Court Strikes Down Rule Requiring Pharmacists to Distribute Emergency Contraceptives

The opinion, by an Illinois trial court, is at Morr-Fitz, Inc. v. Blagojevich (Apr. 5, 2011). The rule is 68 Ill. Admin. Code § 1330.500(e)-(h); the court concluded that it violated the Illinois Healthcare Right of Conscience Act, the Illinois Religious Freedom Restoration Act, and the Free Exercise Clause.

I’m inclined to be partly skeptical of the court’s decision under the Free Exercise Clause. The court argued that the rule discriminatorily targeted religion, because it was drafted specifically with an eye towards religious objectors, but I don’t think this suffices to avoid Employment Division v. Smith: The rule makers apparently objected to a considerable class of refusals to fill prescriptions, without regard to whether the refusal stemmed from religious disapproval of the prescription or from secular disapproval. That the particular objections that triggered the rule came from religious objectors strikes me as insufficient to make the rule unconstitutionally discriminatory. [UPDATE: But on reflection I now think the court was likely right that strict scrutiny is called for under the Free Exercise Clause because of the availability of a general “variance” system under which the government may engage in “individualized … assessments” of whether a pharmacy should be exempted from the rule. The discussion on p. 537 of Church of Lukumi Babalu Ayeh v. City of Hialeah suggests that when such an individualized assessment system is present, “the government ‘may not refuse to extend that system to cases of `religious hardship’ without compelling reason'”; I’m not sure that’s the right rule, but it does seem to be the Supreme Court’s rule. Thanks to Prof. Mark Rienzi for pointing out my error.]

But the decision under the Illinois Healthcare Right of Conscience Act seems to me to be quite solid (though only as to an as-applied exemption, not as to the facial invalidity of the rule). The statute does say, “It shall be unlawful for any … public … institution, or public official to discriminate against any person in any manner, including but not limited to, licensing …, because of such person’s conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care services contrary to his or her conscience.” “Health care services” is defined to include “any phase of patient care, including but not limited to, … family planning, counselling, referrals, or any other advice in connection with the use or procurement of contraceptives and sterilization or abortion procedures.” And “conscience” is defined to mean “a sincerely held set of moral convictions arising from belief in and relation to God, or which, though not so derived, arises from a place in the life of its possessor parallel to that filled by God among adherents to religious faiths.” That should suffice to entitle the objectors to a statutory exemption from the rule.

And the decision under the Illinois Religious Freedom Restoration Act also strikes me as correct (though only as to an as-applied exemption given to these objectors, and similarly situated objectors). The Illinois RFRA requires government officials to exempt sincere religious objectors from generally applicable rules that would require the objectors to do something that their religion forbids, unless the government can show that denying the exemption is “the least restrictive means of furthering [a] compelling governmental interest.” But even if there is a compelling governmental interest for applying the Rule in some situations, for instance where a pharmacy is the only place to get emergency contraceptives for many miles around, the court persuasively argues that this just isn’t so as to these particular pharmacies; people who can’t get contraceptives at those pharmacies can get them at many places nearby. Requiring these pharmacy owners to fill prescriptions that these owners think would be religiously wrong to fill is thus not the “least restrictive means of furthering [a] compelling governmental interest” in making sure that people have access to lawful pharmaceuticals. And while it might be a least restrictive means of making sure that no-one’s emergency contraception request is ever refused by a pharmacist on moral grounds, I don’t think there’s a “compelling interest” in making sure of that.

I recognize that many people disapprove of such exemption regimes, whether limited to health care or applicable to religious objectors more broadly, especially when it comes to people who choose to enter some line of business (pharmacists, taxi cab drivers, lawyers, or what have you). If you want to do this job, the argument goes, you should accept the regulations that come with the job. But whether that argument is right or wrong, the Illinois Legislature has rejected it, at least when it comes to the areas governed by the Illinois Healthcare Right of Conscience Act and the Illinois RFRA.