In a major victory for the rights of conscience of medical professionals (and others), yesterday an Illinois Circuit Court struck down an Illinois regulation requiring pharmacists to sacrifice their sincere religious and moral objections and dispense “emergency contraceptives” like Plan B (“the morning after pill”) – and now Ella (the “week after pill”) if they have them in stock. Addressing claims brought by individual pro-life pharmacists who own small family pharmacies in Illinois, the Court held that this rule violated the Free Exercise Clause of the First Amendment as well as the Illinois Health Care Rights of Conscience Act and Illinois Religious Freedom Restoration Act. The decision in this case, handled by our friends at the American Center for Law & Justice and Catholic University Law Professor Mark Rienzi, is a significant win for conscience and a blow for the abortion lobby that is fighting to force medical professionals to sacrifice their conscience in return for their licenses.
The Illinois regulation at issue was imposed as an urgent “Emergency Rule” by then Governor, and later fired Apprentice candidate, Rod Blagojevich in 2005 – allowing him to circumvent the usual notice and comment process and impose the rule on pharmacists himself. Blagojevich created the rule at the behest of Planned Parenthood, representatives of which joined him on the steps of the state capitol for the announcement. Blagojevich candidly explained that the law’s purpose was to prevent religion from “standing in the way” of access to drugs and to require pharmacies to “fill prescriptions without making moral judgments.” Blagojevich also stated that pharmacists with religious objections to dispensing these potential abortifacients should find another profession. The law was recently broadened to cover all legal prescriptions, not just “emergency contraception,” in a decision that the Secretary of the Illinois agency responsible for the regulation admitted was drafted “with the Plaintiffs in mind,” but trying to make the law seem less targeted at them.
The law requires pharmacies to dispense all FDA-approved drugs but since pharmacies dispense medications through licensed pharmacists, the impact of the law is generally borne by them and requires pharmacies that had previously accommodated the beliefs of their pharmacists to cease their accommodations and order them to dispense. But pharmacies are free to simply choose not to stock or sell any medication, including “emergency contraception” for “common sense business realities.” But moral or religious objections are prohibited. The law also provided a variance procedure for “individualized governmental assessments” (the state’s term) of a pharmacy but the Secretary testified that while he could envision a “whole variety” of such exceptions he couldn’t imagine one being granted for a religious objection.
The Court held that this law was neither neutral nor generally applicable, but rather targeted the free exercise of religion and that while non-religious exceptions were made religious objections were dead in the water. Indeed, the Defendants admitted as much. Thus the rule from Smith v. Employment Division was inapplicable, strict scrutiny applied, and the state had no compelling interest in forcing pharmacies and pharmacists to set aside their religious objections to dispensing these controversial medications.
But as excellent as the decision is on the law, the most important part of this decision may be in the factual findings that expose the abortion industry’s lies about the necessity of forcing medical professionals to sacrifice their conscience. Six years after the rule’s original “emergency” enactment, the state still could not produce evidence that the exercise of conscience by these individual pharmacies and pharmacists harmed any woman. “The Court heard no evidence of a single person who was unable to obtain emergency contraception because of a religious objection.” This is because there was also no evidence “that anyone was having difficulties finding willing sellers of over-the-counter Plan B, either at pharmacies or over the internet.” In fact, in addition to the availability of the medication on the internet, Plaintiffs’ pharmacies were all within a few blocks of numerous competitors that do dispense Plan B. And thus, 6 years after the supposed “Emergency,” Illinois was forced to concede that any health impact from conscientious refusals would be “minimal.” These findings, after the state (and Planned Parenthood) had 6 years to produce some factual evidence of any public health need to compel medical professionals to sacrifice their conscience, tell the story. In short, no women were harmed in the making of these pharmacists’ conscience.
Let me put this delicately. The actual facts do not match the constant and hyperbolic rhetoric of Planned Parenthood and the abortion industry. Not just on this issue of conscience but in others. We now have documented proof that Planned Parenthood clinics assist in covering up child sex trafficking and it recently tried to defend its federal taxpayer funding by falsely claiming that it performs mammograms.
Moreover, history has now shown that Planned Parenthood’s claims to the Supreme Court that partial birth abortion is necessary to protect a woman’s health, were verifiably untrue. In Carhart v. Gonzales Planned Parenthood and others argued that the Partial Birth Abortion Ban Act was facially unconstitutional because it lacked a health exception (it contains a life exception). As I explained in this post, Planned Parenthood claimed that roughly 6 such partial birth abortions occurred daily, virtually ALL for health reasons that would not be covered under the life exception. The Court upheld the law on its face but invited a doctor or woman to file an as applied challenge to the law if they needed a health exception. Justice Ginsburg, relying on Planned Parenthood’s factual claims, even said in dissent: “One may anticipate that such a preenforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.” April 18 will mark the 4th anniversary of the decision. Taking Planned Parenthood’s likely understated numbers as true, assuming 6 partial birth abortions per day, in the intervening 1449 days roughly 8,694 women have not been able to get a partial birth abortion that Planned Parenthood said would be necessary for health reasons. And not a single as applied challenge has been filed. I am not even aware of a single news release from Planned Parenthood about such a woman. Time has a way of exposing the truth.
It should come as no surprise then that when pressed to provide actual proof of the claims advanced by Planned Parenthood in support of the Blagojevich rule, Illinois could not. It is time for policy makers to realize that where it will serve their own financial or ideological interests, Planned Parenthood cannot be relied upon for the truth. If I’m not being direct enough…
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