Washington State vs. Pharmacists’ Religious Freedom
What does U.S. Supreme Court’s decision to not hear Stormans v. Wiesman mean for those with conscience convictions?
OLYMPIA, Wash. — The U.S. Supreme Court may have decided not to hear their case, but Stormans family members will not change how they run their pharmacy.
“We will not stock and we will not sell any drug which results in ending life or results in an abortion,” said Greg Stormans, vice president of Stormans, Inc., the family company that operates Ralph’s Thriftway pharmacy in Olympia, Wash.
Stormans told the Register that the Washington state regulation that requires pharmacists to sell abortifacients and so-called emergency contraceptives in violation of their religious beliefs sets a dangerous precedent for government entities to trample on religious freedom.
“We are just as concerned, if not more concerned now, about our First Amendment right to freely exercise our religious beliefs and operate our business as we were before all this started,” Stormans said.
U.S. Supreme Court Justice Samuel Alito, writing in dissent from the court’s June 28 decision not to hear arguments in Stormans v. Wiesman, said the case is “an ominous sign” for religious freedom.
“If this is a sign of how religious-liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern,” Alito wrote.
The state regulation, which took effect in 2007, specifically prohibits pharmacists from refusing to stock or dispense emergency contraceptives such as Plan B and ella for religious and moral reasons. The regulation allows pharmacies to not stock those drugs for economic reasons, but religiously motivated referrals are specifically forbidden.
The regulation was written by Planned Parenthood at the behest of the state’s former governor, Christine Gregoire, who replaced dissenting members of the Washington State Pharmacy Commission with new members who were recommended by abortion-rights activists.
“This was an outrageous regulation that targeted only conscientious objectors,” said Douglas Laycock, a professor at the University of Virginia School of Law, who specializes in religious-liberty issues.
Laycock told the Register that the Washington regulation was unnecessary, adding that many other pharmacies carry those drugs and that the parties who supported the regulation never found a single example of a woman who was unable to promptly obtain emergency contraceptives.
Also, no other state requires pharmacies to carry those drugs, and pharmacies have long had discretion to choose which of the estimated 6,000 medicinal drugs they will carry on their shelves.
“So in terms of targeting religion, this regulation is about as bad as it gets,” Laycock said. “Yet the court of appeals upheld it. And the Supreme Court denied review.”
The Supreme Court’s decision pleased the American Civil Liberties Union. ALCU Deputy Legal Director Louise Melling said in a prepared statement that religious freedom “does not mean a free pass to impose those beliefs on others.” Melling accused pharmacists who refuse to dispense abortifacient drugs for moral reasons in engaging in discrimination by refusing service to someone “because of who they are.”
A federal district court sided with the Stormans family and two individual pharmacists who joined the lawsuit challenging the regulation. During a 12-day trial in 2012, which included testimony from 22 witnesses and thousands of documents in evidence, no proof emerged that anyone in the state of Washington had ever been denied access to Plan B, ella or any other abortifacient drug.
Within five miles of Ralph’s Thriftway, customers can be referred to more than 30 pharmacies that willingly sell those drugs.
However, the Ninth Circuit Court of Appeals in July 2015 overturned the federal district court ruling and upheld the state regulations. The pharmacists filed a petition in January asking the Supreme Court to take up the case, but the high court declined to review the case.
Laycock said there are many reasons to deny the review.
“And an additional one here is that they may not want to consider a fundamental question about the meaning of the Free Exercise Clause until they get a ninth justice,” he said. “That makes sense for the court, but it’s a disaster for these Washington pharmacies.”
Further Review Before Deciding
Kristen Waggoner, an attorney with Alliance Defending Freedom, who represented the Stormans family, told the Register that there is no indication why the other justices decided not to take up the case. She said the justices may have wanted the issue to “percolate” longer in the lower courts or to have stronger facts before it is ready to be argued at the Supreme Court.
However, Waggoner noted that the Ninth Circuit’s ruling stipulated that the pharmacists could later successfully challenge the regulation if they can prove that Washington unfairly targets religious objectors or enforces the regulation in an unfair manner. A footnote in Alito’s dissent also mentions that the high court’s decision not to hear the case does not prevent the pharmacists from bringing a future “as-applied challenge” to the regulation.
“That may be a signal that if the Stormans’ pharmacy license is eventually revoked, a future challenge may be appropriate, and perhaps we may have a different future result,” said Waggoner, who added that Alito was right to “sound the alarm” on religious freedom.
“If the court can’t take up a case that is as egregious as this on religious liberty, then we should all have grave concerns about the state of religious freedom in America,” Waggoner said.
Joined by Justice Clarence Thomas and Chief Justice John Roberts, Alito wrote there were strong reasons to doubt whether the regulations serve any legitimate purpose. There was considerable evidence, he said, that the regulations were adopted out of hostility to pharmacists with religious beliefs about dispensing abortifacient drugs.
Backed By Trade Associations
The pharmacists raised “more than slight suspicion that the rules challenged here reflect antipathy toward religious beliefs that do not accord with the views of those holding the levers of government power,” said Alito, adding that he would have granted the case certiorari to ensure that Washington’s “novel and concededly unnecessary burden on religious objectors does not trample on fundamental rights.”
More than 35 pharmacy organizations, including the American Pharmacists Association and the Washington State Pharmacy Association, supported the pharmacists. In their briefs, the associations noted that allowing pharmacist referrals for religious reasons is the law in every other state.
“This is unprecedented. They’re stomping on the religious freedom of the pharmacy owners,” said Mike Koelzer, a Catholic pharmacist in Michigan, who writes and speaks from a pro-life perspective.
Koelzer told the Register that pharmacists have long been allowed discretion to decide for themselves what drugs they carry in their stores. He compared the government requiring pharmacies to carry Plan B to mandating that grocery stores carry a certain type of salt or hardware stores to sell a specific brand of power tools.
“Let competition in the free market take care of itself,” Koelzer said. “If a pharmacy on the corner decides not to carry a product, and someone in the free market thinks they can do better, then they can go to pharmacy school, get a pharmacy license and open up their own pharmacy across the street.”
Reviewing Their Options
Stormans said he and his family will be reviewing their options and discussing their rights with their attorney. He was adamant that his family remains committed to keeping the pharmacy open and serving customers.
“We believe that there is plenty of room to draw the conclusion, based on our conversations with our attorney and the regulations, that our current way of operating, which includes not selling Plan B or ella, can have a legitimate legal pathway forward,” said Stormans, adding that his family will fight for their religious convictions.
Said Stormans, “If the state takes punitive measures or attempts to do something which we believe we need to fight back legally against, we will do that as many days, months or years that it takes to prevail.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.