Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, April 5, 2011

Emergency contraceptive rule struck down in Illinois

Several years ago Illinois Governor Rod Blagojevich promulgated a rule that required pharmacies to dispense emergency contraceptives.  Today, thanks in significant part to the tireless advocacy of Catholic University law prof Mark Rienzi, an Illinois court struck down that rule as a violation of the Illinois Healthcare Right of Conscience Act, the Illinois Religious Freedom Restoration Act, and the Free Exercise Clause of the First Amendment.  Here's an excerpt of the court's ruling on the free exercise claim:

The evidence at trial established a Free Exercise violation because the Rule is neither neutral nor generally applicable.  The Rule and its predecessors were designed to stop pharmacies and pharmacists from considering their religious beliefs when deciding whether to sell emergency contraceptives.  The record evidence demonstrates the Rule and all prior rules were drafted with pharmacists and pharmacy owners with religious objections to selling emergency contraceptives in mind.  This lack of neutrality requires a strict scrutiny test be applied to this Rule.  Furthermore, the law is not generally applicable.  The Rule excuses compliance for a host of "common sense business" reasons, but not for religious reasons.  And the variance process is, by the government's admission, a system of individualized governmental assessments that is available for non-religious reasons, but not for religious ones, even though the government acknowledged that the proximity of willing competitors nearby Plaintiffs' pharmacies made any health-related impact of their religious constraints unlikely.

The court rejected the pharmacists' Fourteenth Amendment argument (as laid out in Rienzi's law review article that was discussed on MoJ a while back).  It will be interesting to see if this ruling stirs things up on the litigation front in other states.


Vischer, Rob | Permalink

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Do you have a link to the decision?

Posted by: Bryan | Apr 5, 2011 4:44:58 PM

I have not yet found it online, but shoot me an email and I can send you a PDF. It's Morr-Fitz Inc. v. Blagojevich in the Seventh Judicial Circuit, Sangamon County, Illinois.

Posted by: rob vischer | Apr 5, 2011 4:53:22 PM

@Rob -- the Washington State pharmacist conscience case is scheduled to go to trial later this year in Tacoma federal court. The Illinois rule struck down today was copied verbatim from the Washington State rule. More information about that case is available here: http://www.becketfund.org/stormans-v-selecky-washington-2010-%E2%80%93-current/

Posted by: Eric Rassbach | Apr 5, 2011 5:31:54 PM

HEre is the link to the pdf:


Posted by: MikeD | Apr 5, 2011 5:55:40 PM

Excellent -- thanks for the information and the link. I'm a little surprised (but pleased) at the free exercise ruling here in light of Emp Div v. Smith, and I'll be interested in seeing if other courts are also willing to infer non-neutrality from the facts of the conscience debates leading up to these rules.

Posted by: rob vischer | Apr 5, 2011 6:18:40 PM

It is worth noting that the Blagojevich rule attempts to give primacy to the pharmacist's ability to conscientiously object over the pharmacy owner's conscience. The rule both stopped pharmacies from conscientiously objecting to drugs and made it easier for pharmacies to accommodate religious objections from pharmacists. The rule provided ways for customers to get drugs from pharmacies without involving a conscientiously objecting pharmacist, even if they were the only pharmacist on duty. Plausibly, reducing the costs to pharmacies of religious objections could do more to promote freedom of conscience for pharmacists than the non-discrimination rules in the Illinois Health Care Right of Conscience Act.

Implicit within the Court's order is the idea that both pharmacy owners and pharmacists are covered by the Illinois Health Care Right of Conscience Act. Because the act only grants a conscientious veto power, this doesn't really cause a conflict. Either the pharmacy or the pharmacist may decide not to provide a given drug.

But if we are concerned that religious professionals or businesses and organizations should have some form of positive conscientious agency--choosing to provide care that they are driven to provide by religious beliefs, the Order leaves some thorny undecided issues. A positive conscience right for businesses will inevitably conflict with a right to object.

Posted by: Jeff J | Apr 6, 2011 5:11:06 PM