State of Washington Will Appeal Ruling That Recognized Pharmacists' Conscience Rights

Pro-life leader fears losing 'the nation we love' as state demands encroach freedom.

(photo: Tim Boyle/Getty Images)

OLYMPIA — The office of Washington state Attorney General Rob McKenna will file an appeal on behalf of the state’s Department of Health in response to U.S. District Judge Ronald Leighton’s recent decision in favor of protecting pharmacists’ conscience rights.

The Washington State Pharmacy Board, which is under the state’s Department of Health umbrella, had attempted to force pharmacists to dispense abortion-causing drugs, despite their religious objections to the practice. However, Leighton saw the Pharmacy Board’s regulations as targeting religious practice in a way forbidden by the U.S. Constitution, and he granted a permanent injunction against their enforcement in regard to the plaintiffs in the case.

Mary Selecky, secretary of the Washington Department of Health and a defendant in the case, initiated an appeal in late March.

“The rules we have in place are intended to assure that all patients have access to all lawful and appropriate medications without delay,” Selecky said. “We don’t want people [pharmacies and pharmacists] to be selective about who they are going to serve and what they are going to serve them with.”

However, Leighton pointed out that pharmacists are allowed to decline carrying or dispensing a particular drug for numerous non-religious reasons, such as a drug’s short shelf life, small profit margin or burdensome paperwork requirements.

“The Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable,” he stated. “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,” he continued.

Luke Goodrich, deputy general counsel for the Becket Fund for Religious Liberty, which represented the plaintiffs in the case, sees no merit in appealing Leighton’s ruling. “After a 12-day trial, the court found overwhelming evidence that the [Board of Pharmacy’s] regulations allow pharmacies to refer patients elsewhere for all sorts of business, economic and convenience reasons, but not for reasons of conscience. The Constitution does not allow the state to single out religious conduct for unfavorable treatment.”


Governor Requested Appeal

Furthermore, Goodrich pointed out, the court found no evidence that any patient in the state of Washington had ever been denied timely access to Plan B. “In fact, there are over 30 pharmacies that dispense Plan B within a five-mile radius of the main plaintiff’s store, and plaintiffs willingly refer patients to nearby pharmacies when Plan B or any other drug is out of stock.”

Janelle Guthrie, deputy chief of staff for Attorney General McKenna, said that the attorney general’s office is required by law to represent state clients.

“Because the state’s Department of Health and the governor [Christine Gregoire] requested the appeal, it is not appropriate for the attorney general’s office to state our personal opinions. Our work is to provide vigorous representation for our state agency clients, so while we may give counsel as to whether or not a case has merit, the specific agencies we represent are the ones who make the final decision to proceed with legal action.”

McKenna, a Republican who is running for governor this year, is also representing the state of Washington, along with many other states, in challenging specific provisions of the Patient Protection and Affordable Care Act before the U.S. Supreme Court. Those states believe the federal health-care law includes the expansion of federal authority beyond what is allowed under the Constitution.

Dan Kennedy, CEO of Human Life of Washington, the state’s largest pro-life organization, sees a connection between what is happening with health care nationally, particularly with the HHS mandate, and some of his own state’s actions.

“Clearly, Washington state’s singular attack on pharmacists who are morally opposed to providing abortifacient drugs is part of a growing crescendo of attacks against religious freedom throughout the nation,” he said. “It is a deeply troubling and dangerous trend. Government is becoming increasingly intolerant of those who oppose a rigorous secular orthodoxy. If we do not stand for religious freedom today, if we fail to engage the political process, I fear we will no longer recognize the nation we all love.”

Kennedy continued to express his alarm, saying, “The streak of tyranny we are witnessing reminds me of George Orwell’s essay Inside The Whale (1940), in which he writes, ‘Almost certainly we are moving into an age of totalitarian dictatorships — an age in which freedom of thought will be at first a deadly sin and later on a meaningless abstraction. The autonomous individual is going to be stamped out of existence.’"

The Becket Fund shares Kennedy’s concern and is continuing to represent the plaintiffs in the appeal. Goodrich is optimistic about protection of conscience rights, pointing to what took place in another state last year. Illinois, the only other state that had conscience-violating regulations like Washington’s, also had its regulations struck down as unconstitutional.

Goodrich expects the same outcome in this case.

Register correspondent Trent Beattie writes from Seattle.