OLYMPIA, Wash. — A group of Washington state pharmacists is asking the U.S. Supreme Court to declare unconstitutional a state regulation that prohibits them from refusing — based on religious beliefs — to stock or dispense emergency contraceptives.
The regulation, which was written by Planned Parenthood at the behest of the state’s former governor, allows pharmacies in Washington state to not carry the so-called morning-after pill for several reasons, such as economic factors, but religiously motivated referrals are specifically forbidden.
“They’re only going after religious objectors,” said Kristen Waggoner, senior counsel and vice president of legal advocacy for Alliance Defending Freedom, a Christian legal firm representing two individual pharmacists and a family-owned pharmacy that are suing Washington state.
The plaintiffs filed a petition on Jan. 4 asking the Supreme Court to overturn a 9th U.S. Circuit Court decision last July that upheld the regulations. A lower court sided with the pharmacists in 2012.
The case, Stormans v. Weisman, has been in litigation since the Washington regulations took effect in 2007. The U.S. Supreme Court is expected to decide sometime in March or April whether it will take up the case.
One pharmacist has already lost her job, while the other was told by her employer that she will have to transfer to another state if the plaintiffs lose their case. Ralph’s Thriftway, a family-owned pharmacy in Olympia, could lose its pharmacy license for not stocking abortifacients such as Plan B and referring customers to pharmacies that dispense those drugs.
‘Un-American, Unjust and Unconstitutional’
Kevin Stormans, president of Stormans, Inc., the company that owns Ralph’s Thriftway, said his pharmacy chooses not to dispense the morning-after pill for religious reasons. He said the regulation is “un-American, unjust and unconstitutional.”
“The rule was politically motivated. It wasn’t really based on good health care or patient care. It was a political agenda promoted by Planned Parenthood,” Stormans said.
Stormans also questioned the government’s basis for the rule.
“What’s important to know in this case is that no patient in Washington has ever been denied timely access to any drug due to a pharmacist objection,” said Stormans, who noted that pharmacists are allowed to refer patients for other reasons.
“But we’re targeted primarily because these referrals are motivated by our religious beliefs, and that’s what we feel is unfair and unjust,” Stormans said.
The Stormans family has been in the pharmacy business for 70 years.
“We’re a fourth-generation family business,” Stormans said. “We live in the same community. We love our customers. They’re important to us. To be put in a position where we have to choose between our conscience and our vocation is not right.”
Said Stormans, “We believe the context of this law is extreme, putting us in a position where we are participating in an abortion, and that’s never been done before in our nation.”
Waggoner told the Register that Catholic health systems in Washington state that operate pharmacies in accordance with the U.S. Conference of Catholic Bishops’ “Ethical and Religious Directives for Catholic Health Care Services” could also be targeted if the Supreme Court affirms the appellate-court decision. The leaders of those Catholic health systems have filed declarations in federal court stating that they abide by the bishops’ directives and that their pharmacies will not dispense any drugs to abort early pregnancies.
“The regulations put these Catholic health systems in the crosshairs,” Waggoner said.
In 2007, Washington adopted the new pharmacy rules after former Gov. Christine Gregoire asked Planned Parenthood to draft the new regulations. Attorneys for Alliance Defending Freedom and the Becket Fund for Religious Liberty, a law firm also representing the plaintiffs, said Gregoire — a Democrat who served in office from 2005 to 2013 — also asked Planned Parenthood to work with the State Human Rights Commission in drafting a letter to Pharmacy Commission members warning them that they could be liable under state anti-discrimination laws if they voted for a regulation that permitted conscience-based referrals.
Gregoire publicly threatened to remove dissenting Pharmacy Commission members and created a new task force that included members of Planned Parenthood to finalize the text of the rule. Gregoire also involved Planned Parenthood in the process of interviewing candidates for the Pharmacy Commission and refused to reappoint the commission chairman when he hesitated to adopt the rules, attorneys for the plaintiffs said.
According to court filings, the Pharmacy Commission chairman, Gary Harris, whom Gregoire appointed, said: “I for one am never going to vote to allow religion as a valid reason for a facilitated referral.” Harris also reportedly advocated prosecuting conscience-based referrals “to the full extent of the law.”
Luke Goodrich, deputy general counsel of the Becket Fund, told the Register that the plaintiffs’ evidence includes internal memos, handwritten notes and public statements that show the former governor and the Pharmacy Commission members she appointed intentionally targeted pharmacists with religious objections to emergency contraceptives.
“It’s really rare you get evidence like that,” Goodrich said. “In most religious-freedom conflicts, the government doesn’t announce, ‘We’re out to stop religious people from doing religious stuff.’ It’s usually bureaucratic indifference, but here there is an actual overt attempt to put a stop to religious conduct.”
First Amendment Case
The Becket Fund, Alliance Defending Freedom and other attorneys representing the pharmacists say the Washington regulations violate the Free-Exercise Clause of the First Amendment under the U.S. Constitution. Attorneys cite the state’s apparent religious targeting in the regulations, as well as unequal enforcement and unfair treatment of pharmacies with religious objections.
“It’s a very unique combination of clear targeting of religious people, combined with absolutely no good reason for doing so, other than hostility to their beliefs,” Goodrich said.
Those who support the regulations, including Planned Parenthood and the National Women’s Law Center, argue the regulation is necessary because a growing number of pharmacies are refusing to carry birth control, making timely access to emergency contraceptives increasingly difficult.
The plaintiffs counter that they have long been able to refer customers to other nearby pharmacies that stock the morning-after pill. Within five miles of Ralph’s Thriftway, for example, customers can be referred to more than 30 pharmacies that willingly sell those drugs.
“There has never been any showing of people having a problem with access to Plan B or any other drug,” said Goodrich, who added that Planned Parenthood and Gregoire solicited stories and sent test shoppers to pharmacies across the state looking for hardship cases while the Pharmacy Commission was considering the regulations.
“They tried to marshal the evidence during the rulemaking process,” Goodrich said, “but, as it turns out, they couldn’t find anybody who had ever been denied timely access to a drug because of religious objections.”
During a 12-day federal district court trial in 2012, which included testimony from 22 witnesses and thousands of pages of documents in evidence, Waggoner said no proof emerged that any woman or person in the entire state of Washington had ever been denied access to Plan B, Ella, or any other abortifacient drug.
“For them to say there is an access issue is ridiculous. It’s a red herring,” Waggoner said.
Professional Groups Back Plaintiffs
The plaintiffs were also supported by the American Pharmacists Association, the Washington Pharmacy Association and several other state pharmacy professional groups who filed briefs in favor of their right to refer customers on moral and ethical grounds. The briefs note that it has been a long-standing practice for pharmacies to decide for themselves which of the thousands of prescription drugs they will offer.
The American Pharmacists Association also said that the right of conscience has been “widely seen as an integral part of the ethical practice of pharmacy” and that it is compatible with the patient’s interest in receiving prescription drugs “through the time-honored practice of facilitated referral.” The Washington rule, the association said, establishes that state as an outlier in the country.
Mike Koelzer, a Catholic pharmacist in Grand Rapids, Mich., who writes and speaks from a pro-life perspective, told the Register that the Washington regulations trample upon pharmacists’ rights to operate their businesses as they see fit.
“I have a problem with anybody telling any business what they must carry,” Koelzer said. “Let the free market take care of itself. If a pharmacist doesn’t want to stock a certain medicine, and customers think it’s a bad idea, they can go to another pharmacy.”
Koelzer said Michigan state legislators in previous years have also proposed similar laws, though pro-life state representatives told him that those bills would never be passed.
“As time marches on, though, and you get eight years of liberal politics in a row, things can change,” Koelzer said. “I hope the trend isn’t going that way.”
Illinois enacted a similar pharmacy regulation in 2005, but a state appellate court in 2012 struck down that rule as unconstitutional.
If the U.S. Supreme Court leaves the Washington regulations in place, attorneys for the plaintiffs warn that other states may try to pass similar measures. Waggoner said several states considered the regulations in 2005, during a campaign led by national abortion-rights groups such as Planned Parenthood.
“This could be a green light for pro-abortion groups to launch another national campaign to target religious objectors,” Waggoner said. “You will see a new rash of proposals.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.