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Illinois Supreme Court Says Challenge To Pharmacy Rules May Move Ahead

By Howard M. Friedman

Inem a href="http://www.state.il.us/court/OPINIONS/SupremeCourt/2008/December/104692.pdf"Morr-Fitz, Inc. v. Blagojevich/a,/em (IL Sup. Ct., Dec. 18, 2008), the Illinois Supreme Court in a 5-2 decision, overturned lower courts and held that plaintiffs had stated a justiciable challenge to a State Board of Pharmacy rule that requires pharmacies to dispense the "morning after pill" even if pharmacists or pharmacy owners have a conscientious objection to doing so. While the lawsuit was pending, the state amended its rule to permit objecting pharmacists to avoid dispensing the drug if a pharmacist at a remote locations authorizes a non-pharmacy employee to sell the drug to a customer. The Court a href="http://www.state.il.us/court/OPINIONS/SupremeCourt/2008/December/Summaries/104692s.htm"summarized/a its holding as follows:br /blockquotePlaintiffs are two licensed pharmacists and three corporations that own and operate pharmacies.... [T]he pharmacists brought this preenforcement challenge ... [claiming] that this rule is null and void on its face as in violation of the first amendment and statutory law....br /br /In this decision, the ... Court held that the action was ripe for judicial review and should not have been dismissed. It held that legal issues were presented that did not require agency expertise and that the stores had shown disruption of their business despite the absence of actual enforcement. The requirement that administrative remedies must be exhausted before filing suit in circuit court was not applicable here..../blockquoteThe dissenters argued that plaintiffs had failed to exhaust their administrative remedies before filing suit. a href="http://www.google.com/hostednews/ap/article/ALeqM5h39ki-Oi9lRg7b4YQzXN0ZyIa2RgD955FI200"AP/a yesterday reported on the decision. (See a href="http://religionclause.blogspot.com/2007/03/illinois-court-dismisses-pharmacists.html"prior related posting/a.)

Full post as published by Religion Clause on December 19, 2008 (boomark / email).