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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:

Stormans Inc. et al v. Selecky et al

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. So on one hand, the government has the power to jail you if you buy a Morning After Pill from anyone other than person X, but has no power to actually make person X sell them to you when you do?

    That makes no sense. If pharmacists don’t want the obligation to sell certain drugs, stop demanding the government enforce your monopoly power to act as a gatekeeper to them.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 0

  2. legion says:

    What Stormy said. A Pharmacist is a Pharmacist is a Pharmacist. They are all held to certain standards of professional performance in the service of public health – they simply don’t have the same freedom from obligation as a random service-provider. It’s one thing is a house painter says “I don’t want to work for you because of X”; it’s another thing altogether if a medical professional says the same thing. How does this interpretation prevent a doctor from saying “You got injured during the commission of a crime; I don’t want to operate on you”?

    Additionally, Whelan’s review implies (to me, anyway) that the main problem in this particular case was less about the law’s overall Constitutionality, and more about how it had been unevenly applied & poorly written; this definitely doesn’t seem to have the level of applicability to the current HHS mandate, IMHO.

    Like or Dislike: Thumb up 3 Thumb down 1

  3. Tsar Nicholas says:

    Presumably the 9th Circus will reverse, but that merely would set the stage for an easy reinstatement by the SCOTUS and thus a national binding precedent that would cause liberal heads to explode.

    One other point is germane: Bush 43 made a ton of mistakes, but one area in which he almost never screwed up was the federal judiciary. Even when he had to work with complete Moonbats like Murray and Cantwell he managed to get solid judges onto the bench, such as Judge Leighton. If Bush had gotten one more SCOTUS vacancy to fill the country today would be in a lot better shape.

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  4. DMan says:

    What an awful society that would force these people to be pharmacists!

    Like or Dislike: Thumb up 8 Thumb down 0

  5. Jay says:

    @legion: I think there’s a difference here. You’re arguing that society can force a licensed pharmacist to sell a product that is against their religion, and to do otherwise, would be like inviting doctors to refuse to “sell” something with which they have no objection to a person who they do not like. The first example is about the product, the second is about the buyer. I think we can make a reasonable line in the sand between the two cases.

    I’ve been on the fence about this issue for some time. I think there should be a price to operating a monopoly power as do pharmacists and doctors. On the other hand, I’m afraid that allowing the government to overrule business people prevents states/towns from maintaining their values at the expense of national legislation, which can be…fickle.

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  6. OzarkHillbilly says:

    So let me get this straight: If my employer has a religious objection to safety glasses, he can make me buy my own or maybe even force me to do without? (existing OSHA regs require them to be provided)

    Like or Dislike: Thumb up 5 Thumb down 0

  7. Eric says:

    So then how would businesses respond to this? They can’t sell their Plan B pills if their staff refuses to sell them on religious grounds, yet they cannot fire them on religious grounds. I mean this is a tricky issue and probably can (I use the word lightly) be applied to many other issues such as gay marriage, as commented on an earlier article.

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  8. Nikki says:

    Then make it over-the-counter so that pharmacist’s religious beliefs don’t come into play. This is ridiculous. I am not just tired, but sick and tired of someone’s religious beliefs taking precedent with regard to my health issues.

    Like or Dislike: Thumb up 14 Thumb down 1

  9. grumpy realist says:

    I’m fine with this rulling, providing that the pharmacist pays for the medical costs of the pregnancy, delivery, and raising any child resulting from this until 18 years of age.

    You want to make medical decisions that have effects on people’s lives due to your religion? Then take responsibility for the consequences.

    Like or Dislike: Thumb up 16 Thumb down 2

  10. John D'Geek says:

    Y’all really don’t understand what a Monopoly is.

    If this were the only Pharmacy (chain) available in the state of Washington, then you might have a point; but as it is, anyone with a pharmacists license can open a pharmacy. Those licenses are restricted by professional requirements. If Planned Parenthood is really that worried about “Plan B”, they could always open pharmacies themselves.

    Like or Dislike: Thumb up 1 Thumb down 4

  11. DRS says:

    You’re arguing that society can force a licensed pharmacist to sell a product that is against their religion…

    Not to pick on Jay for this but just because he phrased it so well I’m quoting him.

    How many other products in the average pharmacy might be against his religion? There’s a belief in Catholic circles that suffering physical pain is a way of showing a connection with Christ – does that mean that painkillers are out the window? What about Advil and Tylenol?

    How about birth control pills that are prescribed for non-contraceptive reasons such as regulating the menstrual cycle? Does the pharmacist have to be persuaded by each customer and their doctor that really, no kidding, it’s not about birth control?

    Here’s a simple rule of thumb – if it’s against your religion, don’t YOU do it. What other people do is NONE OF YOUR BUSINESS. You’re either in the profession of selling medically approved products or you’re not. Doesn’t seem difficult to me.

    Like or Dislike: Thumb up 9 Thumb down 1

  12. Gromitt Gunn says:

    Hypothetical: Should a pharmacist who is a Scientologist be allowed to refuse to fill psychiatric prescriptions?

    Like or Dislike: Thumb up 7 Thumb down 0

  13. @John D’Geek:

    Those licenses are restricted by professional requirements.

    Not in this case, because repeated attempts to make the Morning After pill over the counter have been blocked by the exact same people complaining about being forced to then fill the prescriptions. The restriction is based entirely on politics, not professional requirements of any sort. Again, you can’t legitimately make a huge effort to get the government to force people to come to you and only you for some service and then, once you’re the only legal source for that service, want to bow out from providing it on moral grounds.

    The church ladies want to have their cake and eat it too.

    Like or Dislike: Thumb up 7 Thumb down 1

  14. Herb says:

    @Gromitt Gunn: “Should a pharmacist who is a Scientologist be allowed to refuse to fill psychiatric prescriptions? ”

    Why not? Everyone knows operating a pharmacy is a constitutionally protected religious practice. You ever been to a Christian Scientist pharmacy? It’s always closed. I went to one pharmacy and they gave me a bundle of sage and some peyote buttons. What a joke. What’s a sick man to do? Thankfully, the faith healer down the block now takes Medicare. Finally, Uncle Sam recognizes the power of the Goddess….

    Like or Dislike: Thumb up 4 Thumb down 0

  15. PD Shaw says:

    I guess I agree with Whelan that this is a broader claim of religious exemption than was being made with respect to mandatory contraception coverage. But it does share at least one of the same problems, once exemptions are given, the government can no longer claim that it is pursuing the legitimate goal of enforcing a broad, comprehensive body of regulations. If you exempt Peter, you may ultimately have to exempt Paul.

    But I do think there is a legitimate government interest in making sure that “time is of the essence” drugs are available where you would expect them to be.

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  16. PD Shaw says:

    This also appears to be the state of the law in Illinois Link.

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  17. KariQ says:

    I am getting a stronger and stronger feeling that religious conservatives will not be happy until women in this country are in burqas and on the rare occasions we’re allowed out without them, we will be required to hold aspirin between our knees at all times.

    Like or Dislike: Thumb up 9 Thumb down 2

  18. Gromitt Gunn says:

    @John D’Geek: Are you so unfamiliar with rural America and poverty that you can’t imagine a situation in which there might only be one pharmacy within 100 miles of you? Or one where, you don’t have a car and if your town’s sole pharmacy refuses to fill a time-senstive prescription, it is a 3 hour bus ride or an all day walk to get to the next town over?

    Like or Dislike: Thumb up 12 Thumb down 0

  19. FredW says:

    This is where religious law is introduced into the American legal canon, paving the way for Sharia law in America.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. PD Shaw says:

    Having read the case, I may not have realized how odd Washington law is, and I don’t think the other commentors here appreciate it. Washington has so many broad business-related exceptions to the drugs it must stock that a rural pharmacy probably does not need to stock the morning after pill if it doesn’t want to. In particular, the pharmacy does not need to carry a drug if its not in its “business niche,” or because of cost or administrative burdens. These are pretty big holes, and in particular mean Washington pharmacies may not carry oxycodone, cough medicine, or Sudafed.

    What a pharmacy will be punished for is expressing a religious reason for not stocking an item. In that context, the state is punishing religious expression in a porous regulatory environment; and that is actually worse than Obama’s neutral discrimination that simply burdens religious beliefs.

    Like or Dislike: Thumb up 0 Thumb down 2

  21. WR says:

    @KariQ: “I am getting a stronger and stronger feeling that religious conservatives will not be happy until women in this country are in burqas and on the rare occasions we’re allowed out without them, we will be required to hold aspirin between our knees at all times. ”

    It’s not just this country. It’s a lot of Islamic countries. And it’s Israel, too. It’s anywhere that religious fundamentalists get power. Because their first order of business is always to make sure that women are second class citizens.

    Like or Dislike: Thumb up 5 Thumb down 1

  22. superdestroyer says:

    An Ob/Gyn cannot be forced to perform an abortion. In reality, almost no hospital permits elective abortions to be performed inside their facility.

    Why should physicians be allowed one standard and pharmacist be forced into another standard.

    You cannot walk into a doctor’s office and demand that they perform a procedure. Besides, pharmacies do not carry all the prescription drugs currently for sale. Maybe the women should be told by the prescribing physician which pharmacy to go to.

    Like or Dislike: Thumb up 0 Thumb down 3

  23. legion says:

    @Jay:

    The first example is about the product, the second is about the buyer.

    I see the argument you’re making, and it might actually be the best way to argue this specific case, since (as I understand it) it’s solely about selling an abortifacient, rather than general contraception products. But I think it’s not a cut-and-dried defense; a skillful cross-examiner might be able to paint the Pharmacist’s moral objection as a judgement about the buyer… it’d be tricky though.

    This leads me to another line of thought, though… if the pharmacy this guy works for carries/offers a particular product, where the hell does he get off refusing to sell it? Legal issues aside, isn’t this grounds for firing?

    Like or Dislike: Thumb up 1 Thumb down 0

  24. legion says:

    @superdestroyer: You might consider sitting back & thinking for a good ten seconds or so before posting. It’s not a cure-all, but you might occasionally notice that you have no idea what you’re talking about.

    An Ob/Gyn cannot be forced to perform an abortion.

    You cannot walk into a doctor’s office and demand that they perform a procedure.

    A doctor has the training, experience, authority, and responsibility to determine if a given procedure is medically necessary and/or dangerous for the patient. A pharmacist does not. If an MD writes a prescription, no pharmacist has the standing to say “no, you don’t need that.” They fill the script, or they find another line of work.

    Maybe the women should be told by the prescribing physician which pharmacy to go to.

    Go back and read that sentence again. You do realize that would be completely illegal, don’t you?

    Like or Dislike: Thumb up 2 Thumb down 4