Can a pharmacy refuse contraception to a woman if the drug she needs offends the religious beliefs of an individual pharmacist? This is a central question posed in litigation challenging Washington’s Board of Pharmacy rules, recently enacted with the aim of protecting patients from pharmacy refusals.
Since 1998, when the U.S. Food and Drug Administration (FDA) approved emergency contraception (often sold as “Plan B”), increasing numbers of patients have complained about pharmacists refusing to dispense Plan B. A woman can take the Plan B pill soon after having sex (or having been raped) in order to prevent pregnancy. It is most effective if taken within 72 hours, but should be taken as soon as possible, because it becomes less effective with each passing hour. If a woman is already pregnant, Plan B will not terminate the pregnancy.
The Board of Pharmacy rules requiring pharmacies to fill all prescriptions in a timely manner took effect on July 26, 2007. Under the rules, if an individual pharmacist objects to dispensing any medication for personal, moral or religious reasons, the pharmacy may accommodate him or her by assigning another staff member at the facility to serve the patient. The Board issued a post-adoption letter clarifying “the rule does not allow a pharmacy to refer a patient to another pharmacy to avoid filling the prescription due to moral or ethical objections.”
The pharmacy rules were immediately challenged. Two pharmacists, Rhonda Mesler and Margo Thelen, along with Kevin Stormans, owner of Ralph’s Thriftway in Olympia, filed suit claiming the rules violate their civil rights by “coercing” them into “choosing between their livelihoods and their deeply held religious and moral beliefs.”
In their complaint, Mesler and Thelen alleged they feared being fired for refusing to dispense Plan B. Stormans, the pharmacy owner, claimed state officials are on the brink of sanctioning him for refusing to stock Plan B in his store. The plaintiffs object to Plan B because they believe it may prevent a fertilized egg from implanting, causing “destruction of human life.” The plaintiffs are represented by Ellis, Li & McKinstry, PLLC, and the Alliance Defense Fund, a national advocacy organization dedicated to “guarding the sanctity of human life, protecting traditional family values, and defending religious freedom” through impact litigation.
The defendants are representatives of Washington’s Department of Health, the Board of Pharmacy and the Human Rights Commission. Seven Washington citizens intervened in the case on behalf of the defendants, including former Superintendent of Public Instruction Judith Billings and Dr. Jeffrey Schouten, who believe that pharmacist refusals might impact them because they are HIV-positive, and five women who have experienced or fear experiencing refusals in trying to fill emergency contraception prescriptions for Plan B. The intervenors are represented by Heller Ehrman LLP and the Northwest Women’s Law Center, Planned Parenthood and the ACLU.
On November 8, U.S. District Court Judge Ronald B. Leighton in Tacoma issued a statewide preliminary injunction blocking enforcement of the rules against pharmacists refusing to fill Plan B prescriptions in Stormans v. Selecky, No. C07-5374RBL. The decision instead requires objecting pharmacists and pharmacies to “refuse and refer,” sending patients on to another pharmacy to get their Plan B prescriptions filled. On December 10, the State and several citizen intervenors launched an appeal to the Ninth Circuit Court of Appeals, saying the ruling misconstrues legal precedent.
The U.S. Constitution permits, but does not require, states to grant religious exemptions from statutory obligations. The U.S. Supreme Court’s decision in Employment Division v. Smith1 found that the Constitution permits neutral laws of general applicability to incidentally restrict religious practices. In that case, two Native Americans, fired from their jobs because they used peyote for religious ceremonies, challenged a state law denying unemployment compensation to persons fired for work-related “misconduct.” The Supreme Court found that the law did not violate the plaintiffs’ First Amendment free exercise rights.
Even though Judge Leighton’s ruling acknowledged that the Board of Pharmacy rules are facially neutral, the court found that the law was not neutral in its operation. The court found “the overriding objective of the ... regulations was ... to eliminate moral and religious objections from the business of dispensing medication.” The court also held that the rules were not generally applicable — even though the rules do not refer to any particular medications. “The focus of the debate has been on Plan B,” the court said.
Considering the impact on patients, the opinion concluded that “at a minimum, the problem [of access to Plan B] was not of such gravity that a health care provider’s right of conscience had to be sacrificed.” Because the court determined that the Board of Pharmacy intended to discriminate against the pharmacists’ beliefs, the opinion subjects the rules to strict scrutiny under the precedent of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.2 That case struck down a local ordinance prohibiting the sacrifice of chickens as a part of religious rituals, but did not otherwise prohibit the killing of chickens for non-religious reasons. Because the law explicitly targeted religious practices, the U.S. Supreme Court applied strict scrutiny.
Applying strict scrutiny, Judge Leighton held that the Washington rules did not serve a compelling interest:
Patients understandably may not want to drive farther than the closest pharmacy and they do not want to be made to feel bad when they get there. These interests are certainly legitimate but they are not compelling [enough] to justify the substantial burden placed on the free exercise of religion.
Vociferous public debate followed the ruling: A Seattle Post-Intelligencer opinion piece described the decision as “stunning in its backwardness.” The Seattle Times called the decision “disappointing,” stating that “the state-licensed pharmacist’s duty is to dispense lawful prescriptions ordered by a doctor, not to pass judgment on and interfere in these most-intimate decisions and circumstances.” According to visiting constitutional law scholar Marci Hamilton at Princeton University, who also called the decision “condescending” to women, “To say that religious liberty must encompass the right to harm others is to turn the First Amendment on its head.”
Urging the Legislature to take action, Rep. Brendan Williams (D-Olympia) accused conservatives of “cloaking discrimination in the language of civil rights.” Health Care Committee Chair Sen. Karen Keiser (D-Kent) said, “It is unconscionable that we would allow pharmacists to deny women access to a legal form of birth control ... . We need to take this issue out of the courts and into state law.”
Public health advocates are critical of pharmacies that would put personal values above patients’ health and safety, contrary to the medical standard of care. “In rural communities, a pharmacy refusing to dispense creates a real barrier to care,” said Dian Cooper, executive director of the Cowlitz Family Health Center in Longview. “There are fewer pharmacies, so patients have less choice,” she said. “It’s unacceptable to expect people to drive another 30 or 40 miles in hopes of finding a pharmacy that will fill their prescription.”
Others note that each pharmacy, by law, agrees to dispense drugs to meet the needs of the community it serves. “That’s the whole rationale behind state licensing,” said Dr. Judy Kimelman, a Seattle OB-GYN. “Society has granted pharmacies and pharmacists an exclusive privilege to dispense drugs.”
Given the diversity of religious views and individual health needs, the Stormans decision may ultimately affect far more than access to emergency contraception. The more than 21,000 comments received when the rule was being considered included stories of patients other than those being denied Plan B. Some reported being harassed by pharmacists about their medical decisions. One pharmacist refused to fill an antibiotic prescription because the scrip came from an abortion clinic; another refused to provide needles to a heavily tattooed young man with diabetes solely because of his appearance. The HIV/AIDS and mental health communities, and advocates for the terminally ill, expressed concerns that refusals could jeopardize patient access to necessary drugs.
What is needed at this juncture is a thorough examination of existing state refusal clauses, a reasoned community discourse about the competing interests at stake, and serious legislative effort to craft a comprehensive Health Care Consumer Protection Act that will strike the proper balance between the beliefs of individual health care providers and the rights of patients and families to make important life decisions.
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Katherine White Tudor is an attorney in Olympia, advocating for health care providers before the Legislature, executive and state agencies. She is also co-chair of the Health Decisions Coalition and author of “Crisis of Conscience: Reconciling Religious Health Care Providers’ Beliefs and Patients’ Rights,” 51 Stanford L. Rev. 1703 (1999).
1 494 U.S. 872, 110 S. Ct. 1595 (1990).
2 508 U.S. 520, 113 S. Ct. 2217 (1993).
