Page 26 - John Hundley 2008

questions, that they had presented evidence that they already had suffered financial harm,
and that the regulation “poses harm to the plaintiffs that is even greater than financial loss” –
the chilling effect on alleged First Amendment rights – the Court rejected the ripeness and
standing grounds for dismissal.
The Morr-Fitz plaintiffs alleged that forcing them to dispense the “morning after” contraceptives –
which prevent fertilized eggs from implanting into the uterine wall – violated their religious beliefs.

When a case involves an administrative agency, ordinarily a plaintiff must exhaust all potential
remedies within that agency before turning to the courts. However, a 5-2 majority found that that
usual rule did not apply in Morr-Fitz because the plaintiffs were invoking the Health Care Right of
Conscience Act (745 ILCS 70) and the Religious Freedom Restoration Act (775 ILCS 35), which
expressly authorized judicial relief, and because the Pharmacy Practice Act (225 ILCS 85) had no
provision for administratively challenging agency rules on grounds of conscience.

Even if the exhaustion rule were facially applicable, the majority said, exceptions to that rule
would have excused the Morr-Fitz plaintiffs. First, it said, one may seek judicial review of an
agency decision without exhausting administrative remedies “where a statute, ordinance or
rule is attacked as unconstitutional on its face”, as the Morr-Fitz plaintiffs alleged was the case.

Second, the majority said the exhaustion requirement will be excused “where no issues of fact
are presented or agency expertise is not involved”. The challenges posed by the plaintiffs were
purely legal, not fact-oriented, and involved no agency expertise, it said.

Finally, exhaustion of administrative remedies will be excused where resort to such remedies
would be futile, the majority said. Citing Gov. Blagojevich’s public statements on the regulation and
the apparent lack of any basis for a variance by the agency, the majority concluded that proceeding
before the agency would be futile.

Justices Charles Freeman and Anne Burke dissented from the decision on exhaustion-of-remedy
grounds.

Because the decision involved legal issues distinguishable from those which the suit raised on
the merits, it does not necessarily say anything about how the Court would rule on
those merits, which issues the Supreme Court sent back to the Circuit Court for further
consideration. However, the majority’s comments about the chilling effect on alleged
First Amendment rights, and its reliance on the motivation of the Governor as
expressed outside of court, suggest some sympathy for the plight of the pharmacists
under the regulation. Whether such sympathy will extend to striking down the regu-
lation is an issue which will have to await another day.
However, look for plaintiffs to start using Morr-Fitz’ teachings on ripeness, stand-
ing and the exhaustion doctrine immediately, and in cases having nothing to do with such contra-
ceptives.

John\Sharp Thinking\#15.doc.
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