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December 10, 2012

Good News for Supporters of Conscience Rights and Religious Freedom

After the 2012 elections, many of us have been looking for some good news in the headlines. Decisions in Illinois and New York have provided some welcome doses of good news. 

In the state of Illinois, on Tuesday, Dec. 11, the attorney general announced his decision not to appeal the decision of a state appelate court holding that an emergency executive order issued in 2005 by then-Governor Blagojevich could not be enforced against a pharmacy whose owner had religious and conscientious objections to emergency contraception. Blagojevich’s rule demanded that community pharmacies in Illinois stock and dispense all emergency contraceptives without delay. In public comments, Gov. Blagojevich explicitly stated that the purpose of his rule was to coerce pharmacy owners who had religious objections to some forms of emergency contraception. The Catholic Medical Association collaborated with the lead attorneys on the case from Americans United for Life. This is a great victory for conscience rights and underscores the need to have comprehensive state laws protecting conscience rights in place as soon as possible.

On Thursday, Dec. 6, a district judge in the state of New York refused to dismiss the case brought by the Archdiocese of New York against the Obama administration’s HHS mandate. This is the first decision of its kind involving a traditional Catholic institution and means the trial can now go forward. The Obama administration has been trying to get cases such as this dismissed for lack of standing or lack of ripeness (alleging that, because it plans to issue exemptions in the future, no harm has been done). In this regard, the statement of Judge Cogan was clear, memorable, and worth quoting in substantial part: 

“[T]he First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action. . . There is no, ‘Trust us, changes are coming’ clause in the Constitution” . . . “To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction.”  “[T]he Departments have had ample opportunity to enact a meaningful change to the Coverage Mandate. The fact that they have not further suggests the likelihood of injuries to plaintiffs. Ignoring the speeding train that is coming towards plaintiffs in the hope that it will stop might well be inconsistent with the fiduciary duties that plaintiffs’ directors or officers owe to their members,”

There will be a great deal of work to do in preparing for the trial and the inevitable appeals. Stay tuned!

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