By Janet S. Chung
In 2005, reports began surfacing of pharmacists who were refusing to fill prescriptions based on moral or ethical objections — in particular, prescriptions for emergency contraception and hormonal birth control, but also other lawful medications. As a result, the Washington State Board of Pharmacy began a rulemaking process to examine pharmacists’ responsibilities to fill lawful prescriptions.
After a rulemaking process that involved more than 20,000 public comments, the Board ultimately passed a rule that focused on patients’ health and safety. The final rule requires pharmacies to deliver lawful prescribed drugs and devices in a timely manner; however, the rule does not require an individual pharmacist to dispense medication if the pharmacist has a religious, moral, philosophical or personal objection to delivery.1
These pharmacy rules were scheduled to go into effect in July 2007. Yet, it is only now, nine years later, that the litigation challenging the rules has concluded, and the State may finally enforce the rules.
Along the way, both the health care landscape and the legal landscape have changed. The Affordable Care Act (ACA) has made vast improvements in access to affordable health care. Plan B (aka, the “morning after” pill) no longer requires a prescription and is available over-the-counter, without age restrictions. And religious freedom has increasingly become a rallying cry and a basis for people — and corporations — to claim exemptions from laws, in particular, civil rights laws protecting LGBT individuals from discrimination, and health care laws that protect and improve patient health and safety.
Thus, not only was the Stormans case significant for what it means for Washington patients, but also for what didn’t happen: It would have been the first case after the landmark decision in Burwell v. Hobby Lobby Stores, Inc.,2 for the U.S. Supreme Court to consider a First Amendment religious freedom challenge.
Religious Freedom and
the Hobby Lobby Decision
While religious freedom is protected under the First Amendment of the U.S. Constitution, and, more recently, under the federal Religious Freedom Restoration Act of 1993 (RFRA), courts had generally not interpreted these protections to allow people to refuse to comply with the law when that refusal would harm others. But Hobby Lobby changed that.
The 1990 case Employment Division v. Smith,3 set out the First Amendment test for whether a law violates someone’s religious freedom: “The right to exercise one’s religion freely … ‘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 (or proscribes).’”4
In other words, is the law neutral, not targeted at a particular religion or religious practice, and is it generally applicable to all persons equally? If so, it is constitutional. Moreover, 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.”5
By contrast, RFRA shifted the balance so that a law that substantially burdens the free exercise of religion is legal only if the government has a compelling interest and is using the least restrictive means possible to further that compelling interest.6
In Hobby Lobby, several for-profit, closely held companies, including the crafts store Hobby Lobby, challenged the ACA’s requirement that employers offer insurance coverage for, among other things, birth control. Interpreting RFRA, which applies to federal laws, the Supreme Court held in a 5–4 decision that even if improving women’s health and avoiding discrimination were compelling state interests, the contraceptive coverage mandate was not the “least restrictive means” of achieving such an interest without burdening the companies’ religious beliefs. Because the ACA accommodated other employers with religious objections (religious nonprofits), enabling women to receive no-cost contraceptive coverage without requiring these employers to pay for or participate in that coverage, the Court determined that Hobby Lobby and other private companies with religious objections could likewise be accommodated.
Hobby Lobby thus established troubling precedent by, first, finding that corporations are “persons” with protected religious free exercise rights, and second, by failing to require the religious objector to show any real burden at all on religious belief or practice. And after Hobby Lobby, an open question was whether the Constitution’s Free Exercise Clause should likewise be interpreted to allow religious objectors to assert that their religious beliefs exempt them from laws, particularly laws whose purpose is to protect others’ safety and health.
Stormans v. Wiesman
and Health Care Refusals
The plaintiffs in Stormans were owners of Ralph’s Thriftway pharmacy in Olympia. The Stormans’ family company and two pharmacists claimed that they had religious objections to dispensing emergency contraceptives such as Plan B because they believed (wrongly) that the pills cause abortions. Thus, they asserted, the Washington pharmacy rules that require pharmacies to dispense lawfully prescribed drugs would violate their ability to exercise their religious beliefs by refusing medication to which they objected.
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