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Guaranteed Access to Prescriptions


Guaranteed Access to Prescriptions

In 2005, Illinois enacted a rule that guaranteed that women's birth-control prescriptions would be filled.  Upon receipt of a valid and lawful prescription for contraception, a pharmacy was required to dispense the contraceptive or a suitable alternative without delay.  Ill. Admin. Code tit. 68, § 1330.91 (Enacted 2005; Last Amended 2008).  

This law was challenged in court.  Menges v. Blagojevich, No. 3:05-CV-O3307-JES-BGC (C.D. Ill. filed Dec. 21, 2005); Morr-Fitz, Inc. v. Blagojevich, No. 104692 (Ill. filed May 23, 2007); Vandersand v. Wal-Mart, No. 3:06-CV-03292-JES-DGB (C.D. Ill. filed Dec. 11, 2006).  Parties reached a settlement agreement in the Menges and Vandersand cases, providing for an amendment to the law that would allow pharmacies to work by electronic communication with an off-site pharmacist to process the request if an individual pharmacist objected to dispensing the medication and no other pharmacist was available on-site.

In December 2008, the Supreme Court of Illinois reversed a lower court's dismissal of the pharmacies' complaint in the Morr-Fitz case, sending the case back to the lower courts without ruling on the merits of the regulation. Morr-Fitz, Inc. v. Blagojevich, No. 104692 (Ill. 12/18/08). 
In August 2009, a county circuit court judge granted a preliminary injunction preventing the state from enforcing the law against the pharmacies until the court made a final decision on the merits of the claim.  Morr-Fitz, Inc. v. Blagojevich, No. 05CH495 (Ill. 08/21/09).   On April 29, 2010, Illinois repealed the 2005 rule and replaced it with a new, broader regulation, one part of which requires pharmacies to dispense women's birth control.  Upon receipt of a valid prescription for lawfully prescribed medication, or upon request for nonprescription medication approved by the FDA for behind-the-counter distribution by pharmacies, a pharmacy was required to dispense the medication or a suitable alternative in a timely manner.  If the pharmacy did not have the medication or an alternative in stock, the pharmacy was required to obtain it in a manner consistent with customary pharmacy practice.  In the alternative, a patient may have chosen to have the prescription transferred to a different pharmacy or have the prescription returned.  

On May 28, 2010, in light of the new rule, the judge in the Morr-Fitz case expanded the August 2009 preliminary injunction that exempted the pharmacies in the case from complying with the law.  The judge did so to allow them to decline to stock or dispense emergency contraception and to allow them to file an amended complaint given the new rules.  Morr-Fitz, Inc. v. Blagojevich, No. 05CH495 (Ill. 05/28/10).  A trial was held in March 2011.  

On April 5, 2011, the judge declared the law invalid as a violation under state and federal religious freedom laws and the state was enjoined from enforcing it.  Morr-Fitz, Inc. v. Blagojevich, No. 05CH495 (Ill. 04/5/11).  The state appealed the decision.  In September 2012, an appellate court ruled that the injunction applies only to the pharmacies in this specific case.  It reversed the lower court's ruling that the state was blocked from enforcing the rule, and it is now back in effect. Morr-Fitz, Inc. v. Blagojevich, No. 4-11-0398 (Ill.App.4th 9/20/12).

Ill. Admin. Code tit. 68, § 1330.500(e-h) (Enacted 2010).

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