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Menges v. Blagojevich

September 6, 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 Defendants' Motion to Dismiss the Amended Complaint (d/e 13) and Defendants' Motion to Dismiss Walgreens' Third Party Complaint (d/e 27). The Plaintiffs are licensed pharmacists in Illinois. The Defendants are the Governor of Illinois and other state officials. Third Party/Intervenor Walgreen Co. (Walgreens) is a corporation that operates pharmacies throughout the United States, including Illinois. The Plaintiffs allege in their Amended Complaint that the Defendants promulgated a rule (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 alleges in its Third Party Complaint that it has been subjected to administrative enforcement actions by the state for not complying with the Rule and civil suits by employees for complying with the Rule. Walgreens seeks a declaratory judgment that the Rule violates Title VII, and also a declaratory judgment that its previous policies conform to both Title VII and the Rule. Third Party/Intervenor Walgreen Co.'s Complaint for Declaratory and Injunctive Relief (d/e 25) (Third Party Complaint). The Defendants now move to dismiss. As explained below, the Plaintiffs state claims. Walgreens states a claim for some of the relief sought, but the Court must dismiss the requests for a declaratory judgment that its policies comply with either Title VII or the Rule. The Motion to Dismiss the Amended Complaint is DENIED, and the Motion to Dismiss the Third Party Complaint is ALLOWED in part and DENIED in part.

STATEMENT OF FACTS

For purposes of the Motions, the Court must accept as true all of well-pleaded factual allegations in the Amended Complaint and the Third Party Complaint and draw all inferences in the light most favorable to the Plaintiffs and Walgreens. Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). The Court may also consider matters of which the Court can take judicial notice, such as public records from other court proceedings. Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998). The Court should only grant the Motions to Dismiss if it appears beyond doubt that the Plaintiffs and Walgreens can prove no set of facts that would entitle them to relief. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996).

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 Regulation. 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. 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 or 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).*fn1 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 had 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 disagreed with these methods of birth control. The letter advised that should individual pharmacists refuse to fill birth control prescriptions, their employer would face significant penalties. The letter further stated that the Defendants intended to enforce the law by any and all steps necessary.

On April 29, 2005, the Joint Committee on Administrative Rules (Joint Committee) of the Illinois General Assembly published a proposed regulation similar to, and a companion to, the Emergency Amendment, which purported to be a permanent version of the Emergency Amendment. The proposed regulation concluded with a statement that those affected by this rulemaking include pharmacists. On August 25, 2005, the Joint Committee formally adopted the Rule, making permanent the provisions of the Emergency Amendment.

On March 13, 2006, Governor Blagojevich allegedly reaffirmed publicly his position that the Rule was directed at individual pharmacists who object to dispensing certain drugs on moral grounds. According to the Amended Complaint, Governor Blagojevich further stated that pharmacists who hold such moral views should find another profession.

The statement accompanying the Rule states that the Rule addresses a critical public health care issue of access to prescription contraceptives by mandating that a pharmacy has a duty to dispense contraceptives without delay. 29 Ill. Reg. 13639. The Plaintiffs allege that the Rule does not include all pharmacies and does not require pharmacists always to dispense Emergency Contraceptives without delay. The Rule only addresses Division I pharmacies and so does not require hospitals or hospital emergency rooms to dispense Emergency Contraceptives. The Rule permits a pharmacy to delay in filling a prescription if the medication is not in stock. The pharmacy may follow its routine procedure for filling an out-of-stock prescription. The Rule further allows pharmacists to refuse to provide contraceptives under certain conditions based on the pharmacist's professional judgment. In addition, Plaintiffs claim that Defendant Martinez and Governor Blagojevich both stated at a public hearing on February 15, 2006, that the Rule exempts Division I pharmacies that do not dispense contraceptives at all.

Walgreens and the Plaintiffs allege that, prior to the promulgation of the Emergency Amendment and the Rule, Walgreens had a policy called the Referral Pharmacist Policy. Pursuant to the Referral Pharmacist Policy, Walgreens allowed its pharmacists nationwide to decline to fill a prescription based on moral or religious objections as long as the prescription could be filled by another pharmacist at that store or at a nearby pharmacy. After the promulgation of the Emergency Amendment, Plaintiffs and Walgreens allege that Walgreens changed the Referral Pharmacist Policy in Illinois to require every pharmacist to fill prescriptions even if it violated his or her ...


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