Illinois residents could lose significant protection against the growing force of COVID vaccine mandates, as Illinois state lawmakers could move to rewrite the state’s landmark Health Care Right of Conscience Act, rather than risk losing in court against vaccine mandate objectors.
On Oct. 25, Illinois State Rep. Robyn Gabel, a Democrat from Chicago’s north suburbs, introduced legislation that would specifically take away protections under that law from Illinois residents who object on religious grounds to COVID vaccine and testing mandates.
In recent months, a growing number of employers, including some of the world’s largest, have moved to impose COVID vaccine mandates on their workers, leaving a number of those employees facing the prospects of either taking a vaccine to which they object on religious or philosophical grounds, or risk potential economic ruin from lost jobs and devastated careers.
Illinois Gov. JB Pritzker
Those mandates have been encouraged by some of the country’s most powerful people, including President Joe Biden and, locally, by Gov. JB Pritzker and Lori Lightfoot, among other government officials.
Pritzker and Lightfoot have also imposed similar mandates on a host of state and city employees, as well as those working in fields regulated by government, including those working in health care, emergency response, public education and, most recently, child day care.
In response, some of these vaccine mandate objectors have turned to the courts, asking judges to step in to protect what they argue are their constitutional rights to due process, religious freedom and equal protection, among others.
While their constitutional claims are being heard, however, a growing number of those objecting to being compelled to take the vaccine under threat of job losses and other discipline have staked their legal claims under the Illinois Health Care Right of Conscience Act.
While previously little known outside of certain legal circles, the Right of Conscience Act has taken a central role in a growing number of legal actions challenging COVID vaccine mandates.
Such lawsuits typically rely on the Right of Conscience Act’s language prohibiting “any person, public or private institution, or public official” from discriminating “against any person in any manner … because of such person's conscientious refusal to receive, obtain, accept or participate in any way in any particular form of health care services contrary to his or her conscience.”
The law also specifically grants people whose conscience rights may have been violated to sue their employers, whether private or public, potentially handing them a big bill, worth triple damages.
Supporters of the mandates have publicly asserted they do not believe the law’s otherwise plain language can be wielded against such vaccine mandates. They assert the original intent of the law, when it was approved in the late 1990s, was limited solely to protecting doctors and other health care providers from participating in abortions and other religiously objectionable medical procedures.
Pritzker’s administration has taken that position in recent public statements concerning the Right of Conscience Act.
Opponents of vaccine mandates, however, say the law’s language is clear, and should be read to protect the health care conscience rights of all Illinoisans, not just doctors or nurses.
That position has been adopted by police unions, religious freedom advocates and others.
Rockford attorney Austin Scott Davies has been among those championing such an interpretation in online posts for weeks.
“In the legal analysis of statutory construction, to discern the intent of a law you first look to its plain meaning,” said Davies, in response to questions from The Cook County Record concerning the potential change to the law.
“You only look to other sources if there’s ambiguity in a statute. This statute is incredibly clear and incredibly comprehensive,” Davies said.
“To my knowledge, there is no record of legislative debate from when the (Right of Conscience Act) was passed that would indicate that anyone believed it was confined to the health care setting.
“It is concerning if Rep. Gabel does not know the rules of statutory construction. I don’t think this is a matter of ignorance, however.
“This is a concerted campaign of disinformation to strip Illinoisans of their rights.”
Under Gabel’s legislation, the law would be rewritten to specifically declare that COVID vaccine and testing mandates are not prohibited by the law. Further, the revised law would explicitly allow both public and private employers to fire unvaccinated workers; allow schools to “exclude” unvaccinated students; and allow the owners of “public or private premises” – presumably, including stadiums, theaters, restaurants, and other places of public accommodation - to bar unvaccinated people from entering.
Davies noted the changes to the law don’t completely strip vaccine mandate objectors of all legal protections.
He said Title VII of the federal Civil Rights Act and the Illinois Religious Freedom Restoration Act would still force employers and others to allow for religious exemptions. And the Americans with Disabilities Act would still protect claims for medical exemptions from vaccine mandates.
However, the changes to the Right of Conscience Act would be a significant blow to objectors seeking protection under the law.
“The (Right of Conscience Act) is the strongest law in the nation that protects a person’s natural right to choose what health care they receive or do not receive,” Davies said. “The reason that the Governor and Illinois Democrats are so scared of the HCRCA is that it doesn’t allow for any discrimination against those with religious beliefs or conscientious objections.”
The legislation has been introduced as House Floor Amendment 2 to a bill known as Senate Bill 1169. It is currently pending in the Illinois House of Representatives. A hearing is scheduled on Gabel’s Right of Conscience Act amendment before the House Executive Committee on Tuesday, Oct. 26 at 3:30 p.m.