Hobby Lobby’s recent win at the Supreme Court could add weight to a lawsuit by Christian pharmacists in Washington state who are fighting Planned Parenthood to maintain their right to refuse to sell abortion-inducing drugs
The legal teams that won at the high court on behalf of Hobby Lobby and furniture-maker Conestoga Wood Specialties have filed a brief this week at the request of the U.S. Court of Appeals for the 9th Circuit about the impact of the high court’s decision on the case brought by two Washington pharmacists and a pharmacy owner. The 9th Circuit had suspended activity in the pharmacists’ lawsuit, Stormans v. Wiesman, until the Supreme Court issued its landmark ruling June 30.
The pharmacists are opposed to state regulations that would force them to dispense the “Plan B” and “ella” drugs in violation of their religious convictions rather than allow them to refer patients to other nearby pharmacies.
“No one should be forced to choose between their deepest religious convictions and their profession,” said Kristen Waggoner, senior counsel with Alliance Defending Freedom and lead counsel for the plaintiffs challenging the state regulations. “Washington’s law is an extreme outlier. Many of the most respected medical and pharmaceutical associations, including the American Pharmacists Association, support the right of a provider to refer patients. The state allows providers to refer for nearly every other reason except conscience.”
After a 12-day trial in 2011, a federal district court in Washington suspended the state’s regulations. The ruling permitted the two pharmacists and the owners of Ralph’s Thriftway in Olympia, Washington, to continue to refer customers rather than sell the drugs, which can terminate human life after conception.
The district court found that the state adopted its new regulations “primarily (if not solely)” to ban religiously motivated referrals while the state, at the same time, permits pharmacies to refrain from stocking and delivering drugs for “almost unlimited” business, economic and convenience reasons. The state and attorneys from Planned Parenthood appealed the decision to the 9th Circuit.
For four generations, Kevin Stormans’ family has owned Ralph’s Thriftway in Olympia. Regulations passed by the Washington State Pharmacy Board in mid-2007 mandated that pharmacies like Ralph’s Thriftway must stock and dispense the “morning-after” pill if requested by a patient. Stormans chose not to stock the product in his pharmacy after reading research demonstrating that the pill can prevent the implantation of a fertilized egg, an early-stage abortion procedure that Stormans opposes on religious, moral and ethical grounds. Stormans Inc. and two pharmacists, Margo Thelen and Rhonda Mesler, who work elsewhere, are challenging the regulations in federal court.
In its opinion, the district court observed: “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. The rules are unconstitutional as applied to Plaintiffs.”
“The government cannot say that referrals motivated by profit or preference are OK, but referrals motivated by a religious belief are not,” said ADF Senior Counsel Steven H. Aden.
As the brief filed with the 9th Circuit explains, “it is undisputed that the effect of the regulations is to force Plaintiffs to choose between their religious exercise and their profession.”
“That is a deeply troubling result in light of Hobby Lobby,” the brief says. “It is all the more troubling when the State has stipulated that Plaintiff’s conduct causes no harm; when there is ‘an existing, recognized, workable, and already-implemented’ alternative that fully meets the State’s goals; … when the State regularly permits that alternative for a host of non-religious reasons; and when 35 state and national pharmacy associations fully support the use of that alternative for religious reasons.”
In the Hobby Lobby decision, the Supreme Court ruled that closely held for-profit corporations can to be exempt from a law its owners religiously object to if there is a less restrictive means of furthering the law’s interest. For such companies, the Court directly struck down the contraceptive mandate, a regulation adopted by the U.S. Department of Health and Human Services under the Affordable Care Act requiring employers to cover certain contraceptives for their female employees, by a 5-4 vote.
Attorneys with Alliance Defending Freedom, the Becket Fund for Religious Liberty, and the Seattle law firm Ellis, Li & McKinstry represent clients in the Washington case.
Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.