Answering the call from Gov. JB Pritzker, the Democratic supermajority in the Illinois General Assembly has moved quickly to revise a state religious liberty law, explicitly stripping away protections that have been used by opponents of COVID vaccine mandates to block employers from firing people who object to being forced to choose between taking the vaccine and losing their jobs.
That move has come over the objections of the state’s Catholic bishops and tens of thousands of others, who have said the move is short-sighted and could ultimately weaken the Illinois Health Care Right of Conscience Act, one of the country’s strongest laws protecting conscientious objectors from being forced to participate in medical actions they oppose on religious grounds.
“Notwithstanding our own Church’s belief that the COVID-19 vaccine is both morally acceptable and an expression of love of neighbor, we are called to respect the sincerely held religious or moral objection that some may have to the vaccine,” wrote Illinois’ seven Roman Catholic bishops, in a joint letter to Pritzker and the state’s legislative leaders.
Noel Sterett
| Dalton + Tomich
“The purpose of the HCRCA is not to protect only the conscience objections of those who share the majority’s beliefs; to the contrary, it is specifically intended to protect those whose consciences demand that they abstain from a medicine or practice favored by the majority.
“Neither the Church nor the State should coerce an individual with sincere conscientious objections to receive a COVID-19 vaccine.”
On Oct. 27, the Illinois House of Representatives, however, approved legislation to explicitly declare the Right of Conscience Act can’t be used to escape COVID vaccine mandates or other COVID-related measures imposed by the state or employers. That was followed by approval from the Illinois Senate on Oct. 28.
Employers have moved in recent months, at the urging of Pritzker and President Joe Biden, to force their workers to receive a COVID vaccine, or face discipline, including termination from their jobs. In response, a growing number of those workers have turned to the courts, filing lawsuits arguing the vaccine mandates are illegal and unconstitutional trespass on their religious freedoms and conscience rights to object.
Pritzker, Democratic state lawmakers and other supporters of COVID vaccine mandates have argued the Conscience Act was never intended to prevent the state or employers from forcing people to take vaccines.
Rather, they said, the law was solely intended to block discriminatory actions against doctors and nurses who object to performing abortions or other medical actions they find religiously or morally objectionable.
Such an argument, seeking to narrow the scope of the Conscience Act, has been advanced by the state before in prior actions in which plaintiffs have used the Act to object to compulsory measures imposed by the state. Yet, courts have, to this point, interpreted the law broadly, using the Conscience Act’s plain language to find the law applies to all Illinoisans.
In the newest lawsuits invoking the Conscience Act, plaintiffs have asserted those broad protections should also apply to COVID vaccine mandates.
And those arguments have met with success, as judges in Illinois have blocked hospitals, particularly, from moving to fire nurses and other workers who have sought religious exemptions from vaccine mandates.
In response, Pritzker has said Illinois Attorney General Kwame Raoul said the General Assembly needed to take action, and explicitly vote to exempt COVID control measures from the Conscience Act’s scope.
Opponents of the measure have said the “declaration of existing law” language was intended to help Pritzker and his allies “thread” a legal needle, and change the law, while still being able to argue Pritzker’s prior actions pertaining to vaccine mandates weren’t illegal under the Conscience Act.
Indeed, at a House committee hearing, a representative of Raoul’s office told lawmakers they needed to support the “declaration,” or risk undoing much of Pritzker’s COVID mitigation strategy.
An original version of the proposed COVID exclusions to the Conscience Act included language seeking to impose the new language immediately. However, that language was removed after the amendment passed out of committee, after supporters realized they didn’t have enough votes to meet the three-fifths majority needed to allow the law to take effect immediately.
The COVID Conscience Act exclusions ultimately was approved with 64 votes – all Democrats – in the House, seven votes short of the three-fifths majority Pritzker had initially sought. There are 73 Democrats in the Illinois House.
The changes were approved in the state Senate, with 31 Democratic votes, again short of a three-fifths majority. There are 41 Democrats in the state Senate, out of 59 total state senators.
The measure is slated to officially take effect in June 2022, and would apply to all litigation pending on that date, or filed after that date.
However, the Pritzker administration and others could use the “declaration” language to argue the law has actually been in effect all along, and challenges to vaccine mandates brought under the Conscience Act should be tossed.
Noel Sterett, an attorney with the firm of Dalton + Tomich, of Rockford, who specializes in religious liberty cases, said he believes the law may have been originally intended to protect health care providers.
But he said the Democrats’ action is “an implicit recognition” by Pritzker and his allies in the General Assembly that the Conscience Act, as it was written and interpreted by the courts, did, in fact, provide protection to objectors to COVID vaccine mandates.
“This law was obviously written in a strong and broad fashion, to provide robust protection,” said Sterett. “But I don’t think it was written with an occurrence like COVID-19 in mind, as no one could have foreseen something like COVID-19.”
Both Sterett and attorney Austin Scott Davies, also of Rockford, said only time will tell what the long-term effects of the Conscience Act “declaration” may be in the courts, or how the courts will treat the “declaration.”
But both said the changes will leave religious objectors with much fewer legal options when it comes to seeking exemptions to COVID vaccine mandates.
By declaring the law should have always contained no protections against COVID vaccine mandates, Davies said Democrats in Springfield have now ensured the Conscience Act “will contain a codification of a lie.”
“Regardless of how this ‘declaration of existing law’ nonsense is treated, the application of this amendment will repeal an incredibly powerful and important right that was protected by and enshrined in the HCRCA - the right of Illinoisans to be free from health care that violates their conscience,” Davies said.
Pritzker has labeled concerns that the changes will drastically weaken the Conscience Act as "Facebook fakery," and opponents have “misinterpreted (the Conscience Act) ... to try to allow people who just don’t want to get vaccinated, the anti-vaxxers, the anti-maksers, to avoid the rules.”
A spokesperson for the Liberty Justice Center, a conservative non-profit legal foundation in Chicago, noted that organization is litigating against vaccine mandates. Notably, LJC used the Conscience Act to secure a court order on behalf of nurses in suburban Riverside against a vaccine mandate.
As of Thursday afternoon, she said the LJC was still waiting to see what the General Assembly does with the legislation.
“It certainly would be unfortunate if the General Assembly moved to change the law to stymie it’s residents at precisely the time when they need the rights this law provides,” said LJC spokesperson Kristen Williamson.
Editor's note: This article has been revised from an earlier version to reflect the approval of the measure by the Illinois State Senate on Oct. 28.