May 25, 2007
By: Brian Mackey, Chicago Daily Law Bulletin

SPRINGFIELD -- A group of pharmacists fighting a state regulation requiring them to dispense the "morning-after pill" have taken their case to the Illinois Supreme Court.

Both the circuit and appeals courts have held that the druggists lack standing to sue.

But in a petition for leave to appeal filed Wednesday, the pharmacists contend they should be allowed to challenge the regulation before they "either violate their consciences (by distributing the morning-after pill) or break the law (by refusing to distribute the drug)."

The controversy stems from a 2005 rule requiring that pharmacists who stock contraceptives distribute them in any form, including levonorgestrol, more commonly known as Plan B or the morning-after pill. The rule also states that pharmacists who do not fill the prescriptions must transfer them to a pharmacy that will or, at the very least, return the prescription to the customer. 68 Ill.Adm.Code [sec]1330.91(j).

Shortly after the rule took effect, two pharmacists and three pharmacies sued the state, seeking declaratory and injunctive relief. Sangamon County Circuit Judge John W. Belz granted the state's motion to dismiss, finding that the plaintiffs lacked standing and that the claim was not ripe for review.

A 4th District Appellate Court panel ruled 2-1 to affirm that decision on March 19, 2007. Justice James A. Knecht wrote the published opinion, with Justice Thomas R. Appleton concurring and Justice John W. Turner dissenting. Morr-Fitz Inc. v. Blagojevich, No. 4-05-1050, 2007 Ill.App.LEXIS 295, 2007 WL 900463.

"It is fairly clear the issue of whether the rule is facially valid is fit for a judicial decision," Knecht wrote. "However, based on the allegations in plaintiffs' complaint, the chances of plaintiffs suffering any hardship in the future as a result of this rule are so slim, albeit not impossible, they do not outweigh the judiciary's traditional reluctance to get involved in administrative determinations such as this."

Knecht noted that there are situations when a plaintiff's potential hardship would outweigh the judiciary's reluctance, citing Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), and Alternate Fuels Inc. v. Director of the Illinois Environmental Protection Agency, 215 Ill.2d 219 (2004).

But both of those cases are distinguishable, Knecht concluded: "The regulation at issue in this case has not forced plaintiffs out of business or had any effect on their day-to-day operations. In other words, plaintiffs have not felt the effects of this rule in a concrete way."

And that's not to say some other pharmacist might not allege facts sufficient to bring a similar challenge in the future, Knecht wrote.

The majority also included one sentence holding that neither the Illinois Health Care Right of Conscience Act, 745 ILCS 70, nor the Illinois Religious Freedom Restoration Act, 775 ILCS 35, changes the fact that the claim is not ripe.

That sentence prompted Turner's dissent.

"The Right of Conscience Act purports to protect [the pharmacists] beliefs and prevent 'all forms' of coercion on the part of the government to alter those beliefs," Turner wrote. Then, quoting from an April 13, 2005, press release from the governor, Turner added, "Gov. Blagojevich, however, has stated pharmacists 'are not free to let beliefs stand in the way' of delivering emergency contraception to customers and 'must fill prescriptions without making moral judgments.' "

"The intent of the governor's statements is clear and undeniable -- either comply with the rule or else," Turner wrote.

The plaintiffs unsuccessfully petitioned for rehearing before the Appellate Court, offering an affidavit stating that they had received more than 15 requests for emergency contraceptives since filing their complaint. The petition to the high court also says one of the plaintiff pharmacies had to close "because of the difficulty hiring a pharmacist due to the possibility of license revocation under the rule."

The petition leans on Turner's dissent and contends that precedent for ripeness is on their side.

In Illinois Gamefowl Breeders Association v. Block, 75 Ill.2d 443 (1979), the plaintiffs sought to declare certain parts of the Humane Care for Animals Act unconstitutional.

The petition quotes from Gamefowl: "Plaintiff has alleged that it owns 'animals within the scope, meaning, intent and application' of the challenged statute. Such ownership raises the threat of potential criminal prosecution and, in our judgment, is sufficient to entitle plaintiff to bring a declaratory judgment action challenging the constitutionality of the statute."

Like the breeders in Gamefowl, the pharmacists contend they are "within the scope, meaning, intent and application" of the contraceptive regulation.

If the high court follows its usual procedures, it will not rule on the petition before late September.

The petitioners are represented by Granite City lawyer Philip J. Rarick, the former Supreme Court justice; Francis J. Manion of the American Center for Law and Justice; Paul P. Daley of Wilmer, Cutler, Pickering, Hale & Dorr LLP in Boston; and Andrew C. Varcoe, Mark L. Rienzi and Anthony M. Deardurff, all of Wilmer, Cutler's Washington, D.C., office.

The case is Morr-Fitz Inc., etc., et al. v. Rod R. Blagojevich, etc., et al., No. 104692.