Pharmacists get 2nd shot to make First Amendment argument

Wednesday, December 24, 2008

Illinois Gov. Rod Blagojevich has bigger problems these days, but one of his signature policies recently suffered a serious First Amendment-based setback.

Just a day after rejecting state Attorney General Lisa Madigan’s attempt to remove the scandal-plagued governor from office, the Illinois Supreme Court on Dec. 18 ruled in Morr-Fitz, Inc. v. Blagojevich that pharmacists could pursue their claim that the state’s rule forcing them to dispense “Plan B” contraception violates their religious freedom.

On April 1, 2005, the Democratic governor issued a rule requiring Illinois pharmacists to dispense the contraception, which often is referred to as the “morning-after pill.” If taken within three days of sex, the pill reduces the chance of pregnancy by preventing ovulation or fertilization. If fertilization does occur, the drug is designed to prevent the fertilized egg from attaching to the womb. Some people therefore believe taking the pill is like an abortion and object to the drug on moral and religious grounds.

When issuing the Emergency Rule, Blagojevich publicly warned that violators faced significant penalties, including heavy fines and the loss of professional licenses. Two weeks later, the governor issued a press release stating he would “vigorously defend” the rule.

“If a pharmacy wants to be in the business of dispensing contraceptives, then it must fill prescriptions without making moral judgments,” Blagojevich said. “Pharmacists — like everyone else — are free to hold personal religious beliefs, but pharmacists are not free to let those beliefs stand in the way of their obligation to their customers.”

According to the lawsuit, Blagojevich reaffirmed his position in March 2006, when he said druggists who objected to dispensing the drug on moral grounds “should find another profession.”

Two Illinois pharmacists, Luke Vander Bleek and Glen Kosirog, challenged the constitutionality of the rule in state court. They argued that they had sincere religious and moral objections to dispensing Plan B contraception, and alleged that the rule was enacted specifically to compel religious and conscientious objectors to fill Plan B prescriptions and that it violated the First Amendment, the Illinois Health Care Right of Conscience Act and the Illinois Religious Freedom Restoration Act.

Blagojevich and the other defendants moved to dismiss the lawsuit, arguing the two pharmacists lacked standing to sue because they had not been damaged by the rule and because the pharmacists had not sought a variance from the Department of Financial and Professional Regulation, which enforces the rule. The trial court agreed with the defendants and dismissed the suit with prejudice, meaning it could not be re-filed.

On appeal, the Illinois appellate court affirmed in a 2-1 decision. According to the appeals court, the pharmacists had not alleged that they had been presented with a prescription for Plan B contraception or that they had been forced to take any action since the rule was adopted. Therefore, based on the allegations before it, the court concluded the two pharmacists’ chances of suffering hardship from the rule were too “slim” to outweigh the court system’s “traditional reluctance to get involved in administrative determinations.” The majority also stated that, based on the pharmacists’ allegations, it was “extremely unlikely” either of them would “ever be placed in a position where he will have to violate either his conscience or the letter of the Rule.”

The pharmacists then petitioned for rehearing and submitted affidavits demonstrating the harm they had suffered as a result of the rule. One pharmacist stated he had been presented prescriptions for Plan B contraception more than 15 times and had been forced to close one of his pharmacies because the rule made it difficult to hire a pharmacist to operate it. The other pharmacist stated he had spent additional resources recruiting pharmacists and addressing their concerns about the rule. Despite this evidence, the appellate court denied the petition for rehearing.

Unlike the appellate court, the Illinois Supreme Court found this evidence compelling. The court also noted that the rule was amended in April 2008 to make the requirements on pharmacists even clearer. In a 5-2 decision, the court reversed the appellate and trial courts and ordered the trial court to conduct a hearing on the pharmacists’ objections to the rule.

“Under the current version,” the high court said, “the simple failure by plaintiffs to make efforts to stock the contraceptive in question would subject plaintiffs to a range of penalties, including license revocation… . Under these circumstances, application of the rule to plaintiffs cannot be considered remote.”

The court also emphasized that the pharmacists’ most significant harm was not financial, but the alleged violation of their First Amendment rights.

The rule “poses harm to the plaintiffs that is even greater than financial loss,” the court said. “Plaintiffs allege that the rule chills their first amendment rights. Plaintiffs are forced to comply with the rule or else compromise their rights to act according to their consciences and religious tenants. … [C]ourts routinely find not just harm, but irreparable harm, where a plaintiff asserts a chill on free exercise rights.”

The alleged infringement on their First Amendment rights also persuaded the court that it was not necessary for the pharmacists to seek a variance from the Department of Financial and Professional Regulation.

“Where the object of the rule is to infringe upon or restrict practices because of their religious motivation,” the court said, “the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.”

“Here,” the court said, “the rule at issue is facially neutral as to the text, but plaintiffs have alleged that the rule was motivated by a desire to compel religious objectors to dispense Plan B contraceptives in violation of their belief and religious practices. In such a case, the regulation is subject to strict scrutiny and can only survive if it is justified by a compelling governmental interest. Accordingly, plaintiffs did not have to seek a variance and exhaust administrative remedies before filing their claim in circuit court.”

While ruling in favor of the pharmacists, the court did not reach the merits of their claim. Instead, the court remanded the case to the trial court for a hearing on the pharmacists’ motion for preliminary injunction.

However the trial court rules on the pharmacists’ motion, the case is not likely to end there. Instead, the pharmacists likely will have the opportunity to argue before Illinois appellate judges that the rule violates the pharmacists’ First Amendment rights. In light of where their claim stood after the appellate court’s initial decision, that opportunity — by itself — is a victory for the First Amendment.