NO. 4-05-1050 Filed 3/19/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
MORR-FITZ, INC., an Illinois ) Appeal from
Corporation d/b/a FITZGERALD PHARMACY, ) Circuit Court of
Licensed and Practicing in the State ) Sangamon County
of Illinois as a Pharmacy; L. DOYLE, ) No. 05CH495
INC., an Illinois Corporation d/b/a )
EGGELSTON PHARMACY, Licensed and )
Practicing in the State of Illinois as )
a Pharmacy; KOSIROG PHARMACY, INC., an )
Illinois Corporation d/b/a KOSIROG )
REXALL PHARMACY, Licensed and )
Practicing in the State of Illinois as )
a Pharmacy; LUKE VANDER BLEEK; and )
GLENN KOSIROG, )
Plaintiffs-Appellants, )
v. )
ROD R. BLAGOJEVICH, Governor, State of )
Illinois; FERNANDO E. GRILLO, )
Secretary, Illinois Department of )
Financial and Professional )
Regulations; DANIEL E. BLUTHARDT, )
Acting Director, Division of )
Professional Regulations; and THE )
MEMBERS OF THE STATE BOARD OF )
PHARMACY, in Their Official ) Honorable
Capacities, ) John W. Belz,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In October 2005, plaintiffs, two individual pharmacists
and three Illinois corporations that own and operate pharmacies
in Illinois, filed their first amended complaint seeking
injunctive and declaratory relief against defendants, Governor
Rod Blagojevich, Secretary Fernando Grillo of the Illinois
Department of Financial and Professional Regulations, Acting
Director Daniel Bluthardt of the Division of Professional
Regulations, and the State Board of Pharmacy. The suit alleged
an administrative rule requiring pharmacies to dispense a certain
contraceptive, levonorgestrol, also known as "Plan B" or the
"morning after pill" (Rule) (68 Ill. Adm. Code §1330.91(j), as
amended by 29 Ill. Reg. 13639, 13663 (eff. August 25, 2005)),
violates federal and state law by forcing plaintiffs to dispense
the "morning after pill" even though this violates their
religious beliefs and consciences. In November 2005, the trial
court granted the State's motion to dismiss with prejudice on the
grounds of lack of standing, ripeness, and failure to exhaust
administrative remedies. Plaintiffs appeal, arguing the
following: (1) they had standing; (2) they did not have to wait
until a customer presented them with a prescription and then
refuse to fill the prescription, thereby subjecting themselves to
disciplinary proceedings, before they could challenge the Rule;
and (3) they did not need to exhaust their administrative
remedies before bringing this action in circuit court. We
affirm.
I. BACKGROUND
Plaintiffs in this case allege having moral and
religious objections to dispensing the "morning after pill."
Based on the plaintiffs' beliefs, life begins at conception. As
a result, according to plaintiffs' beliefs, the "morning after
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pill" has the effect of destroying human life because it can
prevent an already fertilized egg from implanting in the uterus.
According to the Rule, plaintiffs have certain
obligations regarding emergency contraception, such as the
"morning after pill." The Rule states as follows:
"Duty of Division I Pharmacy to Dispense
Contraceptives
1) Upon receipt of a valid, lawful
prescription for a contraceptive, a pharmacy
must dispense the contraceptive, or a
suitable alternative permitted by the
prescriber, to the patient or the patient's
agent without delay, consistent with the
normal timeframe for filling any other
prescription. If the contraceptive, or a
suitable alternative, is not in stock, the
pharmacy must obtain the contraceptive under
the pharmacy's standard procedures for
ordering contraceptive drugs not in stock,
including the procedures of any entity that
is affiliated with, owns, or franchises the
pharmacy. However, if the patient prefers,
the prescription must be transferred to a
local pharmacy of the patient's choice under
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the pharmacy's standard procedures for
transferring prescriptions for contraceptive
drugs, including the procedures of any entity
that is affiliated with, owns, or franchises
the pharmacy. Under any circumstances an
unfilled prescription for contraceptive drugs
must be returned to the patient if the
patient so directs.
2) For the purposes of this subsection
(j), the term 'contraceptive' shall refer to
all FDA-approved drugs or devices that
prevent pregnancy." 68 Ill. Adm. Code
§1330.91(j), as amended by 29 Ill. Reg.
13639, 13663 (eff. August 25, 2005).
The "morning after pill" falls within the definition of a
contraceptive. The State has made clear it intends to enforce
the Rule. Under the Pharmacy Practice Act of 1987 (Pharmacy Act)
(225 ILCS 85/1 through 40 (West 2004)), the Department of
Financial and Professional Regulation may take disciplinary
action against a licensee if the licensee violates the Pharmacy
Act or any rules promulgated under the Pharmacy Act. 225 ILCS
85/30(a)(2) (West 2004).
In October 2005, plaintiffs filed their first amended
complaint for declaratory and injunctive relief challenging the
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Rule, claiming various state and federal causes of action. In
their amended complaint, plaintiffs allege they have been
presented with prescriptions for emergency contraception in the
past. However, they failed to allege that they have been
presented with a prescription for emergency contraception since
the Rule went into effect. Plaintiffs also failed to allege they
stock the "morning after pill," the Rule requires them to do so,
or the Rule has required them to take any immediate action to
comply with the Rule. That same month, the State filed a motion
to dismiss plaintiffs' claim based on their lack of standing.
The trial court dismissed plaintiffs' claim with prejudice based
on plaintiffs' lack of standing, lack of ripeness of the claim,
and plaintiffs' failure to exhaust their administrative remedies.
This appeal followed. In August 2006, the Food and
Drug Administration (FDA) approved "Plan B" for over-the-counter,
nonprescription sales to women age 18 and older.
II. ANALYSIS
A. Standard of Review
We review de novo a trial court's decision to grant a
motion to dismiss. Midland Hotel Corp. v. Director of Employment
Security, 282 Ill. App. 3d 312, 315, 668 N.E.2d 82, 85 (1996).
B. Standing in Declaratory-Judgment Actions
According to our supreme court, a preliminary question
in any declaratory-judgment action is whether the plaintiff has
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standing. Messenger v. Edgar, 157 Ill. 2d 162, 170, 623 N.E.2d
310, 313 (1993). According to our supreme court, "standing only
requires some injury in fact to a legally cognizable interest."
"There are two components to the standing
requirement in the context of declaratory[-]
judgment actions. There must be [(1)] an
'actual controversy' between adverse parties,
and [(2)] the party seeking the declaratory
judgment must be 'interested' in the
controversy." Flynn v. Ryan, 199 Ill. 2d
430, 436, 771 N.E.2d 414, 418 (2002).
In Underground Contractors Ass'n v. City of Chicago, 66
Ill. 2d 371, 362 N.E.2d 298 (1977), the supreme court explained
both of these components. As for the second component that a
party must be "interested" in the controversy, the court has
stated:
"The word[] 'interested' does not mean merely
having a curiosity about or a concern for the
outcome of the controversy. Rather, the
party seeking relief must possess a personal
claim, status, or right which is capable of
being affected. [Citations.] The dispute
must, therefore, touch the legal relations of
parties who stand in a position adverse to
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one another." Underground Contractors Ass'n,
66 Ill. 2d at 376, 362 N.E.2d at 301.
As for the "actual controversy" component, the court has stated:
"'Actual' in this context does not mean that
a wrong must have been committed and injury
inflicted. Rather, it requires a showing
that the underlying facts and issues of the
case are not moot or premature, so as to
require the court to pass judgment on mere
abstract propositions of law, render an
advisory opinion, or give legal advice as to
future events. [Citations.] The case must,
therefore, present a concrete dispute
admitting of an immediate and definitive
determination of the parties' rights, the
resolution of which will aid in the
termination of the controversy or some part
thereof." Underground Contractors Ass'n, 66
Ill. 2d at 375, 362 N.E.2d at 300.
Most of the arguments of both plaintiffs and defendants center on
these two components. Both plaintiffs and defendants ignore the
fact that this is not the only consideration courts take into
account in determining whether they will hear a declaratory
judgment action concerning the validity of an administrative
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action.
In Abbott Laboratories v. Gardner, 387 U.S. 136, 138-
39, 18 L. Ed. 2d 681, 686, 87 S. Ct. 1507, 1510 (1967) (Abbott
Labs), the petitioners challenged an administrative regulation,
arguing the Commissioner of Food and Drugs exceeded the authority
Congress granted in an amendment to the Federal Food, Drug, and
Cosmetic Act. The Supreme Court found the plaintiffs' claim was
"ripe." According to the Supreme Court:
"The injunctive and declaratory judgment
remedies are discretionary, and courts
traditionally have been reluctant to apply
them to administrative determinations unless
these arise in the context of a controversy
'ripe' for judicial resolution. Without
undertaking to survey the intricacies of the
ripeness doctrine it is fair to say that its
basic rationale is to prevent the courts,
through avoidance of premature adjudication,
from entangling themselves in abstract
disagreements over administrative policies,
and also *** protect[s] the agencies from
judicial interference until an administrative
decision has been formalized and its effects
felt in a concrete way by the challenging
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parties." (Emphasis added.) Abbott Labs,
387 U.S. at 148-49, 18 L. Ed. 2d at 691, 87
S. Ct. at 1515.
The Court stated "[t]he problem [of determining whether a
controversy is 'ripe'] is best seen in a twofold aspect,
requiring [the court] to evaluate both the fitness of the issues
for judicial decision and the hardship to the parties of
withholding court consideration." Abbott Labs, 387 U.S. at 149,
18 L. Ed. 2d at 691, 87 S. Ct. at 1515.
In 1990, this court stated:
"[A] declaratory[-]judgment action may be
maintained where statutes or administrative
rules, which have cleared all the hurdles
prerequisite to their becoming fully
effective, require one either to take a
certain action or to refrain from a certain
action, regardless of the actual probability
of prosecution for noncompliance." (Emphasis
added.) Kerr-McGee Chemical Corp. v.
Department of Nuclear Safety, 204 Ill. App.
3d 605, 610, 561 N.E.2d 1370, 1374 (1990).
The above statement would seem to allow plaintiffs to pursue this
declaratory-judgment action even though they would not suffer any
hardship if judicial consideration was withheld. However, this
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court made the above statement before our supreme court adopted
the two-step process described in Abbott Labs to determine
whether a claim is ripe for judicial consideration, which
requires us "'to evaluate both the fitness of the issues for
judicial decision and the hardship to the parties of withholding
court consideration.'" National Marine, Inc. v. Illinois
Environmental Protection Agency, 159 Ill. 2d 381, 389, 639 N.E.2d
571, 574 (1994), quoting Abbott Labs, 387 U.S. at 149, 18 L. Ed.
2d at 691, 87 S. Ct. at 1515.
In the case at bar, the trial court dismissed
plaintiffs' case in part because the court found the claim was
not ripe. It is not entirely clear from the record whether the
court meant plaintiffs did not meet the "actual controversy"
requirement discussed by our supreme court in Underground
Contractors Ass'n, or whether the court believed plaintiffs had
not felt the concrete effects of the Rule and would not suffer
any hardship by withholding court consideration. It appears the
trial court was basing its decision on the former. It also
appears plaintiffs and defendants also believed the court meant
plaintiffs did not meet the "actual controversy" requirement
because this is what both plaintiffs and defendants focused on in
their briefs. This provides some explanation why plaintiffs
failed to make any real argument that their claim was ripe under
the test established in Abbott Labs.
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That being said, this court's duty is not to determine
if the trial court's reasoning was correct. Instead, our duty is
to determine if the trial court's decision to dismiss plaintiffs'
cause of action was correct. City of Chicago v. Holland, 206
Ill. 2d 480, 491-92, 795 N.E.2d 240, 247-48 (2003). We find it
was correct.
Plaintiffs cite numerous cases in support of their
argument they should not have to wait to violate the Rule before
challenging it. However, most of the cases they cite deal with
challenges to statutes or ordinances, not administrative rules.
See Illinois Gamefowl Breeders Ass'n v. Block, 75 Ill. 2d 443,
448, 389 N.E.2d 529, 530 (1979) (constitutional challenge to
certain provisions of the Humane Care for Animals Act); Hays v.
City of Urbana, 104 F.3d 102, 103 (7th Cir. 1997) (challenge to
the validity of a city ordinance); Babbitt v. United Farm Workers
National Union, 442 U.S. 289, 292, 60 L. Ed. 2d 895, 902, 99 S.
Ct. 2301, 2305 (1979) (challenge to the constitutionality of
Arizona's farm-labor statute); Doe v. Bolton, 410 U.S. 179, 181,
35 L. Ed. 2d 201, 206, 93 S. Ct. 739, 742 (1973) (challenge to
criminal statute placing restrictions on abortions); Virginia v.
American Booksellers Ass'n, 484 U.S. 383, 388, 98 L. Ed. 2d 782,
791, 108 S. Ct. 636, 640 (1988) (challenge to statute that placed
restrictions on the display of adult publications); Steffel v.
Thompson, 415 U.S. 452, 456, 39 L. Ed. 2d 505, 512-13, 94 S. Ct.
- 11 -
1209, 1213-14 (1974) (challenge to criminal-trespass statute);
Epperson v. Arkansas, 393 U.S. 97, 98, 21 L. Ed. 2d 228, 231, 89
S. Ct. 266, 267 (1968) (challenge to "anti-evolution" statute);
Stenberg v. Carhart, 530 U.S. 914, 921-22, 147 L. Ed. 2d 743,
754, 120 S. Ct. 2597, 2604-05 (2000) (challenge to statute
involving partial-birth abortions); Burson v. Freeman, 504 U.S.
191, 193, 119 L. Ed. 2d 5, 11, 112 S. Ct. 1846, 1848 (1992)
(challenge to statute restricting speech within 100 feet to
entrance to polling place); Village of Chatham v. County of
Sangamon, 351 Ill. App. 3d 889, 893, 814 N.E.2d 216, 221 (2004)
(question of which of two statutes controlled who had zoning and
building-code jurisdiction); Boles Trucking, Inc. v. O'Connor,
138 Ill. App. 3d 764, 770, 486 N.E.2d 362, 364 (1985) (challenge
to the constitutionality of section 18-702 of the Illinois Motor
Carrier of Property Law). These cases would be more persuasive
if plaintiffs were seeking declaratory relief from a statute
passed by the Illinois General Assembly or an ordinance passed by
a municipal body containing the same language found in the Rule.
However, plaintiffs are seeking declaratory relief from
an administrative rule. It is fairly clear the issue of whether
the Rule is facially valid is fit for a judicial decision.
However, based on the allegations in plaintiffs' complaint, the
chances of plaintiffs suffering any hardship in the future as a
result of this rule are so slim, albeit not impossible, they do
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not outweigh the judiciary's traditional reluctance to get
involved in administrative determinations such as this.
This is not always the case. Situations do arise when
the hardship to a plaintiff of withholding judicial consideration
outweighs the judiciary's traditional reluctance to get involved
in administrative determinations this early. For example, in
Abbott Labs, the Supreme Court stated:
"This is also a case in which the impact
of the regulations upon the petitioners is
sufficiently direct and immediate as to
render the issue appropriate for judicial
review at this stage. These regulations
purport to give an authoritative
interpretation of a statutory provision that
has a direct effect on the day-to-day
business of all prescription drug companies;
its promulgation puts petitioners in a
dilemma that it was the very purpose of the
Declaratory Judgment Act to ameliorate. As
the District Court found on the basis of
uncontested allegations, 'Either they must
comply with the every[-]time requirement and
incur the costs of changing over their
promotional material and labeling or they
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must follow their present course and risk
prosecution.' [Citation.] The regulations
are clear-cut, and were made effective
immediately upon publication; as noted
earlier the agency's counsel represented to
the District Court that immediate compliance
with their terms was expected. If
petitioners wish to comply they must change
all their labels, advertisements, and
promotional materials; they must destroy
stocks of printed matter; and they must
invest heavily in new printing type and new
supplies. The alternative to compliance--
continued use of material which they believe
in good faith meets the statutory
requirements, but which clearly does not meet
the regulation of the Commissioner--may be
even more costly. That course would risk
serious criminal and civil penalties for the
unlawful distribution of 'misbranded' drugs.
It is relevant at this juncture to
recognize that petitioners deal in a
sensitive industry, in which public
confidence in their drug products is
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especially important. To require them to
challenge these regulations only as a defense
to an action brought by the Government might
harm them severely and unnecessarily. Where
the legal issue presented is fit for judicial
resolution, and where a regulation requires
an immediate and significant change in the
plaintiffs' conduct of their affairs with
serious penalties attached to noncompliance,
access to the courts under the Administrative
Procedure Act and the Declaratory Judgment
Act must be permitted, absent a statutory bar
or some other unusual circumstance, neither
of which appears here.
The Government does not dispute the very
real dilemma in which petitioners are placed
by the regulation, but contends that 'mere
financial expense' is not a justification for
pre-enforcement judicial review. It is of
course true that cases in this Court dealing
with the standing of particular parties to
bring an action have held that a possible
financial loss is not by itself a sufficient
interest to sustain a judicial challenge to
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governmental action. [Citations.] But there
is no question in the present case that
petitioners have sufficient standing as
plaintiffs: the regulation is directed at
them in particular; it requires them to make
significant changes in their everyday
business practices; if they fail to observe
the Commissioner's rule they are quite
clearly exposed to the imposition of strong
sanctions." (Emphasis added.) Abbott Labs,
387 U.S. at 152-54, 18 L. Ed. 2d at 693-94,
87 S. Ct. at 1517-18.
In Alternate Fuels, Inc. v. Director of the Illinois
Environmental Protection Agency, 215 Ill. 2d 219, 830 N.E.2d 444
(2004), our supreme court found the claim brought by Alternate
Fuels against the Illinois Environmental Protection Agency
(Agency) was ripe. The issue before the court was whether a
business that has been issued a violation notice by an
administrative agency for failure to secure a permit can proceed
with a claim against the agency in circuit court to test the
validity of the violation notice if the notice caused it to cease
operations before the administrative agency made a final ruling.
Alternate Fuels, 215 Ill. 2d at 221, 830 N.E.2d at 446.
Alternate Fuels was in the business of providing fuel
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to customers in the form of shredded plastic agricultural
chemical containers. Alternate Fuels, 215 Ill. 2d at 222, 830
N.E.2d at 446. In July 1998, the Agency issued a notice to the
plaintiff that it was violating section 21(d) of the Illinois
Environmental Protection Act (Act) (415 ILCS 5/21(d) (West 1998))
by storing and treating "waste" without a permit from the Agency.
Alternate Fuels, 215 Ill. 2d at 227, 830 N.E.2d at 449. The
Agency also alleged Alternate Fuels was violating section 21(e)
of the Act (415 ILCS 5/21(e) (West 1998)). Alternate Fuels, 215
Ill. 2d at 227, 830 N.E.2d at 449. Alternate Fuels alleged after
the Agency issued the violation notice, its primary investors
withdrew their support and its primary supplier withdrew from its
agreement with Alternate Fuels. Alternate Fuels then stopped its
operations. Alternate Fuels, 215 Ill. 2d at 227, 830 N.E.2d at
449.
In its complaint against the Agency, Alternate Fuels
asked for a declaration the materials it was using were not
"waste" because they had not been discarded. Alternate Fuels,
215 Ill. 2d at 228, 830 N.E.2d at 449. The Agency moved to
dismiss the claim, arguing the case did not present an actual
ripe controversy because Alternate Fuels had not exhausted its
administrative remedies. Alternate Fuels, 215 Ill. 2d at 228,
830 N.E.2d at 449. The circuit court denied the Agency's motion
to dismiss and later granted Alternate Fuels' motion for summary
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judgment, "finding that the materials were not 'wastes' because
they were not discarded." Alternate Fuels, 215 Ill. 2d at 229,
830 N.E.2d at 449-50. The appellate court affirmed. Alternate
Fuels, 215 Ill. 2d at 229, 830 N.E.2d at 450.
Before the supreme court, the Agency argued the claim
was not ripe because the Agency had not concluded its
investigatory process. Alternate Fuels, 215 Ill. 2d at 230, 830
N.E.2d at 450. After finding the issue fit for judicial
decision, the court examined what, if any, hardship Alternate
Fuels would suffer if the court withheld its consideration.
According to the court, the Agency's interpretation of the Act
created a dilemma for Alternate Fuels. Alternate Fuels, 215 Ill.
2d at 232, 830 N.E.2d at 452. It could secure what it considered
an unnecessary permit with the required local siting approval, it
could continue its operations without getting a permit and risk
prosecution and serious penalties, or it could shut down its
operations. Alternate Fuels, 215 Ill. 2d at 232-33, 830 N.E.2d
at 452. After Alternate Fuels chose to shut down its operations,
the Agency had no reason to refer the alleged violation for
prosecution because the alleged violation was no longer
occurring. The court found if it did not allow judicial review
to Alternate Fuels it would basically eliminate any chance
Alternate Fuels had of getting a determination of whether it was
in fact processing "waste" under the Act. Alternate Fuels, 215
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Ill. 2d at 233, 830 N.E.2d at 452. The court further found:
"The Agency's decision affected [Alternate
Fuels] in a concrete way; the notice of
violation caused [Alternate Fuels] to lose
financing, lose its suppliers, and halt
operations, thereby ending [Alternate
Fuels's] agreement with Illinois Power.
Thus, [Alternate Fuels] has already felt a
direct and palpable injury and has an
immediate financial stake in the resolution
of the instant action." Alternate Fuels, 215
Ill. 2d at 233, 830 N.E.2d at 452.
Plaintiffs' situation in the instant case is not nearly
as compelling as the situations the plaintiffs faced in Abbott
Labs and Alternate Fuels, respectively. The regulation at issue
in this case has not forced plaintiffs out of business or had any
effect on their day-to-day operations. In other words,
plaintiffs have not felt the effects of this Rule in a concrete
way. Further, plaintiffs are currently in compliance with the
Rule, and it is extremely unlikely based on the allegations in
plaintiffs' complaint that one of the individual plaintiffs in
this case will ever be placed in a position where he will either
have to violate his conscience or the letter of the Rule. As a
result, plaintiffs will not suffer any hardship by our denial of
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judicial consideration.
We do not foreclose with this ruling the possibility of
another pharmacist alleging facts sufficient to allow him or her
to bring a preenforcement challenge to the validity of this Rule.
We are only holding plaintiffs in this case have not pleaded
facts establishing that they have felt the effects of this rule
in a concrete way and will suffer a substantial hardship if they
are not allowed to pursue this action at this time. Further, the
provisions of neither the Illinois Health Care Right of
Conscience Act (745 ILCS 70/1 through 14 (West 2004)) nor the
Illinois Religious Freedom Restoration Act (775 ILCS 35/1 through
99 (West 2004)) makes this claim ripe for our consideration.
C. Exhaustion of Administrative Remedies
Because we have found this claim is not ripe for
review, we decline plaintiffs' invitation to address this issue.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
APPLETON, J., concurs.
TURNER, J., dissents.
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JUSTICE TURNER, dissenting:
I disagree with the majority's conclusion that the
provisions of the Health Care Right of Conscience Act (Right of
Conscience Act) and the Illinois Religious Freedom Restoration
Act fail to make plaintiffs' claims ripe for consideration.
Therefore, I respectfully dissent.
A. Right of Conscience Act
Section 2 of the Right of Conscience Act provides, in
part, as follows:
"The General Assembly finds and declares
that people and organizations hold different
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beliefs about whether certain health[-]care
services are morally acceptable. It is the
public policy of the State of Illinois to
respect and protect the right of conscience
of all persons who *** are engaged in ***
health[-]care services *** and to prohibit
all forms of discrimination, disqualifica-
tion, coercion, disability[,] or imposition
of liability upon such persons or entities by
reason of their refusing to act contrary to
their conscience or conscientious convictions
in refusing to obtain, receive, accept, de-
liver, pay for, or arrange for the payment of
health[-]care services and medical care."
745 ILCS 70/2 (West 2004).
"Conscience" has been defined as "a sincerely held set of moral
convictions arising from belief in and relation to God, or which,
though not so derived, arises from a place in the life of its
possessor parallel to that filled by God among adherents to
religious faiths." 745 ILCS 70/3(e) (West 2004). Section 5
prohibits public officials from discriminating against persons
"in any manner" because of that person's "conscientious refusal
to *** participate in any way in any particular form of
health[-]care services contrary to his or her conscience." 745
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ILCS 70/5 (West 2004). A person injured by any action prohibited
by the Right of Conscience Act may commence an action therefor
and recover damages. 745 ILCS 70/12 (West 2004).
I would find plaintiffs have stated a compelling case
under the Right of Conscience Act, one that is worthy of and ripe
for consideration. In the case sub judice, plaintiff pharmacists
are alleged to have moral and religious objections to dispensing
emergency contraception pursuant to the Rule. The Right of
Conscience Act purports to protect their beliefs and prevent "all
forms" of coercion on the part of the government to alter those
beliefs. Governor Blagojevich, however, has stated pharmacists
"are not free to let [religious] beliefs stand in the way" of
delivering emergency contraception to customers and "must fill
prescriptions without making moral judgments." Press Release,
Office of the Governor, Statement of Gov. Rod Blagojevich in
response to lawsuit filed by Pat Robertson's American Center for
Law and Justice challenging Governor's emergency rule for pharma-
cies (April 13, 2005), available at
http://www.illinois.gov/PressReleases/PrintPressRelease.cfm?
SubjectID=3&RecNum=3849. Further, the Governor has warned
pharmacists that the State will "vigorously protect" the right of
access to birth control and will take "any and all necessary
steps to ensure a woman's access to her health care." Letter
from Rod Blagojevich, Governor, State of Illinois, to Paul
- 23 -
Caprio, Executive Director, Family-Pac (April 11, 2005). The
intent of the Governor's statements is clear and undeniable--
either comply with the Rule or else. Plaintiffs allege, there-
fore, they must choose either to violate the Rule or their
consciences, a form of coercion expressly prohibited by the Right
of Conscience Act. The risk of the revocation of their profes-
sional licenses unless they comply with the Rule is the ultimate
in government coercion, threatening their very livelihood in the
workforce within the State of Illinois. Accordingly, plaintiffs'
claim the Right of Conscience Act offers them an avenue of relief
is ripe for consideration.
B. Religious Freedom Restoration Act
Under section 10 of the Religious Freedom Restoration
Act, the General Assembly has found "[t]he free exercise of
religion is an inherent, fundamental, and inalienable right
secured by [a]rticle I, [s]ection 3[,] of the Constitution of the
State of Illinois." 775 ILCS 35/10(a)(1) (West 2004). One of
the purposes of the Religious Freedom Restoration Act is "[t]o
provide a claim or defense to persons whose exercise of religion
is substantially burdened by government." 775 ILCS 35/10(b)(2)
(West 2004).
"Government may not substantially burden
a person's exercise of religion, even if the
burden results from a rule of general appli-
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cability, unless it demonstrates that appli-
cation 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 govern-
mental interest." 775 ILCS 35/15 (West
2004).
Section 20 allows a person to raise a claim in a judicial pro-
ceeding and seek appropriate relief if his or her "exercise of
religion has been burdened in violation" of the Religious Freedom
Restoration Act. 775 ILCS 35/20 (West 2004).
Based on the purposes and protections of the Religious
Freedom Restoration Act, I would find plaintiffs have standing to
pursue their claims. Plaintiffs have alleged the Rule burdens
their right to the free exercise of religion in violation of
Illinois law. A forced choice between violating one's religious
beliefs and complying with the law can amount to a substantial
burden within the meaning of the Religious Freedom Restoration
Act. See Wisconsin v. Yoder, 406 U.S. 205, 218, 32 L. Ed. 2d 15,
26, 92 S. Ct. 1526, 1534 (1972) ("[t]he impact of the compulsory-
attendance law on respondents' practice of the Amish religion is
not only severe, but inescapable, for the Wisconsin law affirma-
tively compels them, under threat of criminal sanction, to
perform acts undeniably at odds with fundamental tenets of their
- 25 -
religious beliefs"); Sherbert v. Verner, 374 U.S. 398, 404, 10 L.
Ed. 2d 965, 970, 83 S. Ct. 1790, 1794 (1963) (where the appel-
lant's declared ineligibility for benefits "force[d] her to
choose between following the precepts of her religion and for-
feiting benefits, on the one hand, and abandoning one of the
precepts of her religion in order to accept work, on the other
hand").
In this case, plaintiffs claim the Rule, along with the
Governor's edicts, has placed substantial pressure on them to
modify or violate their religious beliefs or face the threat of
government sanction. The alleged disregard here by the State's
Chief Executive of the fundamental constitutional rights of these
Illinois citizens to the free exercise of their religious beliefs
is sufficient to grant them standing under the Religious Freedom
Restoration Act. Therefore, I would find plaintiffs have set
forth a justiciable claim that the State has placed a substantial
burden on their protected constitutional right to the free
exercise of religion. As plaintiffs have established a compel-
ling claim, their action is ripe for consideration.
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