This week, Illinois state lawmakers appear poised to quickly take action on a proposal backed by Gov. JB Pritzker to rewrite the state’s Health Care Right of Conscience Act to strip out protections courts have said the law gives to opponents of COVID vaccine mandates.
But the lawyer behind many of the most high profile legal challenges to Pritzker’s governance by executive order since the onset of the COVID pandemic says the proposed changes won’t end the fight over the proper balance the state should strike between seeking to tamp down a viral pandemic and respecting the constitutional freedoms and conscience rights of Illinois residents.
“The most striking part about this new legislation, is the way they wrote it,” said attorney Tom Devore. “They’re trying to thread a needle here.
Illinois Gov. JB Pritzker
“But it’s almost like it’s an acknowledgement that everything that has been going on to this point, may have been beyond the authority of the government to do.”
This week, Democratic State Rep. Robyn Gabel, of Evanston, introduced legislation to amend the Illinois Health Care Right of Conscience Act. Under the language introduced at Pritzker’s behest by Gabel, the law would be rewritten to specifically rip away protections under that law now afforded to Illinois residents who object on religious or philosophical grounds to COVID vaccine and testing mandates.
The Right of Conscience Act in recent weeks has formed the foundation for a growing number of lawsuits brought against employers and governments in Illinois by people who object to COVID vaccine and testing mandates, which often leave those religious and conscientious objectors facing a choice between taking the vaccine and being forced to violate their beliefs and principles, or suffer catastrophic economic ruin from lost jobs and devastated careers.
Those employer vaccine mandates have been encouraged by Pritzker, as well as on the national stage by President Joe Biden.
Pritzker, Biden and Chicago Mayor Lori Lightfoot, among other government officials, have also imposed vaccine mandates on a host of workers in Chicago, Illinois and across the country, threatening people with the loss of jobs and other economic risks, unless they comply with the mandate.
In response, some of these vaccine mandate objectors have turned to the courts, often citing the Illinois Health Care Right of Conscience Act in their lawsuits. Specifically, they point to language in the Right of Conscience Act which forbids employers and government officials from discriminating against “any person” in Illinois “in any manner” over that person’s “conscientious refusal to receive, obtain, accept, perform … any particular form of health care services contrary to his or her conscience.”
Devore, of Silver Lake Legal Group, of downstate Greenville, has particularly led the way in crafting lawsuits based on that language. Devore and his colleagues, for instance, secured a court order in Quincy in western Illinois, blocking a hospital there from taking action against nurses who sought religious exemptions to a COVID vaccine mandate.
The Right of Conscience Act also factored prominently in a Kankakee judge’s decision this week to block enforcement of a vaccine mandate against objectors working at a hospital there, as well.
Faced with the prospect of a mounting string of such losses in court, and perhaps many more months of appeals and continuing court fights, Pritzker and his allies in the Illinois General Assembly have moved to rewrite the law, to declare the law cannot be used to block COVID vaccine and testing mandates in any setting.
Further, under the proposed changes, schools would be allowed to kick out any students who refuse to abide by any COVID-related mandates, and owners of “public and private premises” – presumably, including stadiums, theaters, restaurants, hotels and other places of public accommodation – would be expressly free to bar anyone not vaccinated against COVID from entering their property.
The proposed changes ignited a storm of opposition from vaccine mandate objectors across the state.
And according to official tallies, opponents swamped supporters, as more than 48,000 people signed witness slips opposing the measure, compared to just more than 600 in support.
Despite such overwhelming public opposition among the witness slips, however, the committee voted 9-6, with all Democrats in support, to advance the changes to the Illinois House floor for a vote, potentially as soon as Wednesday.
Those voting in favor in committee were Reps. Jaime Andrade (D-Chicago), Kambium Buckner (D-Chicago), Jonathan Carroll (D-Northbrook), William Davis (East Hazel Crest), Marcus Evans, Jr. (D-Chicago), Jehan Gordon-Booth (D-Peoria), Elizabeth Hernandez (D-Cicero), Delia Ramirez (D-Chicago) and Robert Rita (D-Blue Island).
No votes were cast by Reps. Avery Bourne (R-Litchfield), Dan Brady (R-Normal), C.D. Davidsmeyer (R-Jacksonville), Deanne Mazzochi (R-Westmont), Ryan Spain (R-Peoria) and Keith Wheeler (R-North Aurora).
As the measure is written to be imposed immediately, it will require 71 yes votes, or three-fifths majority, to pass, as written.
While there are 73 Democrats in the Illinois House, some of those Democratic representatives this week have indicated tepid support, if not deep concern, over the proposed changes.
Should the measure pass the House, it would also need similar concurrence from the Illinois State Senate.
However, even if the measure passes, Devore said he doesn’t believe it will end the battle in the courts.
He noted, for instance, what he said was a strange feature of Gabel’s and Pritzker’s proposed changes to the Right of Conscience Act. While expressly declaring the law should not be read to restrict COVID-related control measures and governmental orders, the legislation insists the changes are not a revision of the law. Rather, the legislation includes language saying the legislation is “a declaration of existing law and shall not be construed as a new enactment.”
Pritzker and his supporters have indicated they believe the Right of Conscience Act should be read narrowly, merely protecting doctors and nurses from being compelled to perform medical acts, like abortion, which may conflict with their religious or conscientious beliefs.
Devore said the decision to include the “declaration” language indicates the changes are merely designed to “give cover” for all COVID-related actions taken to this point, which conflict with the “clear language” of the Right of Conscience Act.
“They’re trying to use this to get around that, saying, ‘Oh, we’re not actually changing the law, we’re only saying what the law already says,’” said Devore. “That’s illogical, almost absurd.
“There is no way anyone reading this law could infer any kind of limitation in (the Right of Conscience Act.)”
Devore further said he believed lawsuits under the Right of Conscience Act could continue, even if the proposed changes are approved by the General Assembly.
He noted, for instance, that the proposed legislation would bar the Right of Conscience Act’s protections from applying to situations in which employers or government officials move to enforce actions “intended to prevent contraction or transmission of COVID-19 or any pathogens that result in COVID-19 or any of its subsequent iterations.”
Devore noted that, while COVID vaccines have proven effective at reducing the risk of hospitalization and death among those who contract the coronavirus that causes the sickness, those vaccines have proven far less effective at actually preventing infection or transmission of that virus among the vaccinated.
He said that would be a potential legal flashpoint, “even under this weird language they are trying to put in there.”
“I think people, my clients, will still have a cause of action, even if this passes,” he said.
But he said the fight over the Right of Conscience Act only underscores a point he and others have been making about Pritzker’s actions since the beginning of the COVID pandemic.
“Ultimately, these fights have never really been about masks or vaccines, or whether they’re a good idea, or not,” said Devore. “It’s been about the rule of law, and the absolutely thin ice on which this governor has done all of this, ruling by executive fiat, for all this time.”