, I would remand the cause to the trial court with instructions to issue the mandamus.