Illinois Baptist State Ass'n v. Department of Insurance

NOTICE 2025 IL App (4th) 241282-U

This Order was filed under

FILED

NO. 4-24-1282 October 1, 2025

Supreme Court Rule 23 and is

Carla Bender

not precedent except in the th

IN THE APPELLATE COURT 4 District Appellate

limited circumstances allowed

Court, IL

under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

ILLINOIS BAPTIST STATE ASSOCIATION, ) Appeal from the

an Illinois Not-for-Profit Corporation, ) Circuit Court of

Plaintiff-Appellant, ) Sangamon County

v. ) No. 20MR325

THE DEPARTMENT OF INSURANCE, )

Defendant-Appellee. ) Honorable

) Christopher G. Perrin,

) Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court.

Justices Steigmann and Vancil concurred in the judgment.

Justice Steigmann also specially concurred.

ORDER

¶ 1 Held: The trial court did not err by granting defendant’s motion for summary judgment

on plaintiff’s claim the Illinois abortion insurance coverage mandate violated the

Illinois Religious Freedom Restoration Act because plaintiff’s religious beliefs

were not substantially burdened by the mandate.

¶2 On May 17, 2024, plaintiff, the Illinois Baptist State Association (Association), and

defendant, the Department of Insurance (Department), filed cross-motions for summary judgment

on the Association’s claim the abortion insurance coverage mandate (mandate) found in section

356z.4a of the Illinois Insurance Code (215 ILCS 5/356z.4a (West 2020)), which was enacted as

part of the Reproductive Health Act (Pub. Act 101-13 (eff. Jun. 12, 2019)), violated the Illinois

Religious Freedom Restoration Act (IRFRA) (775 ILCS 35/1 to 99 (West 2020)). On September

4, 2024, the trial court granted the Department’s motion for summary judgment, ruling the mandate

did not substantially burden the Association’s religious beliefs. The Association appeals, arguing

the mandate violates its rights under the IRFRA by coercing the Association to provide abortion

coverage to its employees. We affirm.

¶3 I. BACKGROUND

¶4 On June 10, 2020, the Association, along with two other corporations (Southland

Smiles, Ltd., and Rock River Cartage, Inc.) and the respective owners of those two corporations

(Dr. Richard Mantoan and Curt House), filed a two-count complaint for declaratory and injunctive

relief against the Department and the Department’s director, Robert Muriel, both in his individual

and official capacity. The complaint sought judicial review of the mandate, which states, in part:

“(a) Except as otherwise provided in this Section, no individual or group

policy of accident and health insurance that provides pregnancy-related benefits

may be issued, amended, delivered, or renewed in this State after the effective date

of this amendatory Act of the 101st General Assembly unless the policy provides a

covered person with coverage for abortion care.” 215 ILCS 5/356z.4a (West 2020).

Plaintiffs alleged the mandate violated their rights under the IRFRA and the Health Care Right of

Conscience Act (Conscience Act) (745 ILCS 70/1 to 14 (West 2020)).

¶5 The Association alleged it had a sincere religious belief abortion is gravely wrong

and sinful because it involves the destruction of human life. Further, the Association alleged it

“cannot facilitate access to, subsidize, or otherwise materially cooperate with the provision of

abortion without violating their conscience and most sacred and solemn obligations to God,

betraying their professed religious faith, and disserving the best interests of their fellow human

beings.”

¶6 According to the Association, it provided health insurance coverage, including

pregnancy-related benefits, to more than 20 employees through a third-party insurer prior to the

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enactment of the Reproductive Health Act. The Association alleged it had a religious and moral

duty to provide health insurance to its employees and wanted to continue providing this coverage

but did not want to provide insurance coverage for abortions or other products and services that

violated its religious beliefs. However, because of the mandate, the Association claimed the

Department was coercing the Association to violate its religious beliefs by requiring abortion

coverage in the health insurance policy the Association purchased.

¶7 On September 8, 2020, defendants filed a motion to dismiss the complaint pursuant

to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2020)). Defendants

argued plaintiffs lacked standing and the claims against Director Muriel in his individual capacity

were barred by common law public official immunity. In addition, defendants argued plaintiffs

failed to state a claim for relief under the IRFRA and the Conscience Act because plaintiffs had

not and could not allege a substantial burden on their religious beliefs because neither the mandate

nor the Conscience Act applied to them.

¶8 On April 5, 2021, the trial court granted defendants’ motion to dismiss but allowed

plaintiffs to file an amended complaint.

¶9 On May 3, 2021, plaintiffs filed their first amended complaint and named the

Department as the only defendant. Once again, the amended complaint contained counts alleging

the mandate violated the IRFRA (count I) and the Conscience Act (count II).

¶ 10 On June 30, 2021, the Department moved to dismiss plaintiffs’ Conscience Act

claim pursuant to section 2-615 of the Code of Civil Procedure (id. § 2-615), arguing the claim in

the amended complaint suffered from the same deficiency as the initial complaint because

plaintiffs were not “ ‘health care payers’ ” entitled to protection under the Conscience Act. On

September 21, 2021, the trial court agreed and dismissed plaintiffs’ Conscience Act claim with

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prejudice.

¶ 11 In March 2023, the trial court granted a motion by Rock River Cartage, Inc., and

Curt House to voluntarily dismiss their claim against the Department without prejudice. Then, in

January 2024, the court allowed Southland Smiles, Ltd., and Richard Mantoan to voluntarily

dismiss their claims without prejudice. As a result, only the Association’s claim alleging a

violation of the IRFRA remained.

¶ 12 On April 5, 2024, the trial court entered an agreed order, which stated the

Association and the Department had “engaged in fact discovery” and agreed the case could “be

fully resolved with dispositive motion practice.” However, the parties reserved the right to engage

in expert discovery if their motions for summary judgment were denied. On May 17, 2024, both

the Association and the Department filed motions for summary judgment and later filed responses

to each other’s motions.

¶ 13 The Department argued the mandate only applied to insurance products it regulated

and it did not regulate all the insurance products available to the Association. According to the

Department, the mandate did not substantially burden the Association’s exercise of its religion.

Further, even if the Association could establish the mandate substantially burdened the exercise of

its religion, the Department contended the mandate furthered a compelling government interest by

allowing equitable access to a medical procedure and was the least restrictive manner of

effectuating that compelling interest.

¶ 14 The Department noted the Association had purchased health insurance from

GuideStone Financial Resources (GuideStone)—a Southern Baptist entity based in Dallas, Texas,

that provides insurance and financial products to Southern Baptist organizations like plaintiff—

for approximately 40 years, until 2019. Jeff Deasy, who had been the Association’s administrative

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director of operations since 2016, testified the Association had purchased health insurance plans

without abortion coverage from GuideStone for as long as he could remember prior to 2019. The

health insurance products the Association purchased through GuideStone were not subject to the

Department’s regulations.

¶ 15 In 2018, the Association worked with insurance broker Joseph Samuelson to

explore health insurance products not offered by GuideStone. Samuelson only provided the

Association with quotes for Illinois health insurance products. In 2019, the Association switched

to a Blue Cross Blue Shield of Illinois (BCBS-IL) health insurance plan that was regulated by the

Department and was less expensive than the GuideStone health insurance it had been purchasing.

Like the GuideStone plan, the BCBS-IL plan excluded abortion coverage when the Association

originally purchased it.

¶ 16 The mandate went into effect on June 12, 2019. As a result, because the

Association’s health insurance policy through BCBS-IL was regulated by the Department, it would

include abortion care as of January 1, 2020. During that interim period, the Association asked

Samuelson to find a product that excluded abortion care. Samuelson was unable to secure a quote

that met the Association’s budget. However, Samuelson never attempted to obtain a quote for an

out-of-state insurance product to meet the Association’s needs. The agency Samuelson worked for

did not sell insurance products based outside of Illinois. The Association kept its BCBS-IL plan

that covered abortion care for 2020 and 2021.

¶ 17 On November 17, 2021, the Springfield Clinic, which was used for health services

by approximately 60% of the Association’s employees, was dropped as a preferred provider by

the Association’s BCBS-IL health insurance plan. As a result, if the Association continued to use

the BCBS-IL plan, its employees would either have to change treatment providers or pay higher

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out-of-network prices at Springfield Clinic.

¶ 18 The Association wanted to have an insurance option for 2022 where its employees

would have in-network coverage at Springfield Clinic. Samuelson provided a quote for a Health

Alliance product that was reasonably priced and included Springfield Clinic as an in-network

provider, but it included abortion care coverage. The Association contacted GuideStone, who

provided a quote for a plan that was comparable in coverage, cost less than the Health Alliance

plan, and excluded abortion care coverage. Shortly thereafter, the Association announced to its

employees it was going to purchase its insurance for 2022 through GuideStone. However, the

Association then learned the GuideStone plan was offered through the Blue Cross Blue Shield

network, specifically Blue Cross Blue Shield Highmark, which meant Springfield Clinic would

still be an out-of-network provider. The Association did not investigate the possibility another

out-of-state company might also offer health insurance plans that did not cover abortion care.

¶ 19 At that point, the Association decided to use the Health Alliance plan that included

abortion coverage for its health insurance in 2022 instead of the GuideStone plan that excluded

abortion care coverage. As of February 2024, the Association continued to use the Health Alliance

plan, even though it included abortion care coverage. The Association had neither obtained

additional quotes from GuideStone since 2022 nor looked for other alternative out-of-state

insurance products not regulated by the Department.

¶ 20 The Department noted the Association had indicated a willingness to switch to a

GuideStone health insurance plan once Springfield Clinic and Blue Cross Blue Shield had resolved

their dispute. According to the Department, publicly available information showed Springfield

Clinic and Blue Cross Blue Shield had resolved their conflict.

¶ 21 As to the legal merits of the Association’s first amended complaint, the Department

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argued the Association had the initial statutory duty to demonstrate the abortion mandate

substantially burdened its exercise of religion. According to the Department, because a health

insurance plan that did not include abortion care coverage had been available to the Association

after the abortion care mandate went into effect, the Association could not meet its burden of

demonstrating the mandate as applied to it substantially burdened its exercise of religion.

According to the Department, the Association prioritized other factors over the exclusion of

abortion care coverage when shopping for a health insurance plan.

¶ 22 The Department noted Illinois organizations are not required to purchase health

insurance products regulated by the Department and are free to purchase health insurance products

regulated by other states. Further, the Department asserted it could not take any enforcement action

against an Illinois organization that purchases insurance products the Department does not

regulate, like out-of-state insurance products. However, the Department stated the Association’s

insurance broker never attempted to get a quote for any out-of-state insurance product. When the

Association received a quote for an affordable health insurance product without abortion coverage

from GuideStone, the company from whom it previously had purchased insurance for 40 years,

the Association chose to purchase a health insurance policy through Health Alliance that included

abortion care.

¶ 23 Therefore, the Department argued, it was entitled to summary judgment on the

Association’s IRFRA claim. In the alternative, the Department asserted the State had a compelling

interest for the mandate because it decreases inequities resulting from reproductive health care

services being covered but not abortion care. Further, the Department asserted the mandate was

“the least restrictive means for furthering this interest because it utilizes patients’ existing health

care network, and the cost for mandating abortion coverage in Department-regulated plans is

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negligible for private insurance purchasers.”

¶ 24 The Association argued it had demonstrated the mandate imposed a substantial

burden on its religious beliefs under the IRFRA, it met redressability requirements, and the

mandate could not withstand strict scrutiny. According to the Association, the Department could

show no compelling interest for the mandate, which was not narrowly tailored. The Association

also argued it satisfied the remaining factors to receive a permanent injunction.

¶ 25 Further, the Association indicated it had provided its employees with health

insurance, including reproductive health services—but never abortion coverage—before the

mandate, through GuideStone and then BCBS-IL. Starting in 2020, after the mandate went into

effect, the Association started providing abortion coverage through its BCBS-IL plan. The

Association stated it currently had health insurance through Health Alliance, which included

abortion coverage.

¶ 26 After the mandate took effect, the Association indicated it started looking for other

insurance options, including exemptions, options, and insurance alternatives. Because the mandate

applied to all insurance providers in Illinois, the Association could not find a solution without

abortion coverage. The Association asked its insurance broker if it could obtain an exemption from

the mandate. The broker indicated he had researched the issue and said it was not possible. At that

point, the Association believed the only possible health plans included abortion coverage. Every

year after the mandate took effect, the Association indicated it asked its insurance broker if it could

get an exemption from the mandate and was always told no. We note the record does not contain

the basis for the denial of an exemption.

¶ 27 The Association indicated it still wanted to offer group health insurance plans with

pregnancy-related benefits to its employees but did not want to offer abortion coverage that

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violated its religious beliefs. According to the Association, it had looked into “ ‘self-funded’ ”

and/or “ ‘self-insured’ ” health insurance options that would not be subject to the mandate.

However, it determined it would be cost prohibitive and too risky. In addition, the Association

asserted it had looked at other types of insurance plans not subject to the mandate, including

level-funded plans and associational health insurance plans. The Association believed it did not

qualify for a level-funded plan because of the health of its staff. Further, it believed the risk and

financial exposure was too great under that type of plan. It also did not believe it qualified for an

“ ‘associational health insurance plan.’ ”

¶ 28 The Association acknowledged it had considered a health insurance plan that did

not include abortion care through GuideStone after the enactment of the mandate. However, the

Association had issues with Guidestone. First, the Association had moved away from Guidestone

because an Illinois based plan cost “hundreds of thousands of dollars [less] for similar coverage.”

Second, in 2019 and 2020, GuideStone would not even provide the Association with a quote

because of some of the Association’s employees’ health. Finally, most recently, the policy through

GuideStone did not include Springfield Clinic as an in-network provider.

¶ 29 On September 4, 2024, after a hearing in August 2024, for which the record does

not include a transcript, the trial court issued a written order granting the Department’s motion for

summary judgment. In its order, the court indicated the facts showed the Department only regulates

insurance products sold within Illinois, options exist within Illinois that are not subject to

Department regulation, and organizations in Illinois can choose an alternative insurance option

that is not regulated by the Department. The court noted “a substantial burden on religious exercise

is not established when viable, lawful alternatives exist that allow the claimant to avoid the alleged

conflict between their religious beliefs and the law.” Therefore, according to the court, the

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Association had not demonstrated the mandate as applied to them imposed a substantial burden on

its religious beliefs. The court stated, “Given the availability of alternative insurance options that

exclude abortion coverage, the Association’s argument under [the] IRFRA lacks the necessary

proof of coercion or compulsion required to sustain [its] claim.” Pursuant to Illinois Supreme Court

Rule 304(a) (eff. Mar. 8, 2016), the court found no just reason for delaying either enforcement

and/or appeal of its order.

¶ 30 This appeal followed.

¶ 31 II. ANALYSIS

¶ 32 The Association argues the trial court erred in granting the Department’s motion

for summary judgment because the abortion coverage mandate violates the IRFRA. According to

the Association:

“The statute prevents [the Association] from obtaining or purchasing health

insurance for itself or its employees unless it pays for abortions (including other

people’s) and becomes complicit in the provision of elective abortions and

abortion-inducing drugs. That imposes a ‘substantial burden’ [on] Plaintiff’s

exercise of its religious faith.”

The Association also asserts the Department cannot establish the abortion coverage mandate

furthers a compelling state interest in the least restrictive manner. Finally, the Association asks

this court to remand the case to the trial court with directions to grant the Association’s motion for

summary judgment.

¶ 33 A. Procedural Posture of the Appeal

¶ 34 Although this case initially involved multiple plaintiffs and multiple claims, the

Association is the only appellant. The Association initially pursued claims pursuant to both the

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Conscience Act and the IRFRA. However, the Association only appeals the trial court’s order

granting the Department’s motion for summary judgment on the IRFRA claim.

¶ 35 Further, both the Association and the Department filed motions for summary

judgment in the trial court. “When parties file cross-motions for summary judgment, they agree

that only a question of law is involved and invite the court to decide the issues based on the record.”

Pielet v. Pielet, 2012 IL 112064, ¶ 28. The Association is not asking this court to remand this

matter for further proceedings based on the existence of a question of material fact. Instead, it

contends it is entitled to summary judgment. We review an order granting summary judgment

de novo. Id. ¶ 30.

¶ 36 Although the Association spends time in its brief discussing its standing to pursue

its claim under the IRFRA, the trial court did not rule the Association lacked standing. In addition,

the Department does not dispute on appeal the Association had standing to bring its claim against

the Department. As a result, we need not address the Association’s standing any further.

¶ 37 B. Abortion Coverage Mandate

¶ 38 At issue is a statutory mandate requiring certain health insurance policies regulated

by the Department to provide insurance coverage for abortions and prescription drugs used to

terminate pregnancy or the possibility of pregnancy. The parties do not dispute this mandate only

applies to health insurance policies regulated by the Department.

¶ 39 C. Religious Accommodation

¶ 40 Before addressing the Association’s claim the mandate violates its rights under the

IRFRA, we will briefly address its argument the General Assembly intended to include a religious

accommodation to the mandate in the Act. The Association points to statements made by a state

representative and a state senator when the proposed law was being debated in the Illinois House

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of Representatives and the Illinois Senate, respectively, as evidence of this intent. The Association

points to the following statement by the state representative:

“For purposes of legislative intent, the language of Senate Bill 25, as amended by

House Amendment 1, makes it abundantly clear that the intent of the language in

this Bill is to require an insurance company to offer a health care product but not to

interfere with the right of the entity purchasing the health care policy to refuse to

provide coverage for abortion care.”101st Ill. Gen. Assem., House Proceedings,

May 28, 2019, at 13 (statements of Representative Cassidy).

The Association notes the state senator made a similar statement. According to the Association,

the Department’s “abandonment of the legislature’s intent is unacceptable from a legal perspective

and a general governance standard. The State should be held to its word.”

¶ 41 The Association is presenting this court with a question of statutory construction.

“The primary rule of statutory construction is to ascertain and give effect to the intent of the

legislature.” Rushton v. Department of Corrections, 2019 IL App (4th) 180206, ¶ 28. The plain

and ordinary meaning of a statute is the best indicator of the legislature’s intent. Id. “When the

language of a statute is clear and unambiguous, it should be applied as written without resort to

extrinsic aids of construction.” Id.

¶ 42 The Association neither argues the plain language of the mandate is ambiguous nor

contends the Department is not accurately interpreting the plain language of the mandate. As a

result, we need not look at anything outside the language of the Reproductive Health Act to

determine the legislature’s intent. Regardless, considering the specific facts in this particular case

and the Department’s position, the comments at issue do not clearly indicate the two legislators

intended a religious accommodation to apply to the mandate. As the Department makes clear, the

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mandate only applies to insurance policies regulated by the Department. It does not require

someone with a religious objection to abortion to purchase a health insurance policy regulated by

the Department or restrict someone with that religious belief from purchasing an out-of-state

insurance policy not regulated by the Department.

¶ 43 D. Illinois Religious Freedom Restoration Act

¶ 44 Several of the cases the Association relies on in its attempt to show the mandate in

this case imposes a substantial burden on its religious freedom are constitutional free exercise

claims. However, the Association is neither making a claim the mandate violates its constitutional

rights nor a claim the mandate is not being applied in a neutral manner. Instead, the Association is

only arguing it is entitled to summary judgment on its claim the mandate violates the IRFRA.

¶ 45 The Illinois General Assembly passed the IRFRA after the United States Supreme

Court, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S.

872 (1990), “virtually eliminated the requirement under the First Amendment to the United States

Constitution [U.S. Const., amend. I)] that government justify burdens on the exercise of religion

imposed by laws neutral toward religion.” 775 ILCS 35/10(a)(4) (West 2020). However, the

General Assembly recognized neutral laws may still burden the exercise of religion. Id. § 10(a)(2).

¶ 46 According to section 15 of the IRFRA (id. § 15):

“Government may not substantially burden a person’s exercise of religion, even if

the 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.”

The IRFRA does not define what constitutes a substantial burden. Diggs v. Snyder, 333 Ill. App.

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3d 189, 194 (2002). However, “the hallmark of a substantial burden on one’s free exercise of

religion is the presentation of a coercive choice of either abandoning one’s religious convictions

or complying with the governmental regulation.” Id. at 195 (citing Wisconsin v. Yoder, 406 U.S.

205, 217-18 (1972)). The plaintiff must demonstrate the governmental action prevents him from

engaging in conduct or having a religious experience that his faith mandates. Id.

¶ 47 E. Burwell v. Hobby Lobby Stores, Inc.

¶ 48 The Association relies on the United States Supreme Court’s decision in Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), to support its claim the mandate violates the

IRFRA. According to the Association, in Hobby Lobby, the Supreme Court “held that employers

cannot be forced by the federal government to provide contraceptive and abortifacient coverage to

employees in violation of their religious beliefs.”

¶ 49 At issue in Hobby Lobby was whether the federal Religious Freedom Restoration

Act of 1993 [(42 U.S.C. § 2000bb et seq. (2012))] permitted the United States Department of

Health and Human Services (HHS) to demand that three closely held for-profit corporations

provide health insurance coverage that included methods of contraception that violated the

sincerely held religious beliefs of the companies’ owners. Hobby Lobby, 573 U.S. at 688-90.

¶ 50 As explained by the Supreme Court, the Patient Protection and Affordable Care Act

of 2010 (ACA) (42 U.S.C. § 18001 et seq. (2012))) “generally requires employers with 50 or more

full-time employees to offer ‘a group health plan or group health insurance coverage’ that provides

‘minimum essential coverage.’ 26 U.S.C. §§ 5000A(f)(2), 4980H(a), (c)(2) (2012).” Hobby

Lobby, 573 U.S. at 696. If an employer covered by the ACA fails to provide the required coverage,

the employer must pay a substantial price. According to the Court, a covered employer providing

group health insurance that does not comply with the ACA’s requirements could be required to

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pay $100 per day for each affected person. On the other hand, if the covered employer stopped

providing health insurance to its employees altogether, the employer would be required to pay a

penalty of $2,000 per year for each of its full-time employees if one or more of its full-time

employees enrolled in a health insurance policy and qualified for a subsidy on a government-run

ACA exchange. Id. at 696-97.

¶ 51 The Supreme Court indicated the owners of the businesses at issue each had a

sincere belief life begins at conception. Id. at 720. As a result, the owners objected for religious

reasons to providing health insurance to their employees that covered birth control methods which

might result in the destruction of an embryo. Id.

¶ 52 The Court offered the following reasoning for why the mandate in that case

imposed a substantial burden on the business owners’ respective religious beliefs:

“By requiring the [business owners] and their companies to arrange for such

coverage, the HHS mandate demands that they engage in conduct that seriously

violates their religious beliefs.

If the [business owners] and their companies do not yield to this demand,

the economic consequences will be severe. If the companies continue to offer group

health plans that do not cover the contraceptives at issue, they will be taxed $100

per day for each affected individual. 26 U.S.C. § 4980D. For Hobby Lobby, the bill

could amount to $1.3 million per day or about $475 million per year; for Conestoga,

the assessment could be $90,000 per day or $33 million per year; and for Mardel,

it could be $40,000 per day or about $15 million per year. These sums are surely

substantial.

It is true that the plaintiffs could avoid these assessments by dropping

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insurance coverage altogether and thus forcing their employees to obtain health

insurance on one of the exchanges established under ACA. But if at least one of

their full-time employees were to qualify for a subsidy on one of the

government-run exchanges, this course would also entail substantial economic

consequences. The companies could face penalties of $2,000 per employee each

year. § 4980H. These penalties would amount to roughly $26 million for Hobby

Lobby, $1.8 million for Conestoga, and $800,000 for Mardel.” Id. at 720.

In other words, these companies apparently had no way to avoid providing contraception that

violated their religious beliefs unless they wanted to pay significant taxes or penalties imposed by

law.

¶ 53 F. The Mandate’s Effect on the Association

¶ 54 The Association argues the Department is forcing it to do something even more

extreme than to have insurance that covers birth control methods which might result in the

destruction of an embryo. According to the Association, the mandate at issue here requires the

Association to provide insurance coverage for abortions, which is contrary to its religious beliefs.

The Association asserts it has never provided its employees with this type of insurance coverage

prior to the mandate becoming law. According to the Association, “The Reproductive Health Act

has now coerced [it], in violation of its sincerely held religious beliefs, to provide such coverage.”

¶ 55 The Department argues the Association cannot demonstrate the mandate

substantially burdens its religious beliefs. According to the Department, “[t]he record showed that

the Association had the ability to purchase an insurance product after section 4a had gone into

effect that did not cover abortion care.” However, the Department maintains the Association chose

to purchase an insurance policy regulated by the Department that included abortion coverage.

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¶ 56 Based on our review of the record in this case, this case is easily distinguishable

from the situation in Hobby Lobby. In the case sub judice, the following factors appear undisputed.

First, the Association is not legally required to provide its employees with health insurance.

Second, the State will not assess any kind of monetary tax or penalty on the Association if it does

not provide abortion insurance coverage to its employees. Third, if the Association decides to

provide its employees with health insurance, it is not required by law to purchase a health insurance

plan regulated by the Department. In other words, the Association is free to purchase health

insurance, either out of state or through a self-funded or level-funded in-state plan, that does not

include coverage for abortions without having to pay any kind of penalty or tax to the State.

¶ 57 From the record, it is clear the Association, when it switched its health insurance

from BCBS-IL to Health Alliance, could have purchased health insurance from GuideStone for its

employees that did not include abortion coverage after the abortion insurance coverage mandate

took effect in Illinois. The Association chose not to do so. Instead, it chose to purchase a more

expensive health insurance policy through Health Alliance because the Springfield Clinic was an

“in-network provider” under that plan. The record does not reflect the State of Illinois or the

Department had anything to do with Springfield Clinic not being an “in-network provider” under

the health insurance offered by GuideStone.

¶ 58 The Association argues it should not matter whether it could have purchased a

policy through GuideStone that did not include abortion coverage. According to the Association:

“This option is merely an alternative burden: instead of participating in a robust

market of insurers as a purchaser of a typical health plan, [the Association] can

‘opt’ to search far and wide for a plan that eschews abortion and is otherwise

feasible, with no guarantee that any such options will exist.”

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¶ 59 We disagree. This is not a situation where the Association could not find an

affordable insurance policy. Based on the facts before us, we need not determine whether the lack

of an affordable option could result in a different outcome. Here, while the insurance policy

through GuideStone might not have been perfect because, at the time, Springfield Clinic would be

deemed out of network, it was affordable and available to the Association. As a result, the mandate,

as applied to the Association under the facts of this case, did not create a substantial burden for the

Association.

¶ 60 Because we have determined, based on the specific facts before us on appeal, the

mandate did not substantially burden the Association’s religious beliefs, we need not consider

whether the mandate serves a compelling interest and is the least restrictive means of serving the

compelling interest. Further, although not essential to our decision based on the facts in this case,

we note the record here does not establish whether the GuideStone policy was the only policy the

Association could have purchased that did not cover abortion care. It appears the Association and

its insurance broker may not have looked for any out-of-state health insurance policies, other than

through GuideStone, to potentially meet the Association’s needs.

¶ 61 III. CONCLUSION

¶ 62 For the reasons stated, we affirm the trial court’s order granting the Department’s

motion for summary judgment.

¶ 63 Affirmed.

¶ 64 JUSTICE STEIGMANN, specially concurring:

¶ 65 Although I fully agree with the conclusion reached by my distinguished colleagues

in the majority, I write this special concurrence to emphasize—yet again—the illegitimacy of the

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court’s relying on “legislative history” as a basis to determine what the legislature intended when

it passed legislation.

¶ 66 As the majority correctly noted:

“At issue [in this case] is a statutory mandate requiring certain health

insurance policies regulated by the Department to provide insurance coverage for

abortions and prescription drugs used to terminate pregnancy or the possibility of

pregnancy. The parties do not dispute this mandate only applies to health insurance

policies regulated by the Department.” Supra ¶ 38.

¶ 67 The Association claimed that this mandate violates its rights under the IRFRA, and

in support of that claim, the Association points to statements made by a state representative and a

state senator when the proposed law was being debated in the Illinois House of Representatives

and the Illinois State Senate, respectively. Based upon the remarks of these legislators, the

Association argued that the Department had abandoned the legislature’s intent when passing the

IRFRA.

¶ 68 In my opinion, a claim that a statute should be interpreted based upon the remarks

of some legislators during the legislative process is completely without merit and should be

rejected by the courts accordingly.

¶ 69 I have written about this subject repeatedly, and it appears that every 10 years or so

I must reassert my objections.

¶ 70 The first such case was Town of City of Bloomington v. Bloomington Township,

233 Ill. App. 3d 724, 735 (1992), in which the issue was whether the trial court erred by sustaining

an objection to supposedly expert testimony by the executive director of the Township Officials

Association of Illinois concerning the legislative intent of section 1 of the Township Annexation

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Act (Ill. Rev. Stat. 1991, ch. 139, ¶ 127). This court concluded in that case that the trial court would

have erred had it allowed the director to testify, explaining as follows:

“Construing legislative enactments is a uniquely judicial function, and legislators

and others involved in the legislative process ought not be allowed to testify

regarding the meaning of a statute. Accordingly, ‘the views of a legislator

concerning a statute already enacted are entitled to no more weight than the views

of a judge concerning a statute not yet passed.’ Sullivan v. Finkelstein, 496 U.S.

617, 632 *** (1990) (Scalia, J., concurring in part).

We note that legislators do not make laws by making speeches on the floor

of the legislative chamber or by writing memos for committee meetings. They make

laws by majority vote on a specifically worded bill that has been read three times

before each house and distributed to each legislator. (Ill. Const.1970, art. IV,

§§ 8(c), (d).) Neither the disclosed nor undisclosed intent of a legislator or lobbyist

becomes law; only the bill as it reads when passed becomes law. Allowing tailored

court testimony purporting to explain what the legislature meant to say is

unacceptable and potentially dangerous.” (Emphases in original.) Id. at 735-36.

¶ 71 Ten years later, I wrote a dissent in Krohe v. City of Bloomington, 329 Ill. App. 3d

1133, 1138 (2002) (Steigmann, J., dissenting), in which I stated that the majority opinion was

wrong because, among other reasons, “it gives inappropriate weight to the remarks of a single

legislator.”

¶ 72 In that case, the majority opinion cited extensively the comments made by Senator

Laura Kent Donahue regarding the November 1997 legislative debate to override Governor

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Edgar’s veto of House Bill 1347, which became the act at issue in that case. Id. at 1135-38. In my

dissenting opinion, I wrote the following:

“The problem, however, is that the majority—like the trial court—begins and ends

its inquiry by focusing solely on the remarks of Senator Donahue. To the extent

that such remarks can ever properly be deemed ‘legislative history,’ I reject the

notion that this court can rely on them in construing section 10 of the Act (820 ILCS

320/10 (West 2000)).

As Justice Scalia has written, ‘[t]he greatest defect of legislative history is

its illegitimacy. We are governed by laws, not by the intentions of legislators.’

Conroy v. Aniskoff, 507 U.S. 511, 519 *** (1993) (Scalia, J., concurring).” Id. at

1139 (Steigmann, J., dissenting).

¶ 73 In that dissent, I cited the opinion I wrote for this court in Town of City of

Bloomington, discussed above, and added the following:

“If the majority is correct in relying upon the comments of an individual

legislator, in this case Senator Donahue, as an appropriate source for determining

legislative intent, then the majority should address the following questions that its

reliance raises: (1) How many senators were present in the Senate when Senator

Donahue spoke? (2) How many senators were aware that Senator Donahue placed

the definition of ‘catastrophic injury’ in her statements discussing the bill rather

than in the bill’s express language? (3) Assuming a given senator was aware, how

does anyone know whether that senator agreed with Senator Donahue’s remarks?

(4) If a given senator heard Senator Donahue’s remarks and did not agree with

them, does not the majority opinion place a burden on that senator to step forward

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and say so, or forever let the remarks of Senator Donahue be cited by the judiciary

as ‘the will of the Senate?’ (5) If this is to be the rule of statutory construction, then

how many Illinois legislators are aware that they remain silent at their peril if they

disagree with the views of those legislators motivated to speak about the legislation

pending before the chamber?

The majority’s approach seriously misconstrues the purpose of legislative

debate. That purpose ought not to be to provide language either intentionally or

inadvertently left out of the bill being considered. Instead, that purpose should be

to persuade legislators who might have doubts about a bill to vote for it. And even

then, legislative debates should always be conducted with the understanding that

courts will have the last word, in determining what the bill means, based upon the

written language contained within the bill.

This case illustrates the wisdom of the tenet that courts should not consider

legislative debates in construing statutes. See City of Bloomington, 233 Ill. App. 3d

at 736 *** (‘[n]either the disclosed nor undisclosed intent of a legislator or lobbyist

becomes law; only the bill as it reads when passed becomes law’ (emphasis in

original)). The oral remarks of Senator Donahue show just how easy it would have

been for the legislature to have defined ‘catastrophic injury’ within the text of

section 10 of the Act (820 ILCS 320/10 (West 2000))—assuming, of course, that

her fellow legislators would have agreed with Senator Donahue if that language

actually appeared in House Bill 1347. For example, that bill could have contained

the following language: ‘For purposes of this section, “catastrophically injured”

means a police officer or firefighter who, due to injuries, has been forced to take a

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line-of-duty disability.’ However, the bill the legislature passed did not include that

language, and even though that language might constitute desirable policy, this

court is limited to interpreting the statute as it is written.” (Emphases in original.)

Id. at 1139-40 (Steigmann, J., dissenting).

¶ 74 Then, in 2010, I wrote a special concurrence once again asserting the illegitimacy

of “legislative history,” based upon the remarks of legislators, as a basis to interpret statutes. See

McKinley Foundation at University of Illinois v. Illinois Department of Labor, 404 Ill. App. 3d

1115, 1127-29 (2010) (Steigmann, J., specially concurring). In that case, which presented another

difficult problem of statutory construction, I reaffirmed what I had written in both Town of City of

Bloomington and Krohe and added the following:

“The Illinois House of Representatives has 118 members and the Illinois

State Senate has 59. At the third reading of a specific bill in a given chamber, the

members of that chamber vote yes or no (or present, if they wish) on that bill as it

is proposed in its written form. A given state senator might read a particular bill in

one way, while another state senator might interpret it differently. Although some

senators might choose to take to the senate floor to announce their particular

interpretations of the bill, the problems they hope it will address, or why they

believe it should be enacted, experience demonstrates that at any given time on

third reading in any legislative chamber, a large percentage of the members of that

chamber are paying little attention, if any, to the remarks of their colleagues. They

might be consulting among themselves about other legislative or political matters,

speaking on the phone, working on their computers, or simply daydreaming. But

by engaging in any of these activities, they are not delegating to their colleagues

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who choose to speak about the bill the authority to define what it means. Instead,

the senators who choose not to speak on the bill are entirely justified in relying

upon the words it contains, not the remarks of their colleagues construing those

words in whatever fashion they wish.

Another way to look at this issue is to ask this question: Are senators who

disagree with the remarks of a particular senator on the third reading of a proposed

bill obligated to rise to express that disagreement on the floor of the senate? And in

the absence of their doing so, have they forfeited any later claim that the senator

who rose to speak about the bill was not the authoritative voice of the senate on the

matter? I have yet to encounter anyone, judge or legislator, who believes that such

an obligation exists for senators who disagree with the remarks of some of their

colleagues at third reading. Yet, if no such obligation exists, then why do we judges

continue to view the few voices who speak in the legislative chamber as somehow

authoritative on the subject?

Further, what possible legitimacy can there be to viewing the remarks of a

few members of the senate at third reading on a particular bill as authoritative and

binding on members of the House of Representatives, who later voted on that same

bill? Does anyone contend that somehow the views of the senators who spoke at

third reading were necessarily going to be communicated to the members of the

House of Representatives or repeated by some member of that body? When

subjected to this analysis, the whole notion of ‘legislative history,’ based upon the

remarks of individual legislators, is simply nonsensical.

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And when we are looking to ‘legislative history’ for guidance by examining

the remarks of the opponents to a particular piece of legislation (which the majority

does in this case), then ‘legislative history’ has even less value than nothing. This

is because legislators who oppose a particular bill might, intentionally or otherwise,

attribute features to it that it does not possess. Giving these legislators the benefit

of the doubt, they might legitimately fear that a certain result will ensue if the bill

is passed, but many of their colleagues (especially those voting in favor of the bill)

might very well disagree. And if they disagree, they are under no obligation to rise

to say so, especially if they think they have the votes to pass the bill in the first

place. Thus, the absence of rebuttal to the negative assessments of the bill that the

majority in this case quotes is, in my judgment, totally without significance.”

(Emphasis in original.) Id. at 1128-29 (Steigmann, J., specially concurring).

¶ 75 I concluded my special concurrence in McKinley Foundation with the following

observation:

“I realize that (to date) the Supreme Court of Illinois has disagreed with my

view of ‘legislative history.’ See People v. Collins, 214 Ill. 2d 206, 214 *** (2005)

(‘Where statutory language is ambiguous, *** we may consider other extrinsic aids

for construction, such as legislative history and transcripts of legislative debates, to

resolve the ambiguity[.]’). Nonetheless, I hope that the supreme court might have

occasion to reconsider the legitimacy of legislative history based upon the remarks

of legislators (perhaps even in this case) and decide that it will no longer give

legitimacy to this analysis.” Id. at 1129 (Steigmann, J., specially concurring).

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¶ 76 The Illinois judiciary, like all judiciaries, has a hierarchal structure. That means that

the appellate court cannot overrule decisions of the Illinois Supreme Court. But I can—and do—

call upon that court to correct obvious errors in Illinois jurisprudence.

¶ 77 As Justice Scalia has compellingly demonstrated, the use of the remarks of

legislators as “legislative history” is fundamentally flawed and totally illegitimate. Conroy, 507

U.S. at 519 (Scalia, J., concurring). The Illinois Supreme Court owes it to the bench and bar of this

state, as well as the citizens of Illinois, to correct Illinois law by banning this pernicious practice.

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