posted on Wednesday, August 08, 2007 12:01 PM
by
Lou Michels
Pharmaceutical Theology
I wrote earlier on a case developing here in Illinois concerning the refusal of a pharmacist to dispense so-called "Plan B" contraceptives because doing so would conflict with his religious beliefs that the contraceptive acted by causing abortions. The pharmacist in question, who was suspended from Wal-Mart, brought his claims of religious discrimination under Title VII and under the Illinois Health Care Right of Conscience Act, which prohibits disciplinary action against anyone for failure to participate in any form of healthcare service becuase of their conscience / moral beliefs. Wal-Mart moved to dismiss the case, alleging that: 1) accomodating plaintiff would be more than a de minimis burden because the store had to comply with an Illinois regulatory requirement to dispense contraceptives or else, and 2) the Right of Conscience Act didn't apply to pharmacists.
The district court denied Wal-Mart's motion to dismiss both counts (Vandersand v. Wal-Mart Stores, Inc., No. 06-3293, C.D.Ill. Jul. 31, 2007), holding first that Wal-Mart hadn't shown that accommodating the plaintiff was unduly burdensome under the administrative requirement, and second, finding that the plaintiff is covered by the Right of Conscience Act because he is clearly engaged in the provision of healthcare services within the meaning of the state statute.
At the motion to dismiss stage of civil litigation, the burden on the plaintiff is quite low in terms of stating a case. However, the decision demonstrates the dilemma pharmacies confront here in Illinois. The legislature passes a statute allowing pharmacists to exercise their conscience on the provision of healthcare services such as birth control, and then the governor, through an administrative avenue, penalizes pharmacies if their employees exercise their statutory rights. Of course, Illinois is also the place where the Democratic governor and the Democratic legislature so far refuse to cooperate in putting a budget together for the state. Further complicating the matter, there is another case working its way through federal court here that alleges the governor's administrative rule to be a violation of the First Amendment, and is preempted by Title VII. Stay tuned for further details.