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Morr-Fitz, Inc., An Illinois Corporation, D/B/A v. Pat Quinn

September 20, 2012

MORR-FITZ, INC., AN ILLINOIS CORPORATION, D/B/A FITZGERALD PHARMACY, LICENSED AND PRACTICING
IN THE STATE OF ILLINOIS AS A PHARMACY; L. DOYLE, INC., AN ILLINOIS CORPORATION, D/B/A EGGELSTON PHARMACY, LICENSED AND PRACTICING IN THE STATE OF ILLINOIS AS A PHARMACY; KOSIROG PHARMACY, INC., AN ILLINOIS CORPORATION, D/B/A KOSIROG REXALL PHARMACY, LICENSED AND PRACTICING IN THE STATE OF ILLINOIS AS A PHARMACY; LUKE VANDER BLEEK; AND GLENN KOSIROG, PLAINTIFFS-APPELLEES,
v.
PAT QUINN, GOVERNOR, THE STATE OF ILLINOIS; FERNANDO E. GRILLO, SECRETARY, THE DEPARTMENT
OF FINANCIAL AND PROFESSIONAL REGULATION; DANIEL E.
BLUTHARDT, ACTING DIRECTOR, THE DIVISION OF PROFESSIONAL REGULATION; AND THE MEMBERS OF THE STATE BOARD OF PHARMACY, IN THEIR OFFICIAL
DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Sangamon County No. 05CH495 Honorable Capacities, John W. Belz, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Steigmann and Pope concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiffs, two pharmacists and three corporations that own and operate pharmacies, filed suit seeking declaratory and injunctive relief against certain public officials who seek to enforce an administrative rule that requires pharmacies to dispense or aid in the dispensing of emergency contraception. The individual plaintiffs believe life begins at conception, emergency contraception may act as an abortifacient, and the dispensing of such medication is against their religious beliefs. The corporate plaintiffs have ethical guidelines that prevent the pharmacies they own and operate from dispensing emergency contraception.

¶ 2 The administrative rule at issue (Current Rule) does not specifically identify "emergency contraception" but applies to all medication approved by the United States Food and Drug Administration (FDA). 68 Ill. Adm. Code 1330.500(e) (2010). Plaintiffs' third amended complaint alleges the Current Rule is invalid as it violates the Illinois Health Care Right of Conscience Act (Conscience Act) (745 ILCS 70/1 to 14 (West 2010)), the Illinois Religious Freedom Restoration Act (Religious Freedom Act) (775 ILCS 35/1 to 99 (West 2010)), and the first amendment's free-exercise clause (U.S. Const., amend. I).

¶ 3 The circuit court found plaintiffs had sincere religious beliefs preventing them from dispensing emergency contraceptives. The court found the Current Rule unconstitutional and invalid under the Conscience Act and the Religious Freedom Act and issued a permanent injunction, enjoining defendants from enforcing the Current Rule. Defendants appeal, arguing

(1) the injunction is overly broad in that it prohibits defendants from enforcing the Current Rule on other FDA-approved medications and against non-objecting pharmacies; and (2) the Current Rule is constitutional and does not violate either the Conscience Act or the Religious Freedom Act. We agree the injunction is overly broad but find the Conscience Act prohibits enforcement of the Current Rule on the issue of emergency contraceptives against these plaintiffs.

¶ 4 We affirm in part as modified and reverse in part.

¶ 5 I. BACKGROUND

¶ 6 A. "Plan B" or "Emergency Contraceptives"

¶ 7 In their opening brief, defendants identified four products marketed in the United States and approved for sale by pharmacies: Plan B One-Step, ella, Next Choice, and levonorgestrel tablets. Each of these products is used to prevent "pregnancy in the few days after sex." http://ec.princeton.edu/questions/dose.html (visited Aug. 30, 2012). The parties refer to these medications collectively as "Plan B" or "emergency contraceptives." Plaintiffs' exhibits, including product labeling approved by the FDA, show emergency contraception may curtail pregnancy by preventing the release of an egg, preventing fertilization, or preventing a fertilized egg from attaching. The FDA's official Web site acknowledges Plan B may prevent a fertilized egg from attaching. See Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 480 n.1, 901 N.E.2d 373, 379 n.1 (2008) (quoting http://www.fda.gov/CDER/drug/infopage/planBQandA.htm). These contraceptives will not work if a fertilized egg is implanted.

¶ 8 B. Parties in the Litigation

¶ 9 Plaintiffs in this litigation include two individual pharmacists and corporations that own "community pharmacies." The plaintiff individuals are Luke Vander Bleek and Glen Kosirog, licensed Illinois pharmacists. Vander Bleek, a lifelong Roman Catholic, has been a pharmacist for over 20 years. Kosirog, a Christian since age 17, has been a pharmacist for over 25 years. Both Vander Bleek and Kosirog have religious-based objections to participating in any way in dispensing emergency contraceptives due to their beliefs these contraceptives may prevent a fertilized egg from attaching to a woman's uterus. The individual plaintiffs were added to the case with the first amended complaint.

¶ 10 Three corporate plaintiffs are in this case: Morr-Fitz, Inc., L. Doyle, Inc., and Kosirog Pharmacy, Inc. Vander Bleek is the sole shareholder of Morr-Fitz, which operates a pharmacy in Morrison. L. Doyle, Inc., has two shareholders. Vander Bleek is the majority shareholder. L. Doyle operates two pharmacies as Eggelston Pharmacy. One is located in Sycamore and the other in Genoa. Kosirog Pharmacy, Inc., has one shareholder, Kosirog. It operates one pharmacy, Kosirog Rexall Pharmacy, in Chicago.

¶ 11 C. Defendants

¶ 12 Defendants involved in this appeal are the following: Pat Quinn, Governor of Illinois; Brent E. Adams, Secretary of the Illinois Department of Financial and Professional Regulation (Department); Jay Steward, Director of the State Board of Pharmacy; and the State Board of Pharmacy. Throughout the litigation, these defendants were substituted in place of other defendants who occupied the same offices, including Governor Rod Blagojevich, Secretary Fernando Grillo, Secretary Dean Martinez, and Director Daniel Bluthardt.

¶ 13 D. "Emergency Rule" and "Permanent Rule"

¶ 14 In April 2005, Governor Rod Blagojevich filed an "Emergency Rule" amending then-section 1330.91 of title 68 of the Illinois Administrative Code. 29 Ill. Reg. 5586 (emergency rule eff. Apr. 1, 2005). In August 2005, the amendment became permanent in the form of an administrative rule. This rule (Permanent Rule) mandated the following of community pharmacies:

"1) Upon receipt of a valid, lawful prescription for a contraceptive, a pharmacy must dispense the contraceptive *** to the patient or the patient's agent without delay, consistent with the normal timeframe [sic] for filling any other prescription. If the contraceptive *** 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." 29 Ill. Reg. 13639, 13663 (eff. Aug. 25, 2005).

In section (j), the term "contraceptive" refers to all FDA-approved drugs that prevent pregnancy (29 Ill. Reg. 13639, 13663 (eff. Aug. 25, 2005)), including medications commonly identified as "emergency contraceptive pills" or "emergency contraception."

¶ 15 When the Emergency Rule was promulgated, Governor Blagojevich "publicly warned that Illinois pharmacists who violate the rule face significant penalties, ranging from fines to the loss of professional licenses." Morr-Fitz, 231 Ill. 2d at 481, 901 N.E.2d at 380. On April 13, 2005, Governor Blagojevich issued a press release stating, " 'If a pharmacy wants to be in the business of dispensing contraceptives, then it must fill prescriptions without making moral judgments.' " Morr-Fitz, 231 Ill. 2d at 482, 901 N.E.2d at 380 (quoting press release of Governor Blagojevich, April 13, 2005).

¶ 16 E. The Litigation

¶ 17 In September 2005, plaintiffs Morr-Fitz, Inc., and Kosirog Pharmacy, Inc., filed a complaint for declaratory and injunctive relief against defendants. Plaintiffs, maintaining emergency contraceptives act as abortifacients, asked the court to enjoin defendants from enforcing the Permanent Rule, arguing the rule conflicts with Illinois law. Plaintiffs maintained the rule was void under the Conscience Act (745 ILCS 70/1 to 14 (West 2004)) and the Religious Freedom Act (775 ILCS 35/1 to 99 (West 2004)). After the circuit court denied plaintiffs' request for a temporary restraining order on grounds of standing and ripeness, plaintiffs sought leave in October 2005 to amend the complaint.

¶ 18 In the proposed first amended complaint, plaintiffs added a claim the Permanent Rule substantially burdened plaintiffs' first-amendment rights to free exercise of religion. Plaintiffs maintained the Permanent Rule forced them to participate in abortions to which they were religiously and conscientiously opposed.

¶ 19 In November 2005, the circuit court granted plaintiffs leave to amend, as well as defendants' motion to dismiss on grounds of ripeness, lack of standing, and failure to exhaust administrative remedies. Plaintiffs appealed. By majority, this court, in Morr-Fitz, Inc. v. Blagojevich, 371 Ill. App. 3d 1175, 1184, 867 N.E.2d 1164, 1171 (2007), determined the issue was not ripe and affirmed the judgment. The majority concluded the plaintiffs had not pleaded facts establishing they felt the effects of the rule in a concrete way and would suffer a substantial hardship if they were not allowed to pursue their claim. Morr-Fitz, 371 Ill. App. 3d at 1184, 867 N.E.2d at 1171. The majority further concluded neither the Conscience Act nor the Religious Freedom Act made the claim ripe. Morr-Fitz, 371 Ill. App. 3d at 1184, 867 N.E.2d at 1171. Justice Turner dissented, finding plaintiffs' claims ripe and compelling under the Conscience Act and the Religious Freedom Act. Morr-Fitz, 371 Ill. App. 3d at 1185-86, 867 N.E.2d at 1172-73 (Turner, J., dissenting). Plaintiffs appealed.

¶ 20 While plaintiffs' petition for appeal to the Supreme Court of Illinois was pending, the Permanent Rule espoused in subsection (j) was amended (Second Permanent Rule) (32 Ill. Reg. 7116, 7126-27 (eff. Apr. 16, 2008)). The Department added "several, more onerous provisions pertaining specifically to 'emergency contraception.' " Morr-Fitz, 231 Ill. 2d at 486, 901 N.E.2d at 382. The Second Permanent Rule mandated retail pharmacies use their "best efforts to maintain adequate stock of emergency contraception to the extent that it continues to sell contraception." 32 Ill. Reg. 7116, 7127 (eff. Apr. 16, 2008). It further mandated if a pharmacist objected to the dispensing of emergency contraception and no non-objecting pharmacist was present at the pharmacy, the "dispensing pharmacy" must sell the emergency contraceptive through " 'remote medication order processing,' " which involved having a non-objecting pharmacist at another location authorize a nonpharmacist employee at the dispensing pharmacy to dispense the drug. 32 Ill. Reg. 7116, 7127 (eff. Apr. 16, 2008). The Second Permanent Rule further required retail pharmacies ensure a non-objecting pharmacist was scheduled when the pharmacy was open or a licensed pharmacist was available to perform the remote-medication-order-processing procedure when no non-objecting pharmacist was available at the dispensing pharmacy. 32 Ill. Reg. 7116, 7132 (eff. Apr. 16, 2008).

¶ 21 In December 2008, the Supreme Court of Illinois reversed the majority's decision in Morr-Fitz, 371 Ill. App. 3d at 1184, 867 N.E.2d at 1171, finding plaintiffs' claims ripe. MorrFitz, 231 Ill. 2d at 504-05, 901 N.E.2d at 392-93. The court further determined plaintiffs were not required to exhaust administrative remedies and remanded the cause for a hearing on plaintiffs' motion for a preliminary injunction and further amendments to the complaint. MorrFitz, 231 Ill. 2d at 504-05, 901 N.E.2d at 392-93.

ΒΆ 22 In August 2009, the circuit court granted plaintiffs a preliminary injunction, prohibiting defendants from enforcing the ...


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