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State's high court hears arguments in contraception case

Posted March 17, 2008 11:00 pm

Dean Olsen

Gov. Rod Blagojevich's rule requiring pharmacies to fill prescriptions for the "morning-after" pill poses a direct threat to the religious freedom of business owners and pharmacists and should be overturned, Illinois Supreme Court justices were told Tuesday.

"The illegal coercion of this rule has gone on long enough," said Mark Rienzi, a lawyer from Washington, D.C., who is defending pharmacy owners Luke Vander Bleek and Glenn Kosirog.

Rienzi said during oral arguments in the 2 1/2-year-old case that Vander Bleek and Kosirog's rights were violated by the rule even though their pharmacies in Morrison, Sycamore, Genoa and Chicago never have faced state discipline in connection with the measure.

Assistant attorney general Laura Wunder, who argued in favor of the rule, said it's unlikely the pharmacies would face discipline.

Vander Bleek, a Morrison pharmacist, and Kosirog, who works in the Chicago area, estimate their pharmacies have received more than 15 requests for emergency contraception -- most commonly prescribed as the medicine Plan B -- since Sangamon County Circuit Judge John Belz dismissed their challenge of the state rule in 2005.

An Illinois Appellate Court panel backed Belz's ruling a year ago. That let stand the governor's effort to prevent women from being denied emergency contraception.

Plan B, a concentrated dose of the same compounds used in conventional birth control pills, is the most common form of emergency contraception and is up to 90 percent effective if taken within 72 hours of unprotected sex.

Both Plan B and regular birth control pills primarily work by preventing ovulation.

Vander Bleek and Kosirog, who share Christian views but aren't business partners, say they believe Plan B is more likely than regular birth control pills to prevent a fertilized egg from implanting. They believe that preventing implantation is a form of abortion.

The rule doesn't require pharmacies to stock Plan B, but it does require pharmacies to order the medicine if a patient requests it.

The patients whose prescriptions were returned by Vander Bleek and Kosirog's pharmacies didn't ask that the medicine be ordered when told that the businesses didn't stock Plan B. But if asked, the pharmacies would refuse to order Plan B. That could result in suspension of their licenses to operate, Rienzi said.

Vander Bleek and Kosirog say pharmacies are protected by the Illinois Health Care Right of Conscience Act. State officials contend that pharmacies and pharmacists aren't covered by the act, even though U.S. District Court Judge Jeanne Scott, in a related case, ruled last summer that pharmacists are, in fact, covered by the act.

Striking down the rule wouldn't necessarily result in women being denied Plan B, Rienzi said outside the courtroom.

"If the state wants to make it more available … the state could give it out for free," he said. "The state could keep a database so that every customer would know exactly which pharmacies carry it and which do not."

Wunder said pharmacies don't have to stock Plan B under the current rule. She added that the Food and Drug Administration's decision in 2006 to make Plan B available without a prescription to people 18 and older will reduce the number of prescription requests for the medicine.

The pharmacies also could request an exemption from the rule, she said.

However, the rule could get tougher on pharmacy owners next month. The General Assembly's Joint Committee on Administrative Rules is scheduled to consider a change requested by the Blagojevich administration to require all pharmacies to stock emergency contraception if they sell any forms of prescription contraception.

Dean Olsen can be reached at (217) 788-1543.

Options for the Illinois Supreme Court in a challenge of the state's emergency-contraception rule by two pharmacy owners:

-- Strike down the current Illinois rule that requires pharmacies to dispense emergency contraception.

-- Agree with lower courts in ruling against the pharmacy owners because the owners haven't yet been harmed by the rule.

-- Decide that the owners have legitimate arguments and send the case back to Sangamon County Circuit Court to rule on those arguments.

How Plan B works:

Plan B, a concentrated dose of the same compounds used in conventional birth-control pills, is the most common form of emergency contraception and is up to 90 percent effective if taken within 72 hours of unprotected sex.

Doctors say both Plan B and regular birth control pills primarily work by preventing ovulation -- the release of an unfertilized egg from the ovaries.

The medicines also can work by changing the lining of the uterus so a fertilized egg can't implant. This situation is different from what happens when the abortion pill, RU-486, causes an implanted, fertilized egg to dislodge.

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