Morr-Fitz, Inc. v. Blagojevich

Docket No. 104692.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

MORR-FITZ, INC., et al., Appellants, v. ROD R. BLAGOJEVICH,

Governor, State of Illinois, et al., Appellees.

Opinion filed December 18, 2008.

JUSTICE THOMAS delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Kilbride, Garman, and

Karmeier concurred in the judgment and opinion.

Justice Freeman dissented, with opinion, joined by Justice Burke.

OPINION

Plaintiffs–two licensed pharmacists and three corporations that

own and operate pharmacies in Illinois–brought a declaratory

judgment action in the circuit court of Sangamon County against

various Illinois public officials and the State Board of Pharmacy,

seeking to invalidate an administrative rule that forces pharmacies to

dispense Plan B contraception (also known as the morning-after pill

or emergency contraception). The rule provided that a pharmacy must

dispense the contraceptive without delay upon receipt of a valid

prescription. If the item is not in stock, the pharmacy must order it if

the patient requests that it do so. 68 Ill. Adm. Code §1330.91(j)

(2005). The plaintiffs’ nine-count amended complaint alleged, inter

alia, violations of the Illinois Health Care Right of Conscience Act

(Conscience Act or Act) (745 ILCS 70/1 et seq. (West 2004)) and the

Illinois Religious Freedom Restoration Act (Religious Freedom Act)

(775 ILCS 35/1 et seq. (West 2004)), as well a claim that the rule was

unconstitutional on its face and as applied because it violated the first

amendment of the United States Constitution. Plaintiffs alleged that

the rule contravenes their moral and religious beliefs because they

believe that life begins at conception and that Plan B can act as an

abortifacient.

The circuit court dismissed the complaint with prejudice on

grounds of standing, ripeness, and failure to exhaust administrative

remedies. A divided appellate court affirmed. 371 Ill. App. 3d 1175.

We granted plaintiffs’ petition for leave to appeal. 210 Ill. 2d R. 315.

For the reasons set forth below, we reverse the judgment of the

appellate court.

BACKGROUND

According to the amended complaint, plaintiffs Luke Vander

Bleek and Glen Kosirog are licensed pharmacists who own and

control a number of Division I pharmacies. A Division I pharmacy is

a pharmacy that engages in “general community pharmacy practice

and that is open to, or offers pharmacy services to, the general

public.” 68 Ill. Adm. Code §1330.5 (2005). Vander Bleek resides in

Morrison, Illinois, and is owner of the Fitzgerald pharmacy and the

sole shareholder of Morr-Fitz, Inc., the corporation that controls the

Fitzgerald pharmacy. The Fitzgerald pharmacy has two locations, one

in Prophetstown, Illinois, and the other in Morrison. Additionally,

Vander Bleek is the majority shareholder of L. Doyle, Inc., which

does business as the Eggleston Pharmacy, with locations in

Sycamore, Illinois, and Genoa, Illinois. Vander Bleek is the chief

pharmacist at his Morrison location.

The amended complaint further alleges that Vander Bleek is the

third of 12 children and a lifelong Catholic. He graduated from the

University of Illinois in 1986 with a bachelor of science degree in

pharmacy, concentrated in medical chemistry and drug design. He has

formed a professional opinion “about teratogenic or abortifacient

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drugs and their destruction of what he considers is human life,” and

he believes that Plan B has an “abortifacient mechanism of action.”

Through prayerful reflection and consideration as a practicing

Catholic, he has informed his beliefs and conscience on which he

relies to hold that life begins at conception. He therefore does not

believe that his convictions allow him to dispense Plan B. He also

does not believe that the pharmacies he controls can cooperate in the

sale or dispensing of drugs like Plan B and therefore conscientiously

objects on behalf of his corporation. Over the past several years, he

has affirmed his company policy of not dispensing drugs with

abortifacient qualities when his pharmacies were presented with

prescriptions for such drugs. Specifically, his company’s written

policy is that in the event that a prescription for emergency

contraception is presented, the pharmacist on duty is to immediately

return the prescription to the patient. He is then to communicate in a

confidential environment, without lecturing about morality, that

company policy does not allow the pharmacy to procure, stock or

dispense the product.

According to the amended complaint, plaintiff Kosirog resides

in Wheaton, Illinois, and is the sole shareholder of Kosirog Pharmacy,

Inc., which does business as Kosirog Rexall Pharmacy in Cook

County. Kosirog is a lifelong Christian and has five children, one

with Down’s Syndrome. He graduated from the University of

Wyoming in 1982, earning a bachelor of science degree in pharmacy.

He has formed a professional opinion “about teratogenic or

abortifacient drugs and their destruction of what he considers is

human life.” He believes that Plan B has an “abortifacient mechanism

of action, i.e., [it] can cause abortions by preventing an already

fertilized egg from implanting in the womb.”1 Based on Kosirog’s

conscience and belief, his pharmacy forbids the sale or dispensing of

drugs suspected to have teratogenic or abortifacient qualities, such as

Plan B. In specific instances over the past few years when presented

1

This is consistent with the United States Food and Drug

Administrations official website statement about Plan B, which

acknowledges that “[if] fertilization does occur, Plan B may prevent a

f e r t i l i z e d egg fr o m a t t a c h i n g t o t h e w o m b .”

http://www.fda.gov/CDER/drug/infopage/planBQandA.htm.

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with prescriptions for such drugs, Kosirog, on behalf of his pharmacy,

has affirmed the aforementioned policy not to dispense such drugs.

On April 1, 2005, the Governor filed an “Emergency Rule” that

amended section 1330.91 of title 68 of the Illinois Administrative

Code. The emergency amendment became permanent in the form of

an administrative rule (hereinafter “the rule” or “subsection (j)”) on

August 25, 2005, and states in relevant part as follows:

“j) Duty of Division I Pharmacy to Dispense

Contraceptives

1) Upon receipt of a valid, lawful prescription for a

contraceptive, a pharmacy must dispense the

contraceptive *** to the patient or the patient’s agent

without delay, consistent with the normal timeframe 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.

2) For purposes of this subsection (j), the term

‘contraceptive’ shall refer to all FDA-approved drugs or

devices that prevent pregnancy.” 68 Ill. Adm. Code

§§1330.91(j)(1), (j)(2) (2005).

Plan B and the morning-after pill fall within the above-quoted

rule’s definition of contraceptives. On October, 28, 2005, plaintiffs

filed their first amended complaint seeking a declaration that the rule

is invalid. Plaintiffs also sought an injunction against the rule’s

enforcement. Named defendants in the suit included Rod Blagojevich,

the Governor of the State of Illinois, Fernando Grillo, then the

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secretary of the Illinois Department of Financial and Professional

Regulation (Department), Daniel Bluthhardt, then the acting director

of the Department’s Division of Professional Regulation (Division),

and the State Board of Pharmacy.2

With respect to the language of the rule, plaintiffs’ amended

complaint states that by “demanding that Division I Pharmacies fill

any prescription for ‘contraceptives,’ including the ‘morning-after

pill’ and ‘Plan B,’ [the rule] requires the Plaintiffs to act against the

collective conscience of their corporate control group and against the

policies of their pharmacies.” Plaintiffs allege that both the

emergency rule and the permanent rule were enacted for the purpose

of compelling religious and conscientious objectors to fill Plan B

contraceptive prescriptions despite those objections. Plaintiffs allege

that when the emergency rule was promulgated on April 1, 2005, the

Governor publicly warned that Illinois pharmacists who violate the

rule face significant penalties, ranging from fines to the loss of

professional licenses. Then, on April 13, 2005, the Governor issued

a press release indicating that he will “vigorously defend” the

emergency rule requiring pharmacists to sell and fill prescriptions for

contraceptives without delay. The Governor further warned on that

same date as follows:

“If a pharmacy wants to be in the business of dispensing

contraceptives, then it must fill prescriptions without making

moral judgments. Pharmacists–like everyone else–are free to

hold personal religious beliefs, but pharmacies are not free

to let those beliefs stand in the way of their obligation to

their customers.” Press Release of Governor Blagojevich,

April 13, 2005.3

2

The identity of one of the defendants has changed. Fernando Grillo,

formerly the secretary of the Department, has been succeeded by Dean

Martinez, the current secretary. Pursuant to section 2–1008(d) of the Code

of Civil Procedure (735 ILCS 5/2–1008(d) (West 2006)), plaintiffs’ action

now proceeds against Martinez. In addition, Daniel Bluthardt, formerly the

acting director of the Division, is currently the director of the Division.

3

On March 13, 2006, Governor Blagojevich allegedly reaffirmed his

public position that the rule was directed at pharmacists who object to

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Plaintiffs’ complaint also alleges that as early as September 15,

2005–less than a month after the rule became final–defendants

initiated proceedings against pharmacies alleged to have violated the

rule and emphasized that they were “vigorously” enforcing the rule.

See Illinois Department of Financial and Professional Regulation

Press Release, September 15, 2005. Furthermore, defendants have

issued an additional rule requiring all Division I pharmacies to

“prominently display” a notice advising customers of the rule and

inviting them to file complaints against refusing pharmacists with the

Department through its website. 68 Ill. Adm. Code §§1330.91(k)(1),

(k)(2) (2005).

Plaintiffs filed a motion for a temporary restraining order on

September 14, 2005. The trial court denied the motion after a hearing,

finding that plaintiffs have “another adequate remedy at law and [are]

not likely to be successful on the merits due to standing and ripeness

issues.” On October 28, 2005, plaintiffs filed their amended

complaint, along with a motion for a temporary injunction to enjoin

enforcement of the rule. On that same day, defendants filed a motion

to dismiss pursuant to section 2–619 of the Code of Civil Procedure

(735 ILCS 5/2–619 (West 2004)). In their motion, defendants argued,

among other things, that plaintiffs lacked standing to challenge

subsection (j) and failed to exhaust their administrative remedies

because they did not wait to be sued and disciplined by the

Department before resorting to a declaratory judgment action in

circuit court. Following a hearing, the circuit court granted

defendants’ motion to dismiss. The docket entry for November 18,

2005, showed that the court “rule[d] in favor of Defendants granting

the motion to dismiss with prejudice on the grounds of lack of

standing, ripeness, and failure to exhaust administrative remedies.”

In December 2005 plaintiffs timely filed their notice of appeal,

arguing, inter alia, that they had standing to bring their claim and they

were not required to exhaust administrative remedies. In August

2006, prior to the filing of the appellate court opinion in this case, the

dispensing certain drugs on moral grounds. See Menges v. Blagojevich, 451

F. Supp. 2d 992, 997 (C.D. Ill. 2006). According to the complaint in

Menges, the Governor stated that pharmacists who “hold such moral views

should find another profession.” Menges, 451 F. Supp. 2d at 997.

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United States Food and Drug Administration (FDA) approved Plan

B contraceptives for over-the-counter, nonprescription sale to women

18 and older. The drug remains available as a prescription drug for

women 17 and under. Subsection (j) applies only to prescriptions for

contraceptives and not to over-the-counter sales.

In March 2007, a divided appellate court affirmed the circuit

court’s dismissal of plaintiffs’ complaint. 371 Ill. App. 3d 1175. The

majority applied the ripeness standards set forth in Abbott

Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 691,

87 S. Ct. 1507, 1515 (1967), which requires consideration of two

factors: “the fitness of the issues for judicial decision and the hardship

to the parties of withholding court consideration.” In applying Abbott

Laboratories, the appellate court recognized that plaintiffs had

satisfied the first factor in that (1) the Department’s rule applies to

plaintiffs, (2) the State had made clear it intended to enforce the rule,

and (3) the issue of whether the rule is facially valid is fit for judicial

decision. The majority concluded, however, that plaintiffs’ claims

were not ripe for review based on the second factor of Abbott

Laboratories, finding that plaintiffs’ chances of suffering future

hardship were too “slim” to outweigh courts’ “traditional reluctance

to get involved in administrative determinations.” 371 Ill. App. 3d at

1181. The majority predicted that it is “extremely unlikely” one of

plaintiffs “will ever be placed in a position where he will have to

violate either his conscience or the letter of the Rule.” 371 Ill. App.

3d at 1184. In view of this holding, the appellate court declined to

address whether plaintiffs failed to exhaust their administrative

remedies. Justice Turner dissented, asserting that plaintiffs’ claims

were not only ripe, but compelling under both the Conscience Act and

the Religious Freedom Act. 371 Ill. App. 3d at 1185, 1187 (Turner,

J., dissenting).

Plaintiffs filed a petition for rehearing in the appellate court. In

that petition, plaintiffs noted that the appellate court found that

plaintiffs had “failed to allege that they have been presented with a

prescription for emergency contraception since the Rule went into

effect” (371 Ill. App. 3d at 1177), and that the court used this as a

basis for finding that the rule’s application to plaintiffs was remote.

Plaintiffs attached two affidavits to their petition. In the first, Vander

Bleek stated that since the rule went into effect, plaintiffs have been

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presented with prescriptions for Plan B contraception more than 15

times. Plaintiffs argued in their petition that these were precisely the

occurrences that the court found so “extremely unlikely” that their

lack rendered plaintiffs’ claims unripe.

Vander Bleek also alleged in his affidavit that his Prophetstown

pharmacy had been forced to close because of the chilling effect of

the rule. Vander Bleek explained that the pharmacist who ran the

pharmacy at that location moved out of state. A replacement

pharmacist ultimately refused to work there because of the possibility

that the pharmacy could be prosecuted and lose its license because of

its policy against selling morning-after contraceptives. No other

qualified pharmacist could be found. As a result, the pharmacy was

forced to close, resulting in an annual loss of profits of $75,000.

Additionally, plaintiffs attached an affidavit from Kosirog to

their petition for rehearing. Kosirog’s affidavit stated that he had been

required to spend additional resources recruiting pharmacists and

addressing their concerns about the impact of the rule upon his

business.

The appellate court majority denied the petition for rehearing

over a second dissent from Justice Turner. We allowed plaintiffs’

petition for leave to appeal. 210 Ill. 2d R. 315. We further allowed the

American Association of Pro Life Obstetricians and Gynecologists,

the Christian Medical and Dental Associations, the Catholic Medical

Association, Physicians for Life, and the National Association of

Prolife Nurses to file an amicus curiae brief. We also allowed the

Christian Legal Society and Christian Pharmacists Fellowship

International to file an amicus curiae brief. In addition, we allowed

the Illinois Pharmacists Association and the American Pharmacists

Association to file an amicus curiae brief. Finally, we allowed the

American Civil Liberties Union of Illinois to file an amicus curiae

brief. 210 Ill. 2d R. 345.

After briefing and oral argument in this court, the Department

revised subsection (j), effective April 16, 2008. The amendment was

the result of a settlement in other litigation involving different parties

over the legality of the rule. See 32 Ill. Reg. 7116 (May 2, 2008). The

amended version of subsection (j) retains the essential features of the

previous version, including the requirements that (1) a pharmacy

which sells contraceptives must, when presented with a valid

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prescription, dispense the contraceptive “without delay”; and (2) 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. The amended version, however,

adds several, more onerous provisions pertaining specifically to

“emergency contraception.”

The amended version now specifically mandates that each retail

pharmacy “use its best efforts to maintain adequate stock of

emergency contraception to the extent that it continues to sell

contraception.” 68 Ill. Adm. Code §1330.91(j)(2) (amended by 32 Ill.

Reg. 7116, eff. April 16, 2008). It also mandates a new dispensing

procedure called “remote medication order processing” (RMOP). If

a pharmacist objects to dispensing emergency contraception and there

is no nonobjecting pharmacist present at this pharmacy, which is

deemed by the amendment the “dispensing pharmacy,” the dispensing

pharmacy must still sell the emergency contraceptive through RMOP.

RMOP involves a nonobjecting pharmacist at a different location

authorizing the dispensing of the drug by a nonpharmacist employee

at the dispensing pharmacy. 68 Ill. Adm. Code §§1330.91(j)(3)(A),

(j)(3)(B) (amended by 32 Ill. Reg. 7116, eff. April 16, 2008). The new

amendment further requires that a retail pharmacy must be

responsible “for ensuring either that there is a non-objecting

pharmacist scheduled at all times the pharmacy is open, or that there

is a licensed pharmacist available to perform RMOP for emergency

contraception at all times the pharmacy is open and no non-objecting

pharmacist is available at the pharmacy.” 68 Ill. Adm. Code

§1330.91(j)(4) (amended by 32 Ill. Reg. 7116, eff. April 16, 2008).

ANALYSIS

Before this court, plaintiffs first argue that their claims for

declaratory and injunctive relief are ripe for judicial review and

should not have been dismissed. Plaintiffs contend that their

preenforcement challenge to the validity of the regulation is

justiciable because the very existence of the rule constitutes illegal

coercion in violation of the Illinois Health Care Right of Conscience

Act and the Illinois Religious Freedom Restoration Act, as well as the

first amendment of the United States Constitution. Plaintiffs also

claim that they have stated a claim that is ripe for resolution

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because–even absent an enforcement action by the state against

plaintiffs–plaintiffs are given a right by these two Illinois statutes to

pursue an affirmative claim. Additionally, plaintiffs maintain that

they have satisfied the Abbott Laboratories test for ripeness because

the rule has a concrete, negative impact on their operations, and they

have therefore shown that sufficient hardship would be caused by

withholding court consideration.

Defendants argue that plaintiffs’ claims are unripe because the

rule’s application to plaintiffs is remote. Defendants claim that the

rule’s structure makes it unlikely–as a practical matter–that plaintiffs’

obligations to dispense would ever be triggered. Relying on the

version of the rule in effect prior to the April 16, 2008, amendment,

defendants claim that the rule does not require plaintiffs to stock

emergency contraception. Rather, it requires that if a potential

customer presents a prescription, the pharmacy has to order the out-

of-stock contraceptive only if the customer requests that the pharmacy

order it. According to defendants, this is an unlikely event that tends

to show that plaintiffs will not experience the rule’s impact in a

concrete way. Additionally, defendants argue that plaintiffs’

complaint was properly dismissed because they failed to make use of

a statutory variance procedure. Defendants note that the Illinois

Pharmacy Practice Act of 1987 authorizes the Director to grant a

variance excusing compliance with an administrative rule

promulgated under the authority of the Pharmacy Act when applying

the provision would be “unnecessarily burdensome.” 225 ILCS

85/11(a) (West 2004). In defendants’ view, plaintiffs’ failure to seek

a variance constituted a failure to exhaust administrative remedies.

I. Justiciability

We first examine whether the requirements of justiciability have

been satisfied. Concepts of justiciability are divided into different

categories, such as advisory opinions, feigned and collusive cases,

standing, ripeness, mootness, political questions, and administrative

questions. Alternate Fuels, Inc. v. Director of the Illinois

Environmental Protection Agency, 215 Ill. 2d 219, 230 (2004).

Where, as here, justiciability is challenged in a motion to dismiss

under section 2–619, a court must accept as true all well-pleaded facts

in plaintiffs’ complaint and all inferences that can reasonably be

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drawn in plaintiffs’ favor. In re Estate of Schlenker, 209 Ill. 2d 456,

461 (2004). Moreover, it is well established that a cause of action

should not be dismissed with prejudice unless it is clear that no set of

facts can be proved under the pleadings which would entitle plaintiffs

to relief. Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578,

584-85 (2003). An order granting a motion to dismiss based on a lack

of justiciability presents a question of law, which we review de novo.

See Doe v. Chicago Board of Education, 213 Ill. 2d 19, 24 (2004);

Schlenker, 209 Ill. 2d at 461.

Section 2–701 of the Code of Civil Procedure sets forth the

general requirements for a justiciable declaratory judgment action, as

follows:

“No action or proceeding is open to objection on the

ground that a merely declaratory judgment or order is sought

thereby. The court may, in cases of actual controversy, make

binding declarations of rights, having the force of final

judgments, whether or not consequential relief is or could be

claimed, including the determination, at the instance of

anyone interested in the controversy, of the construction of

any statute *** or other governmental regulation *** and a

declaration of the rights of the parties interested. The

foregoing enumeration does not exclude other cases of actual

controversy. The court shall refuse to enter a declaratory

judgment or order, if it appears that the judgment or order,

would not terminate the controversy or some part thereof,

giving rise to the proceeding.” 735 ILCS 5/2–701(a) (West

2006).

The declaratory judgment statute must be given a liberal construction

and should not be unduly restricted by a technical interpretation. First

of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 174

(1995). This court has recognized that the “ ‘ “mere existence of a

claim, assertion or challenge to plaintiff’s legal interests, *** which

cast[s] doubt, insecurity, and uncertainty upon plaintiff’s rights or

status, damages plaintiff’s pecuniary or material interests and

establishes a condition of justiciability.” ’ ” Alternate Fuels, 215 Ill.

2d at 231, quoting Netsch, 166 Ill. 2d at 175, quoting Roberts v.

Roberts, 90 Ill. App. 2d 184, 187 (1967).

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A threshold question in any declaratory judgment action is

whether the plaintiff has standing. Messenger v. Edgar, 157 Ill. 2d

162, 170 (1993). To establish standing in such a case, there must be

an “actual controversy” between adverse parties, and the party

seeking the declaratory judgment must be “interested” in the

controversy. Underground Contractors Ass’n v. City of Chicago, 66

Ill. 2d 371, 375-76 (1977). But here, we are considering justiciability

in the context of administrative action, so we must specifically

consider ripeness as a component of justiciability. Alternate Fuels,

215 Ill. 2d at 231. In this setting, the question of standing becomes

subsumed in the question of ripeness. This is because the more

stringent requirements for ripeness will necessarily establish the less

strict demands of standing. Thus, if we reverse the appellate court’s

determination on ripeness in this case, we would necessarily reverse

the trial court’s determination on standing.

A. Ripeness

The basic rationale of the ripeness doctrine is to “prevent the

courts, through avoidance of premature adjudication, from entangling

themselves in abstract disagreements over administrative policies,

and also to protect the agencies from judicial interference until an

administrative decision has been formalized and its effects felt in a

concrete way by the challenging parties.” Abbott Laboratories, 387

U.S. at 148-49, 18 L. Ed. 2d at 691, 87 S. Ct. at 1515. In Abbott

Laboratories, the Supreme Court formulated a two-prong inquiry to

evaluate ripeness: first, courts look at whether the issues are fit for

judicial decision; and second, they look at any hardship to the parties

that would result from withholding judicial consideration. Abbott

Laboratories, 387 U.S. at 149, 18 L. Ed. 2d at 691, 87 S. Ct. at 1515.

The Court held that the plaintiffs in that case, who were various drug

companies, could bring a preenforcement challenge to an agency’s

interpretation of a federal statute that would have required the

established name of a drug to be used every time the proprietary name

is used. The Court found that the impact of the regulation was

sufficiently direct and immediate so as to render judicial review

appropriate because the plaintiffs would have to incur the significant

cost of changing all their labels over or else risk criminal and civil

penalties for their belief that their current labels were in compliance.

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Abbott Laboratories, 387 U.S. at 152-53, 18 L. Ed. 2d at 693-94, 87

S. Ct. at 1517.

This court specifically adopted the Abbott Laboratories approach

to considering ripeness claims in both Alternate Fuels, 215 Ill. 2d at

231, and National Marine, Inc. v. Illinois Environmental Protection

Agency, 159 Ill. 2d 381, 389 (1994). In Alternate Fuels, this court

found that an agency’s interpretation of a statute was ripe for judicial

review where the agency interpretation affected the plaintiff in a

“concrete way,” causing the plaintiff to lose financially. Alternate

Fuels, 215 Ill. 2d at 233. National Marine, on the other hand, found

that the mere issuance of a notice under section 4(q) of the Illinois

Environmental Protection Act did not make the plaintiff’s claims ripe

where there was no effect on the plaintiff’s legal rights, as it remained

free to deal with its property as it saw fit. National Marine, 159 Ill. 2d

at 389-90.

Here, we conclude that plaintiffs’ claims are ripe under the

Abbott Laboratories criteria. With respect to the first factor, the

appellate court ruled in favor of plaintiffs, finding that “[i]t is fairly

clear the issue of whether the Rule is facially valid is fit for a judicial

decision.” 371 Ill. App. 3d at 1181. We agree with the appellate

court’s assessment that the issues are fit for judicial decision. The

claims raised are essentially legal in nature–whether the language of

the rule violates the constitution and must therefore be declared void,

as well as whether the rule violates various Illinois and federal

statutes.4 See Minnesota Citizens Concerned for Life v. Federal

4

In addition to the specifically mentioned claims above, plaintiffs have

alleged violations of (1) the Illinois Administrative Procedure Act (5 ILCS

100/5–5 et seq. (West 2004)), (2) the Illinois Pharmacy Practice Act of

1987 (225 ILCS 85/1 et seq. (West 2004)), (3) the Illinois Human Rights

Act (775 ILCS 5/1–101 et seq. (West 2004)), (4) section 2000e of title VII

of the federal Civil Rights Act of 1964 (42 U.S.C. §2000e (2000)),

allegedly resulting in federal preemption of subsection (j) of the

Department’s rule, (5) the fourteenth amendment of the United States

Constitution, and (6) the Weldon amendment, which prohibits certain

federal assistance to states that discriminate against any individual or

institutional health-care facility that refuses to take part in any facet of

abortion. See Pub. L. No. 108–447, §508(d), 118 Stat. 2809 (December 8,

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Election Comm’n, 113 F.3d 129, 132 (8th Cir. 1997) (“Fitness for

judicial decision means, most often, that the issue is legal rather than

factual”).

As to the second factor, we find that sufficient hardship exists so

as to make judicial review appropriate. Again, we note that

defendants argue the version of the rule in effect prior to April 16,

2008. They contend that the rule does not require plaintiffs to stock

Plan B contraception and therefore does not require plaintiffs to take,

or refrain from, any action. Defendants further argue that the rule’s

structure makes it unlikely that plaintiffs’ obligation to dispense

would ever be triggered because it is a remote possibility that a

customer would ever request plaintiffs to order Plan B. We disagree

for several reasons.

First, we note that prior to the April 2008 amendment, all it

would have taken to trigger the rule and subject plaintiffs to the

possibility of license revocation was for a customer with a

prescription for Plan B to say the words “order it.” In any event, the

rule has been changed and in its current form has an even greater

concrete and coercive impact on plaintiffs. The rule now expressly

requires that plaintiffs must stock and dispense Plan B contraception.

Under the current version, the simple failure by plaintiffs to make

efforts to stock the contraceptive in question would subject plaintiffs

to a range of penalties, including license revocation. Additionally,

they must dispense it within their stores through RMOP. Under these

circumstances, application of the rule to plaintiffs cannot be

considered remote. Instead, the rule affects their business operations

on a day-to-day basis and exposes plaintiffs to strong sanctions. This

case is thus indistinguishable from Abbott Laboratories, where the

Court found that the plaintiffs could not be denied access to the courts

under a ripeness theory, stating as follows: “the regulation is directed

at them in particular; it requires them to make significant changes in

their everyday business practices; if they fail to observe the

Commissioner’s rule they are quite clearly exposed to the imposition

2004); see also 42 U.S.C. §300a–7(b)(1) (2000); 42 U.S.C. §238n(a)(1),

(c)(2) (2000).

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of strong sanctions.” Abbott Laboratories, 387 U.S. at 154, 18 L. Ed.

2d at 694, 87 S. Ct. at 1518.

Furthermore, we note that it is appropriate for this court to

consider the latest version of the rule to inform our ripeness decision.

Again, we point out that the trial court’s order granting the motion to

dismiss should not be affirmed unless it appears that plaintiffs can

prove no set of facts that would entitle them to recovery. Moreover,

ripeness is decided based on all the information available to the court

at the time of the decision; intervening events that occur after the

decision in the lower courts should be included, just as must be done

with questions of mootness. See 13A C. Wright, A. Miller, E. Cooper

& R. Freer, Federal Practice & Procedure §3532.1 (Supp. 2007). See,

e.g., Blanchette v. Connecticut General Insurance Corps., 419 U.S.

102, 140, 42 L. Ed. 2d 320, 351, 95 S. Ct. 335, 356-57 (1974);

Hargrave v. Vermont, 340 F.3d 27, 34 (2d Cir. 2003); Buckley v.

Valeo, 424 U.S. 1, 114-18, 46 L. Ed. 2d 659, 742-44, 96 S. Ct. 612,

680-82 (1976) (per curiam) (basing ripeness determination on facts

occurring “[s]ince the entry of judgment by the Court of Appeals”);

In re UAL Corp., 468 F.3d 444, 453 (7th Cir. 2006) (describing

Buckley as a case where “dispute [was] resolved on the merits on

appeal, even though the controversy was not ripe at the time the

district court acted”); Reno v. Catholic Social Services, Inc., 509 U.S.

43, 73, 125 L. Ed. 2d 38, 66, 113 S. Ct. 2485, 2504 (1993) (“it is the

situation now *** rather than at the time of the initial complaints, that

must govern”) (O’Connor, J., concurring)); cf. Fisch v. Loews

Cineplex Theatres, Inc., 365 Ill. App. 3d 537, 538 (2005) (considering

new evidence alleged after appellate briefing on issue of mootness);

City of Chicago v. Yellen, 325 Ill. App. 3d 311, 314 (2001) (allowing

supplementation of the record to aid the court in deciding personal

jurisdiction).

Second, we believe that sufficient hardship exists based on

plaintiffs’ affidavits attached to their appellate court petition for

rehearing. These affidavits show that plaintiffs have already suffered

financial loss because of the rule. Vander Bleek asserted that he was

forced to close one store because of the rule at an annual cost of

$75,000. Kosirog also claimed financial loss due to having to expend

additional resources to recruit pharmacists and to address concerns

about the rule. These circumstances are similar to the choice the

-15-

plaintiffs faced in both Abbott Laboratories and Alternate Fuels

between complying with the regulation at added cost or else

continuing on in opposition to the rule and risking the even greater

harm of serious penalties. See Abbott Laboratories, 387 U.S. at 154,

18 L. Ed. 2d at 694, 87 S. Ct. at 1518; Alternate Fuels, 215 Ill. 2d at

232-33. In sum, the rule has affected plaintiffs in a concrete way on

a day-to-day basis, and they can allege that they have lost financially.

Finally, we note that the rule contained in subsection (j) in both

the pre- and post-April 16, 2008, version, poses harm to the plaintiffs

that is even greater than financial loss. Plaintiffs allege that the rule

chills their first amendment rights. Plaintiffs are forced to comply

with the rule or else compromise their rights to act according to their

consciences and religious tenants. In such a case, courts relax the

ripeness requirement of Abbott Laboratories. See, e.g., Minnesota

Citizens Concerned For Life, 113 F.3d at 132 (“Sufficient hardship

is usually found if the regulation *** chills protected First

Amendment activity”). In fact, courts routinely find not just harm, but

irreparable harm, where a plaintiff asserts a chill on free exercise

rights. See, e.g., Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d

144, 178 (3d Cir. 2002); Stormans, Inc. v. Selecky, 524 F. Supp. 2d

1245, 1266 (W.D. Wash. 2007) (finding the first amendment claims

of pharmacists and pharmacies were ripe and granting a preliminary

injunction because of the likelihood of success on the merits and the

possibility of irreparable injury).

Here, plaintiffs’ complaint raises a first amendment claim.

Specifically, they allege that the rule substantially burdens their free

exercise of religion, is not narrowly tailored to serve a compelling

governmental interest, and is not the least restrictive means of serving

any alleged governmental interest. Plaintiffs also assert that the

purpose and object of the rule is to coerce conscientious and religious

objectors to fill Plan B prescriptions despite their objections.

Courts have specifically found that pharmacists and pharmacies

in similar cases involving state regulation requiring the dispensing of

Plan B contraception have sufficiently stated causes of action that

could be considered by the judiciary. See Stormans, Inc. v. Selecky,

524 F. Supp. 2d 1245 (W.D. Wash. 2007) (found that plaintiffs’

claims were ripe where plaintiffs had sufficiently alleged a first

amendment claim); Menges v. Blagojevich, 451 F. Supp. 2d 992

-16-

(C.D. Ill. 2006) (court denied defendants’ motion to dismiss and

directed them to answer complaint that sufficiently alleged a first

amendment violation). Accordingly, we find that plaintiffs have

stated a cause of action that is ripe for judicial review.

B. Exhaustion and the Variance Procedure

We next turn to defendants’ contention that plaintiffs failed to

exhaust their administrative remedies by failing to seek a variance

before the Department. We initially note that the circuit court

dismissed the amended complaint with prejudice on the grounds of

lack of standing, ripeness and failure to exhaust administrative

remedies. With respect to the exhaustion-of-remedies ground, the

circuit court did not consider whether plaintiffs were required to seek

a variance before proceeding; this issue was not raised by defendants

until sometime in the appellate court. Instead, the exhaustion

argument in the circuit court centered around whether plaintiffs

should have to slog through a disciplinary proceeding and suffer loss

of their licences, or at least wait to be cited and sued, before

challenging the rule in circuit court. The appellate court affirmed the

dismissal with prejudice on the sole grounds of ripeness. It did not

reach the exhaustion-of-remedies issue, finding it was unnecessary to

reach it given its holding on ripeness.

We must reject the defendants’ exhaustion argument for several

reasons. First, the Pharmacy Practice Act of 1987 (Pharmacy Act)

(225 ILCS 85/11 et seq. (West 2004)) does not provide any procedure

for the filing of a claim by a party who has conscientious objections

to the rule and whose rights might be chilled by the rule. Nor does it

provide any procedure that would govern the agency’s decision with

respect to a variance from the rule. Specifically, the variance statute

reads as follows:

“Duties of the Department. The Department shall exercise

the powers and duties prescribed by the Civil Administrative

Code of Illinois for the administration of Licensing Acts and

shall exercise such powers and duties necessary for

effectuating the purpose of this Act. However, the following

powers and duties shall be exercised only upon action and

-17-

report in writing of a majority of the Board of Pharmacy to

take such action:

(a) Formulate such rules, not inconsistent with law and

subject to the Illinois Administrative Procedure Act, as may

be necessary to carry out the purposes and enforce the

provisions of this Act. The Director may grant variances

from any such rules as provided for in this Section;

***

(c) ***

The granting of variances from rules promulgated

pursuant to this Section in individual cases where there is a

finding that:

(1) the provision from which the variance is granted is

not statutorily mandated;

(2) no party will be injured by the granting of the

variance; and

(3) the rule from which the variance is granted would,

in the particular case, be unreasonable or unnecessarily

burdensome.” (Emphases added.) 225 ILCS 85/11 (West

2006). See 68 Ill. Adm. Code §1330.110 (2005).

The case before us poses a significantly different situation than

all of the cases cited by the parties that discuss the exhaustion

doctrine. Those cases involve situations where either (1) the

applicable statute gave the litigant a right to bring a claim before the

agency with a corresponding procedure to govern the claim before the

agency (right to a hearing, time frame for decisions, etc.) or (2) the

agency sought an enforcement action against the litigant, but he failed

to wait for the completion of the agency proceeding or failed to take

advantage of his right to reconsider the decision before the agency

prior to seeking judicial review. Neither situation is applicable here.

To the extent the second situation could be applicable, it would be

more along the lines of a ripeness challenge than an exhaustion

argument, because there is, as of yet, no agency enforcement action

against plaintiffs. But as discussed above, we have already found that

plaintiffs’ claims are ripe for judicial consideration. Moreover, the

Conscience Act and the Religious Freedom Act on which plaintiffs’

claims are based expressly authorize plaintiffs to seek judicial relief

-18-

from the courts when their rights are burdened by government action.

See 745 ILCS 70/12 (West 2006); 775 ILCS 35/20 (West 2006).

Thus, this case clearly differs from all of the cited cases that have

considered exhaustion.

Second, even if an exhaustion analysis applies, we note that there

are a number of exceptions that would be applicable. An aggrieved

party may seek judicial review of an administrative decision without

complying with the exhaustion of remedies doctrine where a statute,

ordinance or rule is attacked as unconstitutional on its face. Canel v.

Topinka, 212 Ill. 2d 311, 321 (2004).

Here, plaintiffs’ first amendment claim is a facial challenge to

the statute. The difference between an as-applied and a facial

challenge is that if a plaintiff prevails in an as-applied claim, he may

enjoin the objectionable enforcement of a statute only against himself,

while a successful facial challenge voids enactment in its entirety and

in all applications. Napleton v. Village of Hinsdale, 229 Ill. 2d 296,

306 (2008). Under plaintiffs’ theory, if they prevail, the offending

provisions of subsection (j) would be declared void completely, not

just as applied to plaintiffs. It is therefore a facial challenge.

A challenge to a statute does not become an as-applied challenge,

as opposed to a facial challenge, simply because the text is neutral

and the law appears at first glance to be one of general applicability.

A finding with respect to the facial neutrality of the statute should not

be confused with the ultimate determination that a statute is void on

its face because it has a religious motivation and does not satisfy strict

scrutiny standards. See Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520, 534, 124 L. Ed. 2d 472, 490, 113 S. Ct.

2217, 2227 (1993); Stormans, 524 F. Supp. 2d at 1257-58, 1266. If

a rule is facially neutral as to the text, a court must then look beyond

the face of the rule to determine the true object of the statute. See

Lukumi, 508 U.S. at 534, 124 L. Ed. 2d at 491, 113 S. Ct. at 2227.

Where the object of the rule is to infringe upon or restrict practices

because of their religious motivation, the law is not neutral, and it is

invalid unless it is justified by a compelling interest and is narrowly

tailored to advance that interest. Lukumi, 508 U.S. at 533, 124 L. Ed.

2d at 490, 113 S. Ct. at 2227. Pertinent to this inquiry is the historical

background of the decision under challenge, the specific series of

events leading to enactment of the subject regulation, and the

-19-

legislative or administrative history, including contemporaneous

statements made by members of the decisionmaking body. Stormans,

524 F. Supp. 2d at 1258, citing Village of Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252, 267-68, 50

L. Ed. 2d 450, 465-66, 97 S. Ct. 555, 564-65 (1977). Additionally, the

impact of the law in its actual operation is strong evidence of its

operation and purpose. Stormans, 524 F. Supp. 2d at 1258, citing

Lukumi, 508 U.S. at 535, 124 L. Ed. 2d at 491, 113 S. Ct. at 2228.

Here, the rule at issue is facially neutral as to the text, but

plaintiffs have alleged that the rule was motivated by a desire to

compel religious objectors to dispense Plan B contraceptives in

violation of their beliefs and religious practices. In such a case, the

regulation is subject to strict scrutiny and can only survive if it is

justified by a compelling governmental interest. Accordingly,

plaintiffs did not have to seek a variance and exhaust administrative

remedies before filing their claim in circuit court.

A party may also seek review where no issues of fact are

presented or agency expertise is not involved. Canel, 212 Ill. 2d at

321; Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d 304,

309 (1989). Moreover, exhaustion is not required if the administrative

remedy is inadequate or futile or in instances where the litigant will

be subjected to irreparable injury due to lengthy administrative

procedures that fail to provide interim relief. Canel, 212 Ill. 2d at 321.

In Canel, plaintiffs filed suit in circuit court seeking return of

unliquidated stock that had been turned over to the state but belonged

to plaintiffs. Plaintiffs did not comply with the administrative

procedure that required them to specifically request a hearing with the

Treasurer or seek judicial review of the final administrative decision

of the Treasurer.

This court in Canel excused the lack of exhaustion by stating the

following:

“We note that, in this case, plaintiff specifically alleged that

although section 15 of the Act allows the state discretion in

returning the dividends of unliquidated stock to owners, ‘it

is the policy and practice of [the Treasurer’s office] not to

return to the property owner any income *** on securities

held in custody pursuant to the Act.’ Plaintiff further alleged

-20-

that ‘in no case’ has ‘such income *** ever been returned to

the owner.’ In their motion to dismiss, defendants did not

dispute plaintiff’s allegations on this point. Indeed, one of

defendants’ bases for dismissal was that plaintiff was ‘not

entitled’ to the dividends under the Act. In light of the

parties’ positions, this is not a case where facts need to have

been developed before the agency nor does the question

presented constitute a matter for agency expertise. Rather,

the issue revolves around the construction and meaning of

section 15 of the Act. Moreover, the pleadings reveal that it

would have been futile for plaintiff, or any other similarly

situated claimant for that matter, to exhaust administrative

remedies with respect to asserting a claim for dividends on

stock held by defendants pursuant to the Act because the

defendants’ position in these types of cases is that the Act

transforms into state property dividends earned on shares of

stock presumed abandoned under the Act. Defendants argue

that because of that fact they need not return dividends to the

previous owner. Section 15, however, clearly contains an

exception that provides that claimants may in fact be entitled

to dividends on unliquidated stock. Given that defendants, as

alleged by plaintiff, have never chosen to exercise their

discretion in favor of a claimant–despite the permissive

language of the statute–we hold that exhaustion, under these

circumstances, was unnecessary and that our review of

section 15 is not limited solely to its facial validity. With this

procedural matter settled, we now turn [to] the merits.”

(Emphasis added.) Canel, 212 Ill. 2d at 321-22.

We believe that Canel supports plaintiffs’ position in the present

case that seeking recourse before the administrative agency would be

futile and that this is an exception to the exhaustion requirement.

Plaintiffs have alleged that defendants are on record via the

Governor’s public statements, warning that the entire point of the rule

is to coerce pharmacists with religious objections into dispensing Plan

B contraceptives. The Governor has allegedly publicly stated that

“pharmacists with moral objections [to dispensing Plan B

contraceptives] should find another profession,” and that they “must

fill prescriptions without making moral judgments.” Defendants have

-21-

also declared that the rule will be “vigorously enforced.” Thus, it can

be concluded that granting variances in these kinds of cases would

eviscerate the whole purpose for the rule. Under such circumstances,

exhaustion is not required.

Defendants argue that the main entities they are trying to coerce

are large pharmacies that do not hold religious objections. They argue

that they are trying to prevent situations where an individual

pharmacist with a religious objection is the only one on duty when a

Plan B prescription is called upon to be filled. But, if what defendants

say is true, they could more narrowly tailor the rule to provide an

exemption for pharmacies that hold religious objections. Instead, they

have publicly stated that they will vigorously prosecute pharmacists

with religious objections to drive them out of the profession and that

a pharmacy must fill Plan B prescriptions without making moral

judgments if it wants to stay in business.

Defendants also suggest that plaintiffs could get a variance if

they could show (1) that they were “religious institutions,” i.e., have

true religious objections, and (2) that there were other pharmacies

within a certain number of blocks that would be able to fill such

prescriptions. Then, defendants argue, the statutory standard for a

variance could be met, which requires a showing that no one will be

hurt and that application of the rule in this particular case would be

burdensome and unreasonable. We find defendants’ argument to be

unpersuasive. The public statements of defendants in this case are

analogous to the allegation in Canel that the remedy requested–return

of funds–had never been granted before to anyone. Also, there is no

indication that defendants have ever granted a variance or would

choose to grant one to a pharmacy who refused to dispense Plan B

contraceptives. And again, the Religious Freedom and Conscience

Acts expressly confer a right to file a judicial action when the rights

protected therein are infringed upon.

Beahringer v. Page, 204 Ill. 2d 363 (2003), is the main case

relied upon by defendants to argue the inapplicability of the futility

exception. In Beahringer, the plaintiff inmate filed a declaratory

judgment action alleging that the warden violated his first amendment

rights in authorizing the taking of his art supplies. The inmate had

commenced the required administrative process by filing a complaint

to challenge the confiscation. Basically, the statute required a decision

-22-

within 45 days “whenever possible.” The inmate waited 60 days

without receiving a decision or a response and then filed suit without

first getting the response. Beahringer found that it was not enough for

the plaintiff to allege that grievance procedures with the warden

“historically have failed.” Beahringer also found that the time

requirements were merely directory. Beahringer further stated as

follows:

“A party will not be required to exhaust his or her

administrative remedies when it would be patently useless to

do so. [Citation.] ‘However, the fact that there are clear

indications that the agency may or will rule adversely is

generally inadequate to terminate the administrative process

or to avoid the exhaustion requirement.’ [Citations.] Further,

mere conclusions of fact or law unsupported by specific

factual allegations are insufficient to state a cause of action.

[Citations.]

Plaintiff’s declaratory judgment action was properly

dismissed for failure to sufficiently plead that he exhausted

his administrative remedies. Our holding obviates discussion

of plaintiff’s first amendment claim.” Beahringer, 204 Ill. 2d

at 378.

The case before us is easily distinguished from Beahringer. Here,

plaintiffs have brought a facial challenge to the rule under the first

amendment. Additionally, there is no administrative process that

prevented the instant plaintiffs from bringing their claims in circuit

court. Nor is there any procedure laid out in connection with seeking

a variance. Instead, the statute simply says that the Director may grant

a variance, with a list of criteria, which, based on the Governor’s

prior statements, show that it would violate the purpose of the rule to

grant the variance. As to futility, plaintiffs rely upon more than a mere

allegation that grievances have “historically failed.” Rather, they rely

upon the Governor’s statements that the purpose of the rule is to

coerce pharmacists into violating their religious objections. They also

rely on defendants’ declared intent to “vigorously enforce” the rule

without ever mentioning the possibility that variances might be

granted.

Defendants claim that the appropriate procedure to be followed

in this case is for an aggrieved party to apply for a variance by writing

-23-

a letter or making a telephone call to the Department. The Director

then considers the criteria for granting a variance under section 11 of

the Pharmacy Act. Defendants further claim that granting a variance

is a fact question that needs agency expertise because the Director

would have to look at whether anyone will be hurt and if the applicant

for the variance would really be burdened.

We do not find defendants’ arguments persuasive. There is no

provision in the statute for a hearing before granting or denying a

variance, and the statute does not authorize the Director to conduct

any such hearing. This militates against the notion that a fact question

or agency expertise is crucial. As previously stated, if there are no

questions of fact or agency expertise is not involved, a litigant is not

required to exhaust remedies. In our opinion, this is largely a case

involving a question of law–whether pharmacists and pharmacies can

be compelled to violate their consciences and religious beliefs in

violation of two Illinois statutes and the first amendment. There is no

agency expertise involved. Accordingly, we find that plaintiffs did not

have to seek a variance before proceeding with their claims in circuit

court.

II. Relief

As a final matter, we note that plaintiffs urge this court to reach

the merits of their Conscience Act claim and declare subsection (j)

void and facially invalid. We have previously acknowledged that

plaintiffs’ claims are legal in nature, but we do not believe that it

would be consistent with our role as a reviewing court to rule on the

merits of the Conscience Act where defendants, as of yet, have not

been required to answer the allegations of plaintiffs’ complaint in the

trial court.

Additionally, we note that plaintiffs filed a motion for a

temporary restraining order, which the trial court denied on

justiciability grounds after a hearing. Plaintiffs did not file an

interlocutory appeal from that order under Supreme Court Rules

307(a) or (d) (188 Ill. 2d Rs. 307(a), (d)). Thus, we do not consider

its propriety here. Plaintiffs also moved for a preliminary injunction,

but the trial court did not hold a hearing on this motion or rule upon

it because the court granted defendants’ motion to dismiss with

-24-

prejudice based on justiciability issues. As our discussion above

indicates, we believe that plaintiffs’ claims are ripe and that plaintiffs

were not required to exhaust administrative remedies. The appropriate

remedy is to reverse the judgments of the appellate and circuit courts

and to remand the cause for further proceedings, including a hearing

on plaintiffs’ motion for a preliminary injunction and to allow further

amendments to the plaintiffs’ complaint.

CONCLUSION

For the foregoing reasons, we reverse the judgments of the

appellate and circuit courts and remand the cause to the circuit court

for further proceedings consistent with this opinion.

Judgments reversed;

cause remanded.

JUSTICE FREEMAN, dissenting:

The majority reverses the appellate court, holding that plaintiffs’

challenge to the administrative rule requiring pharmacies to dispense

prescription contraceptives (68 Ill. Adm. Code §1330.91(j) (2005))

is ripe for judicial review. The majority also holds that, even though

plaintiffs undisputedly failed to seek a variance excusing their

compliance with the rule, this did not constitute a failure to exhaust

administrative remedies. Alternatively, the majority concludes that

even if an exhaustion analysis applies, plaintiffs are exempt from the

requirement under various exceptions.

I disagree with the majority regarding the exhaustion issue,

which is dispositive. Plaintiffs’ failure to seek a variance from the

Director5 pursuant to section 11 of the Pharmacy Practice Act of 1987

5

The Illinois Administrative Code defines “Director” as “the Director of

the Division of Professional Regulation with the authority delegated by the

-25-

(225 ILCS 85/11 (West 2004))6 constituted a failure to exhaust

administrative remedies, and plaintiffs were not exempt from the

exhaustion requirement. Plaintiffs’ complaint was properly dismissed

by the circuit court. I write separately to explain why the exceptions

to the exhaustion doctrine asserted by the majority do not apply.

“Generally, a party may not seek judicial relief from an

administrative action unless the party has exhausted all available

administrative remedies.” Arvia v. Madigan, 209 Ill. 2d 520, 531

(2004). An exception to this doctrine provides that a plaintiff who

attacks a statute or rule as unconstitutional on its face need not

exhaust administrative remedies. Arvia, 209 Ill. 2d at 532. In the case

at bar, the majority concludes that plaintiffs’ claim is a facial rather

than an as-applied challenge, and holds that the exception for facial

challenges therefore applies. Citing Napleton v. Village of Hinsdale,

229 Ill. 2d 296, 306 (2008), the majority explains the difference

between facial and as-applied challenges in terms of the differing

results if the plaintiff prevails. “The difference between an as-applied

and a facial challenge is that if a plaintiff prevails in an as-applied

claim, he may enjoin the objectionable enforcement of a statute only

against himself, while a successful facial challenge voids [the]

enactment in its entirety and in all applications.” Slip op. at 19. The

majority continues: “Under plaintiffs’ theory, if they prevail, the

offending provisions of subsection (j) would be declared void

completely, not just as applied to plaintiffs. [Plaintiffs’ challenge] is

therefore a facial challenge.” Slip op. at 19.

The majority fails to mention Napleton’s additional, somewhat

different description of the distinction between facial and as-applied

Secretary [of the Department of Financial and Professional Regulation].”

68 Ill. Adm. Code §1330.5 (amended at 30 Ill. Reg. 16930, eff. October 12,

2006).

6

The Pharmacy Practice Act of 1987 was scheduled to be repealed on

January 1, 2008. However, on October 29, 2007, it was amended and

renamed the Pharmacy Practice Act, and the repeal date was changed to

January 1, 2018. Pub. Act 95–689, eff. October 29, 2007 (amending 225

ILCS 85/1 et seq. (West 2006)).

-26-

challenges when the challenge is first presented, rather than when a

plaintiff prevails. With regard to facial challenges, Napleton explains:

“A facial challenge to the constitutionality of a legislative

enactment is the most difficult challenge to mount

successfully [citation] because an enactment is facially

invalid only if no set of circumstances exists under which it

would be valid. [Citation.] The fact that the enactment could

be found unconstitutional under some set of circumstances

does not establish its facial invalidity.” Napleton, 229 Ill. 2d

at 305-06.

Accord People v. Greco, 204 Ill. 2d 400, 407 (2003). By contrast, “in

an ‘as applied’ challenge a plaintiff protests against how an enactment

was applied in the particular context in which the plaintiff acted or

proposed to act, and the facts surrounding the plaintiff’s particular

circumstances become relevant.” Napleton, 229 Ill. 2d at 306.

In the case at bar, plaintiffs’ challenge to subsection (j) does not

present a “facial” attack. It is premised on religious objections to the

rule’s requirements. However, plaintiffs do not–and cannot–allege

that every retail pharmacy has such religious objections. Nevertheless,

every retail pharmacy must comply with subsection (j). Plaintiffs fail

to allege there is no set of circumstances under which subsection (j)

would be valid. See, e.g., Greco, 204 Ill. 2d at 407. Even if plaintiffs’

challenge were successful, the rule would not be void “in its entirety

and in all applications” (Napleton, 229 Ill. 2d at 306). In this instance,

plaintiffs’ claim is an “as applied” challenge rather than a facial

attack. Accordingly, the exception to the exhaustion doctrine for

facial challenges does not apply here.

Under a second exception to the exhaustion doctrine, a party is

not required to exhaust administrative remedies where it would be

patently futile to do so. Beahringer v. Page, 204 Ill. 2d 363, 378

(2003); Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d 304,

309 (1989). The plaintiff bears the heavy burden of establishing that

the futility exception applies to his or her case. See, e.g., Cullen v.

Town Council, 850 A.2d 900, 906 (R.I. 2004); Coleman v. Newburgh

Enlarged City School District, 319 F. Supp. 2d 446, 450 (S.D.N.Y.

2004); Rann v. Chao, 154 F. Supp. 2d 61, 65 (D.D.C. 2001).

-27-

In the case at bar, the majority concludes that this exception

applies as well, holding that it would be futile for plaintiffs to seek a

variance. The majority points to public statements by the Governor

and other defendants allegedly indicating that the purpose of the rule

is to coerce pharmacists with religious objections into dispensing

emergency contraceptives. The majority states: “[I]t can be concluded

that granting variances in these kinds of cases would eviscerate the

whole purpose for the rule. Under such circumstances, exhaustion is

not required.” Slip op. at 21. In reaching this conclusion, the majority

notes defendants’ contention that the main target of the rule is not

pharmacists with religious objections to emergency contraception, but

rather large pharmacies that do not have such religious objections.

The majority also notes defendants’ argument that “they are trying to

prevent situations where an individual pharmacist with a religious

objection is the only one on duty when a Plan B prescription [is

presented].” Slip op. at 21. However, the majority dismisses these

contentions, asserting that defendants should have “more narrowly

tailor[ed] the rule to provide an exemption for pharmacies that hold

religious objections.” Slip op. at 21-22.

In focusing on public statements to determine the rule’s purpose,

the majority is forced to rely on questionable sources such as press

releases. The majority should have looked to more appropriate

sources such as the rule itself, as amended in April 2008, and the

manner in which it is enforced.

The amended version of the rule (see 32 Ill. Reg. 7116, eff. April

16, 2008, amending 68 Ill. Adm. Code §1330.91(j)), which the

majority describes in the background section of its opinion, retains

the essential features of the previous version of the rule but adds what

the majority describes as “several, more onerous provisions pertaining

specifically to ‘emergency contraception.’ ” Slip op. at 9. Chief

among the changes pertaining to emergency contraception is a new

dispensing procedure called “remote medication order processing”

(RMOP). Notwithstanding the majority’s description of the

emergency-contraception changes as “more onerous,” RMOP, which

takes up the lion’s share of the amendment, actually supports

defendants’ claims that (1) the target of the rule is not pharmacists

with religious objections to emergency contraception, and (2)

defendants are attempting to prevent situations where an individual

-28-

pharmacist with a religious objection is the only one on duty when a

Plan B prescription is presented. Under RMOP, if a pharmacist

objects to dispensing emergency contraception and there is no

nonobjecting pharmacist present at the dispensing pharmacy, a

nonobjecting pharmacist at a different (remote) location may

authorize the dispensing of the drug by a nonpharmacist employee at

the dispensing pharmacy. 68 Ill. Adm. Code §§1330.91(j)(3)(A),

(j)(3)(B) (2008). In addition, a retail pharmacy “is responsible for

ensuring either that there is a non-objecting pharmacist scheduled at

all times the pharmacy is open, or that there is a licensed pharmacist

available to perform RMOP for emergency contraception at all times

the pharmacy is open and no non-objecting pharmacist is available at

the pharmacy.” 68 Ill. Adm. Code §1330.91(j)(4) (2008).

With regard to the manner in which the rule is enforced,

plaintiffs specifically allege only three enforcement actions charging

violations of subsection (j). Similar to the amended version of the

rule, these three complaints provide support for defendants’

contention that the rule is aimed at large pharmacies that do not have

religious objections to emergency contraceptives, rather than

pharmacies that hold such objections. Two of the three complaints

were filed against Walgreen pharmacies, and the third was filed

against an Osco pharmacy. According to defendants, these

enforcement actions “involved large ‘chain’ pharmacies that (unlike

plaintiffs) do stock emergency contraceptives and do not have a

corporate policy of religious refusals to dispense. In those

administrative complaints, the pharmacies allegedly failed to ensure

that their employees complied with store policy and instead allowed

individual pharmacists to obstruct customers’ access to

contraceptives.”

In the case at bar, as previously noted, the majority’s conclusion

that the futility exception applies here is based, in large part, on

public statements by the Governor and other defendants allegedly

indicating that the purpose of the rule is to coerce pharmacists with

religious objections into dispensing emergency contraceptives.

Assuming, arguendo, that it is proper to base a determination of the

rule’s purpose on such public statements, rather than the rule itself

and its manner of enforcement, I note that an examination of these

public statements raises serious questions as to whether the purpose

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of the rule actually was, as the majority asserts, to coerce pharmacists

with religious objections into dispensing emergency contraceptives.

The majority refers, for example, to public statements by

defendants that “they will vigorously prosecute pharmacists with

religious objections.” Slip op. at 22. The apparent source for this

reference is a September 15, 2005, press release from the Department

of Financial and Professional Regulation (Department), titled “Three

Complaints Filed Against Pharmacies for Failure to Dispense

Contraceptives.” While “prosecute” does not appear in the release,

the term “vigorously enforcing” does appear in the subheadline,

which states: “IDFPR [Department] Vigorously Enforcing Gov.

Blagojevich’s Birth Control Rules.” However, the vigorous

enforcement referred to in the subheadline applies to pharmacies, not

pharmacists. While the release, in describing two of the three

complaints, refers to pharmacists refusing to fill prescriptions, the

release nevertheless makes clear that the Department’s enforcement

actions are against pharmacies. The headline, for example, expressly

refers to “Complaints Filed Against Pharmacies.” The first paragraph

of the release supports the headline, noting that the complaints were

filed against “Illinois pharmacies” and explaining that the rule at issue

clarified “the responsibilities of licensed retail pharmacies to fill

prescriptions for all FDA approved contraceptives if the drug store

dispenses birth control medications.”

In sum, the majority’s unequivocal stating of the purpose is not

correct. At a minimum, it is questionable whether the purpose of the

rule is to coerce pharmacists with moral objections into dispensing

emergency contraceptives, or whether, instead, the rule is aimed at

large pharmacies that do not have moral objections to dispensing

emergency contraception, as defendants contend. Under the latter

purpose, it would not be futile for plaintiffs to seek a variance from

the Director. Granting a variance in this situation would not

“eviscerate the whole purpose for the rule.”

Because, at the very least, questions remain as to the rule’s

purpose, which in turn affects whether the variance procedure is

futile, plaintiffs have failed to meet their high burden of establishing

that the futility exception applies to them.

In support of its conclusion that the futility exception does apply

here, the majority relies on Canel v. Topinka, 212 Ill. 2d 311 (2004),

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which held that the plaintiff was exempted from exhausting

administrative remedies because to do so would have been futile. In

Canel, 288 shares of stock belonging to the plaintiff had been turned

over to the state as property presumed abandoned. The stock, which

was unliquidated, ultimately was returned to the plaintiff, but the state

retained the dividends which had accrued on the stock during the time

it was held by the state. The plaintiff filed suit in circuit court

seeking, inter alia, the return of the dividends on the unliquidated

stock. The plaintiff did not comply with the administrative procedure

that required him to specifically request a hearing with the Treasurer

or seek judicial review of the final administrative decision of the

Treasurer. The plaintiff thus failed to exhaust his administrative

remedies.

In concluding that the plaintiff was exempt from the exhaustion

requirement under the futility exception, Canel stated:

“[T]he pleadings reveal that it would have been futile for

plaintiff, or any other similarly situated claimant for that

matter, to exhaust administrative remedies with respect to

asserting a claim for dividends on stock held by defendants

pursuant to the Act because the defendants’ position in these

types of cases is that the Act transforms into State property

dividends earned on shares of stock presumed abandoned

under the Act. Defendants argue that because of that fact

they need not return dividends to the previous owner.

Section 15 [of the Act], however, clearly contains an

exception that provides that claimants may in fact be entitled

to dividends on unliquidated stock. Given that defendants, as

alleged by plaintiff, have never chosen to exercise their

discretion in favor of a claimant–despite the permissive

language of the statute–we hold that exhaustion, under these

circumstances, was unnecessary ***.” (Emphasis in

original.) Canel, 212 Ill. 2d at 322.

Canel is inapposite to the case at bar. In Canel, the defendants’

position was that “the Act transforms into state property dividends

earned on shares of stock presumed abandoned.” Canel, 212 Ill. 2d at

322. The defendants argued that, because the dividends were so

transformed, they need not be returned to the previous owner. In the

instant case, by contrast, defendants argue that plaintiffs should seek

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a variance from the rule’s requirements. Indeed, as the majority itself

notes:

“Defendants also suggest that plaintiffs could get a

variance if they could show (1) that they were ‘religious

institutions,’ i.e., have true religious objections, and (2) that

there were other pharmacies within a certain number of

blocks that would be able to fill such prescriptions. Then,

defendants argue, the statutory standard for a variance could

be met, which requires a showing that no one will be hurt

and that application of the rule in this particular case would

be burdensome and unreasonable.” Slip op. at 22.

In Canel, it would have been patently useless for the plaintiff to

exhaust administrative remedies, given the defendants’ expressly

stated position. That is not the situation in the case at bar. The

majority’s reliance on Canel in the instant case is misplaced.

The majority rejects Beahringer v. Page, 204 Ill. 2d 363 (2003),

as support for defendants’ argument that the futility exception does

not apply in this case. The majority asserts that Beahringer is

distinguishable from the case at bar. Notwithstanding the differences

between the two cases–indeed, because of one of them–Beahringer

is highly relevant to the futility question here.

In Beahringer, the plaintiff inmate filed a grievance over the

confiscation of his art supplies by the Illinois Department of

Corrections (Department). Under the relevant administrative code

provision, a decision on the grievance was required within 45 days

“whenever possible.” The plaintiff waited 60 days without receiving

a decision or a response, and then filed a complaint for declaratory

and injunctive relief. In his complaint, the plaintiff alleged, among

other things, that the Department’s grievance procedure was futile in

his case because it was the warden who initially approved the

confiscation of his art supplies, and grievances filed against warden-

approved actions “historically have failed.” Beahringer, 204 Ill. 2d at

378.

Beahringer held that the plaintiff failed to exhaust his

administrative remedies, and the futility exception did not apply. The

court stated:

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“Illinois recognizes a limited ‘futility’ exception to the

exhaustion of administrative remedies doctrine. A party will

not be required to exhaust his or her administrative remedies

when it would be patently useless to do so. [Citation.]

‘However, the fact that there are clear indications that the

agency may or will rule adversely is generally inadequate to

terminate the administrative process or to avoid the

exhaustion requirement.’ ” Beahringer, 204 Ill. 2d at 378.

In Beahringer, the futility exception was held not to apply even

though the plaintiff alleged that grievances filed against warden-

approved actions historically had failed. In the case at bar, by

contrast, there is no indication that requests for section 11 variances

have historically failed. Indeed, there is no indication that the Director

ever rejected a variance request from a party or parties, situated

similarly to plaintiffs, who refused on moral grounds to dispense

emergency contraceptives. Beahringer is clearly relevant in

determining whether the futility exception applies in the instant case.

I would hold that neither this exception nor the exception for

facial challenges applies. The court’s conclusions to the contrary

ignore the important policy considerations underlying the exhaustion

doctrine, which include: (1) allowing the agency to fully develop and

consider the facts of the cause and to utilize its expertise; (2)

protecting agency processes from impairment by avoidable

interruptions; (3) giving the aggrieved party the opportunity to

succeed before the agency; and (4) allowing the agency to correct its

own errors, thus conserving valuable judicial resources. Beahringer,

204 Ill. 2d at 375. Moreover, this court has repeatedly stated that

cases should be decided on nonconstitutional grounds whenever

possible, and constitutional issues should be reached only as a last

resort. In re E.H., 224 Ill. 2d 172, 178 (2006). The doctrine of

exhaustion of administrative remedies furthers this consideration as

well.

If plaintiffs in the case at bar had sought a variance, this would

have allowed the Director, at a minimum, “to fully develop and

consider the facts of the cause and to utilize [his] expertise.”

Beahringer, 204 Ill. 2d at 375. The Director could have determined,

for example, whether the application of the rule to plaintiffs would

have been unreasonable or unnecessarily burdensome, and whether

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granting the variance would have resulted in injury to any party. 225

ILCS 85/11(c) (West 2004); 68 Ill. Adm. Code §1330.110(a) (2005).

In addition, plaintiffs would have had an opportunity to succeed

before the Director, and thus avoid the need for judicial involvement.

I acknowledge that the question posed by plaintiffs’

appeal–whether subsection (j) may validly require the dispensation of

emergency contraceptives in the face of religious objections–is an

interesting one. However, in view of the important policy reasons

supporting the exhaustion doctrine, including our long-standing

policy that constitutional issues should be reached only where

necessary to decide the case, it is improper for this court to address

the subsection (j) question before the Director is given an opportunity

to consider it via the section 11 variance procedure. I note, in

addition, that plaintiffs are not without a remedy. Under section 11,

they may seek a variance excusing their compliance with subsection

(j). If unsuccessful, they may then seek judicial relief.

I would affirm the judgment of the appellate court upholding the

circuit court’s dismissal of plaintiffs’ complaint. I respectfully

dissent.

JUSTICE BURKE joins in this dissent.

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