Illinois Court Permits Religious Pharmacists To Refuse To Dispense Emergency Contraception

An Illinois appeals court upheld a ruling Friday that exempted pharmacists with religious objections from prescribing emergency contraceptives, finding that the medical professionals were protected by state law. The plaintiffs, both individual pharmacists and corporations that own pharmacies, had challenged an order by then-Gov. Rod Blagojevich requiring that pharmacists sell “Plan B,” a brand of the contraceptive also known as the “morning-after pill.”

The court rejected the ACLU’s argument that prescribing emergency contraceptives fell under an exception in the Illinois Health Care Right of Conscience for “emergency medical care,” even though doctors testified that the contraceptive was most effective when taken immediately after unprotected intercourse.

The three-justice panel did narrow the scope of the lower court’s ruling, which had entirely blocked the governor’s requirement to provide contraceptives. The appeals court held instead that the state law merely prohibits enforcement of the order against plaintiffs who claim a religious exemption.

The court’s decision to allow individual pharmacists to claim the protection of the law is not particularly surprising, given the Illinois statute’s broad wording: “No physician or health care personnel shall be civilly or criminally liable to any person, estate, public or private entity or public official by reason of his or her refusal to perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care service which is contrary to the conscience of such physician or health care personnel.”

But it is perplexing, to say the least, that the court extended that protection to the corporate plaintiffs, which had established across-the-board policies of refusing to provide emergency contraceptives. In making no distinction whatsoever between the right of individuals to exempt themselves from the law because of their personal religious views, and the alleged rights of the corporate entity to impose those views on employees, the court not only raises the question of whether a corporation can exercise religion (at issue in Colorado litigation over contraception); it also disregards the statute’s explicit reference to “physicians” and “health care personnel” individually, and not to pharmacies, hospitals or any other such entities.