ILLINOIS OFFICIAL REPORTS

Appellate Court

Morr-Fitz, Inc. v. Quinn, 2012 IL App (4th) 110398

Appellate Court

Caption

MORR-FITZ, INC., an Illinois Corporation, d/b/a FITZGERALD

PHARMACY, Licensed and Practicing in the State of Illinois as a

Pharmacy; L.DOYLE, INC., an IllinoisCorporation, d/b/aEGGELSTON

PHARMACY, Licensed and Practicing in the State of Illinois as a

Pharmacy; KOSIROG PHARMACY,INC., an Illinois Corporation, d/b/a

KOSIROG REXALLPHARMACY, Licensed and Practicing in the State

of Illinois as a Pharmacy; LUKE VANDER BLEEK; and GLENN

KOSIROG, Plaintiffs-Appellees, v. PAT QUINN, Governor, The State

of Illinois; FERNANDO E. GRILLO, Secretary, The Department of

Financial and Professional Regulation; DANIEL E. BLUTHARDT,

Acting Director, The Division of Professional Regulation; and THE

MEMBERS OF THE STATE BOARD OF PHARMACY, in Their

Official Capacities, Defendants-Appellants.

 District & No. Fourth District

Docket No. 4-11-0398

Argued

Filed

August 7, 2012

September 20, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The injunction issued by the trial court prohibiting defendant public

officials from enforcing the administrative rule requiring pharmacies to

dispense emergency contraception was affirmed to the extent the trial

court found that the rule could not be enforced without violating the

Conscience Act, but the injunction was reversed and modified to enjoin

enforcement of the rule against plaintiffs who have conscience-based

objections to the rule.
Decision Under 

Review

Appeal from the Circuit Court of Sangamon County, No. 05-CH-495; the

Hon. John W. Belz, Judge, presiding.

Judgment Affirmed in part as modified and reversed in part.

Counsel on

Appeal

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, and Carl J. Elitz (argued) and Nadine J. Wichern,

Assistant Attorneys General, of counsel), for appellants. 

Duane D. Young, of LaBarre, Young & Behnke, of Springfield, Francis

J. Manion, of New Hope, Kentucky, and Carl Nichols, Steven Lehotsky,

Natalie Hurt, Thomas Dettore, and Alyssza DaCunha, all of Wilmer,

Cutler, Pickering, Hale & Dorr LLP, and Mark L. Rienzi (argued), of

Catholic University of America, Columbus School of Law, both of

Washington, D.C., for appellees.

Panel JUSTICE KNECHT delivered the judgment of the court, with opinion.

Justices Steigmann and Pope concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiffs, two pharmacists and three corporations that own and operate pharmacies, filed

suit seeking declaratory and injunctive relief against certain public officials who seek to

enforce an administrative rule that requires pharmacies to dispense or aid in the dispensing

of emergency contraception. The individual plaintiffs believe life begins at conception,

emergency contraception may act as an abortifacient, and the dispensing of such medication

is against their religious beliefs. The corporate plaintiffs have ethical guidelines that prevent

the pharmacies they own and operate from dispensing emergency contraception.

¶ 2 The administrative rule at issue (Current Rule) does not specifically identify “emergency

contraception” but applies to all medication approved by the United States Food and Drug

Administration (FDA). 68 Ill. Adm. Code 1330.500(e) (2010). Plaintiffs’ third amended

complaint alleges the Current Rule is invalid as it violates the Illinois Health Care Right of

Conscience Act (Conscience Act) (745 ILCS 70/1 to 14 (West 2010)), the Illinois Religious

Freedom Restoration Act (Religious Freedom Act) (775 ILCS 35/1 to 99 (West 2010)), and

the first amendment’s free-exercise clause (U.S. Const., amend. I).

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¶ 3 The circuit court found plaintiffs had sincere religious beliefs preventing them from

dispensingemergencycontraceptives. The court found the Current Rule unconstitutional and

invalid under the Conscience Act and the Religious Freedom Act and issued a permanent

injunction, enjoining defendants from enforcing the Current Rule. Defendants appeal,

arguing (1) the injunction is overly broad in that it prohibits defendants from enforcing the

Current Rule on other FDA-approved medications and against nonobjecting pharmacies; and

(2) the Current Rule is constitutional and does not violate either the Conscience Act or the

Religious Freedom Act. We agree the injunction is overly broad but find the Conscience Act

prohibits enforcement of the Current Rule on the issue of emergency contraceptives against

these plaintiffs.

¶ 4 We affirm in part as modified and reverse in part.

¶ 5 I. BACKGROUND

¶ 6 A. “Plan B” or “Emergency Contraceptives”

¶ 7 In their opening brief, defendants identified four products marketed in the United States

and approved for sale by pharmacies: Plan B One-Step, ella, Next Choice, and levonorgestrel

tablets. Each of these products is used to prevent “pregnancy in the few days after sex.”

http://ec.princeton.edu/questions/dose.html (visited Aug. 30, 2012). The parties refer to these

medications collectively as “Plan B” or “emergency contraceptives.” Plaintiffs’ exhibits,

including product labeling approved bythe FDA, show emergencycontraception may curtail

pregnancy by preventing the release of an egg, preventing fertilization, or preventing a

fertilized egg from attaching. The FDA’s official Web site acknowledges Plan B mayprevent

a fertilized egg from attaching. See Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 480 n.1,

901 N.E.2d 373, 379 n.1 (2008) (quoting http://www.fda.gov/CDER/drug/infopage/planB

QandA.htm). These contraceptives will not work if a fertilized egg is implanted.

¶ 8 B. Parties in the Litigation

¶ 9 Plaintiffs in this litigation include two individual pharmacists and corporations that own

“community pharmacies.” The plaintiff individuals are Luke Vander Bleek and Glen

Kosirog, licensed Illinois pharmacists. Vander Bleek, a lifelong Roman Catholic, has been

a pharmacist for over 20 years. Kosirog, a Christian since age 17, has been a pharmacist for

over 25 years. Both Vander Bleek and Kosirog have religious-based objections to

participating in any way in dispensing emergency contraceptives due to their beliefs these

contraceptives may prevent a fertilized egg from attaching to a woman’s uterus. The

individual plaintiffs were added to the case with the first amended complaint.

¶ 10 Three corporate plaintiffs are in this case: Morr-Fitz, Inc., L. Doyle, Inc., and Kosirog

Pharmacy, Inc. Vander Bleek is the sole shareholder of Morr-Fitz, which operates a

pharmacy in Morrison. L. Doyle, Inc., has two shareholders. Vander Bleek is the majority

shareholder. L. Doyle operates two pharmacies as Eggelston Pharmacy. One is located in

Sycamore and the other in Genoa. Kosirog Pharmacy, Inc., has one shareholder, Kosirog. It

operates one pharmacy, Kosirog Rexall Pharmacy, in Chicago.

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¶ 11 C. Defendants

¶ 12 Defendants involved in this appeal are the following: Pat Quinn, Governor of Illinois;

Brent E. Adams, Secretary of the Illinois Department of Financial and Professional

Regulation (Department); Jay Steward, Director of the State Board of Pharmacy; and the

State Board of Pharmacy. Throughout the litigation, these defendants were substituted in

place of other defendants who occupied the same offices, including Governor Rod

Blagojevich, Secretary Fernando Grillo, Secretary Dean Martinez, and Director Daniel

Bluthardt.

¶ 13 D. “Emergency Rule” and “Permanent Rule”

¶ 14 In April 2005, Governor Rod Blagojevich filed an “Emergency Rule” amending thensection 1330.91 of title 68 of the Illinois Administrative Code. 29 Ill. Reg. 5586 (emergency

rule eff. Apr. 1, 2005). In August 2005, the amendment became permanent in the form of an

administrative rule. This rule (Permanent Rule) mandated the following of community

pharmacies:

“1) Upon receipt of a valid, lawful prescription for a contraceptive, a pharmacymust

dispense the contraceptive *** to the patient or the patient’s agent without delay,

consistent with the normal timeframe [sic] for filling any other prescription. If the

contraceptive *** is not in stock, the pharmacy must obtain the contraceptive under the

pharmacy’s standard procedures for ordering contraceptive drugs not in stock, including

the procedures of any entity that is affiliated with, owns, or franchises the pharmacy.

However, if the patient prefers, the prescription must be transferred to a local pharmacy

of the patient’s choice under the pharmacy’s standard procedures for transferring

prescriptions for contraceptive drugs, including the procedures of any entity that is

affiliated with, owns, or franchises the pharmacy. Under any circumstances an unfilled

prescription for contraceptive drugs must be returned to the patient if the patient so

directs.” 29 Ill. Reg. 13639, 13663 (eff. Aug. 25, 2005).

In section (j), the term “contraceptive” refers to all FDA-approved drugs that prevent

pregnancy(29 Ill. Reg. 13639, 13663 (eff. Aug. 25, 2005)), including medications commonly

identified as “emergency contraceptive pills” or “emergency contraception.”

¶ 15 When the Emergency Rule was promulgated, Governor Blagojevich “publicly warned

that Illinois pharmacists who violate the rule face significant penalties, ranging from fines

to the loss of professional licenses.” Morr-Fitz, 231 Ill. 2d at 481, 901 N.E.2d at 380. On

April 13, 2005, Governor Blagojevich issued a press release stating, “ ‘If a pharmacy wants

to be in the business of dispensing contraceptives, then it must fill prescriptions without

making moral judgments.’ ” Morr-Fitz, 231 Ill. 2d at 482, 901 N.E.2d at 380 (quoting press

release of Governor Blagojevich, April 13, 2005).

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¶ 16 E. The Litigation

¶ 17 In September 2005, plaintiffs Morr-Fitz, Inc., and Kosirog Pharmacy, Inc., filed a

complaint for declaratory and injunctive relief against defendants. Plaintiffs, maintaining

emergency contraceptives act as abortifacients, asked the court to enjoin defendants from

enforcing the Permanent Rule, arguing the rule conflicts with Illinois law. Plaintiffs

maintained the rule was void under the Conscience Act (745 ILCS 70/1 to 14 (West 2004))

and the Religious Freedom Act (775 ILCS 35/1 to 99 (West 2004)). After the circuit court

denied plaintiffs’ request for a temporary restraining order on grounds of standing and

ripeness, plaintiffs sought leave in October 2005 to amend the complaint.

¶ 18 In the proposed first amended complaint, plaintiffs added a claim the Permanent Rule

substantially burdened plaintiffs’ first-amendment rights to free exercise of religion.

Plaintiffs maintained the Permanent Rule forced them to participate in abortions to which

they were religiously and conscientiously opposed.

¶ 19 In November 2005, the circuit court granted plaintiffs leave to amend, as well as

defendants’ motion to dismiss on grounds of ripeness, lack of standing, and failure to exhaust

administrative remedies. Plaintiffs appealed. By majority, this court, in Morr-Fitz, Inc. v.

Blagojevich, 371 Ill. App. 3d 1175, 1184, 867 N.E.2d 1164, 1171 (2007), determined the

issue was not ripe and affirmed the judgment. The majority concluded the plaintiffs had not

pleaded facts establishing they felt the effects of the rule in a concrete way and would suffer

a substantial hardship if they were not allowed to pursue their claim. Morr-Fitz, 371 Ill. App.

3d at 1184, 867 N.E.2d at 1171. The majority further concluded neither the Conscience Act

nor the Religious Freedom Act made the claim ripe. Morr-Fitz, 371 Ill. App. 3d at 1184, 867

N.E.2d at 1171. Justice Turner dissented,finding plaintiffs’ claims ripe and compelling under

the Conscience Act and the Religious Freedom Act. Morr-Fitz, 371 Ill. App. 3d at 1185-86,

867 N.E.2d at 1172-73 (Turner, J., dissenting). Plaintiffs appealed.

¶ 20 While plaintiffs’ petition for appeal to the Supreme Court of Illinois was pending, the

Permanent Rule espoused in subsection (j) was amended (Second Permanent Rule) (32 Ill.

Reg. 7116, 7126-27 (eff. Apr. 16, 2008)). The Department added “several, more onerous

provisions pertaining specifically to ‘emergency contraception.’ ” Morr-Fitz, 231 Ill. 2d at

486, 901 N.E.2d at 382. The Second Permanent Rule mandated retail pharmacies use their

“best efforts to maintain adequate stock of emergency contraception to the extent that it

continues to sell contraception.” 32 Ill. Reg. 7116, 7127 (eff. Apr. 16, 2008). It further

mandated if a pharmacist objected to the dispensing of emergency contraception and no

nonobjecting pharmacist was present at the pharmacy, the “dispensing pharmacy” must sell

the emergency contraceptive through “ ‘remote medication order processing,’ ” which

involved having a nonobjecting pharmacist at another location authorize a nonpharmacist

employee at the dispensing pharmacy to dispense the drug. 32 Ill. Reg. 7116, 7127 (eff. Apr.

16, 2008). The Second Permanent Rule further required retail pharmacies ensure a

nonobjecting pharmacist was scheduled when the pharmacy was open or a licensed

pharmacist was available to perform the remote-medication-order-processing procedure

when no nonobjecting pharmacist was available at the dispensing pharmacy. 32 Ill. Reg.

7116, 7132 (eff. Apr. 16, 2008).

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¶ 21 In December 2008, the Supreme Court of Illinois reversed the majority’s decision in

Morr-Fitz, 371 Ill. App. 3d at 1184, 867 N.E.2d at 1171, finding plaintiffs’ claims ripe.

Morr-Fitz, 231 Ill. 2d at 504-05, 901 N.E.2d at 392-93. The court further determined

plaintiffs were not required to exhaust administrative remedies and remanded the cause for

a hearing on plaintiffs’ motion for a preliminary injunction and further amendments to the

complaint. Morr-Fitz, 231 Ill. 2d at 504-05, 901 N.E.2d at 392-93. 

¶ 22 In August 2009, the circuit court granted plaintiffs a preliminary injunction, prohibiting

defendants from enforcing the Second Permanent Rule against plaintiffs.

¶ 23 In April 2010, defendants issued the Current Rule, entitled “Community Pharmacy

Services,” which replaced the Second Permanent Rule. See 68 Ill. Adm. Code 1330.500

(2010). Emergency contraceptives are not mentioned in the Current Rule. Section (e),

however, mandates “Pharmacies have a duty to deliver lawfully prescribed drugs to patients

and to distribute nonprescription drugs approved by the [FDA] for restricted distribution by

pharmacies, or to substitute a generic drug *** in a timely manner, or to contact the

prescriber to obtain authorization to dispense a different drug that produces a similar clinical

effect in a timely manner ***.” 68 Ill. Adm. Code 1330.500(e) (2010). The Current Rule

includes exceptions to this requirement, but it does not list conscience- or religious-based

objections. The listed exceptions include matters of professional judgment, such as when

drug-drug interactions or drug-food interactions are indicated (68 Ill. Adm. Code

1330.500(e)(1) (2010)) and when emergencies affect drug availability (68 Ill. Adm. Code

1330.500(e)(2)(2010)).Section (g) mandates if a lawfullyprescribed drug or nonprescription

drug is not in stock or is otherwise unavailable, the pharmacy must provide the patient a

timelyalternative for appropriate therapy, which mayinclude obtaining the drug. 68 Ill. Adm.

Code 1330.500(g) (2010). Suggested alternatives include, if the patient requests it,

transmitting the prescription information to a pharmacy that will fill the prescription. 68 Ill.

Adm. Code 1330.500(g)(3) (2010). A pharmacy that fails to comply with the Current Rule

is subject to disciplinary action “or other enforcement actions.” 68 Ill. Adm. Code

1330.500(h) (2010).

¶ 24 In May2010, plaintiffs filed a third amended complaint and a summary-judgment motion

seeking relief against the Current Rule. In their third amended complaint, plaintiffs

maintained the Current Rule violated the Conscience Act, the Religious Freedom Act, and

the first amendment. Before trial, the circuit court granted the parties’ joint motion in which

defendants agreed not to pursue disciplinary action for violations of the previous rules and

plaintiffs agreed to voluntarily dismiss claims made under Title VII of the Civil Rights Act

of 1964 (42 U.S.C. §§ 2000e to 2000e-17 (2006)) and the Illinois Human Rights Act (775

ILCS 5/1-101 to 10-104 (West 2010)).

¶ 25 In March 2011, a trial was held. Plaintiffs Vander Bleek and Kosirog testified for

plaintiffs; Dr. Warren Wallace and Secretary Adams testified for defendants.

¶ 26 Plaintiff Vander Bleek, a pharmacist who resides in Morrison, testified he had been a

pharmacist since 1986. He owned three pharmacies, with locations in Morrison, Sycamore,

and Genoa. Vander Bleek is Roman Catholic and regularly attended church.

¶ 27 Vander Bleek testified he was aware of emergency contraceptives. He believed his faith

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prevented him from participating in the sale of emergency contraception because it has the

potential for terminating human life. Vander Bleek believed human life begins at conception,

and the FDA-approved product literature on the Plan B products indicates such medication

may prevent pregnancy after fertilization. Vander Bleek testified his faith prevented him

from selling emergency contraception and also from permitting his stores to stock the drugs

or participating in a system through which he would transfer the prescription to anotherstore

to be filled.

¶ 28 According to Vander Bleek, his pharmacies had guidelines concerning emergency

contraception. In May 2005, by letter, he informed his staff of this policy. Vander Bleek

asked any pharmacist who worked for him to sign the policy. Since 2005 approximately three

or four women had asked for emergency contraception in his Morrison store. About the same

number had asked for those drugs in his other two stores combined.

¶ 29 Vander Bleek testified, upon hearing Governor Blagojevich’s comments about the

change in the law, he felt like he would have to choose between violating the law or his

conscience. Vander Bleek watched an interview of Governor Blagojevich on television,

when the governor said pharmacists unwilling to dispense emergency contraception should

find a new job.

¶ 30 Vander Bleek testified the nearest location to his Morrison store where a woman could

obtain emergency contraception was approximately 3 1/2 blocks away. This location was an

inpatient pharmacy at a public hospital, which stocked Plan B in the emergency room. The

nearest pharmacy, however, was approximately 14 miles away. More than 12 pharmacies

were within a 15-minute drive of the Morrison location. Regarding the Sycamore and Genoa

locations, Vander Bleek testified a Walgreen’s was approximately 10 minutes from his

Genoa pharmacy and 5 minutes from his Sycamore store. Prescription emergency

contraception was also available on the Internet.

¶ 31 Glenn Kosirog, a registered pharmacist for over 25 years and a resident of Wheaton,

testified he was the sole shareholder in a corporation that owns Kosirog Pharmacy, a

pharmacy that had been in his family over 50 years. Kosirog testified he had been a Christian

since he was 17 years old. Kosirog believed emergency contraceptives to be “abortion pills,”

as emergency contraception taken after unprotected sex could destroy an embryo. Kosirog

believed life begins at conception. Kosirog, because of his faith, could not have anything to

do with emergency contraceptives.

¶ 32 Kosirog testified his store, since 2006 or 2007, had an “abortion pill policy.” This policy

requires a pharmacist, if presented with a prescription for emergency contraception, to return

the prescription. Kosirog testified one or two women each month entered his store seeking

emergencycontraception. Over 12 pharmacies were within three or four miles of his Chicago

pharmacy.

¶ 33 When Kosirog first learned of the requirement to sell emergency contraception, he felt

coerced and frightened. He was concerned the government might close his pharmacybecause

of his beliefs. Because of the uncertainty surrounding the rules, he did not expand his

business.

¶ 34 Warren HenryWallace, a physician at Northwestern UniversityMedical School, testified

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as an expert witness for defendants. Dr. Wallace testified he practiced medicine for 35 years.

When he prescribed a medication for a patient, he expected the prescription would be filled

and the patient would take it. Dr. Wallace would not inform a pharmacist of the reasons for

the prescription and described situations where a woman’s life and health would be

endangered by a pregnancy. Dr. Wallace testified the failure to take emergency

contraceptives in a timely manner “may lead to increased risk that it will be ineffective.”

When asked about the optimal time frame for taking emergency contraceptives, Dr. Wallace

testified theywere most effective when taken immediately after unprotected intercourse and

“become[ ] progressively less effective over the course of the next several days.”

¶ 35 Dr. Wallace testified he heard the term “dispensary” used to refer to a pharmacy. He

agreed physicians were free to refuse to enter into physician-patient relationships for

conscience-based reasons and pharmacists should have that same right. Dr. Wallace testified

until April 2010 there had not been a rule requiring every pharmacy to sell every drug. In his

own personal experience, he was not aware of any instance in which a religious refusal to sell

emergency contraceptives resulted in the woman’s failure to obtain the drug.

¶ 36 Brent Adams, the secretary of financial professional regulation for the State of Illinois,

testified he had been with the Department since July 2006. In October 2009, he was

confirmed as secretary. In his role as secretary, Secretary Adams helped determine the

Department’s policy initiatives and directives.

¶ 37 Secretary Adams testified he drafted the Current Rule. Secretary Adams explained the

prior rules were repealed as part of “a comprehensive rewrite of the rules in the context of

amendments to the Pharmacy Practice Act [(225 ILCS 85/1 to 41 (West 2010))].” Upon

learning of the Ninth Circuit’s decision in Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir.

2009), in which rules broadly expanding access to medications survived constitutional

scrutiny, he decided to move in the same direction. The Current Rule was drafted “to

promote the health and well-being of residents” and “to establish a regulatoryframework that

would protect access to medications for all Illinois residents.” Secretary Adams testified his

concern was with access to medication in general, but matters of Plan B contraception were

also discussed, as were matters of postexposure prophylaxis for human immunodeficiency

virus (HIV) infection and psychotropic medications. Secretary Adams was not aware of any

particular instance when a patient was denied emergency contraceptives because of a

religious-based objection, but he “was aware of general controversy.” His “concern was that

at some future point, a patient in need of timely access to one of those remedies would be

denied and *** the complaint process via the Department would not redress that concern in

an adequate time frame.”

¶ 38 SecretaryAdams testified the duty to deliver applies to the pharmacy, not to pharmacists.

The Department would learn of violations through consumer complaints. After a consumer

filed a complaint, the Department would conduct an investigation and make a report to the

prosecution if necessary. Pharmacies were responsible for drug delivery because they were

the frontline deliverers of necessarymedication. Pharmacists, individually, were not covered

under the rule to address religious objections. SecretaryAdams was unaware of anycustomer

complaints underthe previous rules regarding religious-based refusals to dispense emergency

contraceptives.

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¶ 39 SecretaryAdams testified the Current Rule did not require doctors to write prescriptions

for drugs. He acknowledged access to medication could be denied if a doctor refused to write

a prescription. Secretary Adams testified his Department had a variance procedure that

allowed him to make individualized assessments for parties seeking a variance. He could not

foresee a situation in which he would give a variance for a religious objection.

¶ 40 Secretary Adams, in the process of drafting the Current Rule, met with the Retail

Merchants Foundation, at least one pharmacist association, and Planned Parenthood.

SecretaryAdams did not meet with religious objectors. SecretaryAdams testified he kept all

of the materials related to the Current Rule in a file under the heading “Plan B.” Secretary

Adams could envision a health issue in which a patient is in need of medication and arrives

at a pharmacy and is denied access. Secretary Adams agreed his rule did not require the

pharmacy to stock the drug. He agreed timely therapeutic equivalent in some instances might

mean the same day, but timeliness would depend on the circumstances. Secretary Adams

would not agree the public hospital’s selling the drug three blocks away was an alternative

for Vander Bleek’s refusal to sell emergency contraception at his pharmacy: “I find it

unreasonable to expect a patient who is denied access at a pharmacy to think to go to the

emergency room.” 

¶ 41 The circuit court found plaintiffs Vander Bleek and Kosirog had sincere religious- and

conscience-based objections to participating in the distribution of the Plan B contraceptives.

The court concluded the Current Rule is invalid on its face and as applied under the

Conscience Act, the Religious Freedom Act, and the first amendment. The court entered

judgment for plaintiffs on counts I, IV, and VI of the third amended complaint and

permanently enjoined defendants and “those acting in concert” with them from enforcing the

Current Rule. The court found no just reason for delaying the appeal. The court furtherissued

a stay on the enforcement of the judgment but found the preliminary injunction that had been

previously issued remained in effect until the matter is fully litigated on appeal.

¶ 42 This appeal followed.

¶ 43 II. ANALYSIS

¶ 44 A. Injunctive Relief

¶ 45 On appeal, defendants first ask this court to find the injunction overly broad and vacate

it. Defendants maintain the injunction, as written, prevents the Department from enforcing

the Current Rule against pharmacies with no conscience- or religious-based objections to

emergency contraceptives. Defendants, citing Stormans, 586 F.3d at 1140, argue such an

order is an abuse of discretion and should be overturned.

¶ 46 Plaintiffs disagree. Plaintiffs, citing Morr-Fitz, 231 Ill. 2d at 498, 901 N.E.2d at 389,

argue if the Current Rule is facially illegal, then the circuit court must void the enactment in

its entirety. Plaintiffs further maintain because the Current Rule does not contain an

exemption for religious beliefs, it is also facially invalid and must be vacated. Plaintiffs

conclude by arguing even if this court were to find the circuit court’s injunction overbroad,

this court may modify the injunction to conform with the legal rights of those involved. See

Stampede Tool Warehouse, Inc. v. May, 272 Ill. App. 3d 580, 591, 651 N.E.2d 209, 217-18

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(1995).

¶ 47 Resolution of this argument ultimately depends upon the resolution of the other issues

in this case. We will return to this issue upon resolution of the others.

¶ 48 B. Conscience Act

¶ 49 In their opening brief, defendants next ask the court to find the Current Rule does not

violate the free-exercise clause of the first amendment. Defendants argue the Current Rule

is facially neutral, applies generally, and easily survives rational-basis review. In the

alternative, defendants contend the Current Rule survives a strict-scrutiny test because the

State has a compelling interest in establishing a uniform system of efficient local drug

distribution and the Current Rule is narrowly tailored to satisfy that interest.

¶ 50 We decline defendants’ invitation to begin with this constitutional issue. We should

avoid constitutional questions when the case may be decided on other grounds. See

Innovative Modular Solutions v. Hazel Crest School District 152.5, 2012 IL 112052, ¶ 38,

965 N.E.2d 414. We begin with the question of whether the Current Rule violates statutory

law, starting with our consideration of the Conscience Act.

¶ 51 In 1977, the General Assembly enacted the Conscience Act. See Pub. Act 80-616, § 2

(eff. Sept. 13, 1977). In so doing, the General Assembly declared, “It is the public policy of

the State of Illinois to respect and protect the right of conscience of all persons who refuse

to obtain, receive or accept, or who are engaged in, the delivery of, arrangement for, or

payment of health care services and medical care whether acting individually, corporately,

or in association with other persons ***.” 745 ILCS 70/2 (West 2010).

¶ 52 Consistent with this policy, the General Assembly, in the Conscience Act, determined

“[n]o 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.” 745 ILCS 70/4 (West 2010). The General Assembly furthermade it unlawful for

public officials to discriminate against any person, in any manner, in licensing “because of

such person’s conscientious refusal to receive, obtain, accept, perform, assist, counsel,

suggest, recommend, refer or participate in any way in any particular form of health care

services contrary to his or her conscience.” 745 ILCS 70/5 (West 2010). “Conscience” is

defined as “a sincerely held set of moral convictions arising from belief in and relation to

God, or which, though not so derived, arises from a place in the life of its possessor parallel

to that filled by God among adherents to religious faiths.” 745 ILCS 70/3(e) (West 2010).

¶ 53 The American Civil Liberties Union (ACLU) of Illinois, in its amicus brief, urges this

court to interpret and apply the Conscience Act according to the parameters of the Religious

Freedom Act. ACLU reasons the Religious Freedom Act was enacted after the Conscience

Act and is more specific and the Conscience Act provides no guidelines that permit the

allowance of competing interests.

¶ 54 We find these arguments unconvincing. Section 15 of the Religious Freedom Act

provides the State “may not substantially burden a person’s exercise of religion, even if the

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burden results from a rule of general applicability, unless it demonstrates that application of

the burden to the person (i) is in furtherance of a compelling governmental interest and (ii)

is the least restrictive means of furthering that compelling governmental interest.” (Emphasis

added.) 775 ILCS 35/15 (West 2010). It does not apply here. The General Assembly, in

enacting the Conscience Act, did “not substantially burden a person’s exercise of religion,”

but instead bolstered it, by offering protections to those who seek not to act in the health-care

setting due to religious convictions. The Conscience Act is more specific than the Religious

Freedom Act because the Conscience Act deals specifically with the issue of health care,

while the Religious Freedom Act would applyto any governmental action that “substantially

burden[s] a person’s exercise of religion” (775 ILCS 35/15 (West 2010)).

¶ 55 ACLU of Illinois contends, however, the State must be permitted to weigh the interests

of women who seek emergency contraceptives against those of pharmacists whom the State

should be able to command to dispense medications at the woman’s or physician’s request.

We agree the State as a whole has this authority. However, we do not agree defendants, as

part of the executive branch of the State, necessarily have this authority here. This is not a

case where the “State” has made one decision on the issue, but where the “State” has made

two decisions. The executive branch decided to make Plan B available over any pharmacist’s

religious concerns, while the legislative branch decided to protect health-care personnel and

health-care facilities from having to provide health care against their conscience or religious

beliefs. We must decide whetherthe two decisions (i.e., the Current Rule and the Conscience

Act) act in harmony. If not, the Conscience Act prevails. See Holtkamp Trucking Co. v.

David J. Fletcher, M.D., L.L.C., 402 Ill. App. 3d 1109, 1126, 932 N.E.2d 34, 48 (2010)

(“ ‘Whenever an administrative rule conflicts with a statute, the rule will be held invalid and

the statute followed.’ ” (quoting Greaney v. Industrial Comm’n, 358 Ill. App. 3d 1002, 1026,

832 N.E.2d 331, 352 (2005))).

¶ 56 1. The Conscience Act Applies to the Practice of Pharmacy

¶ 57 Defendants argue the ConscienceAct does not applyin this case because pharmacists and

pharmacies are not protected by its provisions. Defendants maintain the words “pharmacy”

and “pharmacist” do not appear in the statute and the Act defines “health care” as treatment

rendered only by “physicians, nurses, paraprofessionals or [a] health care facility.”

Defendants contend the issue of whether pharmacists are paraprofessionals is ambiguous and

urges this court to examine the legislative history to resolve the ambiguity. While the terms

“pharmacy” and “pharmacist” do not appear in the text, plaintiffs contend the plain language

of the Conscience Act establishes it applies to them and there is no ambiguity.

¶ 58 The main “goal of statutory interpretation is to ascertain and give effect to the

legislature’s intent.” Lauer v. American Life Family Insurance Co., 199 Ill. 2d 384, 388, 769

N.E.2d 924, 926 (2002). The statutory language itself, given its plain and ordinarymeaning,

is the best indication of legislative intent. Lauer, 199 Ill. 2d at 388, 769 N.E.2d at 926. When

the statutory language is clear, we will give it effect without resorting to other aids of

construction. Hadley v. Illinois Department of Corrections, 224 Ill. 2d 365, 371, 864 N.E.2d

162, 165 (2007).

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¶ 59 Section 3 of the Conscience Act defines “health care” as follows:

“ ‘Health care’ means any phase of patient care, including but not limited to, testing;

diagnosis; prognosis; ancillary research; instructions; family planning, counselling,

referrals, or any other advice in connection with the use or procurement of contraceptives

and sterilization or abortion procedures; medication; or surgeryor other care or treatment

rendered by a physician or physicians, nurses, paraprofessionals or health care facility,

intended for the physical, emotional, and mental well-being of persons[.]” 745 ILCS

70/3(a) (West 2010).

¶ 60 A federal district court, in Vandersand v. Wal-Mart Stores, Inc., 525 F. Supp. 2d 1052,

1057 (C.D. Ill. 2007), rejected the same argument made by defendants. In Vandersand, the

plaintiff, a licensed pharmacist in Illinois, argued his employer, Wal-Mart, wrongfully

terminated his employment after he refused to dispense an emergency contraceptive based

on his understanding the drug acted “with a significant abortifacient mechanism” and his

religious beliefs did not permit him to dispense the drug. Vandersand, 525 F. Supp. 2d at

1053, 1054-55. The plaintiff filed a complaint alleging, in part, his termination violated the

Conscience Act. Vandersand, 525 F. Supp. 2d at 1055. Wal-Mart moved to dismiss

plaintiff’s complaint, arguing, as defendants do here, the Conscience Act only protects

treatment provided by physicians, nurses, paraprofessionals, or health-care facilities.

Vandersand, 525 F. Supp. 2d at 1057. The district court rejected this argument upon

concluding Wal-Mart took the limiting language from the last clause of the “health care”

definition in section 3 and that clause refers only to “surgery or other care or treatment,” and

not to the entire list of “health care” services appearing before it. Vandersand, 525 F. Supp.

2d at 1057. The district court found such language did not apply to “family planning” and

“medication” and anyone who refused to participate in providing medication because of his

conscience is protected by the Conscience Act. Vandersand, 525 F. Supp. 2d at 1057.

¶ 61 We agree with the analysis in Vandersand. The statutory language is clear and the

limiting language upon which defendants rely does not apply to “medication.” Section 5 of

the Conscience Act prohibits discrimination in licensing against anyone “because of such

person’s conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest,

recommend, refer or participate in any way in any particular form of health care [(i.e.,

medication)] services contrary to his or her conscience.” 745 ILCS 70/5 (West 2010).

¶ 62 We further find section 4 of the Conscience Act bars civil or criminal actions against

plaintiffs for their refusal to dispense Plan B medication. Section 4, quoted above, protects

“health care personnel” from civil and criminal liability when such personnel refuse to act

according to their conscience. 745 ILCS 70/4 (West 2010). Section 3(c) of the Conscience

Act defines “health care personnel” as “any nurse, nurses’ aide, medical school student,

professional, paraprofessional or any other person who furnishes, or assists in the furnishing

of, health care services.” (Emphasis added.) 745 ILCS 70/3(c) (West 2010). A pharmacist

is a person who furnishes or assists in furnishing health-care services, i.e., the provision of

medication.

¶ 63 Finding the statutory language clearly applies to the provision of “medication” services,

we need not attempt to interpret the term “paraprofessionals.” We note defendants, in arguing

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the statute is ambiguous toward pharmacists, urged this court to find persuasive the

comments of one representative on the floor of the House of Representatives, who stated

pharmacists and pharmacies were specifically excluded, on their own request, from the

Conscience Act. Such statements might be minimally persuasive if we found this provision

of the Conscience Act ambiguous and if the statements were not made approximately 20

years after the Conscience Act was enacted. See 90th Ill. Gen. Assem., House Proceedings,

Apr. 14, 1997, at 40-41.

¶ 64 Plaintiffs next argue sections 9 and 10 of the Conscience Act (745 ILCS 70/9, 10 (West

2010)) similarly protect the corporate plaintiffs, who manage “health care facilities” from

government action under the Current Rule. Plaintiffs maintain pharmacies fall within the

definition of “health care facilities” as they are “dispensaries” or, in the alternative,

“location[s] wherein health care services are provided to any person.” Defendants maintain

the term “dispensaries” refers to a part of a larger institution, such as a school, hospital, or

factory. Defendants furthermaintain there is ambiguityin the term “health care facilities” and

urges this court to follow the same legislative history cited above.

¶ 65 Section 9 provides, in part, no person or corporation that owns or operates a “health care

facility” shall be liable to any public entity by reason of the health-care facility’s refusal to

provide any particular form of health-care service that violates the facility’s conscience as

set forth in its ethical guidelines or other governing documents. 745 ILCS 70/9 (West 2010).

Section 10, in part, makes it unlawful for a public official to discriminate against any

corporation who operates “an existing health care facility” in anyway, including in licensing,

because the corporation refused to permit “any particular form of health care service which

violates the health care facility’s conscience as documented in its existing or proposed ethical

guidelines” or other governing documents. 745 ILCS 70/10 (West 2010).

¶ 66 Section 3(d) of the Conscience Act defines “health care facility” as follows:

“any public or private hospital, clinic, center, medical school, medical training

institution, laboratory or diagnostic facility, physician’s office, infirmary, dispensary,

ambulatory surgical treatment center or other institution or location wherein health care

services are provided to any person, including physician organizations and associations,

networks, joint ventures, and all other combinations of those organizations.” 745 ILCS

70/3(d) (West 2010).

¶ 67 Defendants cite two definitions for “dispensary” to support their argument dispensaries

generally refer to areas part of a larger institution. The first is from Webster’s Third New

International Dictionary 653 (1993): “a place where medicines or medical or dental aid are

dispensed to ambulant patients (a [dispensary] in an industrial plant).” The second definition

comes from American Heritage Dictionary: “[a]n office in a hospital, school, or other

institution from which medical supplies and preparations are dispensed.” American Heritage

Dictionary 406-07 (2d coll. ed. 1985).

¶ 68 Plaintiffs emphasize the definitions for “dispensary” and “pharmacy” prove the terms are

synonymous. Plaintiffs, citing Webster’s Third New International Dictionary 653 and 1694

(1971), contend “dispensary” is defined as “a place where medicines *** are dispensed” and

“pharmacy” is defined as “a place where medicines are *** dispensed.” Plaintiffs point to

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defendants’ expert witness’s testimony, in which Dr. Wallace acknowledged he heard the

term “dispensary” used in reference to a pharmacy. Plaintiffs further cite section 3 of the

Pharmacy Practice Act, which defines “pharmacy” as a place where pharmacist care is

provided and where medicines are dispensed or where a sign is affixed using words such as

“ ‘Pharmacist,’ ” “ ‘Pharmacy,’ ” or “ ‘Dispensary.’ ” See Pub. Act 97-813, § 415 (eff. July

13, 2012) (amending 225 ILCS 85/3(a) (West Supp. 2011)).

¶ 69 We find a “pharmacy” is a “dispensary.” A dispensary is “a place where medicine or

medical or dental treatment is dispensed.” http://www.merriamwebster.com/dictionary/dispensary (visited Aug. 30, 2012). A pharmacy is “a place where

medi cines are compounded or dispens ed. ” http://www.merri amwebster.com/dictionary/pharmacy (visited Aug. 30, 2012). Given the language of the

Conscience Act, the General Assembly plainly intended to protect those institutions or

organizations which dispense medication from having to act against their consciences. It

would be a tortured interpretation to conclude individuals who dispense medicines inside a

hospital or school are protected while individuals who dispense medicines outside the

hospital or school are not. Pharmacies and pharmacists fall within the protections of the

Conscience Act.

¶ 70 We further find convincing the argument a pharmacy is a “location wherein health care

services are provided to any person.” As we determined above, the definition of “health care”

includes “medication.” 745 ILCS 70/3(a) (West 2010). Because a pharmacy is a location

where medication services are provided, it is a “health care facility” as defined in the

Conscience Act. See 745 ILCS 70/3(d) (West 2010).

¶ 71 2. The Provision of “Emergency Contraceptives” Is Not

“Emergency Medical Care” Contemplated by the Conscience Act

¶ 72 Defendants argue, even if the Conscience Act applies to pharmacies and pharmacists, it

does not permit them to refuse to provide emergency-contraceptive care. Defendants

emphasize the Conscience Act specifically states in sections 6 and 9, “Nothing in this Act

shall be construed so as to relieve a physician or other health care personnel from obligations

under the law of providing emergency medical care.” 745 ILCS 70/6, 9 (West 2010).

Defendants contend, because “every hour counts” in the effectiveness of Plan B

contraceptives, the provision of emergency contraceptives falls within this exception.

¶ 73 Plaintiffs contend the language in sections 6 and 9 does not permit the Current Rule to

stand. Plaintiffs contend the provisions mean the Conscience Act will not excuse health-care

personnel from anyindependent legal obligation theymayotherwise have to provide medical

care and defendants have failed to identify any independent legal obligation on pharmacies

or pharmacists to provide such care. Plaintiffs further contend a patient’s need to maximize

the drug’s effectiveness within 72 hours is not proof of emergency medical care.

¶ 74 We disagree with plaintiffs’ first contention. The Current Rule itself, if the provision of

emergency contraceptives is “emergency medical care,” would create its own “obligation[ ]

under the law of providing emergency medical care.” The issue thus turns on whether

“emergency” contraceptives fall within the term “emergency medical care.”

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¶ 75 The Conscience Act does not define the term “emergency” in the context of “emergency

medical care.” Recently, however, the Supreme Court of Illinois defined “emergency” as “an

unforeseen circumstance involving imminent danger to a person or property requiring an

urgent response.” Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012

IL 110012, ¶ 64, 969 N.E.2d 359. The court arrived at this “plain and ordinary meaning of

the term” when considering its context in section 10(b) of the Public Safety Employee

Benefits Act (820 ILCS 320/10 (West 2006)). Gaffney, 2012 IL 110012, ¶ 64, 969 N.E.2d

359. Section 10(b) sets forth the eligibility requirements for firefighters, among others, to

have their employer pay their health-insurance premiums. One situation in which a

firefighter’s health-insurance premiums will be paid is when an injury or death occurred

when the firefighter responded “to what is reasonably believed to be an emergency.”

(Emphasis omitted.) (Internal quotation marks omitted.) Gaffney, 2012 IL 110012, ¶ 53, 969

N.E.2d 359. In considering the term’s meaning, the Gaffney court quoted Webster’s Third

New International Dictionary definition of the term: “ ‘a sudden bodily alteration such as is

likely to require immediate medical attention (as a ruptured appendix or surgical shock).’ ”

Gaffney, 2012 IL 110012, ¶ 62, 969 N.E.2d 359 (quoting Webster’s Third New International

Dictionary 741 (1993)). The Gaffney court found the term included “an element of urgency

and the need for immediate action.” Gaffney, 2012 IL 110012, ¶ 62, 969 N.E.2d 359.

¶ 76 We find the plain and ordinary meaning of the term “emergency,” as defined by our

supreme court in Gaffney, is the meaning the General Assembly intended when it included

the term in sections 6 and 9. Emergency medical care is medical care with “an element of

urgency and the need for immediate action” (Gaffney, 2012 IL 110012, ¶ 62, 969 N.E.2d

359), such as “ ‘a ruptured appendix or surgical shock’ ” (Gaffney, 2012 IL 110012, ¶ 62,

969 N.E.2d 359 (quoting Webster’s Third New International Dictionary 741 (1993))).

¶ 77 Applying this definition to the term, we find “emergency contraceptives” do not fall

within the plain and ordinary meaning of the term “emergency.” The Web site defendants

cite for proof “every hour counts” (see http://planbonestep.com (visited Aug. 30, 2012))

indicates if “Plan B One-Step®” is “taken as directed within 72 hours (3 days) ***, it can

significantly decrease the chance that you will become pregnant.”

http://www.planbonestep.com/plan-b-faq.aspx (page visited Aug. 30, 2012). The next line

says “[a]bout seven out of every eight women who would have gotten pregnant will not

become pregnant,” without making any distinction based on whether the emergency

contraceptive is taken in the first hour or the seventy-first hour.

http://www.planbonestep.com/plan-b-faq.aspx (page visited Aug. 30, 2012). In addition,

while Dr. Wallace testified emergency contraceptives become progressively less effective

over the course of “several days,” he also testified the effectiveness “may lead to increased

risk that it will be ineffective” if a woman fails to take emergency contraceptives in a timely

manner. (Emphasis added.) Given the 72-hour window, even though the window may

become narrower in that time frame, unprotected sex does not place a woman in imminent

danger requiring an urgent response. See Gaffney, 2012 IL 110012, ¶ 64, 969 N.E.2d 359

(providing the definition of “emergency”).

¶ 78 Our interpretation and application of the term “emergency” may not be the same

definition that would be applied byawoman seeking the emergencycontraceptive. However,

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the evidence here does not show there would be an imminent danger to the patient or the

need for immediate attention as contemplated by the Conscience Act (745 ILCS 70/6, 9

(West 2010)).

¶ 79 C. The Injunction

¶ 80 The Conscience Act protects plaintiffs’ decisions not to dispense emergency

contraceptives due to their conscience beliefs. We need not decide whether the Religious

Freedom Act or the first amendment provides similar protections. We return to the question

of whether the permanent injunction issued by the circuit court is overly broad. We find it

is.

¶ 81 The Conscience Act does not prohibit governmental action that may ultimately force

health-care personnel or health-care facilities to make a conscientious decision based on their

beliefs not to complywith that governmental action. The ConscienceAct, instead, states such

personnel or entities may not be discriminated against (745 ILCS 70/5, 7, 10 (West 2010))

or punished civilly or criminally (745 ILCS 70/4, 9 (West 2010)) if they make a consciencebased decision not to comply. The Current Rule does not violate the Conscience Act; its

enforcement against plaintiffs on the issue of emergency contraceptives does.

¶ 82 We reverse the permanent injunction granted by the circuit court and order defendants

are permanently enjoined from enforcing the Current Rule against plaintiffs in a manner

inconsistent with the protections of the Conscience Act.

¶ 83 III. CONCLUSION

¶ 84 We affirm the circuit court’s findings the Current Rule cannot be enforced against

plaintiffs without violating the Conscience Act. We reverse the court’s granting of a

permanent injunction against defendants’ enforcement of the Current Rule. We modify the

injunction so it enjoins defendants from enforcing the Current Rule against these plaintiffs,

who have conscience-based objections to the Current Rule.

¶ 85 Affirmed in part as modified and reversed in part.

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