After well over a year of successfully fending off every legal challenge to his executive powers during the pandemic, it now appears that Gov. J.B. Pritzker might have reached the limits of his authority.
The brick wall is the state's decades-old Health Care Right of Conscience Act, which was originally designed to protect doctors and other health care workers from any repercussions if they refused to participate in abortion or other medical procedures/treatments they opposed.
"The biggest source of frustration and the biggest challenge right now related to the vaccine (mandate) issue is the Health Care Right of Conscience Act and how to manage that in this environment," Tom Bertrand, the executive director of the Illinois Association of School Boards, told me.
The statute is so broadly written that it's being seized upon by folks who are attempting to evade the state's vaccination/testing mandates.
Statute excerpt: "It shall be unlawful for any public official, guardian, agency, institution or entity to deny any form of aid, assistance or benefits, or to condition the reception in any way of any form of aid, assistance or benefits, or in any other manner to coerce, disqualify or discriminate against any person, otherwise entitled to such aid, assistance or benefits, because that person refuses to obtain, receive, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any form of health care services contrary to his or her conscience."
"Conscience" is defined 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." Pretty darned broad. Democrats wouldn't ever pass that bill today, considering the climate.
The law's definition of "health care" includes the word "testing." And Nauvoo-Colusa School District teachers who've refused vaccines have convinced the school board to exempt them from the weekly mandatory testing opt-out, citing the HCRCA. The school system is already under Illinois State Board of Education probation for not enforcing the state mask mandate. The school is in Hancock County, which has a mind-numbing positivity rate of 17.6 percent and just 33.4% of residents are fully vaccinated.
Nobody at the IASB or the Illinois Association of School Administrators knows yet how widespread the use of this law is, but, said one official, "It's the most chaotic period I've ever seen in Illinois schools."
"It's really difficult right now because there's just no clarity," said the IASB's Bertrand.
There is talk of attempting to require HCRCA refusers to somehow prove their beliefs are "sincerely held." But that could be fraught with problems.
Both teachers unions supported the governor's vax/test mandate. But several of their members are now raising money to hire attorneys. And that means the unions are caught in the middle.
Sarah Antonacci, the Illinois Education Association's director of communications, said, "At this time, we are unaware of any court that has found that the law provides a basis of objection for education employees who oppose the mandates set forth in the governor's Executive Order."
Antonacci also admitted that the issue had created a rift between those who support the mandate "and those who believe the government may have overstepped its bounds in mandating any of these things."
Illinois Federation of Teachers President Dan Montgomery said the existing law "did not contemplate a global health pandemic," but said it, "could take a long time" to settle legal questions in the judicial branch.
I asked both politically powerful unions if they would support a legislative fix to clarify that the law does not apply in these cases. Only the IFT's Montgomery answered, saying the union "would consider supporting," a change.
Beyond a general support for the governor's COVID response, the Democratic super majority in the General Assembly has shied away from legislation because intense backlash can so easily be ginned up on Facebook nowadays. Since there was no real need to step in as long as the courts were siding with Pritzker, members would just as soon let that sleeping dog lie.
But there may be no choice now. The governor's people say they need an amendment to the current law if there's any hope of enforcement. I think there could be a way to press hard on the "sincerely held" beliefs angle, but, barring that, if legislative Democrats want to see this thing through, then they may have to finally stick their political necks out.
• Rich Miller also publishes Capitol Fax, a daily political newsletter, and CapitolFax.com.