Illinois Pharmacists Bring 'Morning After' Lawsuit to Supreme Court

CHICAGO – Illinois pharmacists who object to dispensing emergency contraception won another day in court to fight a rule they claim forces them to choose between their livelihood and conscience.

The Illinois Supreme Court on Thursday said the circuit court must consider a lawsuit brought by two pharmacists who claim they should not be required to dispense emergency contraception because it violates their religious beliefs. Lower courts had dismissed those claims and refused to hear the case.

Gov. Rod Blagojevich in 2005 issued a rule prohibiting pharmacies from turning away women seeking emergency contraception, sometimes called the morning-after pill.

The medication, marketed by Montvale, N.J.-based Barr Pharmaceuticals Inc. as Plan B, reduces the chance of pregnancy if taken within three days after sex. It works by preventing ovulation or fertilization and interfering with implantation of a fertilized egg, which some people consider the equivalent of abortion.

"I cannot follow my religion's teachings and continue to be involved" in emergency contraception, said pharmacist Luke Vander Bleek, 45, a Catholic who runs pharmacies in Morrison, Sycamore and Genoa. Vander Bleek, who filed the lawsuit along with another pharmacist-business owner, said his stores don't stock or dispense emergency contraception.

The plaintiffs argued they are protected by state laws that prohibit forcing health care decisions over moral objections and insulating citizens from religious interference.

Justice Robert Thomas, writing for the majority, said nothing about the constitutionality of the Illinois rule or whether it violates those state laws.

But the opinion said Blagojevich's public statements that pharmacists with moral objections "should find another profession" could be seen as a signal the state would allow no exceptions to the rule. That left the plaintiffs with no recourse but the courts.

The case will go back to Sangamon County Circuit Court.

Justice Charles Freeman dissented, joined by Justice Anne Burke. He said it was inappropriate for the court to rely on the governor's public statements about the rule. Freeman wrote that only three enforcement actions, all against large chain pharmacies, have been undertaken by the state, showing the rule isn't aimed at small business owners like the plaintiffs.

Supporters of the rule, including Planned Parenthood and the American Civil Liberties Union, said they believe it will withstand the pharmacists' legal challenges in the lower court.

"The rule is working," said Pam Sutherland of Planned Parenthood of Illinois.

Before the rule took effect, the organization received several calls a month from women who said they had been denied birth control at pharmacies; the rule has ended those complaints, Sutherland said.

In 2006, the FDA allowed Plan B to be sold without a prescription to adults, but only by pharmacies that checked photo ID before selling the pills. Girls 17 and younger still require a prescription.

Mark Rienzi, a Washington, D.C.-based attorney representing the pharmacists, praised the decision.

"This says to all health care workers in Illinois, 'You do have recourse. You can go to court to seek protection,"' Rienzi said.

The rule required pharmacists to risk losing their licenses "simply because they have religious beliefs that don't fit with Gov. Blagojevich's moral code," Rienzi said.

The Illinois rule led to several other lawsuits, including one in federal court that was settled by a compromise in which objecting pharmacists wouldn't have to participate in filling the prescription. In such cases, a pharmacy employee would contact a pharmacist at another location, then follow his or her directions for dispensing the morning-after pill.