Appeals court rules Christian-owned pharmacy must sell morning-after pill

A panel of judges of the 9th U.S. Circuit Court of Appeals ruled last week that a family-owned pharmacy must dispense morning-after pills in violation of the owners’ Christian faith. The court reversed a Washington federal district court ruling, which said the state’s rules unfairly targeted religious pharmacy owners and workers.

In January 2006, the Washington State Board of Pharmacy investigated the refusal by some pharmacists to “dispense lawfully prescribed medications,” according to the lawsuit. The board’s investigation singled out the refusal of a few pharmacies and pharmacists to sell abortifacient drugs marketed as emergency contraceptives such as Plan B and Ella.

Initially, the board unanimously approved a rule allowing pharmacists with religious objections to refrain from dispensing the medication or refer customers to other suppliers of the drug. But due to pressure from then-Gov. Christine Gregoire, the board instituted new rules in 2007 requiring that pharmacies distribute all FDA-approved drugs and prohibiting them from refusing to do so on religious grounds. The rules allowed pharmacists an individual right to refuse filling objectionable prescriptions, but denied pharmacies that privilege.

Kevin Stormans, one of the owners of Ralph’s Thriftway in Olympia, Wash., refuses to sell Plan B or Ella at the family-run pharmacy because he believes life begins at fertilization. The pharmacy’s policy is to refer patients seeking abortifacient drugs to one of 30 pharmacies within 5 miles of the store.

Stormans filed suit and was granted a preliminary injunction from the rules. Two individual pharmacists who worked elsewhere joined the suit, claiming the rules could cost them their jobs because pharmacies would have to hire a second on-duty pharmacist to deliver the medication. “Such a cost is unreasonable, and the pharmacy’s only real option is to fire the conscientious objector,” the suit said. In February 2012, U.S. District Judge Ronald Leighton sided with the pharmacists.

“The Board of Pharmacy’s 2007 rules are not neutral,” Leighton wrote, “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. The rules are unconstitutional as applied to plaintiffs.”

The state of Washington appealed the ruling to the 9th Circuit.

On July 23, the panel of judges held that the state’s pharmacy rules were “rationally related to Washington’s legitimate interest in ensuring that its citizens have safe and timely access to their lawful and lawfully prescribed medications” and reversed the earlier court ruling.

If a customer has to travel to another pharmacy for medication when it is unavailable at the first stop, the situation would hurt the state’s goal of “ensuring timely delivery” because “speed is particularly important considering the time-sensitive nature of emergency contraception,” the court wrote. In addition, the court said referrals “could lead to feelings of shame in the patient that could dissuade her from obtaining emergency contraception altogether.”

The court’s opinion did acknowledge that “pharmacies whose owners object to the distribution of emergency contraception for religious reasons may be burdened disproportionately” by the state’s rules.

“The government has no business punishing citizens solely because of their religious beliefs,” said Luke Goodrich, deputy general counsel of the Becket Fund for Religious Liberty. “The pharmacists’ [referral] practices are also supported by the American Pharmacists Association and are legal in every other state.”