The Democratic majority in Illinois’ state capitol has moved, at the urging of Gov. JB Pritzker, to revise the state’s strict Right of Conscience law to specifically thwart the ability of people to use the law to win court orders protecting their ability to object to COVID vaccine mandates without risking job losses and economic ruin.
However, precisely how those changes to the law will hold up in court and how soon those changes can be used to shut down a growing number of legal challenges to the law, may depend on how judges receive a legislative device inserted into the legislation to attempt to give the changes immediate effect, despite their failure to win enough votes to allow the changes to the law to take effect immediately.
“Looking at this bill, it is certainly an interesting way to attempt to articulate a position on a legal question many years after the fact,” said attorney Scott Szala, who now serves as an adjunct professor at the University of Illinois College of Law.
“It is understandable that this may draw a court challenge.”
Szala practiced law for more than four decades in Illinois, including 34 years with the Chicago firm of Winston & Strawn, retiring in 2014 as a capital partner, specializing in civil and criminal trials and litigation.
Szala stressed the comments he shared with The Cook County Record are solely his personal opinions.
On the books in Illinois since the late 1970s, the Right of Conscience Act generally protects Illinoisans from being compelled to participate in medical acts they believe contradict their religious or conscientious beliefs.
The law explicitly 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.”
Employers and government officials, including Pritzker and President Joe Biden, have stepped up efforts in recent months to compel people to receive the COVID vaccine, or risk losing their jobs.
In response, a growing number of those workers have turned to the courts, filing lawsuits arguing the vaccine mandates are an illegal and unconstitutional trespass on their religious freedoms and conscience rights.
Many of those lawsuits have cited the anti-discrimination language in the Health Care Right of Conscience Act, which vaccine mandate objectors have argued is clear and unambiguous in protecting religious objections to any form of medical act or procedure, including vaccination amid a pandemic.
Pritzker, Democratic state lawmakers and other supporters of compulsory COVID vaccinations have argued vaccine mandate objectors are misusing the law. They assert the Conscience Act was intended to protect doctors and nurses from being fired or disciplined for refusing to participate in abortions or other religiously controversial medical procedures, not to protect regular people who do not wish to be forced to receive a vaccine.
To this point, courts have interpreted the law more broadly, using the Conscience Act’s plain language to find the law applies to all Illinoisans, not just doctors and nurses.
Judges in Illinois have also cited the law in blocking hospitals, particularly, from moving to fire workers who have sought religious exemptions from vaccine mandates.
In response, Pritzker and his Democratic allies have moved to shut down those lawsuits by changing the law to explicitly strip away conscience protections from COVID vaccine mandate objectors.
Initially, Pritzker and his allies sought to have the bill take effect immediately. However, that would have required the legislation to receive a three-fifths majority.
In the face of stiff and swift opposition from tens of thousands of Illinois residents, the measure passed the state House and Senate in two days, with only token committee hearings. However, the legislation fell short in both chambers of the votes needed to take effect immediately.
Rather, the new legislation is now slated to take effect on June 1, 2022. At that time, the legislation says all lawsuits over COVID-19 vaccine mandates must end, whether they had been filed before or after the effective date.
But the legislation also included unusual language, which vaccine mandate supporters have said could be used to persuade judges to still toss out legal challenges to vaccine mandates mounted under the Conscience Act.
The amendment to the Act included language declaring the revision to the law is not an actual change to the law, and not a new law. Rather it is merely a “declaration of existing law.”
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.
However, whether that gambit will find success in the courts remains an open question.
Szala said he believed the amendment revising the Right of Conscience Act represents a real change to the law, notwithstanding the “declaration of existing law” language.
Szala noted supporters of the mandates are not wrong in stating lawmakers originally passed the law to address concerns religious adherents working in health care could face discrimination over objections to abortions, in particular.
“Clearly, this law was not written with COVID-19 or COVID vaccines in mind,” said Szala. “COVID didn’t exist when this law was enacted.
“So, certainly, a judge would look at this very carefully.”
But Szala said he believed the revised law could yet face a challenge, particularly from vaccine mandate objectors who may seek judges’ interpretation of the law, with a view to how the new revisions work in conjunction with the law.
Szala noted he could not remember ever seeing such a “declaration of existing law” in other statures during his 43 years of practice in Illinois courtrooms. And he said it is not unusual for laws written with broad language, to be used for purposes beyond the intent of the lawmakers who initially wrote them.
“This seems almost like a belt-and-suspenders approach to add that language,” Szala said.
While a challenge to the law may yet come, a southern Illinois lawyer behind many of the legal challenges to Pritzker’s COVID mandates and restrictions said he did not expect to be the one to bring them.
Attorney Tom Devore, of Silver Lake Legal Group, of Greenville, both in a video posted to Facebook and in comments to The Cook County Record, said he didn’t believe the changes to the Conscience Act meant any change for lawsuits brought against vaccine mandates under that law.
“It actually kind of helps my clients,” Devore said.
Devore said he believed the amendment was passed at this time to convince “good people” the law had changed.
He said he believed the legislation amounted to little more than a “resolution” of the General Assembly “that has the appearance of a law,” in which lawmakers in October 2021 sought to tell judges and the public what they believed lawmakers decades earlier actually had meant when they passed the Conscience Act.
“Courts interpret the law,” said Devore. “The legislature doesn’t get to interpret.”
Editor's note: This article has been revised from an earlier published version to remove certain quotes from a source who, after publication, wished to retract their comments. The retraction did not address or concern any issues of fact or substance related to the content of this article.