Krewionek v. McKnight

2022 IL App (2d) 220078

217 N.E.3d 424

466 Ill.Dec. 597

Magdalena KREWIONEK and Urszula Bosowski, Plaintiffs-Appellants,

v.Matthew Gregory MCKNIGHT, M.D., D.D.S., d/b/a McKnight Oral, Maxillofacial and Dental Implant Surgery, Defendant-Appellee.

No. 2-22-0078

Appellate Court of Illinois, Second District.

Filed November 14, 2022

Rehearing Denied December 14, 2022

Jared M. Schneider, of Schneider Law, P.C., of Bloomington, Indiana, for appellants.

Jessica D. Causgrove and Franklin Z. Wolf, of Fisher & Phillips, LLP, of Chicago, for appellee.

PRESIDING JUSTICE BRENNAN delivered the judgment of the court, with opinion.

¶ 1 In October 2021, plaintiffs, Magdalena Krewionek and Urszula Bosowski, filed a complaint against their employer, defendant, Matthew Gregory McKnight, M.D., D.D.S., pursuant to the Health Care Right of Conscience Act (Act) ( 745 ILCS 70/1 et seq. (West 2020)). They alleged that defendant violated section 5 of the Act when he discriminated against them by terminating their employment following their conscientious refusal to obtain one of the vaccines against COVID-19 (hereinafter, COVID-19 vaccine). Id. § 5. The trial court dismissed the complaint, and plaintiffs appeal. We affirm the dismissal pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code). 735 ILCS 5/2-619(a)(9) (West 2020). Specifically, section 13.5 of the Act, which (1) removes measures intended to prevent contraction or transmission of COVID-19 from the protection of the Act, (2) became effective during the pendency of this appeal, and (3) applies to all actions commenced or pending on or after its effective date, defeats plaintiffs’ claim. 745 ILCS 70/13.5 (West Supp. 2021).

¶ 2 I. BACKGROUND

¶ 3 A. Plaintiffs’ Complaint

¶ 4 On October 12, 2021, plaintiffs filed the operative complaint against defendant. They alleged that, in late August 2021, defendant, a dentist and physician operating a dental implant and surgical office in St. Charles, mandated that all of his employees receive one of the available COVID-19 vaccines within 10 days if they wished to continue working at the office. Plaintiffs, two members of defendant's office staff whom he had hired as at-will employees less than six weeks earlier, refused. Plaintiffs informed defendant that they had sincerely held moral convictions against receiving the vaccine. Defendant nevertheless terminated their employment.

¶ 5 Plaintiffs alleged that defendant violated section 5 of the Act, which provides in part that:

"It shall be unlawful for any person, public or private institution, or public official to discriminate against any person in any manner *** because of such person's conscientious refusal to receive, obtain, accept, perform, *** or participate in any way in any particular form of health care services contrary to his or her conscience." 745 ILCS 70/5 (West 2020).

¶ 6 The Act defines "conscience" as "a sincerely held set of moral convictions arising from belief in and relation to God, or which, though not so derived, arises from a place in the life of its possessor parallel to that filled by God among adherents to religious faiths." Id. § 3(e).

¶ 7 B. Defendant's Section 2-619.1 Motion to Dismiss

¶ 8 On December 17, 2021, defendant moved to dismiss pursuant to section 2-619.1 of the Code. 735 ILCS 5/2-619.1 (West 2020) (allowing combined motions to dismiss under sections 2-615 and 2-619). Defendant did not designate which arguments fell under section 2-615 and which fell under section 2-619 (id. §§ 2-615, 2-619). In substance, however, defendant raised a section 2-615 argument that, regardless of the sincerity of plaintiffs’ moral convictions, the complaint was insufficient at law because the Act did not protect those who stood in plaintiffs’ shoes. Defendant argued that the Act's purpose was to excuse healthcare providers from performing or aiding in legal treatment options—like abortion to third parties—because they have conscience-based objections, not to excuse healthcare workers from receiving a required medication—such as a vaccine—to continue employment. See, e.g. , Rojas v. Martell , 2020 IL App (2d) 190215, ¶ 23, 443 Ill.Dec. 212, 161 N.E.3d 336 (the Act was created in response to Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), "to address the moral dilemma in which health care providers might find themselves if called upon to provide services that are contrary to their consciences"). Defendant cited several provisions of the Act, including sections 2, 3(a), and 6.1, which, in his view, demonstrated that the Act applied only to persons who raised conscience-based objections to their role in providing health care services to third-party patients, so long as their objections did not unduly compromise the third-party patient's access to quality health care. See 745 ILCS 70/2, 3(a), 6.1 (West 2020). Defendant urged that plaintiffs’ claim was simply too far afield from the Act's roots and purpose.

¶ 9 Defendant also preemptively raised a section 2-619(a)(9) argument that section 13.5 of the Act defeated plaintiffs’ claim. Section 13.5, with an effective date of June 1, 2022, provides:

"Violations related to COVID-19 requirements. It is not a violation of this Act for any person or public official, or for any public or private association, agency, corporation, entity, institution, or employer, to take any measures or impose any requirements, including, but not limited to, any measures or requirements that involve provision of services by a physician or health care personnel, intended to prevent contraction or transmission of COVID-19 or any pathogens that result in COVID-19 or any of its subsequent iterations. It is not a violation of this Act to enforce such measures or requirements. This Section is a declaration of existing law and shall not be construed as a new enactment. Accordingly, this Section shall apply to all actions commenced or pending on or after the effective date of this amendatory Act of the 102nd General Assembly. Nothing in this Section is intended to affect any right or remedy under federal law." (Emphasis added.) 745 ILCS 70/13.5 (West Supp. 2021).

¶ 10 C. Plaintiffs’ Response

¶ 11 On January 19, 2022, plaintiffs responded. Plaintiffs acknowledged that certain sections of the Act specifically guard against any lapse in care to a third-party patient when a person raises a conscience-based objection to participating in an aspect of that third-party patient's care. Plaintiffs posited, however, that the broad and inclusive terms of sections 2 and 5 afford protections to

"all persons who refuse to obtain *** health care services and medical care *** and to prohibit all forms of discrimination *** upon such persons *** by reason of their refusing to act contrary to their conscience *** in *** refusing to obtain, receive, accept, deliver, pay for, or arrange for the payment of health care services and medical care." (Emphases added.) 745 ILCS 70/2 (West 2020).

Thus, plaintiffs continued, the Act is broad enough to include them because they are part of the group "all persons," who raised a conscience-based objection to the receipt of health care services and medical care, and that objection resulted in the termination of their employment.

¶ 12 Separately, plaintiffs addressed section 13.5. They disagreed that section 13.5, were it to go into effect, would compel the dismissal of their claim. In plaintiffs’ view, "the [COVID-19] vaccines *** do not stop people from contracting or transmitting COVID-19."

¶ 13 D. Trial Court's Order

¶ 14 On March 2, 2022, the trial court granted defendant's section 2-619.1 motion to dismiss. It adopted the arguments outlined in defendant's motion. As to section 13.5, it wrote:

"[T]he newly added Section 13.5 of the Act appears to have been created with the matter at bar in mind. That section specifically excludes ‘any measures or requirements... intended to prevent contraction or transmission of COVID-19’ from the auspices of the Act. While plaintiffs argue that the provision does not become effective until June of this year, [the] statute itself ends any debate. It notes: ‘This Section is a declaration of existing law and shall not be construed as a new enactment.’ There has seldom been a more obvious pronouncement of public policy or legislative intent or interpretation for an existing statute." (Emphasis omitted.)

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 Plaintiffs challenge the dismissal of their complaint, which alleged only a violation of the Act. This case is, therefore, narrower in scope than some of the recent COVID-19 vaccine mandate cases seen in the federal courts. See Doe v. NorthShore University HealthSystem , No. 1:21-cv-05683, 2021 WL 5989092 (N.D. Ill. Nov. 30, 2021) (bringing a challenge under Title VII of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000e-2(a)(1) (2018) ), in addition to the Act); Troogstad v. City of Chicago , 571 F. Supp. 3d 901 (N.D. Ill. 2021) (bringing challenges under the first and fourteenth amendments ( U.S. Const., amends. I, XIV ) in addition to the Act).

¶ 18 Another unique aspect of plaintiffs’ appeal is that section 13.5 became effective after they filed their opening brief but before defendant filed his response brief. Defendant argues, and we agree, that section 13.5 now provides the most direct way to resolve this appeal. Section 13.5 unequivocally states that it applies to "all actions commenced or pending on or after the effective date of this amendatory [a]ct." (Emphasis added.) 745 ILCS 70/13.5 (West Supp. 2021). Plaintiffs’ claim is a pending claim. Plaintiffs conceded at oral argument that section 13.5 now applies to their claim. However, plaintiffs disagree that defendant's particular vaccine requirement fits within the scope of section 13.5 and argue that, even if it does, defendant must prove as much at trial. The question of section 13.5's effect is raised against the backdrop of a section 2-619.1 dismissal.

¶ 19 A. Section 2-619.1

¶ 20 Section 2-619.1 of...