Religious Liberty of Illinois Pharmacists Vindicated

Dominique Ludvigson / October 05, 2012

Illinois bureaucrats’ senseless, now seven-year-long crusade to crush the faith-based conscience rights of two pharmacists hit another snag recently when a state appellate court ruled that they could not be forced to stock and dispense abortion-inducing drugs in violation of their religious beliefs.

The case, Morr-Fitz v. Quinn, began in 2005 when former Governor Rod Blagojevich (D) issued a mandate requiring all pharmacies and pharmacists to sell emergency contraceptives, including Plan B—the “morning after pill”—which can act as an abortifacient. At the time of the rule’s announcement, the governor publicly warned that pharmacists would face significant penalties ranging from prosecution and steep fines to loss of professional licenses for staying true to their consciences and refusing to comply.

“If a pharmacy wants to be in the business of dispensing contraceptives, then it must fill prescriptions without making moral judgments,” read one Blagojevich press release announcing the mandate. “Pharmacists—like everyone else—are free to hold personal religious beliefs, but pharmacies are not free to let those beliefs stand in the way of their obligation to their customers,” it continued. Other Illinois officials flatly rejected the state’s responsibility to accommodate objectors’ religious beliefs.

Pharmacists Luke Vander Bleek and Glen Kosirog objected to the mandate’s requirement that they and their respective pharmacies dispense life-ending drugs in violation of their religious beliefs, filing suit against the governor and various state officials and regulatory bodies to defend their conscience rights. Over the course of the next seven years, and through changes in gubernatorial administrations, officials utilized measure after measure to force the pharmacists to yield in their attempts to vindicate their religious freedom, including attempts to block their lawsuit on technical grounds, arguing they hadn’t followed the proper procedures to have their claims heard in court.

In 2011, a trial court enjoined the rule because it violated several state laws, including the Illinois Health Care Right of Conscience Act. The Conscience Act was specifically designed to forbid the government from coercing individuals or entities from providing health care services in violation of their religious beliefs. Among other findings, the trial judge concluded that the mandate was deliberately targeted at religious objectors; that the state had permitted refusals to sell abortion-inducing drugs for a host of “common sense business reasons,” but not for religious ones; and that there was no evidence that religious objections to dispensing the drugs had ever prevented a single person from obtaining them. Despite this resounding loss, the state appealed the injunction.

On appeal, state officials engaged in semantic games to make the remarkable claim that pharmacists and pharmacies fell outside of the individuals and entities covered by the Conscience Act’s protections for health care professionals and facilities. The court flatly rejected the argument. The officials then argued that even if the Conscience Act applied to pharmacies and pharmacists, it did not permit them to refuse to provide “emergency” contraceptives because of a separate state statute requiring Illinois health care personnel to provide emergency medical care. In dismissing that argument, the court relied on a recent Supreme Court of Illinois decision defining “emergency” as “an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.” “Unprotected sex does not place a woman in imminent danger requiring an urgent response,” the court opined.

The Illinois pharmacists’ experience shows not simply a lack of regard for religious freedom, but outright intolerance by those exercising the levers of state power against individuals trying to live out their faith in their day-to-day lives. Such officials seem intent on enforcing what Richard John Neuhaus referred to as the “naked public square”—civic life stripped of public expression of religious belief. As the growth and reach of the administrative state expands, such conflicts with religious freedom and conscience rights will multiply.

Such an overbearing state increasingly leaves room only for a narrow, privatized concept of religion. It attempts to convert the free exercise of religion into mere freedom of worship, confining this fundamental liberty to the four walls of the home or church. It compels conscientious objectors to choose between earning a living and violating their faith. A similar dynamic is currently on display in litigation involving the federal HHS mandate.

The law has the capacity both to regulate and to teach. The Illinois pharmacists’ case underscores the importance of robust legal protections for religious freedom and conscience rights both at the state and federal levels, in keeping with America’s best traditions.