Attorneys in Washington state filed a brief in federal appeals court last week arguing their clients shouldn’t have to choose between their livelihoods and their consciences. State law requires all pharmacies to dispense the abortifacient drugs Plan B and Ella. A pharmacy and two pharmacists filed suit against the state for violating their religious rights. They say the Supreme Court’s decision in the Hobby Lobby case supports their claim.
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 targeted the refusal of a few pharmacies and pharmacists to sell abortifacient drugs marketed as emergency contraceptives. The Food and Drug Administration requires the drugs be held behind the pharmacist’s counter, but any adult over 18 can buy them with proof of age. Minors can get the medication by prescription only.
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, in July 2007 the board instituted new rules requiring pharmacies to deliver and distribute all FDA-approved drugs and prohibiting them from refusing to do so on religious grounds. Though pharmacists have an individual right to refuse filling objectionable prescriptions, pharmacies do not.
Kevin Stormans, one of the owners of Ralph’s Thriftway in Olympia, Wash., refuses to sell Plan B or Ella at its family-run pharmacy because he believes life begins at fertilization. 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. The practical effect of the new rules is that a pharmacy employing a pharmacist with religious objections to abortifacients must have a second on-duty pharmacist to deliver the medication.
“In effect, the conscientious objector costs the pharmacy twice what a single, non-conscientious objector does,” the suit said, “For pharmacies that need only one pharmacist per shift, such a cost is unreasonable, and the pharmacy’s only real option is to fire the conscientious objector.”
In Feb. 2012, a federal judge struck down the law, asserting “the state failed to explain why a refuse-and-refer policy creates greater difficulties when a pharmacy declines to stock a drug for religious reasons, rather than for secular reasons. A pharmacy is permitted to refuse to stock [the narcotic] oxycodone because it fears robbery, but the same pharmacy cannot refuse to stock Plan B because it objects on religious grounds. Why are these reasons treated differently under the rules?”
The state appealed the decision to the 9th U.S. Circuit Court of Appeals, where the case was put on hold in December 2013 until the Supreme Court ruled in the Hobby Lobby case. The Becket Fund and the Alliance Defending Freedom, representing the pharmacy, filed a joint brief on July 28. The brief states the Hobby Lobby ruling confirmed closely-held corporations like Ralph’s Thriftway have the right to free-exercise of their owner’s religious rights and that the Washington law burdens those rights. Hobby Lobby also confirmed the plaintiffs’ rights to fully participate in the “economic life of the community” without fear of job or business loss due to religious views. The brief argues officials cannot force the company to violate its conscience because an alternative method exists for getting the drugs simply by visiting another pharmacy.