Federal Court Rules Pharmacists Cannot Be Forced To Sell “Morning After” Pill
A Federal District Court Judge has ruled that a pharmacist cannot be required to stock and dispense the so-called Plan B birth control pill if he has a moral objection to abortifacients:
A federal judge ruled Wednesday that pharmacists cannot be forced by state rules to sell “morning-after” contraceptives, also known as Plan B.
The case has been active for more than four years and started when two pharmacists, Margo Thelen and Rhonda Mesler, at Ralph’s Thriftway pharmacy in Olympia denied a woman the Plan B pill based on their religious opposition to it.
“Today’s decision sends a very clear message: No individual can be forced out of her profession solely because of her religious beliefs,” Luke Goodrich, deputy national litigation director at the Becket Fund for Religious Liberty, a non-profit law firm representing Ralph’s Thriftway, said in a statement.
The state Board of Pharmacy, represented by Attorney General Rob McKenna, said the rules mandating pharmacies carry drugs for which there is a public need are clear and unbiased.
“The state will argue the rules are neutral, generally applicable and rationally relating to the legitimate interest of the state in promoting timely delivery of lawful medication,” a spokeswoman for McKenna told the Olympian newspaper in November. “The plain language of the rules applies to all time sensitive medications.”
U.S. District Judge Ronald Leighton, however, ruled that the “Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable. They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted.”
National Review’s Ed Whelan summarizes the court’s ruling:
In its opinion today, the federal district court correctly ruled that the regulations do violate plaintiffs’ Free Exercise rights. Specifically, the court determined that the regulations are not neutral for purposes of deference under Employment Division v. Smith. Rather, they “are riddled with exemptions for secular conduct, but contain no such exemptions for identical religiously-motivated conduct” and thus amount to an “impermissible religious gerrymander.” Likewise, the regulations are not “generally applicable” but rather “have been selectively enforced, in two ways”: First, the rule that pharmacies timely deliver all lawful medications has been enforced only against the plaintiff pharmacy and only for failure to deliver plan B. Second, the rules haven’t been enforced against the state’s numerous Catholic-affiliated pharmacies, which also refuse to stock or dispense Plan B.
For each of these reasons, the regulations are therefore subject to strict scrutiny, which they can’t survive.
The obvious parallel that this case brings to mind, of course, is the HHS mandate regarding coverage for contraceptives as applied to religious institutions. Indeed, the Beckett Fund, which represented the Plaintiffs in this case, is also representing several Catholic institutions in lawsuits that have already been filed regarding the contraceptive mandate across the country. While the facts of the cases are different, Whelan points out that the arguments under the Religious Freedom Restoration Act may actually be stronger against the HHS mandate than against the Washington State pharmacy regulations
1. The argument that the HHS mandate violates the Religious Freedom Restoration Act is far simpler to grasp than today’s sound ruling is. In part that’s because, in the case of the HHS mandate (a federal action subject to RFRA), there’s no need to reach the Free Exercise issue, including the threshold question whether the mandate is a neutral and generally applicable law for purposes of deference under Employment Division v. Smith (it’s not). In part that’s because it’s so immediately obvious that the HHS mandate flunks the “least restrictive means” test.
Before today, I already regarded the position that the HHS mandate violates RFRA as a slam-dunk winner, as a 9-0 ruling in the event that the issue ever reaches the Supreme Court. (It probably won’t reach the Court, as it’s highly unlikely that any court of appeals will get this one wrong.)
I’m not sure that I agree completely with Whelan that the issue as much of a slam-dunk as he seems to think that it is, however this ruling does demonstrate that the legal arguments against the HHS mandate are perhaps stronger than I had initially considered them to be. This particular case is likely to be appealed to the 9th Circuit, but I think we can also expect that the legal challenges to the mandate, as applied to religious employers, will be litigated for years to come, and the outcome is far from certain.
Here’s the opinion: