Judge: Washington Can’t Mandate Pharmacists Dispense Plan B

State   |   Steven Ertelt   |   Feb 22, 2012   |   5:13PM   |   Olympia, WA

A federal court in Tacoma, Washington, struck down a Washington law that requires pharmacists to dispense the morning-after pill even when doing so would violate their religious beliefs. The court held that the law violates the First Amendment right to free exercise of religion.

Under pressure from pro-abortion Gov. Chris Gregoire, the pharmacy board approved rules in 2007 making pharmacists dispense all drugs, including those that would violate their moral or religious views. The drugs could also include the lethal cocktails physicians order for patients to kill themselves under the state’s new law authorizing assisted suicide.

The new regulations made it illegal to refer patients to neighboring pharmacies for reasons of conscience, despite allowing them to refer patients elsewhere for a wide variety of business, economic, or convenience reasons.  Because of the regulations, Margo Thelen lost her job; Rhonda Mesler was told she would have to transfer to another state; and Kevin Stormans, the owner of Ralph’s Thriftway, faced repeated investigations and threats of punishment from the State Board of Pharmacy.

The plaintiffs in the case are a family-owned pharmacy (Ralph’s Thriftway) and two individual pharmacists (Margo Thelen and Rhonda Mesler) who cannot in good conscience dispense Plan B (“the morning-after pill”) or ella (“the week-after pill”). They filed suit seeking the right to refuse to stock or dispense the drugs.

A lower court issued an injunction against the new rules, on the basis that the suit was likely to succeed.  In 2009, the Ninth Circuit Court of Appeals overturned the lower court ruling that had temporarily put on hold a requirement for pharmacists to dispense all legal drugs.

Now back at the lower court level ruling on the merits of the case itself, the court issued the pharmacists a legal victory.

“The Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable,” the Court explained. “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 Board’s regulations have been aimed at Plan B and conscientious objections from their inception,” the court explained. “Indeed, Plaintiffs have presented reams of [internal government documents] demonstrating that the predominant purpose of the rule was to stamp out the right to refuse [for religious reasons].”

Luke Goodrich, Deputy National Litigation Director at the Becket Fund for Religious Liberty, which, together with the Seattle-based law firm of Ellis, Li & McKinstry, represents the plaintiffs in the case, hailed the decision.

“Today’s decision sends a very clear message: No individual can be forced out of her profession solely because of her religious beliefs,” he said. “If the state allows pharmacies to refer patients elsewhere for economic, business, and convenience reasons, it has to allow them to refer for reasons of conscience.”

“I’m just thrilled that the court ruled to protect our constitutional right of conscience,” said Thelen, who has served as a pharmacist for 39 years. “I was forced to leave a job I loved simply because of my deeply held religious convictions.”

Goodrich said the Washington regulations were passed under a cloud of controversy. In 2006, the State Board of Pharmacy unanimously voted to support a rule protecting pharmacists’ right of conscience. But when Governor Christine Gregoire learned of the vote, she publicly threatened to fire the Board’s members, replaced several Board members with candidates screened by Planned Parenthood, and personally joined in a boycott of Ralph’s Thriftway.

Planned Parenthood then drafted a new version of the regulations, which the Board adopted under pressure from the Governor. The regulations prohibit pharmacies from declining to dispense Plan B for reasons of conscience—even though the Board found no evidence that anyone in the State had ever been unable to obtain Plan B (or any other time-sensitive medication) in a timely fashion because of religious objections.

Washington is one of only two or three states in the country that requires pharmacies to stock and dispense emergency contraception in violation of conscience. One of the other states, Illinois, recently had its regulations, which are modeled on Washington’s, struck down as unconstitutional in a challenge brought by Becket Fund attorney Mark Rienzi.

Read the opinion.