Pro-life Pharmacists do NOT sign IL settlement; individuals dropped as judge decrees Rule

no longer applies to them; court rules pharmacists have rights of conscience and

are 'health care professionals'

by Frank Manion, Esq.

ACLJ Counsel

[The group of 7 individual IL pharmacists] did not sign on to the settlement agreement between Walgreens and the state. We separately agreed to drop our claims against the state in exchange for the state's agreement that they would interpret the Rule as not applying to individual pharmacists.

In spite of its shortcomings, the bottom line is that this settlement is a victory for prolife pharmacists. Please remember where we were and how far we've come on this issue. In April of 2005, [the IL] Governor issued an edict that he said required every Illinois pharmacist to dispense Plan B, no ifs, ands, or buts. According to the Governor, pharmacists who didn't want to do it should find other professions. Pharmacists were no different than grocery store cashiers, etc. Confusion followed, with licensure actions taken by the state against Walgreens and Osco over pharmacist refusals and with Walgreens firing several employees who refused to agree, in advance, to sign away their conscience rights. Pharmacists at Walgreens and other companies were in limbo about whether or not they had a right to refuse to dispense, whether or not the Health Care Right of Conscience Act applied to them (the Governor said it did not) and whether or not they were even "health care professionals" under the Act (the Governor said they were not).

We responded by bringing a series of legal actions. First, we sued the Governor on behalf of seven individual pharmacists on the grounds that his Rule violated pharmacists' constitutional and statutory rights. At the same time, we sued Walgreens and Walmart (Vandersand) on the grounds that firing objecting pharmacists violated the Health Care Right of Conscience Act. We also sued the Governor on behalf of a pharmacy owner (VanderBleek). And we came to the defense of one pharmacist (Bonnie Brown) who was charged with unprofessional conduct (and threatened with a lengthy suspension, $5,000 fine plus costs) for allegedly lying to a Planned Parenthood nurse about the availability of Plan B.

What happened next ? Because we sued them in Madison and Kane counties, Walgreens intervened in our federal case against the Governor. Because Judge Scott ruled early on that we stated a good case against the Governor for violation of pharmacists’ First Amendment right of Free Exercise of religion (a ruling that the U.S. Dep't. of Justice recently told us they considered "remarkable"), the case against the Governor was sent to mediation before Judge Cudmore. Because Walgreens' corporate interest was in keeping the state off its back and, at the same time, keeping objecting pharmacists off its back, it attempted to come up with a solution that would meet both goals.

While the mediation was pending, Judge Scott issued another ruling, this time in the Vandersand case against Walmart. She held : 1) pharmacists are covered by the Right of Conscience Act; 2) pharmacists are "health care personnel" under the Act; 3) pharmacists are involved in "health care services" under the Act. Thus, in one fell swoop, she dispensed with (no pun intended) not only Walmart's defenses in that case, but also Walgreens' defenses in both the Madison and Kane County cases. But Judge Scott also held that the Rule itself did not apply to individual pharmacists. This latter finding by Judge Scott, while a very good thing for individual pharmacists, also made it highly likely that, eventually, she would have had to have found that the individual plaintiffs no longer had any case against the Governor (Judge Scott being the judge in both Vandersand and the case against the Governor).

Meanwhile, we were finally presented with the draft of the settlement agreement that Walgreens and the state had been crafting over the course of many months. At first we were pleased with it but eventually realized that there were some serious problems with the idea of us signing on to it. Aside from the infinite number of "what ifs" that arise from any agreement or piece of legislation, we did not like the fact that the settlement, arguably made things worse for pro-life pharmacy owners, techs, and store managers. Accordingly, we told the other parties and Judge Cudmore, "thanks, but no thanks." But because there was no realistic way to continue to press our claims against the Governor (based on Judge Scott's ruling that the Rule does not apply to individuals), rather than lose the case through a dismissal, we managed to get the state to agree, in a binding Mutual Understanding and Agreement, that Judge Scott's Vandersand opinion says what it says, that the Rule does not apply to individual pharmacists, and that the state will never apply it to individual pharmacists. The case thus ends, via two separate agreements.

That is what has now been settled. Here's what it means: Because of the individual lawsuits, the Governor has been forced to retreat from his original position - pharmacists are a bunch of grocery clerks - to a point where the state not only recognizes the right of objecting pharmacists to exist, it also recognizes that the state must find a way to try to accommodate their objections and has put in place a procedure that, for all its shortcomings, might accommodate most situations.

Does the new Rule solve the whole problem? Of course not; that's one of the main reasons we didn't sign on to it. But this is major progress and we should view it that way. We forced the most pro-abortion Governor in the country to eat his words and to backtrack a long way from his April 2005 bluster and we've now got his attorney general's office on our side when it comes to the question of whether or not pharmacists are covered by the Right of Conscience Act. Considering what we we've been up against in this state, these are all significant developments. [....]

And we're not done yet. We still have the damages cases against Walgreens in Madison and Kane counties. The Vandersand case against Walmart goes on. Bonnie Brown's case is on the verge of being resolved with the state backing off from its demand of two years' suspension and $5,000 fine to a simple reprimand. And most significant of all, the Illinois Supreme Court, within the past month, granted our petition for leave to appeal in the VanderBleek case. The court denied about 1,000 other petitions at the same time. The case will be argued in January. Because VanderBleek is a pharmacy owner, we don't have to worry about whether or not the Rule applies to him. That case has the potential to address all of the issues we've been raising about the Rule. [....]

As to how the new Rule will work in particular situations, that remains to be seen. ... But the major question has been settled: objecting pharmacists cannot be threatened, harassed, or forced to dispense Plan B against their conscientious convictions without their employers a) violating the state's Rule; b) violating the Health Care Right of Conscience Act.

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