Tuesday, April 5, 2011
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.