Judge rules Wash. pharmacists cannot be forced to dispense contraception

Feb 23, 2012 / 04:07 am

The state of Washington cannot force pharmacists and stores to dispense the “morning-after pill” against their religious objections, a federal judge has ruled.

“Today’s decision sends a very clear message: No individual can be forced out of her profession solely because of her religious beliefs,” said Luke Goodrich, deputy national litigation director at the Becket Fund for Religious Liberty, in his reaction to the Feb. 22 judgment.

The fund worked with Seattle's law firm Ellis, Li and McKinstry, in successfully suing Mary Selecky, Secretary of the Washington State Department of Health and Human Services, over a 2007 rule that required pharmacists to provide emergency contraception.

“The Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable,” wrote U.S. District Judge Ronald B. Leighton in his ruling, explaining his grounds for dismissing them as unconstitutional.

“They were designed instead to force religious objectors to dispense Plan B,” Judge Leighton found, “and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted.”

Goodrich explained that the court found a disparity between the board's treatment of different cases in which a pharmacy might send a customer to another business for emergency contraception.

“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,” Goodrich said.

Three plaintiffs – the family-owned Ralph's Thriftway pharmacy, and pharmacists Margo Thelen and Rhonda Mesler – said they could not violate their beliefs by providing the drugs “Plan B” and “ella.” The emergency contraceptives can kill a developing human embryo by preventing implantation.

The pharmaceutical providers were willing to refer customers to other locations that would fill a prescription for the drugs in question.

This compromise, however, was not accepted. Under the Board of Pharmacy regulations, Thelen lost her job and Mesler was told she would have to transfer to another state. Meanwhile, Ralph's Thriftway owner Kevin Stormans was investigated and threatened with punishment by the board.

Thelen, who has worked as a pharmacist for 39 years, said she was “thrilled” by the court's decision, striking down a rule that forced her “to leave a job I loved simply because of my deeply held religious convictions.”

In his opinion, Judge Leighton recalled the controversy that gave rise to the Board of Pharmacy's 2007 rules. In 2006, the board adopted a draft rule allowing conscientious objectors to opt out of giving emergency contraception.

Governor Christine Gregoire, however, objected to the rules, declaring that “no one should be denied appropriate prescription drugs based on the personal, religious, or moral objection of individual pharmacists.”

Gregoire threatened to replace the entire board if it adopted the draft rule. Its final rule drew from proposals by Planned Parenthood and the Northwest Women’s Law Center, and included provisions Judge Leighton said were meant “to eliminate conscientious objection.”

“While the board allows pharmacies to refuse to stock drugs for countless secular reasons, the board will investigate if a religious objector refuses to stock Plan B for a religious reason,” the judge noted.

“The Board of Pharmacy has interpreted the rules to ensure that the burden falls squarely and almost exclusively on religious objectors.”

“A regulation is not constitutional when the government applies it in a selective, discriminatory manner, thus singling out the plaintiffs’ religiously motivated conduct,” Judge Leighton explained.

“When the government enforces a law against religious conduct but not similar secular conduct, it devalues religious reasons by judging them to be of lesser import than nonreligious reasons. This is exactly what has occurred here.”

Washington is the second state, after Illinois, in which the Becket Fund has successfully challenged rules forcing conscientious objectors to stock emergency contraception.

The fund is currently involved in four lawsuits on behalf of religious institutions, including EWTN and Ave Maria University, that could be forced to offer the morning-after pill through their insurance plans under President Obama's contraception mandate.