Neutral Pharmacy Rules Upheld Over Religious Objections

In a religious freedom decision, the Ninth Circuit Court of Appeals upheld the state of Washington’s rules requiring the timely delivery of prescription medication over two pharmacists religious objections. The pharmacists objected to delivering emergency contraceptives on the grounds of religious freedom.

The issue presented is whether a pharmacist must timely delivery emergency contraceptives when the state’s rules for pharmacies are neutral and generally applicable. The federal appellate court upheld the state’s pharmacy rules because “the rules are neutral and generally applicable and that the rules rationally further the State’s interest in patient safety.”1

Washington Pharmacy Rules and Regulations

Through the Washington Revised Code, a state commission is created to regulate the practice of pharmacy. The commission uses a comprehensive regulatory scheme “for the protection and promotion of the public health, safety, and welfare.”2 In 2007 the commission created two new rules. The Responsibility Rule states prescription holders have the rights to the prescription and namely the pharmacy cannot destroy or refuse to return the prescription.3 The Delivery Rule states FDA approved drugs must be delivered in a timely manner.4

Facts

The case involves Storman’s Inc., that operated a grocery store that had a pharmacy and separate pharmacists individually named. Each of the plaintiffs / pharmacists either refused to stock or to dispense the emergency contraceptives Plan B and ella.5 Plaintiffs / pharmacists cited their right to religious freedom as a defense to violating the 2007 rules and regulations.

In 2007 a federal district court prohibited the enforcement of the rules through a preliminary injunction, applying a strict scrutiny test. The ruling allowed the pharmacists to decline dispensing the emergency contraceptives.

In 2009 the Ninth Circuit Court of Appeals vacated the preliminary injunction and sent the case back to the federal district court for further proceedings. Because the Ninth Circuit held the rules were neutral and generally applicable, in contrast to the federal district court.

In 2010 the Commission considered whether to change the rules to allow a “conscientious objection to prescription medication.”6 The case sent back down to the federal district court was delayed while the Commission made its decision. Later in 2010 after public comments and deliberations the Commission decided not to change the 2007 rules.

In 2012 after a bench trial, the federal district court again held the rules were neither neutral, nor were generally applicable and used strict scrutiny to invalidate the rules. Plaintiffs won on their Free Exercise of Religion claim.

Free Exercise of Religion Claim

The First Amendment protects religion in two ways prohibiting an establishment of religion and permitting the free exercise of religion. This issue revolves around whether plaintiff’s right to freely exercise their religion was restricted by the state’s pharmacy regulations.

The First Amendment does not stop the government from creating valid “neutral laws of general applicability.”7  The court makes the point the pharmacists had a choice, when becoming pharmacists, and cannot force their religious beliefs onto others.

The Ninth Circuit notes the rule of law is established that a “neutral law of general application need not be supported by a compelling government interest even when “the law has the incidental effect of burdening a particular religious practice.”8 Neutral laws of general application only need to survive rational basis scrutiny and if the laws are not neutral and generally applicable strict scrutiny applies.9

The statute must be both a neutral law and of general application.

Test for Neutrality

Neutrality is established on a facial and an operational level. Facial neutrality is determined by what the intent of the law. One way to determine operational neutrality is to see if “the challenged ordinances accomplished a ‘religious gerrymander,’ an impermissible attempt to target religious practices through careful legislative drafting.”10

The Ninth Circuit found the rules here operate in both a facially and operationally neutral manner. The rules intent was to require safe and timely distribution of medication. Operationally, the rules apply to all prescription medication and not just emergency medication.

Even though the pharmacy owners who are most impacted by the rules, object, does not mean the law is invalid. “The Free Exercise Clause is not violated even if a particular group, motivated by religion, may be more likely to engage in the proscribed conduct.”11

Test for General Applicability

The over-arching theme of general applicability is: “A law is not generally applicable if it, in a selective manner, imposes burdens only on conduct motivated by religious belief.”12 The general applicability of a statute can be broken down by 1. substantial under-inclusion; 2. individualized exceptions; or 3. selective enforcement.

Substantial under-inclusion occurs when a law seeks governmental interest by under-including secular conduct, and instead focuses on religious conduct.13 The court holds the rules permit the pharmacies to operate in its normal course of business, in the interest of patient safety, a secular concern.

Individualized exceptions are discretionary rules that allows those who enforce the rules to discriminate against religion.14 The Ninth Circuit cautions “[t]he mere existence of an exemption that affords some minimal governmental discretion does not destroy a law’s general applicability.”15 The hallmark of an individual exception is when it is applied for secular reasons, but not for religious reasons.16

Selective enforcement occurs when rules and laws are enforced against religious actions, but not secular actions.17 Even though there were other ways for the commission to enforce the rules, selective enforcement must be proven, not inferred. The court will not “second-guess how the executive branch exercises its discretion to enforce administrative regulations.”18

Rational Basis Review

Because the court held the rules were generally applicable and neutral they are reviewed on a rational basis.19 Plaintiffs have the burden of showing the rules and regulations are not related to a legitimate government interest. The Court holds Plaintiffs fail to meet their burden.

Equal Protection Claim

No equal protection arguments were advanced on appeal, even though they were argued at the trial court. The Ninth Circuit dispenses with this issue as moot since it wasn’t argued.

Due Process Claim

Plaintiffs argue that the rules and regulations infringe upon the fundamental right to refrain from taking human life. If a law infringes upon a fundamental right, then the action must be narrowly tailored and serve a compelling state interest.20 If the laws do not infringe upon a fundamental right, they are valid as long as they serve a legitimate government interest. The Ninth Circuit does not think a fundamental liberty is at stake here. There is little consensus on the issue on whether emergency contraceptives do affirmatively take human lives by preventing fertilization. Furthermore, the plaintiffs in this case did not provide any scientific evidence to support their beliefs. Because a fundamental liberty is not at stake, rational basis review is appropriate and the rules and regulations are valid.

Joseph Thomas

Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.
Joseph Thomas

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  1. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 9).
  2. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 10).
  3. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 10).
  4. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 11-12).
  5. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 13-14).
  6. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 15).
  7. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 18) (stating “[t]he right to exercise one’s religion freely, however, does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (quoting Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990) (internal quotation marks omitted).
  8. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 18) (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (internal quotation marks ommitted).
  9. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 18-19).
  10. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 20) (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 535-37 (1993).
  11. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 20) (citing Reynolds v. United States, 98 U.S. 145, 166–67 (1878).
  12. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 26) (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993) (internal quotation marks omitted).
  13. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 26).
  14. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 29).
  15. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 32).
  16. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 32).
  17. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 33-34).
  18. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 35) (citing Wayte v. United States, 470 U.S. 598, 607–08 (1985).
  19. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 37).
  20. Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. July 23, 2015) (slip op. at 39).

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Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.

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