9th Circuit Vacates Preliminary Injunction Against Pharmacy Board Regulations

In Stormans Inc. v. Selecky, (9th Cir., July 8, 2009), the U.S. 9th Circuit Court of Appeals vacated a preliminary injunction issued by a federal district court enjoining enforcement of Washington State Pharmacy Board regulations that require pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. The court concluded that the trial judge had incorrectly applied heightened scrutiny to the regulations. (See prior posting.) The 9th Circuit held that the Pharmacy Board rules are neutral regulations of general applicability that need only meet a rational basis test:

That the rules may affect pharmacists who object to Plan B for religious reasons does not undermine the neutrality of the rules. The Free Exercise Clause is not violated even though a group motivated by religious reasons may be more likely to engage in the proscribed conduct.

The court remanded the case with this explanation:

We hold that the district court abused its discretion in applying an erroneous legal standard of review, failing to properly consider the balance of hardships and the public interest, and entering an overbroad injunction. On remand, the district court must apply the rational basis level of scrutiny to determine whether Appellees have demonstrated a likelihood of success on the merits. The district court must also determine whether Appellees have demonstrated that they are likely to suffer irreparable harm in the absence of preliminary relief, whether the balance of equities tips in the favor of the three Appellees, and whether the public interest supports the entry of an injunction. If the court finds in favor of Appellees, it must narrowly tailor any injunctive relief to the specific threatened harms raised by Appellees.

In its opinion, the 9th Circuit included an extensive discussion of standing and ripeness. It refused to decide whether a for-profit corporation can assert its own free exercise rights. Instead it concluded that the corporate plaintiff could properly assert the free exercise rights of the individual owner/directors in the family owned pharmacy. Individual pharmacists also had standing. Judge Clifton wrote a short concurring opinion, rejecting the majority's holding that it could not consider legislative history in deciding whether a law is neutral and generally applicable.

(It is worth noting that last year, the same panel of the 9th Circuit refused to stay the preliminary injunction pending the appeal that it decided yesterday.) The Seattle Post-Intelligencer reports on yesterday's decision.

Washington Court Enjoins Enforcement of Pharmacy Board Rules

A Washington federal district court has granted a preliminary injunction barring enforcement of Washington State Board of Pharmacy regulations that require pharmacists to fill all prescriptions even if doing so violates their religious beliefs. In Stormans, Inc. v. Selecky, (WD WA, Nov. 8, 2007), the court found that the regulations target religious beliefs:

The evidence thus far presented to the Court strongly suggests that the overriding objective of the subject regulations was, to the degree possible, to eliminate moral and religious objections from the business of dispensing medication.

... [T]he enforcement mechanism of the new law appears aimed only at a few drugs and the religious people who find them objectionable.

Applying strict scrutiny to the regulations, the court concluded:

the interests promoted by the regulations have more to do with convenience and heartfelt feelings than with actual access to certain medications. 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 interests of the kind necessary to justify the substantial burden placed on the free exercise of religion.

... On the evidence now before it, the Court cannot say that the subject regulations advance a compelling state interest and they are narrowly tailored to accomplish their announced purpose.... [T]he evidence suggests that the burden on the religious practices of plaintiffs is intentional not incidental, and substantial not minimal.

Relying on these findings, the court enjoined enforcement of the regulations against any pharmacy or pharmacist who refuses to fill a prescription for Plan B emergency contraceptives if they immediately refer the patient to a nearby source for it. Today's Seattle Times reports on the decision.

9th Circuit Rejects Free Exercise Challenge By Pharmacies To Required Filling of Emergency Contraception RX

In Stormans, Inc. v. Wiesman, (9th Cir., July 23, 2015), the U.S. 9th Circuit Court of Appeals upheld against constitutional challenge rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require a pharmacy to deliver all prescription medications, even if the owner of the pharmacy has a religious objection. An individual pharmacist with religious objections may refuse to fill the prescription if another pharmacist working for the pharmacy does so.

The court held that these rules are both facially and operationally neutral, and are generally applicable, so that  heightened scrutiny need not be applied to plaintiffs' free exercise challenge:

The possibility that pharmacies whose owners object to the distribution of emergency contraception for religious reasons may be burdened disproportionately does not undermine the rules’ neutrality.

The court also rejected plaintiffs' substantive due process challenge, rejecting the argument that there is a fundamental liberty interest in owning, operating or working at a licensed professional business free from regulations requiring activities that one sincerely believes lead to the taking of human life. Alliance Defense Fund immediately announced that it would appeal the court's decision. The Olympian reports on the 9th Circuit's decision.

Recent Articles of Interest

From SSRN:

• Valerie J. Munson, Fraud on the Faithful? The Charitable Intentions of Members of Religious Congregations and the Peculiar Body of Law Governing Religious Property in the United States, (Rutgers Law Journal Vol. 44, No. 3, 2014).
• Bruce Ledewitz, Experimenting with Religious Liberty: The Quasi-Constitutional Status of Religious Exemptions, 6 Elon Law Review (2014).
• Kevin P. Lee, Emanuel Levinas on Hegel's Antigone: Levinas and the Problem of Modernity, (May 30, 2014). 
• Sara L. Ainsworth, Amicus Curiae Brief: Stormans, Inc. v. Selecky, (Hastings Women's Law Journal, Vol. 24, No. 2, pp. 303-37, Summer 2013).
• Tabatha Abu El-Haj, All Assemble: Order and Disorder in Law, Politics, and Culture, (University of Pennsylvania Journal of Constitutional Law, Vol. 16, No. 4, 2014 Forthcoming).
• Seema Mohapatra, Time to Lift the Veil of Inequality in Health Care Coverage: Using Corporate Law to Defend the Affordable Care Act, (May 23, 2014).
• Alice E. Marwick & Ross W. Miller, Online Harassment, Defamation, and Hateful Speech: A Primer of the Legal Landscape, (Fordham Center on Law and Information Policy Report No. 2, June 10, 2014).
• Nancy J. Knauer, Navigating a Post-Windsor World: The Promise and Limits of Marriage Equality, (Georgetown Journal of Gender and the Law, Vol. 16, 2014, Forthcoming).

From SSRN (Islamic law):

• Hussein Elasrag, Corporate Governance in Islamic Financial Institutions, (May 26, 2014).
• Muhammad Munir, Rights of Children in Islamic Law: A Review of Selected Literature, (May 29, 2014).
• Timur Kuran, Institutional Roots of Authoritarian Rule in the Middle East: Civic Legacies of the Islamic Waqf, (Economic Research Initiatives at Duke (ERID) Working Paper No. 171, June 12, 2014).

From SmartCILP:

• Julie Maher, Eweida and Others: A New Era for Article 9?, 63 International & Comparative Law Quarterly 213-233 (2014).

En Banc Rehearing Sought In Washinton State Pharmacy Board Conscience Case

Last week, a Washington state pharmacy filed a petition and an accompanying legal memorandum (full text) with the 9th Circuit Court of Appeals seeking an en banc rehearing in Stormans Inc. v. Selecky. Last month, a 3-judge panel in the case refused to preliminarily enjoin enforcement of Washington State Pharmacy Board regulations that require pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. (See prior posting.) A press release from Becket Fund reports on the filing.

9th Circuit Denies En Banc Rehearing On Washington State Pharmacy Board Regs

In Stormans Inc. v. Selecky, (9th Cir., Oct. 28, 2009), the U.S. 9th Circuit Court of Appeals refused to grant an en banc rehearing. In July, a 3-judge panel in the case refused to preliminarily enjoin enforcement of Washington State Pharmacy Board regulations that require pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. (See prior posting.) Along with this week's denial of a rehearing, the original panel granted a request for a rehearing by the panel, and without hearing further arguments vacated its original opinion and issued a new opinion reaching the same conclusion as it did before. However the new opinion, in discussing whether the regulation is neutral and generally applicable, eliminates the section that was in the July opinion taking the district court to task for considering the rule's legislative history . This allowed Judge Clifton to join in the opinion fully and omit the concurrence he filed in July objecting to the majority's conclusion that it was inappropriate to consider the legislative history.

Cert Filed In Challenge By Pharmacies To Required Filling of Emergency Contraception RX

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Stormans Inc. v. Wiesman, (cert. filed, 1/4/2016).  In the case, the U.S. 9th Circuit Court of Appeals upheld rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require pharmacies to deliver all prescription medications, even if the owner has a religious objection. An individual pharmacist with religious objections may refuse to fill a prescription only if another pharmacist working for the pharmacy does so. (See prior posting.) ADF issued a press release announcing the filing of the petition.

Washington State Pharmacy Board Backs Down On Rules In Pre-Trial Compromise

In 2007, the Washington state Board of Pharmacy adopted a rule requiring pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. In July 2009, the 9th Circuit vacated a preliminary injunction that the district court had imposed. It remanded the case directing the district court to apply a rational basis standard in adjudicating pharmacists' free exercise challenge to the rule. (See prior posting.) Now as the case was about to go to trial on remand, the state Board of Pharmacy has backed down and negotiated a compromise. In a stipulation (full text) filed yesterday by the parties in Stormans Inc. v. Selecky, the Board told the court that on June 29 it had begun a rule-making proceeding to adopt an amended rule that would permit facilitated referrals for all pharmacies and pharmacists when they are unable or unwilling to fill a prescription for any reason, including conscientious reasons. PubliCola yesterday reporting on these developments quotes Lisa Stone, Executive Director of Legal Voice , who complained that the state had "pulled the rug out from under our clients." Becket Fund issued a release supporting the new rule making, saying that "Americans should not be forced out of their professions solely because of their religious beliefs...."

9th Circuit Hears Oral Arguments In Conscience Challenge To Pharmacy Board Rules

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in Stormans, Inc. v. Weisman. (Audio of full oral arguments). In the case,  a Washington federal district court held unconstitutional the enforcement of rules of the Washington State Pharmacy Board that require pharmacies and pharmacists to dispense emergency contraception even when doing so violates a pharmacist's religious beliefs. (See prior posting.) The Oregonian reports on yesterday's oral arguments.

9th Circuit Keeps Injunction Against Pharmacy Board Rules In Place

Yesterday in Stormans Inc. v. Selecky, (9th Cir., May 1, 2008), in a 2-1 decision the U.S. 9th Circuit Court of Appeals refused to stay a preliminary injunction that the district court had entered barring enforcement of Washington State Pharmacy Board regulations against plaintiff, a religious objector to dispensing the "morning after" (Plan B) pill. The challenged regulations require pharmacists to fill all prescriptions even if doing so violates their religious beliefs. (See prior posting.) The majority said that even if the district court was wrong in concluding that the Pharmacy Board regulations violate the Free Exercise clause, there is insufficient evidence that intervenors who sought the stay will face irreparable harm if the injunction remains in effect pending appeal. The injunction requires that a pharmacist who refuses to fill a prescription for Plan B must refer the customer to a nearby source for it.

Judge Tashima wrote a lengthy dissent concluding that appellants had a strong likelihood of success on the merits. Therefore so long as there was a possibility of irreparable harm, particularly in light of the public interest involved, the preliminary injunction should have been stayed. Reuters and Life News both report on the 9th Circuit decision.

Washington Pharmacy Board Rules Violate Free Exercise Rights of Objecting Pharmacists

Yesterday in Stormans, Incorporated v. Selecky, (WD WA, Feb. 22, 2012), a Washington federal district court held unconstitutional the enforcement of rules of the Washington State Pharmacy Board that require pharmacies and pharmacists to dispense emergency contraception even when doing so violates a pharmacist's religious beliefs. At issue are Plan B and ella that prevent implantation of a fertilized egg in the uterus. In a 97-page Findings of Fact and Conclusions of Law, a 48-page Opinion, and a Permanent Injunction order, the court held that the rules, as applied to those with religious objections, violate the Free Exercise and Equal Protection clauses. More specifically, the court held:

The Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable. They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted. The rules are unconstitutional as applied to Plaintiffs.

The court enjoined the state from enforcing the rules "against Plaintiffs, or against the pharmacies in which Plaintiffs have an ownership or managerial interest, or where Plaintiffs are employed, insofar as those Regulations would prohibit Plaintiffs from declining based on their religious beliefs to stock or deliver Plan B or ella and instead providing a referral to a nearby pharmacy or other location that provides Plan B or ella." The Becket Fund issued a press release announcing the decision. (See prior related posting.)