In 2010, Illinois issued an administrative rule requiring that pharmacies dispense all lawfully prescribed drugs, including emergency contraception, or face sanctions. Last week, an Illinois appellate court in Morr-Fitz v. Quinn held that Illinois’ Conscience Act prohibits enforcement of the rule as applied to the plaintiffs, pharmacy owners with ethical convictions against distribution of emergency contraception.
The case was decided on state law grounds, and involved a rather thorough textual analysis of the Illinois Conscience Act and the administrative rule regarding pharmacies’ obligations to dispense. The most interesting part of the court’s analysis, in my opinion, was its discussion of whether the need for emergency contraception qualifies as an emergency.
By its terms, the Illinois Conscience Act does not relieve medical providers from their legal obligations to provide “emergency medical care.” The state defendants in this case argued that “because ‘every hour counts’ in the effectiveness of Plan B contraceptives, the provision of emergency contraceptives falls within this exception.” The court, however, concluded that emergency medical care necessarily involves “an element of urgency and the need for immediate action,” and that a woman’s need for emergency contraception does not fall within this definition. According to the court, unlike a ruptured appendix or surgical shock, “unprotected sex does not place a woman in imminent danger requiring an urgent response.”
What do you think?
I’ve been meaning to give this case a closer look (and haven’t gotten to it yet), but I don’t think that the definition of emergency should necessarily require physical danger. Instead, I think it is sufficient that something requires urgent/immediate action to avoid foreclosing future options or irreversible results. That is certainly the case with emergency contraceptives. The statute/reg doesn’t define emergency?
Surprisingly, the Conscience Act doesn’t define “emergency” in this context. To arrive at its definition of “emergency,” the court looked to a Public Safety Employee Benefits Act case, Gaffney v. Board of Trustees of the Orland Fire Protection District. In Gaffney, the Illinois Supreme Court was called upon to define the term because PSEBA requires employers to pay a firefighter’s ongoing health insurance premiums if he is injured or dies while responding to “what is reasonably believed to be an emergency.” Apparently, the statute in Gaffney also failed to define “emergency.” Legislators, take note!