Appellate panel reverses decision that favored pro-life pharmacists

PORTLAND, Ore. — A three-judge panel of the 9th U.S. Circuit Court of Appeals July 23 reversed a lower court ruling that had granted some pro-life pharmacists at a Ralph’s grocery store pharmacy in Washington state the right on religious grounds to refuse to stock emergency contraception or fill such prescriptions.

The pharmacists say they will appeal the ruling to the full 9th Circuit. The plaintiffs are challenging Washington state pharmacy board rules that say pharmacists cannot refuse to dispense drugs they say are contrary to their conscience, nor can they refer customers to other pharmacists who will fill such prescriptions.

The court rejected three specific claims lodged by the plaintiffs, who are two pharmacists and a pharmacy owner: equal protection, free exercise and due process, the last of which had been rejected by the lower court but was considered anew by the appellate court.

The judicial panel held that the rules, promulgated by the Washington Pharmacy Quality Assurance Commission, were neutral on their face.

One day before the rules were to take effect in 2007, the plaintiffs had sued to block their implementation.

“No one should be forced to choose between their religious convictions and their family businesses and livelihoods, particularly when the state allows referrals for just about any other reason. The premier medical and pharmaceutical associations all support the right of a provider to refer patients, and all other states allow such referrals,” said a July 23 statement by Kristen Waggoner, senior vice president of legal services for the Alliance Defending Freedom, which had represented the pharmacists in court.

“This decision will affect many facilities within the state, including Catholic hospitals and pharmacies, which have made clear they will not dispense these drugs,” Waggoner said.
But the panel had rebuffed Waggoner’s contentions.

“Plaintiffs assert that Catholic-affiliated pharmacies also refuse to stock or deliver Plan B or ella. But the record contains no evidence that any complaints have been filed against Catholic-affiliated pharmacies. The commission did not investigate alleged noncompliance among Catholic pharmacies for the simple reason that the commission received no complaints,” the court said.

By the same token, since 2006, 24 complaints had been filed with the commission against Ralph’s in connection with this policy.

Kevin Stormans, owner of Stormans Inc., which operates the pharmacy, also lambasted the court decision in a July 23 statement.

“With 33 pharmacies stocking the drug within five miles of our store, it is extremely disappointing that the court and the state demand that we violate our conscience or lose our family business,” he said. “All we are asking is to be able to live out the beliefs that we hold, as Americans have always been able to do, and to be able to refer patients (to other pharmacies) for religious reasons.”

The rules allow an individual pharmacist to decline to fill a prescription for religious reasons, provided another pharmacist on duty at the same store can fill it. The court had said in its unanimous opinion, “Whether facilitated referrals also further patients’ access to medication is irrelevant. On rational basis review, plaintiffs still have the burden to negate the commission’s chosen method for achieving that goal.”

The judges also gave no weight to the pharmacists’ contention that Plan B and ella are abortifacients, noting that the state commission had disputed it. “Plaintiffs have neither argued nor presented evidence to establish that the drugs objectively cause the taking of human life,” the court said.