InsideCounsel » July 2008
Pharmacies Face Off with Washington Over Drug Law
In summer 2006, a clerk at Ralph’s Thriftway drugstore in Olympia, Wash., received a fateful phone call. A female customer asked if the store carried Plan B, an emergency contraceptive also known as the “morning after pill.” The clerk called one of the owners of the pharmacy, Kevin Stormans, who said that they didn’t have it in stock because customers hadn’t asked for it.
After receiving a few similar calls, Stormans did some research to decide whether to start stocking Plan B. He decided that as a Protestant who believes life begins at conception, he couldn’t sell the drug. He instructed pharmacists at the store to refer customers seeking the drug to one of the other 33 pharmacies within a five-mile radius of Ralph’s. Soon, Ralph’s was inundated with angry calls. Protestors from Planned Parenthood picketed the store and organized a boycott. The state pharmacy board investigated the store and its owners.
Eventually, Washington passed Administrative Code 246-869-010, which provides that “pharmacies have a duty to deliver lawfully prescribed drugs or devices to patients ... in a timely manner consistent with reasonable expectations for filling the prescription.”
While on its face the law applied to all prescription medications and all pharmacies, Stormans believed it was aimed squarely at forcing him and other Christian pharmacy owners to distribute Plan B despite their religious convictions. Joined by two pharmacists whose jobs were threatened by the regulation, he sued to block its implementation.
The District Court for the Western District of Washington granted his request for a preliminary injunction on the law’s enforcement in Stormans v. Selecky, and on May 1, the 9th Circuit upheld the injunction. The dispute and others like it place pharmacies in a tough position when trying to balance accommodation of employees’ deeply held religious beliefs with state and federal laws.
“The state likes to say that this law is about preventing gender discrimination,” says Kristen Waggoner, a partner at Ellis, Li & McKinstry. Waggoner represents the plaintiffs. “But Title VII is about protecting religious objectors as well as the other protected classes.”
Free Exercise
Stormans challenged the law on four grounds: equal protection, free exercise of religion, due process and the supremacy clause. In its decision granting the injunction, the district court zeroed in on free exercise. It found that the law was subject to strict scrutiny because it “appears aimed at only a few drugs and the religious people who find them objectionable.”
The district court said the regulations failed that test because they didn’t serve a compelling state interest sufficient to override the burden they placed on religious pharmacists. Waggoner points out that Planned Parenthood, an intervener in the suit, couldn’t produce one woman who had been unable to obtain Plan B due to a pharmacist’s objection.
Not everyone agrees that the regulation runs afoul of employees’ rights to free exercise of religion. In his dissent from the 9th Circuit’s decision, Judge Wallace Tashima compared the pharmacy
regulations to a Florida law banning animal sacrifice.
The U.S. Supreme Court upheld the law in Church of the Lukumi Babalu Aye v. City of Hialeah because it regulated conduct rather than religious belief and was written in a manner that was neutral with regard to the religious motivation for the conduct. “Judge Tashima’s dissent got it absolutely right,” says Gretchen Borchelt, senior counsel at the National Women’s Law Center, which advocates for policies that protect access to contraceptives. “The law is facially neutral, generally applicable and serves a legitimate purpose of ensuring patient access to lawful medication.”
