Morr-Fitz, Inc. v. Blagojevich

Opinion

NO. 4-05-1050 Filed 3/19/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

MORR-FITZ, INC., an Illinois ) Appeal from Corporation d/b/a FITZGERALD PHARMACY, ) Circuit Court of Licensed and Practicing in the State ) Sangamon County of Illinois as a Pharmacy; L. DOYLE, ) No. 05CH495 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-Appellants, ) v. ) ROD R. BLAGOJEVICH, Governor, State of ) Illinois; FERNANDO E. GRILLO, ) Secretary, Illinois Department of ) Financial and Professional ) Regulations; DANIEL E. BLUTHARDT, ) Acting Director, Division of ) Professional Regulations; and THE ) MEMBERS OF THE STATE BOARD OF ) PHARMACY, in Their Official ) Honorable Capacities, ) John W. Belz, Defendants-Appellees. ) Judge Presiding. _________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

In October 2005, plaintiffs, two individual pharmacists

and three Illinois corporations that own and operate pharmacies

in Illinois, filed their first amended complaint seeking

injunctive and declaratory relief against defendants, Governor

Rod Blagojevich, Secretary Fernando Grillo of the Illinois

Department of Financial and Professional Regulations, Acting Director Daniel Bluthardt of the Division of Professional

Regulations, and the State Board of Pharmacy. The suit alleged

an administrative rule requiring pharmacies to dispense a certain

contraceptive, levonorgestrol, also known as "Plan B" or the

"morning after pill" (Rule) (68 Ill. Adm. Code §1330.91(j), as

amended by 29 Ill. Reg. 13639, 13663 (eff. August 25, 2005)),

violates federal and state law by forcing plaintiffs to dispense

the "morning after pill" even though this violates their

religious beliefs and consciences. In November 2005, the trial

court granted the State's motion to dismiss with prejudice on the

grounds of lack of standing, ripeness, and failure to exhaust

administrative remedies. Plaintiffs appeal, arguing the

following: (1) they had standing; (2) they did not have to wait

until a customer presented them with a prescription and then

refuse to fill the prescription, thereby subjecting themselves to

disciplinary proceedings, before they could challenge the Rule;

and (3) they did not need to exhaust their administrative

remedies before bringing this action in circuit court. We

affirm.

I. BACKGROUND

Plaintiffs in this case allege having moral and

religious objections to dispensing the "morning after pill."

Based on the plaintiffs' beliefs, life begins at conception. As

a result, according to plaintiffs' beliefs, the "morning after

- 2 - pill" has the effect of destroying human life because it can

prevent an already fertilized egg from implanting in the uterus.

According to the Rule, plaintiffs have certain

obligations regarding emergency contraception, such as the

"morning after pill." The Rule states as follows:

"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 filling 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

- 3 - 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." 68 Ill. Adm. Code

§1330.91(j), as amended by 29 Ill. Reg.

13639, 13663 (eff. August 25, 2005).

The "morning after pill" falls within the definition of a

contraceptive. The State has made clear it intends to enforce

the Rule. Under the Pharmacy Practice Act of 1987 (Pharmacy Act)

(225 ILCS 85/1 through 40 (West 2004)), the Department of

Financial and Professional Regulation may take disciplinary

action against a licensee if the licensee violates the Pharmacy

Act or any rules promulgated under the Pharmacy Act. 225 ILCS

85/30(a)(2) (West 2004).

In October 2005, plaintiffs filed their first amended

complaint for declaratory and injunctive relief challenging the

- 4 - Rule, claiming various state and federal causes of action. In

their amended complaint, plaintiffs allege they have been

presented with prescriptions for emergency contraception in the

past. However, they failed to allege that they have been

presented with a prescription for emergency contraception since

the Rule went into effect. Plaintiffs also failed to allege they

stock the "morning after pill," the Rule requires them to do so,

or the Rule has required them to take any immediate action to

comply with the Rule. That same month, the State filed a motion

to dismiss plaintiffs' claim based on their lack of standing.

The trial court dismissed plaintiffs' claim with prejudice based

on plaintiffs' lack of standing, lack of ripeness of the claim,

and plaintiffs' failure to exhaust their administrative remedies.

This appeal followed. In August 2006, the Food and

Drug Administration (FDA) approved "Plan B" for over-the-counter,

nonprescription sales to women age 18 and older.

II. ANALYSIS

A. Standard of Review

We review de novo a trial court's decision to grant a

motion to dismiss. Midland Hotel Corp. v. Director of Employment

Security, 282 Ill. App. 3d 312, 315, 668 N.E.2d 82, 85 (1996).

B. Standing in Declaratory-Judgment Actions

According to our supreme court, a preliminary question

in any declaratory-judgment action is whether the plaintiff has

- 5 - standing. Messenger v. Edgar, 157 Ill. 2d 162, 170, 623 N.E.2d

310, 313 (1993). According to our supreme court, "standing only

requires some injury in fact to a legally cognizable interest."

"There are two components to the standing

requirement in the context of declaratory[-]

judgment actions. There must be [(1)] an

'actual controversy' between adverse parties,

and [(2)] the party seeking the declaratory

judgment must be 'interested' in the

controversy." Flynn v. Ryan, 199 Ill. 2d

430, 436, 771 N.E.2d 414, 418 (2002).

In Underground Contractors Ass'n v. City of Chicago, 66

Ill. 2d 371, 362 N.E.2d 298 (1977), the supreme court explained

both of these components. As for the second component that a

party must be "interested" in the controversy, the court has

stated:

"The word[] 'interested' does not mean merely

having a curiosity about or a concern for the

outcome of the controversy. Rather, the

party seeking relief must possess a personal

claim, status, or right which is capable of

being affected. [Citations.] The dispute

must, therefore, touch the legal relations of

parties who stand in a position adverse to

- 6 - one another." Underground Contractors Ass'n,

66 Ill. 2d at 376, 362 N.E.2d at 301.

As for the "actual controversy" component, the court has stated:

"'Actual' in this context does not mean that

a wrong must have been committed and injury

inflicted. Rather, it requires a showing

that the underlying facts and issues of the

case are not moot or premature, so as to

require the court to pass judgment on mere

abstract propositions of law, render an

advisory opinion, or give legal advice as to

future events. [Citations.] The case must,

therefore, present a concrete dispute

admitting of an immediate and definitive

determination of the parties' rights, the

resolution of which will aid in the

termination of the controversy or some part

thereof." Underground Contractors Ass'n, 66

Ill. 2d at 375, 362 N.E.2d at 300.

Most of the arguments of both plaintiffs and defendants center on

these two components. Both plaintiffs and defendants ignore the

fact that this is not the only consideration courts take into

account in determining whether they will hear a declaratory

judgment action concerning the validity of an administrative

- 7 - action.

In Abbott Laboratories v. Gardner, 387 U.S. 136, 138-

39, 18 L. Ed. 2d 681, 686, 87 S. Ct. 1507, 1510 (1967) (Abbott

Labs), the petitioners challenged an administrative regulation,

arguing the Commissioner of Food and Drugs exceeded the authority

Congress granted in an amendment to the Federal Food, Drug, and

Cosmetic Act. The Supreme Court found the plaintiffs' claim was

"ripe." According to the Supreme Court:

"The injunctive and declaratory judgment

remedies are discretionary, and courts

traditionally have been reluctant to apply

them to administrative determinations unless

these arise in the context of a controversy

'ripe' for judicial resolution. Without

undertaking to survey the intricacies of the

ripeness doctrine it is fair to say that its

basic rationale is to prevent the courts,

through avoidance of premature adjudication,

from entangling themselves in abstract

disagreements over administrative policies,

and also *** protect[s] the agencies from

judicial interference until an administrative

decision has been formalized and its effects

felt in a concrete way by the challenging

- 8 - parties." (Emphasis added.) Abbott Labs,

387 U.S. at 148-49, 18 L. Ed. 2d at 691, 87

S. Ct. at 1515.

The Court stated "[t]he problem [of determining whether a

controversy is 'ripe'] is best seen in a twofold aspect,

requiring [the court] to evaluate both the fitness of the issues

for judicial decision and the hardship to the parties of

withholding court consideration." Abbott Labs, 387 U.S. at 149,

18 L. Ed. 2d at 691, 87 S. Ct. at 1515.

In 1990, this court stated:

"[A] declaratory[-]judgment action may be

maintained where statutes or administrative

rules, which have cleared all the hurdles

prerequisite to their becoming fully

effective, require one either to take a

certain action or to refrain from a certain

action, regardless of the actual probability

of prosecution for noncompliance." (Emphasis

added.) Kerr-McGee Chemical Corp. v.

Department of Nuclear Safety, 204 Ill. App.

3d 605, 610, 561 N.E.2d 1370, 1374 (1990).

The above statement would seem to allow plaintiffs to pursue this

declaratory-judgment action even though they would not suffer any

hardship if judicial consideration was withheld. However, this

- 9 - court made the above statement before our supreme court adopted

the two-step process described in Abbott Labs to determine

whether a claim is ripe for judicial consideration, which

requires us "'to evaluate both the fitness of the issues for

judicial decision and the hardship to the parties of withholding

court consideration.'" National Marine, Inc. v. Illinois

Environmental Protection Agency, 159 Ill. 2d 381, 389, 639 N.E.2d

571, 574 (1994), quoting Abbott Labs, 387 U.S. at 149, 18 L. Ed.

2d at 691, 87 S. Ct. at 1515.

In the case at bar, the trial court dismissed

plaintiffs' case in part because the court found the claim was

not ripe. It is not entirely clear from the record whether the

court meant plaintiffs did not meet the "actual controversy"

requirement discussed by our supreme court in Underground

Contractors Ass'n, or whether the court believed plaintiffs had

not felt the concrete effects of the Rule and would not suffer

any hardship by withholding court consideration. It appears the

trial court was basing its decision on the former. It also

appears plaintiffs and defendants also believed the court meant

plaintiffs did not meet the "actual controversy" requirement

because this is what both plaintiffs and defendants focused on in

their briefs. This provides some explanation why plaintiffs

failed to make any real argument that their claim was ripe under

the test established in Abbott Labs.

- 10 - That being said, this court's duty is not to determine

if the trial court's reasoning was correct. Instead, our duty is

to determine if the trial court's decision to dismiss plaintiffs'

cause of action was correct. City of Chicago v. Holland, 206

Ill. 2d 480, 491-92, 795 N.E.2d 240, 247-48 (2003). We find it

was correct.

Plaintiffs cite numerous cases in support of their

argument they should not have to wait to violate the Rule before

challenging it. However, most of the cases they cite deal with

challenges to statutes or ordinances, not administrative rules.

See Illinois Gamefowl Breeders Ass'n v. Block, 75 Ill. 2d 443,

448, 389 N.E.2d 529, 530 (1979) (constitutional challenge to

certain provisions of the Humane Care for Animals Act); Hays v.

City of Urbana, 104 F.3d 102, 103 (7th Cir. 1997) (challenge to

the validity of a city ordinance); Babbitt v. United Farm Workers

National Union, 442 U.S. 289, 292, 60 L. Ed. 2d 895, 902, 99 S.

Ct. 2301, 2305 (1979) (challenge to the constitutionality of

Arizona's farm-labor statute); Doe v. Bolton, 410 U.S. 179, 181,

35 L. Ed. 2d 201, 206, 93 S. Ct. 739, 742 (1973) (challenge to

criminal statute placing restrictions on abortions); Virginia v.

American Booksellers Ass'n, 484 U.S. 383, 388, 98 L. Ed. 2d 782,

791, 108 S. Ct. 636, 640 (1988) (challenge to statute that placed

restrictions on the display of adult publications); Steffel v.

Thompson, 415 U.S. 452, 456, 39 L. Ed. 2d 505, 512-13, 94 S. Ct.

- 11 - 1209, 1213-14 (1974) (challenge to criminal-trespass statute);

Epperson v. Arkansas, 393 U.S. 97, 98, 21 L. Ed. 2d 228, 231, 89

S. Ct. 266, 267 (1968) (challenge to "anti-evolution" statute);

Stenberg v. Carhart, 530 U.S. 914, 921-22, 147 L. Ed. 2d 743,

754, 120 S. Ct. 2597, 2604-05 (2000) (challenge to statute

involving partial-birth abortions); Burson v. Freeman, 504 U.S.

191, 193, 119 L. Ed. 2d 5, 11, 112 S. Ct. 1846, 1848 (1992)

(challenge to statute restricting speech within 100 feet to

entrance to polling place); Village of Chatham v. County of

Sangamon, 351 Ill. App. 3d 889, 893, 814 N.E.2d 216, 221 (2004)

(question of which of two statutes controlled who had zoning and

building-code jurisdiction); Boles Trucking, Inc. v. O'Connor,

138 Ill. App. 3d 764, 770, 486 N.E.2d 362, 364 (1985) (challenge

to the constitutionality of section 18-702 of the Illinois Motor

Carrier of Property Law). These cases would be more persuasive

if plaintiffs were seeking declaratory relief from a statute

passed by the Illinois General Assembly or an ordinance passed by

a municipal body containing the same language found in the Rule.

However, plaintiffs are seeking declaratory relief from

an administrative rule. It is fairly clear the issue of whether

the Rule is facially valid is fit for a judicial decision.

However, based on the allegations in plaintiffs' complaint, the

chances of plaintiffs suffering any hardship in the future as a

result of this rule are so slim, albeit not impossible, they do

- 12 - not outweigh the judiciary's traditional reluctance to get

involved in administrative determinations such as this.

This is not always the case. Situations do arise when

the hardship to a plaintiff of withholding judicial consideration

outweighs the judiciary's traditional reluctance to get involved

in administrative determinations this early. For example, in

Abbott Labs, the Supreme Court stated:

"This is also a case in which the impact

of the regulations upon the petitioners is

sufficiently direct and immediate as to

render the issue appropriate for judicial

review at this stage. These regulations

purport to give an authoritative

interpretation of a statutory provision that

has a direct effect on the day-to-day

business of all prescription drug companies;

its promulgation puts petitioners in a

dilemma that it was the very purpose of the

Declaratory Judgment Act to ameliorate. As

the District Court found on the basis of

uncontested allegations, 'Either they must

comply with the every[-]time requirement and

incur the costs of changing over their

promotional material and labeling or they

- 13 - must follow their present course and risk

prosecution.' [Citation.] The regulations

are clear-cut, and were made effective

immediately upon publication; as noted

earlier the agency's counsel represented to

the District Court that immediate compliance

with their terms was expected. If

petitioners wish to comply they must change

all their labels, advertisements, and

promotional materials; they must destroy

stocks of printed matter; and they must

invest heavily in new printing type and new

supplies. The alternative to compliance--

continued use of material which they believe

in good faith meets the statutory

requirements, but which clearly does not meet

the regulation of the Commissioner--may be

even more costly. That course would risk

serious criminal and civil penalties for the

unlawful distribution of 'misbranded' drugs.

It is relevant at this juncture to

recognize that petitioners deal in a

sensitive industry, in which public

confidence in their drug products is

- 14 - especially important. To require them to

challenge these regulations only as a defense

to an action brought by the Government might

harm them severely and unnecessarily. Where

the legal issue presented is fit for judicial

resolution, and where a regulation requires

an immediate and significant change in the

plaintiffs' conduct of their affairs with

serious penalties attached to noncompliance,

access to the courts under the Administrative

Procedure Act and the Declaratory Judgment

Act must be permitted, absent a statutory bar

or some other unusual circumstance, neither

of which appears here.

The Government does not dispute the very

real dilemma in which petitioners are placed

by the regulation, but contends that 'mere

financial expense' is not a justification for

pre-enforcement judicial review. It is of

course true that cases in this Court dealing

with the standing of particular parties to

bring an action have held that a possible

financial loss is not by itself a sufficient

interest to sustain a judicial challenge to

- 15 - governmental action. [Citations.] But there

is no question in the present case that

petitioners have sufficient standing as

plaintiffs: the regulation is directed at

them in particular; it requires them to make

significant changes in their everyday

business practices; if they fail to observe

the Commissioner's rule they are quite

clearly exposed to the imposition of strong

sanctions." (Emphasis added.) Abbott Labs,

387 U.S. at 152-54, 18 L. Ed. 2d at 693-94,

87 S. Ct. at 1517-18.

In Alternate Fuels, Inc. v. Director of the Illinois

Environmental Protection Agency, 215 Ill. 2d 219, 830 N.E.2d 444

(2004), our supreme court found the claim brought by Alternate

Fuels against the Illinois Environmental Protection Agency

(Agency) was ripe. The issue before the court was whether a

business that has been issued a violation notice by an

administrative agency for failure to secure a permit can proceed

with a claim against the agency in circuit court to test the

validity of the violation notice if the notice caused it to cease

operations before the administrative agency made a final ruling.

Alternate Fuels, 215 Ill. 2d at 221, 830 N.E.2d at 446.

Alternate Fuels was in the business of providing fuel

- 16 - to customers in the form of shredded plastic agricultural

chemical containers. Alternate Fuels, 215 Ill. 2d at 222, 830

N.E.2d at 446. In July 1998, the Agency issued a notice to the

plaintiff that it was violating section 21(d) of the Illinois

Environmental Protection Act (Act) (415 ILCS 5/21(d) (West 1998))

by storing and treating "waste" without a permit from the Agency.

Alternate Fuels, 215 Ill. 2d at 227, 830 N.E.2d at 449. The

Agency also alleged Alternate Fuels was violating section 21(e)

of the Act (415 ILCS 5/21(e) (West 1998)). Alternate Fuels, 215

Ill. 2d at 227, 830 N.E.2d at 449. Alternate Fuels alleged after

the Agency issued the violation notice, its primary investors

withdrew their support and its primary supplier withdrew from its

agreement with Alternate Fuels. Alternate Fuels then stopped its

operations. Alternate Fuels, 215 Ill. 2d at 227, 830 N.E.2d at

449.

In its complaint against the Agency, Alternate Fuels

asked for a declaration the materials it was using were not

"waste" because they had not been discarded. Alternate Fuels,

215 Ill. 2d at 228, 830 N.E.2d at 449. The Agency moved to

dismiss the claim, arguing the case did not present an actual

ripe controversy because Alternate Fuels had not exhausted its

administrative remedies. Alternate Fuels, 215 Ill. 2d at 228,

830 N.E.2d at 449. The circuit court denied the Agency's motion

to dismiss and later granted Alternate Fuels' motion for summary

- 17 - judgment, "finding that the materials were not 'wastes' because

they were not discarded." Alternate Fuels, 215 Ill. 2d at 229,

830 N.E.2d at 449-50. The appellate court affirmed. Alternate

Fuels, 215 Ill. 2d at 229, 830 N.E.2d at 450.

Before the supreme court, the Agency argued the claim

was not ripe because the Agency had not concluded its

investigatory process. Alternate Fuels, 215 Ill. 2d at 230, 830

N.E.2d at 450. After finding the issue fit for judicial

decision, the court examined what, if any, hardship Alternate

Fuels would suffer if the court withheld its consideration.

According to the court, the Agency's interpretation of the Act

created a dilemma for Alternate Fuels. Alternate Fuels, 215 Ill.

2d at 232, 830 N.E.2d at 452. It could secure what it considered

an unnecessary permit with the required local siting approval, it

could continue its operations without getting a permit and risk

prosecution and serious penalties, or it could shut down its

operations. Alternate Fuels, 215 Ill. 2d at 232-33, 830 N.E.2d

at 452. After Alternate Fuels chose to shut down its operations,

the Agency had no reason to refer the alleged violation for

prosecution because the alleged violation was no longer

occurring. The court found if it did not allow judicial review

to Alternate Fuels it would basically eliminate any chance

Alternate Fuels had of getting a determination of whether it was

in fact processing "waste" under the Act. Alternate Fuels, 215

- 18 - Ill. 2d at 233, 830 N.E.2d at 452. The court further found:

"The Agency's decision affected [Alternate

Fuels] in a concrete way; the notice of

violation caused [Alternate Fuels] to lose

financing, lose its suppliers, and halt

operations, thereby ending [Alternate

Fuels's] agreement with Illinois Power.

Thus, [Alternate Fuels] has already felt a

direct and palpable injury and has an

immediate financial stake in the resolution

of the instant action." Alternate Fuels, 215

Ill. 2d at 233, 830 N.E.2d at 452.

Plaintiffs' situation in the instant case is not nearly

as compelling as the situations the plaintiffs faced in Abbott

Labs and Alternate Fuels, respectively. The regulation at issue

in this case has not forced plaintiffs out of business or had any

effect on their day-to-day operations. In other words,

plaintiffs have not felt the effects of this Rule in a concrete

way. Further, plaintiffs are currently in compliance with the

Rule, and it is extremely unlikely based on the allegations in

plaintiffs' complaint that one of the individual plaintiffs in

this case will ever be placed in a position where he will either

have to violate his conscience or the letter of the Rule. As a

result, plaintiffs will not suffer any hardship by our denial of

- 19 - judicial consideration.

We do not foreclose with this ruling the possibility of

another pharmacist alleging facts sufficient to allow him or her

to bring a preenforcement challenge to the validity of this Rule.

We are only holding plaintiffs in this case have not pleaded

facts establishing that they have felt the effects of this rule

in a concrete way and will suffer a substantial hardship if they

are not allowed to pursue this action at this time. Further, the

provisions of neither the Illinois Health Care Right of

Conscience Act (745 ILCS 70/1 through 14 (West 2004)) nor the

Illinois Religious Freedom Restoration Act (775 ILCS 35/1 through

99 (West 2004)) makes this claim ripe for our consideration.

C. Exhaustion of Administrative Remedies

Because we have found this claim is not ripe for

review, we decline plaintiffs' invitation to address this issue.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

APPLETON, J., concurs.

TURNER, J., dissents.

- 20 - JUSTICE TURNER, dissenting:

I disagree with the majority's conclusion that the

provisions of the Health Care Right of Conscience Act (Right of

Conscience Act) and the Illinois Religious Freedom Restoration

Act fail to make plaintiffs' claims ripe for consideration.

Therefore, I respectfully dissent.

A. Right of Conscience Act

Section 2 of the Right of Conscience Act provides, in

part, as follows:

"The General Assembly finds and declares

that people and organizations hold different

- 21 - beliefs about whether certain health[-]care

services are morally acceptable. It is the

public policy of the State of Illinois to

respect and protect the right of conscience

of all persons who *** are engaged in ***

health[-]care services *** and to prohibit

all forms of discrimination, disqualifica-

tion, coercion, disability[,] or imposition

of liability upon such persons or entities by

reason of their refusing to act contrary to

their conscience or conscientious convictions

in refusing to obtain, receive, accept, de-

liver, pay for, or arrange for the payment of

health[-]care services and medical care."

745 ILCS 70/2 (West 2004).

"Conscience" has been defined as "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." 745 ILCS 70/3(e) (West 2004). Section 5

prohibits public officials from discriminating against persons

"in any manner" because of that person's "conscientious refusal

to *** participate in any way in any particular form of

health[-]care services contrary to his or her conscience." 745

- 22 - ILCS 70/5 (West 2004). A person injured by any action prohibited

by the Right of Conscience Act may commence an action therefor

and recover damages. 745 ILCS 70/12 (West 2004).

I would find plaintiffs have stated a compelling case

under the Right of Conscience Act, one that is worthy of and ripe

for consideration. In the case sub judice, plaintiff pharmacists

are alleged to have moral and religious objections to dispensing

emergency contraception pursuant to the Rule. The Right of

Conscience Act purports to protect their beliefs and prevent "all

forms" of coercion on the part of the government to alter those

beliefs. Governor Blagojevich, however, has stated pharmacists

"are not free to let [religious] beliefs stand in the way" of

delivering emergency contraception to customers and "must fill

prescriptions without making moral judgments." Press Release,

Office of the Governor, Statement of Gov. Rod Blagojevich in

response to lawsuit filed by Pat Robertson's American Center for

Law and Justice challenging Governor's emergency rule for pharma-

cies (April 13, 2005), available at

http://www.illinois.gov/PressReleases/PrintPressRelease.cfm?

SubjectID=3&RecNum=3849. Further, the Governor has warned

pharmacists that the State will "vigorously protect" the right of

access to birth control and will take "any and all necessary

steps to ensure a woman's access to her health care." Letter

from Rod Blagojevich, Governor, State of Illinois, to Paul

- 23 - Caprio, Executive Director, Family-Pac (April 11, 2005). The

intent of the Governor's statements is clear and undeniable--

either comply with the Rule or else. Plaintiffs allege, there-

fore, they must choose either to violate the Rule or their

consciences, a form of coercion expressly prohibited by the Right

of Conscience Act. The risk of the revocation of their profes-

sional licenses unless they comply with the Rule is the ultimate

in government coercion, threatening their very livelihood in the

workforce within the State of Illinois. Accordingly, plaintiffs'

claim the Right of Conscience Act offers them an avenue of relief

is ripe for consideration.

B. Religious Freedom Restoration Act

Under section 10 of the Religious Freedom Restoration

Act, the General Assembly has found "[t]he free exercise of

religion is an inherent, fundamental, and inalienable right

secured by [a]rticle I, [s]ection 3[,] of the Constitution of the

State of Illinois." 775 ILCS 35/10(a)(1) (West 2004). One of

the purposes of the Religious Freedom Restoration Act is "[t]o

provide a claim or defense to persons whose exercise of religion

is substantially burdened by government." 775 ILCS 35/10(b)(2)

(West 2004).

"Government may not substantially burden

a person's exercise of religion, even if the

burden results from a rule of general appli-

- 24 - cability, unless it demonstrates that appli-

cation of the burden to the person (i) is in

furtherance of a compelling governmental

interest and (ii) is the least[-]restrictive

means of furthering that compelling govern-

mental interest." 775 ILCS 35/15 (West

2004).

Section 20 allows a person to raise a claim in a judicial pro-

ceeding and seek appropriate relief if his or her "exercise of

religion has been burdened in violation" of the Religious Freedom

Restoration Act. 775 ILCS 35/20 (West 2004).

Based on the purposes and protections of the Religious

Freedom Restoration Act, I would find plaintiffs have standing to

pursue their claims. Plaintiffs have alleged the Rule burdens

their right to the free exercise of religion in violation of

Illinois law. A forced choice between violating one's religious

beliefs and complying with the law can amount to a substantial

burden within the meaning of the Religious Freedom Restoration

Act. See Wisconsin v. Yoder, 406 U.S. 205, 218, 32 L. Ed. 2d 15,

26, 92 S. Ct. 1526, 1534 (1972) ("[t]he impact of the compulsory-

attendance law on respondents' practice of the Amish religion is

not only severe, but inescapable, for the Wisconsin law affirma-

tively compels them, under threat of criminal sanction, to

perform acts undeniably at odds with fundamental tenets of their

- 25 - religious beliefs"); Sherbert v. Verner, 374 U.S. 398, 404, 10 L.

Ed. 2d 965, 970, 83 S. Ct. 1790, 1794 (1963) (where the appel-

lant's declared ineligibility for benefits "force[d] her to

choose between following the precepts of her religion and for-

feiting benefits, on the one hand, and abandoning one of the

precepts of her religion in order to accept work, on the other

hand").

In this case, plaintiffs claim the Rule, along with the

Governor's edicts, has placed substantial pressure on them to

modify or violate their religious beliefs or face the threat of

government sanction. The alleged disregard here by the State's

Chief Executive of the fundamental constitutional rights of these

Illinois citizens to the free exercise of their religious beliefs

is sufficient to grant them standing under the Religious Freedom

Restoration Act. Therefore, I would find plaintiffs have set

forth a justiciable claim that the State has placed a substantial

burden on their protected constitutional right to the free

exercise of religion. As plaintiffs have established a compel-

ling claim, their action is ripe for consideration.

- 26 -