Lynn v. Sekulow

It’s been a busy time for Illinois Governor Blagojevich at the Illinois Supreme Court.  Last week, the state’s highest court refused to hear a case involving a challenge to the Governor’s fitness to remain in office as he battles corruption charges.  That was the big story.


But there was also a decision by the Illinois Supreme Court last week – one you probably didn’t hear much about – a decision handing the Governor a defeat concerning a troubling administrative regulation he issued years ago concerning the conscience rights of pro-life health care professionals.


We serve as co-counsel for two pro-life pharmacy owners in Illinois who sued Gov. Blagojevich and other state officials over a 2005 administrative regulation that coerces pro-life pharmacists into dispensing Plan B, the so-called “morning-after pill.”  The lawsuit asked that the regulation, which provides for license revocation and steep fines for religiously-based refusals to dispense, be struck down because they violate the First Amendment, the Illinois Health Care Right of Conscience Act, and the Illinois Religious Freedom Restoration Act. 


The trial court dismissed the lawsuit, and a divided Court of Appeals affirmed that dismissal on the grounds that the lawsuit was not “ripe” for adjudication because the pharmacists had not yet actually suffered any concrete harm from the regulation. The Illinois Supreme Court granted review of the case and heard arguments in March.


Just days ago, the Illinois Supreme Court issued its decision and reversed the lower courts and ruled that our clients are entitled to their day in court.  The high court held that the case was indeed “ripe” for consideration and sent the matter back to the trial court.


The Illinois high court concluded that the Governor’s order has a direct and real impact on pro-life health care professionals.  


The court stated:   “In its current form [the regulation] has an even greater concrete and coercive impact on plaintiffs. The rule now expressly requires that plaintiffs must stock and dispense Plan B contraception. Under the current version, the simple failure by plaintiffs to make efforts to stock the contraceptive in question would subject plaintiffs to a range of penalties, including license revocation.  Under these circumstances, application of the rule to plaintiffs cannot be considered remote. Instead, the rule affects their business operations on a day-to-day basis and exposes plaintiffs to strong sanctions.”


This favorable decision on standing really does represent a major victory for pro-life health care professionals in Illinois who have been in legal limbo for years.  By rejecting the Governor’s refusal to recognize the religious objections of our clients, the Illinois Supreme Court cleared the way for this issue to be litigated, as it should.


In its opinion, the Illinois Supreme Court also determined that ” . . . they [Gov. Blagojevich and other state defendants] have publicly stated that they will vigorously prosecute pharmacists with religious objections to drive them out of the profession and that a pharmacy must fill Plan B prescriptions without making moral judgments if it wants to stay in business.”


In the trial court, we will assert that the Governor’s order is in direct conflict with both state and federal laws protecting the conscience rights of health care workers.  The Governor is clearly determined to force out of their profession pharmacists whose moral codes differ from his. 


We look forward to presenting our case in court and remain hopeful that the legal system will uphold a principle that most Americans understand – no American should be forced to make a choice between their conscience and their livelihood.

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