with the four pharmacies that they own and operate the plaintiffs are prohibited by their religion from participating in the sale of drugs known as emergency contraceptives and therefore have policies against participating in such sales the final required for customers who are under the age of eighteen but the fact that that's the only circumstance in which a prescription is required does not mean that other older customers don't also come in to see the drug on a prescription basis as opposed to an over the counter basis for example customers may have may gain insurance benefits or may have the drug covered by public aid programs if they come in and i painted the prescription which they would not get for the over the counter sales none of this information  to be sure appears in the complaint because the f d a regulation for the over the counter ruling happened more than a year into this case but it's clear that the drug is still available by prescription the defendants have made clear that they still intend to enforce this rule in that in those circumstances and that in this case inferences are supposed to be made in favor of the plaintiffs and that it would be improper for it was improper for the appellate court frankly and we submit it would be improper for this court to make inferences about what may or may not happen in those circumstances against the plaintiffs what's played in the complaint is that people have come in for this drug in the past they have presented prescriptions for the drug in the past but the plaintiffs have policies against dispensing the drug that in the past when presented with prescriptions they have refused to dispense the drug that the final rule at issue here requires them to dispense the drug but the pharmacists and these pharmacies do not have policies against selling standard contraception they do have policies against selling emergency contraception the state has made it as clear as possible that if in those circumstances the defendant say here to their religious views they will face a serious threat to their professional licenses and their careers and the state has sought revocation of license that have not been so with doctor i said that's unclear from the face of the rule that is the position that the defendants  advanced in this litigation and even if that were true your honor i don't think it changes the rightness question in other words these plaintiffs do sell other contraceptives therefore this rule does require them to sell emergency contraceptives but on the face of the rule the rule says it applies to all the vision one pharmacies it doesn't say only doesn't it says all and it says that a promise of one applies to the pharmacy and your honor but under illinois law if pharmacy cannot dispense anything the only person who can dispense a prescription drug is a pharmacist so any requirement on a pharmacy to dispense a drug is necessarily a requirement to find a pharmacist to dispense the drug in this case one of the issues is the plaintiffs who are both pharmacists and owners of the pharmacies object to selling or dispensing the drug either personally or in their store but even if they decided while they can't personally be involved in the sale that they would be ok if their store sold the drug under the health care right of conscience act they can't even go out and solicit employees to try to find someone who's willing to sell the drug because section seven of the health care right of conscience act which is on its face a very very broad law clearly designed to provide broad protections section seven of that law prohibits the point of this from even placing statements in their application about issues of conscience or even orally questioning an applicant and this dilemma arises because the defendants are under the fundamental misconception that they're operating outside the bounds of the health care right of conscience act i submit that it's very clear from the face of the health care right of conscience act that that act was created specifically for situations exactly like this one that acts states on its face that is designed to provide broad protection that act recognizes actually it says the general assembly finds and the claire's that people and organizations hold different beliefs about whether health care services are morally acceptable and it says it is the public policy of the state of illinois to respect and protect the right of conscience of all persons whether acting individually corporately or in association from all forms of discrimination this wealthy cation and coercion among other things the definition of health care services in the act is extremely broad it applies to any phase of patient care it expressly refers to family planning counseling or other advice in connection with the use or procurement of contraceptives it expressly refers to medication it protects any person against discrimination by any person including public officials from discrimination in any manner including with respect to licenses and in this case i point out that in the three administrative complaints that are referenced in the state's brief i believe it page twenty one and there's a web link provided there if you take a look at each of those three complaints for the very first offense the state seeks revocation of license this there is nothing that is abstract or remote about the dilemma that the plaintiffs face the plaintiffs doors are open every single day every day people could walk someone could walk in with a prescription and require the pla fill it or to transfer to another store or to order the drug if in those circumstances the plaintiffs say here to those to their religious beliefs they have faced a direct and overt threat from the chief law enforcement officer of the state that their license is at risk governor blagojevich repeatedly publicly has stated that the point of this rule is to make sure that religion quote does not stand in the way of a pharmacy's obligation to dispense he said that pharmacies must dispense medication quote without making moral judgments but the legislature the general assembly has already established the policy and the law of illinois that individuals do get to make moral judgments about what process of this court under a people the henderson can take judicial notice of public materials those i've checked within the past week those statements still appear on the governor's website i believe the governor's public statements are highly relevant here at least  at least for the free exercise claim better for the court to the church of the look of the city of hialeah case they are the court specifically focused on the statements of the enforcement authorities and the the authorities who passed the rule as being highly probative of the government's me that those statements were highly probative and relevant to showing the government's intent the church of the economy claim is particularly important here because that claim says that even if the rule were totally neutral  is subject to federal free exercise challenge and i submit it's similar state free exercise challenge on the grounds that it is designed to target religious objectors that is the grounds that judge scott upheld against a motion to dismiss and one of the two complaint and it is certainly ripe for review now the plaintiffs are subject to this rule now and therefore they have a right to come to court and seek judicial protection consistent with illinois law to protect them from this deliberate coercion i think it's important also to realize the point of this rule is coercive a rule like this would have no point but to coerce people who otherwise weren't willing to dispense the drug to dispense the drug the on its face this rule is an attempt by the executive branch to use its power over pharmacy licenses to compel people who are otherwise exercising valid statutory constitutional rights to not be compelled and it's using that government power to compel them to do something they were otherwise choosing not to do in this court's decision in the game fowl case it said that there was a sufficient threat of injury and enforcement because the plaintiff's own dynamos that were quote within the meaning scope intent and application of the law we submit that the plaintiffs in this case are square as religious suggests pharmacists who have religious objections to dispensing emergency contraception are squarely within the meaning scope intent an application of the law the plaintiffs dilemma is exactly the dilemma for which the state has a declaratory judgment in the first place and this court recognized that in the first of american bank the next case where the court said the point of the declaratory judgment act is to provide relief before people are forced to take action which will compromise their rights i submit to the court that if the plaintiffs cannot get the cleric torrie relief now when they are currently subjected to a fully effective final administrative  rule there is no later point at which declaratory relief is possible as a practical matter it would make no sense to say that the plaintiffs have to wait in their stores with the doors open every day and with citizens walking around with prescriptions who are empowered by the defendants to come in and force the plaintiffs to violate their rights by late their free exercise rights it would make no sense to wait until someone's right in front of you without a prescription and then say i'm out now i'm allowed to go to court and get a decision on this likewise it would make no sense in the plaintiffs are not required to wait for the axe to fall to wait until someone challenges their license and then come to court as a defensive remedy the broad protections that the general assembly enacted both in the health care right of conscience act and in the religious freedom restoration act they  both clearly say that they are designed to protect people from coercion and burden they are not only designed to protect people after the axis fallen after your license is taken away if your career is ruined those statutes are protective of to and i think it may be the religious freedom act expressing refers to filing a judicial action to protect the right but i would suggest that those those rights and those remedies would be a far lesser value than the legislature intended with this court to hold that they were only effective after someone has actually been fired or lost their license or lost their business the point of those laws is to protect people from coercion and to be clear this rule from its issuance has a real actual coercive effect that's the point the plaintiffs are forced by this rule to make decisions about what their policies will be how they will instruct their employees which contraceptives they will and will not stop this rule itself is the liberal and direct pressure on the plaintiffs to change their position on this issue this rule in itself is government pressure to change their beliefs or violate those beliefs and that's what these laws are designed to protect and i'd suggest that the appellate court's one of the several problems honestly with  opinion is that the appellate court simply doesn't address the health care right of conscience act and the religious freedom restoration act it gives them a single sentence at the end of the opinion where it says nothing in those acts makes the claim right those acts are the focus of point its claims those  sky just as turner in the dissent are the clear strong indications of illinois law that plaintiffs in exactly this predicament are permitted to come to court and to seek protection from illegal government coercion but even if those rights that not exist i submit to the court that under this court's standard declaratory judgment jurisprudence the plaintiffs are still permitted to come to court this court has recognized first of america that the mere assertion of a claim or challenge the plaintiff's legal rights is sufficient to ground the declaratory judgment claim many many lower court cases in illinois have held that a plaintiff has a right to come to court where they are subject to a final rule or law that requires them to take a refrain from action not have to wait to provoke a disciplinary proceeding against himself to get relief these plaintiffs need the site and they need to know are they are they at every minute in danger of losing their licenses should they consider what their next career will be should they think about moving to a neighboring state in uprooting their families these are not small questions these are real significant coercive burdens placed on them to liberally by the state defendants in order to change their actions and change their views and encourage them to do with the governor wants which is dispense without making moral judgments it suggests that the state's proposed interpretation of the rule highlights the fact that the rule is actually designed to focus on a particular moral decision and is not actually designed to promote access on its face the rules the rule applies all pharmacies and says that upon presentation of a prescription the pharmacy must fill the prescription must do it without delay and must do it consistent with the timeframe for filling any other prescription but the fence and their attempt to defend the rule here have essentially tried to gut it by arguing that even though that's what the first sentence of the rule says the rule actually allows pharmacies to willfully and permanently remain out of stock of the drug and that if someone's got a moral objection to selling the drug the right answer is not to simply sell all the contraceptives that you don't have a moral objection to and just keep this one that you don't instead the state is actually suggesting to result that the policy that would result in far less access to contraceptives which is they're saying actually under this rule the right thing to do is just say i'm out of the contraceptive business entirely the state never explains why or how the state has the power or any legitimate interest in saying that there's one particular moral position on contraceptives that's ok and the one they're saying that they'll allow is either all or nothing as to contraceptives but that a decision by a pharmacist consistent with their religion that there are certain ones they can sell but there are certain ones that they cannot sell for some reason the state says that's not permitted it's also clear on the face of the rule that if a pharmacy makes a business decision not to carry contraceptives or not to sell certain drugs for some reason that's ok but if there's a delay because some because the pharmacist behind the counter says and that is whether the rule itself is illegal coercion under the health care right of conscience act for that analysis i think the court can look at the rule and look at the health care right of conscience act and can decide that the rule itself is a clear effort by a public official to coerce people to violate their their conscience to require to say that as a condition of your license you must participate in this particular health care service so i think constitutional issue and then said at the end of it and we can read men down for specific findings as to as as these plaintiffs and damages and things like that so i don't mean to suggest that the case would totally one hundred percent go away but i do think if this court reaches that very clear legal issue it would essentially resolve the key legal issue and leave what i would describe a small clean up on so the two main reasons why the rightness standards aren't satisfied here is that as both the circuit court and the appellate court found the application of the rule to these plaintiffs is extremely unlikely and additionally there is a  statutory variance procedure here that the plaintiffs have never pursued that has the potential to exempt them from the role and eliminate any need for judicial consideration and because of both those factors the challenges to the rule  that one of the individual plaintiffs in this case will ever be placed in a position where we'll have to violate his conscience or the letter of the rule and the remoteness here derives from from two main components the rules application is to these plaintiffs is unlikely both because of the f d a is over the counter ruling from august two thousand and six and because of the structure of the rule itself  prescriptions not to over the counter drugs and so the f d a approval significantly reduces the number of prescription contraceptives that are going to be present in all and that is a relevant factor in considering the  likely hood of the rule being applied the other main factor here is the rule structure because the rules provisions for drugs that are not in stock come into play here and that's because these plans just allege that they do not stock emergency contraception and the rule does not effect that the rule does not address stocking because plaintiffs are a rather unique position here by not stocking emergency contraception the typical alternative under the structure of the rule and the reason the town likely alternative is because it's by far the least likely customer choice of those or the rule  because again i think the rule here is dealing mainly with problems in in dispensing that have arisen and not really addressing a situation where the pharmacy itself does not stock emergency contraception therefore thereby calling into play the rules provisions for out of stock drugs so the the likelihood of a customer you know presenting a prescription and then coming into the store and saying please order this drug even though this drug is not in stock which would mean a wait of uncertain duration when the customer requires that drug as soon as possible maximum effectiveness is a very unlikely scenario that depends on a series of contingency less likely but but justice kerr murder question touches upon the fact that would we be here today if the rule didn't say that if there's no obligation to stop an obligation you do you agree that it isn't necessary for one to put yourself in jeopardy in the sense of bringing on disciplinary action you know order to challenge  has to be you know a case by case fact specific inquiry and here are where there is a very remote possibility of triggering the rule i would say that falls on the side of the wide where these claims are not right and there are additional considerations here besides just the structure of the rule and the unlikelihood of them these particular plaintiffs who do not stock contraception court to speculate completely as to whether remoteness here said well you know this could happen this could happen this could have the facts or the rule says that they have to order the fact is that it would only take  that was the strain but the plaintiffs went to the to great lengths to supply affidavits to this court alleging you knew personal facts outside the record which we did not play that properly before the court and even in those affidavits and you know in their reply brief they have provided nothing to suggest that ordering a drug that is not in stock is anything other than an unattractive customer choice conscience act in the pharmacy so we're going to speculate on the remoteness of this occurring i mean just should this court speculate that there could be one customer out there that would have their firm receive that they go into all the time to order  well i would say that considering the remoteness of the possibility is that anyone would ever do yes considering their motives for the possibility that these plaintiffs will trigger the role given the f d a is excuse me the over the counter ruling and the structure of the rule which would require ordering the out of stock drug  plaintiffs to be fearful of somebody who's simply coming in we're going there again i think the likelihood of that occurring is one of the factors that is thrown into the balance in considering rightness and the fact more likely than in rural areas for example were where you may not have a choice may not have a whole lot of choice of pharmacies are available to you that it might be trigger are more metropolitan area where you can go to the next street corner and find in other firms that that may be the case in addition to the all rall unlikely met these plaintiffs to pursue a statutory variance procedure that grants the director to the authority to exempt a licensee from complying with an mistreating parole in certain circumstances and the director may unnecessarily burden some in the particular case if we agree with mr e mc that there is already a record that the purpose and intent of the rule was to force her most is to violate their moral convictions and there's of itself defeat the variance provision not only on does it indicate that the whole purpose was to thwart the moral conviction of the pharmacist why would a variance ever be granted and let me just give you part b of the door address whether a variance could be presented in these particular circumstances precisely because the plaintiffs have never made their factual case for a variance which is a very fact dependent inquiry and the plaintiffs here say that they have four stores and they allege a singular application of the rule because they say that we are pharmacy owners who do not wish to even stock emergency contraception because of our owner's religious objection and that puts them in very different in very different circumstances from the typical if they could put in facts to say we have a particular burden because we are unique case of a a religious institution and therefore this rule burdens us in a way that does not better than others given the competing interests involved but they have never taken that step they have never presented a factual case for the director's consideration the fact th all pharmacies most pharmacies do not have religious objections to dispensing emergency contraception you also addressed with their viewpoint to seeking a variance in the governor has made statements indicating that the rule would be enforced but the nothing in the governor's statements and the  you know it just shows support for the rule and promote the goal of access to prescription contraceptives whatever the reasons for not dispensing those contraceptives and nothing in the governor's statements suggests that a variance would be inappropriate in a particular case where it was otherwise warranted the governor statements don't speak to that at all what you've cited isn't ministre to a rule that a kind of phys that that follows that statutory language but it's also in the pharmacy act itself so it says if that variance procedure we can just read that variance procedure into the all whose rightness is under review well all right but is there any additional requirement of the statute this is not reflected in the regulation and you know all right i don't see anything in there that sets out some procedure for a pharmacist or pharmacy to ask for a variance and i'm not faulting that i'm just saying it gives complete discretion to the director and i just want you one more with the director want to know from these people that they want a variance they've taken this all the way the only supreme court if the if you're taking a position that they should apply for one it is granted to all cases over what your own regulation is you say is modeled after the statute it gives complete discretion to the director you're taking the position they should apply for the variance and it's up to the discretion of the director to granite don't what other information with the director need but what's in the litigation already this is the directors but they haven't applied for the variance around and they haven't made if that's ok they're an application procedure yes i mean the regulation say the regulation do it up with the regulation doesn't lay out each step but i mean they would you know apply to the department in writing and lay out their case a factual based case for a v like the statute itself does not get into that level of detail but that's not really an obstacle to you know following the statutory procedure which is there for  this regulation that you're referring to because i don't see i don't see any procedure just that the director misread juries as a practical matter or the procedures involve  u writing to the department and presenting the facts the director considers the factual case that's presented under these standards whether the facts show that  that is a procedure that has has not been five of us have a moment to finish up that procedure has the ability to obviate any need for judicial review here at the fitness consideration addresses both whether a claim commune tellingly decided or whether it should be decided whether this is a claim that was she dishes resources at this time it's not this can also be analyzed as an exhaustion question and there are no exhaustion exceptions that apply with respect to the merits that has never been a lot of the arguments here have been addressed the merits they've they've never been raised before the circuit court or the court they've never been raising pillay we're hearing about the merits for the first time here and contrary to the representations there are significant issues of law in fact involved which present reasons why this court's refrain and there is also an amended version of the rule which is still working its way through the amendment process has not yet been finally approved but it's another reason why the court should not consider the merits just just a couple of  about you know whether it's likely to occur but even on this issue of the various justice kilbride raised you know he left you with what else what else do they need the case would be over this case was it's a nine count complete you know against the governor as one of the parties that was filed tobar twenty eighth of two thousand there weren't march of two thousand and eight and we do we need more is just  that they have a percentage but is he indicated this is a case that went through the trial appellate and now the supreme court i mean are we to assume that there would have been discussions going back and forth if there was a chance for a variance to have been granted and this is these plaintiffs have never made any kind of requests to the parliament initiate any discussion so what do we have to supply to you in terms of a variance is not a step that the plaintiffs have taken it is a step that is available to the plaintiffs it depends on a factual showing because we need to know are there other pharmacies nearby what are your circumstances why does this burden so unique to you none of which has participant before the department and all of which you know in speaking of is there some coercion hair to extent the plaintiffs have concerns about this rule being applied to them seeking a variance was a way to allay those concerns and find out if they would qualify addressing the variance procedure there because the variance question can be looked at in terms of brightness and can also be looked at alternatively as an exhaustion of administrative remedies question if it were looked at as an exhaustive administrator  question there are exhaustion exceptions such as is this a facial challenge that would apply this is not a proper facial challenge the rule applies absent a variance to all pharmacies but not all pharmacies have religious exemptions the other exhaustion requirement is it speaks to futility and we know we've had some discussion of that the mere fact that the rule is being enforced is false far far short of establishing that seeking a variance would be futile here that's that's a patently useless act and we cannot say that particularly as here these plaintiffs do have are in a rather unique position because they are institutions with religious objections and that is unlike the typical situation for pharmacy so if it's viewed as an exhaustion question they would not be any  state has said that they need to hear facts like what other pharmacies are nearby while the state defendants regulate every pharmacy in the state they know what other pharmacies are nearby and they say they want to hear about our particular unique claims of write well our claims are in the complaint in great detail and have been in all of our briefs and our claims of right are particularly under the health care right of conscience act which the defendants have already publicly repeatedly and before this court said they do not believe applies to pharmacists and pharmacies seeking a variance is unnecessary under illinois law under several cases but again i refer the court to canal feet to pink a canal focuses both on the fact that there is no need to pursue administrative remedies where there is a facial challenge but also that there is no need to pursue administrative remedies where the challenge is a straightforward legal challenge and it can tell the court this court specifically said that it would not confine itself to a facial challenge and went on to evaluate the rule as applied to specific plaintiffs  the variance procedure that justice kilbride referred to also would preclude the plain the defendants here from actually giving one to anyone at least of these plaintiffs the plaintiffs the defendants have said in their briefs that they think  the harm under this rule needs to be evaluated on a case by case basis this is their this is their merits argument well that needs to be evaluated on a case by case basis there's no way the state could at the same time find under the variance procedure that no one would ever be harmed they say in their briefs that this rule is simply a clarification of existing law well the variance procedure would require them to find the opposite it would require them to make a finding that the rules not required by law again would submit the variance procedure is not a legitimate option in this case and if at any point the defendants were interested in granting anyone a variance under this rule they certainly could have and again in canal meet the pink of the state made the same argument about a provision that allowed it to repay certain dividends to owners of lost property that was in the state possession but this court said the fact that the state has never actually done that they've never actually exercise that discretion in anyone's favor weighed against finding any need to go pursue that remy and that's the situation we're in here as to the state's arguments about remote those arguments are sheer speculation and they're improper at the motion to dismiss stage for this court or the defense or the defendant's or the appellate court to be engaging in speculation and inferences against what is played in the complaint what's played in the complaint is that this is happened before that the plaintiffs have ongoing policies against dispensing the drug that the rule requires them to dispense the drug that it happened multiple times at multiple different pharmacies the state's argument assumes facts it assumes that the only circumstances in which someone comes to the store and demands that a pharmacy fill the drug is that that person's actually currently experiencing an emergency of course that's not at all the only circumstance in which someone could seek this drug the american college of obstetricians  gynecologists recommends to all of its members that they affirmatively ask women ahead of time do you want to have a prescription for this drug so that you can have it on hand to be prepared if something happens it's also not at all out of the question that there could be politically motivated people who would be seeking to test the plaintiffs and in that case if they did seek the test the plaintiffs the places would be in severe jeopardy right away also just as freeman you pointed out that there was an option of transferring the prescription the plaintiffs have played in the complaint that they cannot cooperate in the sale and mr van obliques policy which is attached is exhibit a to the complaint says that the only actions his pharmacists are allowed to take are to return the prescription politely and nonjudgmental but return the prescription and say i'm sorry we can't fill that here these pharmacists cannot and will not take the prescription in put it on their computer and send it to another pharmacy that would violate their religion that would force them to participate in the sale or dispensing of this drug and that's what they're asking not to be can certainly consider them it is very clear that rightness unlike other doctrines is is an analysis this performed at the time of the appeal now the words the court is not required to just bury its head in the sand and look the other way about everything that's happened in the past two and a half years instead the court is permitted to consider subsequent evidence and that's what these affidavits are the appellate court improperly speculated against the plaintiffs against the the the  against let's let in the complaint instead of making inferences in the plaintiff's favor and it made those differences and they were factually incorrect the plaintiffs have a right to submit affidavit evidence to the court for the court to consider because rightness is supposed to include all of the facts here those facts are very very important because they show that the rule has a real concrete effect even if we take the state's argument is true about the remoteness of someone actually triggering it which we don't but even if you do the existence of this rule has a coercive effect it has an impact on employees who justifiably when they are thinking of working for one of the plaintiff pharmacies say boy i'm not sure i want to work here because the governor has said repeatedly that he could take the license away from any pharmacy that won't dispense these drugs that that pharmacy is closed as a result of this of this issue this is not any an abstract or remote issue for the plaintiffs also i want to clarify something that was raised in the state's brief about the affidavits the state parses the language in those and ended up having to withdraw and said he was withdrawing specifically because of his concerns about this issue and the plaintiff was unable to replace the pharmacist that's a record that is in the affidavits which we submit are properly before the court as evidence of i'd like to also point out for the court that there's an important parallel to abortion cases here which is in abortion cases which are frequently challenge before the law even goes into effect the complaint essentially goes  follows the doctor says i have performed this procedure in the past my doors are open i would perform it in the future if somebody comes in and asked me for it and i need to know whether i can do it or not i need to know whether it's illegal or not and courts routinely find that to be sufficient for standing and two of the cases we've cited are planned parenthood v farmer and dovi bolton the courts do not say at that point well wait until you have someone under eighteen before you come into chat make wait until there's somebody in your office is under eighteen and then we'll let you challenge a parental consent law no that's not the rule and it shouldn't be the rule frankly because people need to know if your doors are open for business and it's a service that you provide and the situation that you've been in the past when it happens again and my eight within my constitutional rights or be violating the law i'm risking my license people have a right to know the doctors in those abortion cases have standing and it's never really a question that they have standing and it's right that they have standing and the same thing for the plaintiffs here the plaintiffs have to know can they do it or not leslie i just want to emphasize the plaintiffs came to court not seeking to interfere with any other pharmacists willing decision to dispense this drug for doctors willing to sit to prescribe it or customers willing  take it they came to court seeking the protection of the courts consistent with illinois law from deliberate government coercion that they themselves may be forced to be involved in this benching a drug that violates their religion the illinois general assembly has made it clear that the law and policy of this state is to respect and protect the right of conscience of all people involved in all health care services including medication family planning contraceptives the governor does not get to change that policy and the other defendants do not get to change that policy and that law by issuing press releases or administrative rules or even by argument to this court the law is if this is a facial challenge  time the plaintiffs have been forced to close a pharmacy and this court can observe from other cases that pharmacists have been fired pharmacies have lost their licenses pharmacists have been suspended the illegal coercion of this rule has gone on long enough and the plaintiffs respectfully request that