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Menges v. Blagojevich

June 8, 2006

JOHN MENGES, ET AL., PLAINTIFFS,
v.
ROD R. BLAGOJEVICH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on the Motion to Intervene of Walgreen Co. (Walgreens) (d/e 16) (Motion to Intervene). The Plaintiffs are licensed pharmacists in Illinois. The Defendants are the Governor of Illinois and other state officials. The Plaintiffs allege that the Defendants promulgated a rule to force them to dispense drugs known as the "morning after pill," "Plan B," and "emergency contraceptives" (hereinafter collectively referred to as "Emergency Contraceptives"), in violation of the Plaintiffs' constitutional right to exercise freely their religious beliefs and in violation of Title VII of the Civil Rights Act of 1964 (Title VII). U.S. Const. Amend I; 42 U.S.C. §§ 2000e-2 & 2000e-7. Amended Complaint for Declaratory and Injunctive Relief (d/e 11) (Amended Complaint). Several of the Plaintiffs were formerly employed by Walgreens. They allege that they have lost their jobs at Walgreens because they would not comply with Illinois' new Rule. Walgreens now asks to intervene to seek a declaratory judgment regarding whether Illinois' new Rule violates Title VII. For the reasons set forth below, the Motion is allowed.

According to the Amended Complaint, Plaintiffs John Menges, Gaylord Richard Quayle, Carol Muzzarelli, Kelly Hubble, and Melanie Antuma (Discharged Plaintiffs) are licensed pharmacists in Illinois who previously worked as pharmacists at Division I pharmacies operated by Walgreens. Plaintiffs Jim Lynch and Amanda Varner allegedly are licensed Illinois pharmacists who currently work for other Division I pharmacies. Division I pharmacies are pharmacies that engage in general community pharmacy practice and that are open to, or offer pharmacy services to, the general public. 68 Ill. Admin. Code § 1330.5.

The Defendants are duly-elected or appointed government officials of the state of Illinois. Defendant Rod Blagojevich is Governor. Defendant Dean Martinez is Acting Secretary of the Illinois Department of Financial and Professional Regulation (Department), and Defendant Daniel E.

Bluthardt is Acting Director of the Department's Division of Professional Regulations. The Plaintiffs allege that the Defendants are responsible for the promulgation, interpretation, application, and enforcement of the regulation at issue.

On April 1, 2005, the Defendants promulgated an Emergency Amendment to § 1330.91 of Title 68 of the Illinois Administrative Code. The Emergency Amendment became permanent in the form of a Rule on August 25, 2005 (Rule). The Rule states:

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, or a suitable alternative permitted by the prescriber, to the patient or the patient's agent without delay, consistent with the normal timeframe for filing any other prescription. If the contraceptive, or a suitable alternative, 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 the purposes of this subsection (j), the term "contraceptive" shall refer to all FDA-approved drugs or devices that prevent pregnancy.

3) Nothing in this subsection (j) shall interfere with a pharmacist's screening for potential drug therapy problems due to therapeutic duplication, drug-disease contraindications, drug-drug interactions (including serious interactions with nonprescription or over-the-counter drugs), drug-food interactions, incorrect drug dosage and duration of drug treatment, drug-allergy interactions, or clinical abuse or misuse, pursuant to 225 ILCS 85/3(q).

68 Ill. Admin. Code § 1330.91(j). As quoted above, the term "contraceptives" in the Rule includes all FDA-approved contraceptives, which includes Emergency Contraceptives. Plaintiffs allege that Emergency Contraceptives work with a significant abortifacient mechanism of action. Plaintiffs allege that they hold certain religious beliefs that prohibit them from dispensing Emergency Contraceptives.

The Plaintiffs allege that on the day of the announcement of the promulgation of the Emergency Amendment, Defendant Governor Blagojevich explained that the Emergency Amendment was prompted by actions of individual pharmacists in Chicago and elsewhere who declined to fill prescriptions because of their religious and moral opposition to Emergency Contraceptives.

The Plaintiffs allege that in April 2005, shortly after the promulgation of the Emergency Amendment, the Plaintiffs and all other licensed pharmacists received a letter from the Department informing them of the provisions of the Emergency Amendment. On or about April 26, 2005, Governor Blagojevich sent a letter to every licensed physician in Illinois. According to the Plaintiffs, Governor Blagojevich stated in his letter that the Emergency Amendment was in response to the actions of individual pharmacists opposed to the use of Emergency Contraceptives. Governor Blagojevich's letter asked physicians to report any pharmacists who refused to fill a prescription for Emergency Contraceptives.

The Plaintiffs also allege that in April 2005, Governor Blagojevich sent a letter to the executive director of an organization called Family-Pac. In this letter, he stated that the Emergency Amendment was in response to actions by pharmacists who disagree with these methods of birth control. The letter advised that should individual pharmacists refuse to fill birth control prescriptions, their employer would face significant ...


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