Morr-Fitz, Inc. v. Blagojevich
| Decision Date | 18 December 2008 |
| Docket Number | No. 104692.,104692. |
| Citation | 901 N.E.2d 373,231 Ill.2d 474 |
| Parties | MORR-FITZ, INC., et al., Appellants, v. Rod R. BLAGOJEVICH, Governor, State of Illinois, et al., Appellees. |
| Court | Illinois Supreme Court |
Paul P. Daley, Jared C. Miller, Boston, Massachusetts, Andrew C. Varcoe, Mark L. Rienzi, Anthony M. Deardurff, and Heath A. Brooks, Washington, D.C., Wilmer, Cutler, Pickering, Hale & Dorr LLP, Philip J. Rarick, Granite City, and Francis J. Manion, New Hope, Kentucky, for appellants.
Lisa Madigan, Attorney General, Springfield (Michael A. Scodro, Solicitor General, Laura Wunder, Assistant Attorney General, Chicago, of counsel), for appellees.
Mailee R. Smith, Clarke D. Forsythe, Chicago, for amici curiae American Association of Pro Life Obstetricians & Gynecologists et al.
Richard C. Baker, of Mauck & Baker, LLC, Chicago, and Kimberly A.R. Daniels, of the Thomas More Law Center, Ann Arbor, Michigan, for amici curiae Illinois Pharmacists Association and the American Pharmacists Association.
Steven H. Adan, M. Casey Mattox, Springfield, Virginia, Kevin A. Hall, James K. Lehman, Lee E. Dixon, Jared Q. Libet and Jay T. Thompson, of Nelson Mullins Riley & Scarborough, Columbia, South Carolina, for amici curiae Christian Legal Society and Christian Pharmacists Fellowship International.
Roger Pascal, Christina A. Andronache, of Schiff Hardin LLP, Lorie A. Chaiten, Leah Bartelt, Chicago, for amicus curiae American Civil Liberties Union of Illinois.
Plaintiffs—two licensed pharmacists and three corporations that own and operate pharmacies in Illinois—brought a declaratory judgment action in the circuit court of Sangamon County against various Illinois public officials and the State Board of Pharmacy, seeking to invalidate an administrative rule that forces pharmacies to dispense Plan B contraception (also known as the morning-after pill or emergency contraception). The rule provided that a pharmacy must dispense the contraceptive without delay upon receipt of a valid prescription. If the item is not in stock, the pharmacy must order it if the patient requests that it do so. 68 Ill. Adm.Code § 1330.91(j) (2005). The plaintiffs' nine-count amended complaint alleged, inter alia, violations of the Illinois Health Care Right of Conscience Act (Conscience Act or Act) (745 ILCS 70/1 et seq. (West 2004)) and the Illinois Religious Freedom Restoration Act (Religious Freedom Act) (775 ILCS 35/1 et seq. (West 2004)), as well as a claim that the rule was unconstitutional on its face and as applied because it violated the first amendment of the United States Constitution. Plaintiffs alleged that the rule contravenes their moral and religious beliefs because they believe that life begins at conception and that Plan B can act as an abortifacient.
The circuit court dismissed the complaint with prejudice on grounds of standing, ripeness, and failure to exhaust administrative remedies. A divided appellate court affirmed. 371 Ill.App.3d 1175, 311 Ill.Dec. 178, 867 N.E.2d 1164. We granted plaintiffs' petition for leave to appeal. 210 Ill.2d R. 315. For the reasons set forth below, we reverse the judgment of the appellate court.
According to the amended complaint, plaintiffs Luke Vander Bleek and Glen Kosirog are licensed pharmacists who own and control a number of Division I pharmacies. A Division I pharmacy is a pharmacy that engages in "general community pharmacy practice and that is open to, or offers pharmacy services to, the general public." 68 Ill. Adm.Code § 1330.5 (2005). Vander Bleek resides in Morrison, Illinois, and is owner of the Fitzgerald pharmacy and the sole shareholder of Morr-Fitz, Inc., the corporation that controls the Fitzgerald pharmacy. The Fitzgerald pharmacy has two locations, one in Prophetstown, Illinois, and the other in Morrison. Additionally, Vander Bleek is the majority shareholder of L. Doyle, Inc., which does business as the Eggleston Pharmacy, with locations in Sycamore, Illinois, and Genoa, Illinois. Vander Bleek is the chief pharmacist at his Morrison location.
The amended complaint further alleges that Vander Bleek is the third of 12 children and a lifelong Catholic. He graduated from the University of Illinois in 1986 with a bachelor of science degree in pharmacy, concentrated in medical chemistry and drug design. He has formed a professional opinion "about teratogenic or abortifacient drugs and their destruction of what he considers is human life," and he believes that Plan B has an "abortifacient mechanism of action." Through prayerful reflection and consideration as a practicing Catholic, he has informed his beliefs and conscience on which he relies to hold that life begins at conception. He therefore does not believe that his convictions allow him to dispense Plan B. He also does not believe that the pharmacies he controls can cooperate in the sale or dispensing of drugs like Plan B and therefore conscientiously objects on behalf of his corporation. Over the past several years, he has affirmed his company policy of not dispensing drugs with abortifacient qualities when his pharmacies were presented with prescriptions for such drugs. Specifically, his company's written policy is that in the event that a prescription for emergency contraception is presented, the pharmacist on duty is to immediately return the prescription to the patient. He is then to communicate in a confidential environment, without lecturing about morality, that company policy does not allow the pharmacy to procure, stock or dispense the product.
According to the amended complaint, plaintiff Kosirog resides in Wheaton, Illinois, and is the sole shareholder of Kosirog Pharmacy, Inc., which does business as Kosirog Rexall Pharmacy in Cook County. Kosirog is a lifelong Christian and has five children, one with Down's Syndrome. He graduated from the University of Wyoming in 1982, earning a bachelor of science degree in pharmacy. He has formed a professional opinion "about teratogenic or abortifacient drugs and their destruction of what he considers is human life." He believes that Plan B has an "abortifacient mechanism of action, i.e., [it] can cause abortions by preventing an already fertilized egg from implanting in the womb."1 Based on Kosirog's conscience and belief, his pharmacy forbids the sale or dispensing of drugs suspected to have teratogenic or abortifacient qualities, such as Plan B. In specific instances over the past few years when presented with prescriptions for such drugs, Kosirog, on behalf of his pharmacy, has affirmed the aforementioned policy not to dispense such drugs.
On April 1, 2005, the Governor filed an "Emergency Rule" that amended section 1330.91 of title 68 of the Illinois Administrative Code. The emergency amendment became permanent in the form of an administrative rule (hereinafter "the rule" or "subsection (j)") on August 25, 2005, and states in relevant part as follows:
"j) 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 * * * to the patient or the patient's agent without delay, consistent with the normal timeframe for filling any other prescription. If the contraceptive * * * 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 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 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)(1), (j)(2) (2005).
Plan B and the morning-after pill fall within the above-quoted rule's definition of contraceptives. On October, 28, 2005, plaintiffs filed their first amended complaint seeking a declaration that the rule is invalid. Plaintiffs also sought an injunction against the rule's enforcement. Named defendants in the suit included Rod Blagojevich, the Governor of the State of Illinois, Fernando Grillo, then the secretary of the Illinois Department of Financial and Professional Regulation (Department), Daniel Bluthardt, then the acting director of the Department's Division of Professional Regulation (Division), and the State Board of Pharmacy.2
With respect to the language of the rule, plaintiffs' amended complaint states that by "demanding that Division I Pharmacies fill any prescription for `contraceptives,' including the `morning-after pill' and `Plan B,' [the rule] requires the Plaintiffs to act against the collective conscience of their corporate control group and against the policies of their pharmacies." Plaintiffs allege that both the emergency rule and the permanent rule were enacted for the purpose of compelling religious and conscientious objectors to fill Plan B contraceptive prescriptions despite those objections. Plaintiffs allege that when the emergency rule was promulgated on April 1, 2005, the Governor publicly warned that Illinois pharmacists who violate the rule face significant penalties, ranging from fines to the loss of professional licenses. Then, on April 13, 2005, the Governor issued a press release indicating that he will "vigorously defend" the emergency rule requiring pharmacists to sell and fill prescriptions for contraceptives without delay. The Governor further warned on that same date as follows:
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Table of Cases
...(1951), §12:35 Morgan v. Richardson, 343 Ill App3d 733, 798 NE2d, 278 Ill Dec (5th Dist 2003), §§30:70, 30:71 Morr-Fitz v. Blagojevich, 231 Ill2d 474, 901 NE2d 373, 327 Ill Dec 45 (2008), §13:312 Morris B. Chapman & Associates v. Kitzman , 193 Ill2d 560, 739 NE2d 1263, 251 Ill Dec 141 (2000......
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...redressed by court action. [ Adams v. Meyers, 250 Ill App3d 477, 620 NE2d 1298, 190 Ill Dec 37 (1st Dist 1993); Morr-Fitz v. Blagojevich, 231 Ill2d 474, 901 NE2d 373, 327 Ill Dec 45 (2008).] [§§13:313-13:319 Reserved] PLEADINGS 13-41 Pleadings §13:340 c. Injunctive Relief §13:320 Types of I......
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Pleadings
...redressed by court action. [ Adams v. Meyers, 250 Ill App3d 477, 620 NE2d 1298, 190 Ill Dec 37 (1st Dist 1993); Morr-Fitz v. Blagojevich, 231 Ill2d 474, 901 NE2d 373, 327 Ill Dec 45 (2008).] [§§13:313-13:319 Reserved] c. Injunctive Relief §13:320 Types of Injunctive Relief There are three l......
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Pleadings
...redressed by court action. [ Adams v. Meyers, 250 Ill App3d 477, 620 NE2d 1298, 190 Ill Dec 37 (1st Dist 1993); Morr-Fitz v. Blagojevich, 231 Ill2d 474, 901 NE2d 373, 327 Ill Dec 45 (2008).] [§§13:313-13:319 Reserved] c. Injunctive Relief §13:320 Types of Injunctive Relief There are three l......