Pharmacists win religious-freedom victory

Tuesday, December 25, 2012

DIXON, Ill. — Justice delayed, it turns out, is not always justice denied.

Earlier this month, Illinois Attorney General Lisa Madigan ended a seven-year legal battle against two Illinois pharmacists who on religious grounds refuse to dispense “morning-after” contraception.

Madigan’s decision not to seek Illinois Supreme Court review of a state appellate court ruling protecting the pharmacists is, of course, a significant victory for religious freedom. The battle, however, reminds us how easily that freedom can be threatened.

The battle began in April 2005, when then Gov. Rod Blagojevich issued an administrative rule requiring pharmacists and pharmacies to honor all prescriptions for contraceptives, including “morning-after” contraceptives designed to prevent a pregnancy after an egg is fertilized.

Blagojevich framed the issue as one of women’s rights, saying at the time that, “If a pharmacy wants to be in the business of dispensing contraceptives, then it must fill prescriptions without making moral judgments.”

Two pharmacies — Morr-Fitz, Inc., and Kosirog Pharmacy, Inc. — filed suit in September 2005 to enjoin enforcement of the rule against them, claiming it violated Illinois’ Conscience Act and Religious Freedom Act. The pharmacies later amended their complaint to add their owners — Luke Vander Bleek and Glenn Kosirog — as plaintiffs and to assert that the rule violated the owners’ rights to free expression under the First Amendment.

After considerable procedural sparring, the trial court dismissed the suit, holding that the pharmacies and pharmacists did not have standing to bring the claims and that the claims were premature. After the Illinois appellate court affirmed, the plaintiffs appealed to the Illinois Supreme Court.

In December 2008, the state Supreme Court reversed the appeals court, holding that the claims were not premature and that the plaintiffs were entitled to challenge the rule. The court therefore sent the case back to the trial court for further proceedings.

In August 2009, the trial judge preliminarily enjoined the state from enforcing the rule (which, interestingly, had in the interim been amended to be even more punitive toward objecting pharmacists) against the plaintiffs. Illinois then amended the rule again, this time to remove specific references to “morning-after” contraception and to more generally require pharmacists to fill all prescriptions for legal drugs.

During the trial in March 2011, the judge considered whether the pharmacists’ objections were sincere enough to warrant protection under the Conscience and Religious Freedom Acts and under the First Amendment.

The Conscience Act provides: “No physician or health care personnel shall be civilly or criminally liable … by reason of his or her refusal to perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care service which is contrary to the conscience of such physician or health care personnel.”

The Religious Freedom Act provides that Illinois “may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling governmental interest.”

The trial court concluded that the pharmacists’ objections were sincere and it invalidated the rule under both acts and the First Amendment.

On appeal, the appellate court in September 2012 upheld the trial court’s ruling but narrowed it in two ways.

First, the appeals court held that the trial court erred when it applied the Religious Freedom Act and the First Amendment. Because the Conscience Act clearly protected the pharmacists’ decisions not to dispense the contraceptives, the court said, it was unnecessary to decide whether the Religious Freedom Act and the First Amendment provide similar protections.

Second, the court held that, although the trial judge could bar enforcement of the rule against the pharmacists, he could not invalidate the rule.

“The Conscience Act does not prohibit governmental action that may ultimately force health-care personnel or health-care facilities to make a conscientious decision based on their beliefs not to comply with that governmental action,” the court said. “The Conscience Act, instead, states such personnel or entities may not be … punished … if they make a conscience-based decision not to comply. The Current Rule does not violate the Conscience Act; its enforcement against plaintiffs on the issue of emergency contraception does.”

After initially indicating an interest in appealing the appellate court’s ruling to the Illinois Supreme Court, Madigan earlier this month informed the court in a letter that her office had “decided not to pursue further review.” She did not explain her decision in her letter and has not commented on it since.

While the now-final appellate court opinion literally is limited to Vander Bleek, Kosirog and their pharmacies, it seems highly unlikely that Madigan could enforce the rule against other pharmacists who resist on conscience grounds. The pharmacists’ victory therefore has statewide — and perhaps national — implications in the ongoing debate regarding the extent to which government can regulate speech between health-care providers and their patients.

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