Religious Believers in Illinois Score Pro-Life Victory
COMMENTARY: The decision could have an impact on battle over the HHS mandate.
BY GERALD J. RUSSELLO
| Posted 11/2/12 at 2:24 PM
Another victory for religious believers: An Illinois appellate court upheld a judgment on behalf of Christian pharmacists who objected to a rule requiring prescribing emergency contraceptives that may have abortifacient effects.
The Sept. 21 decision provides further support in the larger dispute over the U.S. Department of Health and Human Services' mandate, which places similar burdens on religious believers and which is a crucial issue in this year’s presidential election.
Such rules, as the state court found, simply are incompatible with traditional notions of religious freedom. The HHS mandate is susceptible to a similar attack.
Along with a similar case in Washington state in which pharmacists prevailed, this case, brought by Illinois pharmacists Luke Vander Bleek and Glenn Kosirog, makes clear that the issues raised by these “conscience” cases have just as much to do with driving religion from the public square as it does with matters of health care.
Vander Bleek and Kosirog, in acting on their religious beliefs (Vander Bleek is a Catholic), asked the court to declare the "Community Pharmacy Services" rule invalid. The rule provided that pharmacists have a duty to prescribe all lawfully prescribed or Food and Drug Administration-approved drugs.
Although there were some exceptions to that duty, such as when a pharmacy physically does not have the appropriate drugs available, none protected the pharmacist’s refusal to prescribe drugs on religious grounds.
At trial, Brent Adams, the Illinois secretary of the Department of Financial Professional Regulation, testified that although he drafted the rule, he was unaware of any person unable to obtain a prescription based on the religious objections of a pharmacist.
Nevertheless, he wrote the rule “to promote the health and well-being of residents” and to “protect access to medication,” although, as the court noted, all his materials related to the rule were in a file named “Plan B,” the name of one of the drugs at issue and not something more explicitly health-related.
Adams did not bother to meet with any religious objectors, however, prior to announcing the rule, although he was able to meet with Planned Parenthood, which supported the rule.
As with many of these rules across the country, however, the rule comes with a history, as the secretary’s folder suggests. The rule from the beginning was designed to hinder religious exercise in the performance of an individual’s professional obligations. As the court recounts, earlier versions of the rule focused only on contraceptives, not “health care” in general as the secretary (somewhat disingenuously) testified. Indeed, then-Gov. Rod Blagojevich publicly threatened pharmacists to comply with the rule or face punishment. The state rewrote the rule in part because of the pharmacists’ brave lawsuit.
The controversy over pharmacies places government not in the role of umpire (in law professor Rob Vischer’s formulation in his book Conscience and the Common Good) or a neutral arbiter among competing positions. With such rules, government becomes instead a partisan for a certain conception of the good, with the full force of the state to back one side or other.
And these days, the state has been a partisan for a secular culture hostile to religious exercise. Given the state’s ability through law and force to compel people to act, its role as a partisan should be rarely if ever invoked.
The trial court found for the pharmacists, holding that the rule violated Illinois statutes that protected freedom of conscience and religious exercise. The court further enjoined the state from enforcing the rule against any pharmacy.
The appellate court upheld the core of the trial court’s decision, but narrowed its reach. After a thorough review of the record, the appellate court found that the rule as a whole could stand, but its application to these plaintiffs was improper.
The pharmacists had shown that their religious exercise was protected under Illinois’ 1977 Conscience Act, which declares as the state’s public policy that people may not be coerced into participating in health-care services that they feel are contrary to their beliefs. As applied to Vander Bleek and Kosirog, the court found, the rule violated the Conscience Act.
Two points made by the court in reference to the Illinois rules may have wider resonance. First, the court rejected the state’s argument that “emergency contraceptives” fell within the definition of “emergency medical care,” finding that the “evidence here does not show that there would be an imminent danger to the patient or the need for immediate attention as contemplated by the Conscience Act.”
More generally, the court’s reasoning confronts a central argument of the HHS mandate supporters, which is that contraceptives and abortion equal health care. That is not true, and the court saw through such false arguments.
Part of the rhetorical force of those supporting such statutes rests in the invocation of "magic words," such as “health care” or “emergency.”
The appellate court looked at the available evidence and held that the circumstances before it did not constitute a sufficient justification to force pharmacists to act contrary to their deeply held beliefs.
The decision may provide further room for pharmacists in other states to argue that alternatives exist within reasonable time frames to have patients’ prescriptions filled elsewhere.
Gerald Russello is a lawyer and editor of The University Bookman.
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