Pharmacists to court: Overturn 'morning-after' pill rule

Wednesday, March 19, 2008

SPRINGFIELD, Ill. -- A group of pharmacists asked the Illinois Supreme Court on Tuesday to throw out a rule that forces them to dispense emergency contraception despite moral objections, claiming it amounts to illegal coercion.

Gov. Rod Blagojevich issued the rule in spring 2005, prohibiting pharmacies from turning away women seeking emergency contraception. The medicine is a higher dosage of typical hormonal contraception which, if taken within three days of having sex, greatly reduces the chance of pregnancy.

It acts to impede contraception, which in the eyes of pro-life pharmacists is tantamount to abortion.

In the closely watched case that mirrors concerns raised in other states, the druggists argued that Illinois law protects them from choosing between violating their consciences and losing their licenses, and that they shouldn't have to wait until they're out of jobs to seek justice.

A lawyer for Blagojevich argued the pharmacies in the lawsuit don't even stock so-called "morning-after" medication so it's unlikely they would violate the rule. They also don't have standing to sue because they've not suffered any repercussions, said Laura Wunder, an assistant state attorney general.

But in oral arguments, justices bluntly pointed out to Wunder that the pharmacies must get the drug if requested -- putting their licenses at risk if they don't comply.

"If 'place the order' wasn't in the rule itself, I would imagine the pharmacies that have a problem with dispensing the drug would just not stock it, and if they didn't have to order, what's the problem?" Chief Justice Robert Thomas said. "But the rule does say they have to order it if the customer asks them to."

The rule, which became permanent in late 2005, prompted several Illinois 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.

Elsewhere, a federal court in Washington state stopped enforcement of a similar pharmacy rule, based on the First Amendment's free expression rights, according to Frank Manion, a lawyer for the American Center for Law and Justice, which is defending pro-life druggists. That case is on appeal.

New Jersey has a similar provision for pharmacists, but Manion is unaware of any challenges there. Wisconsin lawmakers have recently debated whether to create such a rule, he said.

In Illinois, the pharmacists' lawyer, Mark Rienzi, said his clients should be able to sue even if they haven't suffered repercussions.

Rienzi argued they are protected by two state laws: one that prohibits forcing health care decisions over moral objections, and one insulating citizens from religious interference.

"They are designed to protect people from coercion and burden," Rienzi said. "They are not only designed to protect people after the ax has fallen, after your license is taken away, after your career is ruined."

Since the pharmacists sued in 2005, a pharmacy owned by one plaintiff, from Prophetstown, closed because no pharmacist would work there under the state's threat of license revocation. The group has 15 examples in which customers requested the drug even though they don't stock it. Rienzi said outside of court that generally, those customers accepted that they had to go elsewhere for the drug, although they could have complained and forced state sanctions on the stores.

Wunder countered that the pharmacies have been unable to show that they're in jeopardy of state penalties because it's unlikely that a customer would ask a drugstore to order a medicine that is needed right away.

And she pointed out that the law allows pharmacies to seek exceptions to the rule. Justices responded that there are no directions on how to seek such a variance.

Blagojevich's rule prompted some pharmacies, such as Deerfield-based pharmacy giant Walgreen Co., to suspend pharmacists who refused to follow it.

That led to the federal lawsuit, which Walgreens joined.

The compromise that Walgreens reached with the Blagojevich administration in October allows a secondary pharmacy employee -- who need not be a pharmacist -- to call another pharmacist and follow instructions for filling the prescription.

That rule needs approval from the legislative Joint Committee on Administrative Rules, which could decide next month, said Sue Hofer, spokeswoman for the state Department of Financial and Professional Regulation.

Rienzi said approval of that rule would help individual pharmacists, who could opt out. But he said the rule would require all pharmacies to stock the drug and his clients are pharmacy owners who don't want the drug in their stores at all.

The case is Morr-Fitz v. Blagojevich.

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