9th Circuit Rejects Pharmacists’ Right of Conscience

Ralph's Pharmacy (Photo courtesy of Becket Fund)

Ralph’s Pharmacy (Photo courtesy of Becket Fund)

Washington, D.C. – Today, in Stormans v. Wiesman, the Ninth Circuit Court of Appeals upheld controversial Washington state regulations that require a family-owned pharmacy and two individual pharmacists to dispense the morning-after and week-after pills in violation of their religious beliefs. The Washington regulations go further than regulations in any other state in forcing pharmacists to violate their religious beliefs.

“Today’s decision is unfortunate,” said Luke Goodrich, Deputy General Counsel of the Becket Fund for Religious Liberty. “The government has no business punishing citizens solely because of their religious beliefs. The pharmacists in this case willingly refer patients to over 30 pharmacies that stock the morning-after pill within a five mile radius, and no patient has ever been denied timely access to any drug. The pharmacists’ practices are also supported by the American Pharmacists Association and are legal in every other state.”

The court’s opinion, written by Judge Susan P. Graber, acknowledges that “pharmacies whose owners object to the distribution of emergency contraception for religious reasons may be burdened disproportionately” by the state’s rules. It also acknowledges that the plaintiffs “ha[ve] been implicated in a disproportionate percentage of [the State’s] investigations,” and that there may be “other means that might achieve the [State’s] purpose” without burdening the plaintiffs. Nevertheless, the court rejected the plaintiffs’ claims because it “conclude[d] that the rules are neutral and generally applicable and that the rules rationally further the State’s interest in patient safety.”

Margo Thelen, Rhonda Mesler, and the Stormans family have worked in the pharmacy profession for over sixty years. Because they believe that life begins at the moment of fertilization, they do not sell the morning-after or week-after contraception pills. Instead, they willingly refer customers to one of over thirty pharmacies that sell the drugs within five miles of their store. For decades, this has been standard pharmacy practice, has been approved by the American Pharmacists Association, and has been legal in all 50 states.

But in 2005, the State of Washington passed a new regulation requiring pharmacies to sell these drugs in violation of their faith. The regulation allows pharmacies to refer patients elsewhere for a wide variety of business, economic, and convenience reasons—such as a when a drug is unprofitable, attracts an undesirable clientele, or falls outside the pharmacy’s chosen business niche. But it makes it illegal to refer patients for reasons of conscience.

Due to the regulation, Margo Thelen was terminated from her job; Rhonda Mesler was told she would lose her job if the regulation remained in place; and the Stormans family was threatened with the loss of its pharmacy license. On July 25, 2007, the plaintiffs filed a lawsuit to prevent this new regulation from forcing them out of their profession.

After a twelve-day trial, on February 22, 2012, a federal court in Washington struck down the regulation as unconstitutional. The state appealed to the 9th Circuit Court of Appeals, which today upheld the regulation.

The plaintiffs are represented by The Becket Fund for Religious Liberty, together with Alliance Defending Freedom, the law firm of Ellis, Li, & McKinstry, and former Tenth Circuit Judge Michael McConnell.

The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. For over 20 years, it has defended clients of all faiths, including  Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians. Its recent cases include three major Supreme Court victories: the landmark ruling in  Burwell v. Hobby Lobby, and the 9-0 rulings in  Holt v. Hobbs and  Hosanna-Tabor v. EEOC, the latter of which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”  


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  • DCM7

    If the government won’t defend your right to conscience…
    …don’t count on it to defend any legitimate right for anyone.

    • http://www.americanclarion.com/ Bob Ellis

      Government is instituted to protect property of every sort…[and] conscience is the most sacred of all property. – James Madison

      • http://www.americanclarion.com/ Bob Ellis

        Oh, and lest there be any doubt:

        Security under our constitution is given to the rights of conscience. – John Jay, First Chief of U.S. Supreme Court, co-author of the Federalist Papers

      • DCM7

        Unfortunately the only way a lot of people concern themselves with the Founding Fathers is to stubbornly pretend, in the face of all evidence, that they had no actual Christian influence.

        • http://www.americanclarion.com/ Bob Ellis

          Or any real intelligence whatsoever.

  • Gyst53

    JUDICIAL ACTIVISM AT ITS BEST!

    The court’s opinion, written by Judge Susan P. Graber, acknowledges that “pharmacies whose owners object to the distribution of emergency contraception for
    religious reasons may be burdened disproportionately” by the state’s
    rules. It also acknowledges that the plaintiffs “ha[ve] been implicated
    in a disproportionate percentage of [the State’s] investigations,” and
    that there may be “other means that might achieve the [State’s]
    purpose” without burdening the plaintiffs. Nevertheless, the court
    rejected the plaintiffs’ claims because it “conclude[d] that the rules
    are neutral and generally applicable and that the rules rationally
    further the State’s interest in patient safety.

    ”President Bill Clinton nominated Susan P. Graber to the Ninth Circuit Court of Appeals to replace Edward Leavy who assumed senior judge status.[1] She was subsequently confirmed by the United States Senate in a 98-0 vote on March 17, 1998 and received her commission two days later.[1] With her appointment she became the first female judge to serve on that court from the state of Oregon.[8]
    In 1998, the Northwest Women’s Law Center named her Legal Citizen of
    the Year, and in 2001 she received the For Country Award from Yale University. Graber was selected to be chairperson of the American Bar Association’s Committee on Appellate Practice in 2001.[9]

    • retiredday

      “Patient safety”… NONSENSE! Freedom is the point — not safety.

      I’m no lawyer. I just believe that in a free country, the government does not have the right to force any business to sell any product or provide any service that goes against the tenets of one’s faith. What is so threatening to “patient safety” about druggists who refuse to offer drugs that enable and promote irresponsible sex? How would it endanger “patient safety” by posting a sign saying we do not sell that drug here, so go somewhere else to buy it? The world I live in has a choice of pharmacies for patients. If they can’t buy their damnable drugs in one location, let them go to another. What’s the problem with that?

      What the State wants to do is tell every healthcare-related business exactly how they should treat every patient. They do not want private individuals or privately owned healthcare businesses to have any discretion at all in making healthcare decisions. They want to dictate to everyone, exactly what they must do. It’s Big Brother’s central control. If you happen to think differently, they just say shut up and do what you’re told.

      If the State was truly concerned for “patient safety” they would outlaw sodomy, simply based on the health risks. But we all know that will never happen. No, they are not concerned for “patient safety”. They are concerned with the promotion of their godless agenda, and power, power, power.

      The State is full of bovine excrement. They have no real purpose in such regulations other than forcing EVERYONE to comply with their dictatorial regulations, at the cost of our most precious freedom — to freely exercise our faith — in how we live, do business and interact with the rest of society. Welcome to communism.