Metropolitan News-Enterprise


Thursday, July 9, 2009


Page 1


Panel Says State May Require Dispensing ‘Plan B’ Contraceptive


From Staff and Wire Service Reports


The State of Washington may require pharmacies to dispense the “morning after” pill, regardless of moral or religious objections, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel struck down a preliminary injunction partially barring the state from enforcing regulations that require pharmacies to offer all FDA-approved medications for sale and prohibit discrimination among patients. U.S. District Judge Ronald B. Leighton of the Western District of Washington had ruled that pharmacies with religious and moral objections to dispensing the post-coital contraceptive known as “Plan B” could refuse to do so pending further litigation on their challenge to the constitutionality of the regulations as applied.

Level of Scrutiny

Under a compromise adopted by the Washington State Board of Pharmacy in 2007, a  pharmacist who objects to dispensing a particular drug may pass the sale to another pharmacist, but only if the order is filled in a timely manner. In striking down the injunction, the panel said that Leighton incorrectly applied a heightened level of scrutiny to the regulations, which, as a neutral law of general applicability, should have been subjected to rational basis review.

The regulations at issue were promulgated following a pitched political battle, with Democratic Gov. Chris Gregoire at one point publicly warning she might replace board members who didn’t follow her wishes on the issue. Her administration worked out the compromise.

Two pharmacists and the owner of an Olympia, Wash. grocery store containing a pharmacy filed suit the day before the rules went into effect, arguing that enforcement of the regulations would interfere with their religious rights under the Free Exercise Clause of the U.S. Constitution.

Religious Views

They specifically asserted that their personal religious views would not permit them to dispense Plan B and that the board’s rules would force them to choose between their Christian faith and their livelihood.

Plan B contains a high dose of a drug found in many regular birth-control pills, prevents ovulation or fertilization of an egg, and can dramatically lower the risk of pregnancy if taken within 72 hours of unprotected sex.

Critics claim it is tantamount to an abortion, even though it is different from the abortofacient pill RU-486, because it can prevent a fertilized egg from implanting in the uterus.

The plaintiffs moved for a preliminary injunction, asking that the district court enjoin enforcement of the new rules against them, and based on the likelihood of the plaintiffs prevailing on their free exercise claim, Leighton issued an order temporarily suspending the rules statewide.

In May 2008, Ninth Circuit Judge Jay S. Bybee and Senior Judge Thomas G. Nelson, with Senior Judge A. Wallace Tashima dissenting, voted to deny the state’s request for a stay of the injunction.

However, Judge Kim McLane Wardlaw said in her decision for the court yesterday that the injunction was an abuse of the district court’s discretion and far too broad.

District Court Error

After determining the plaintiffs had standing and the dispute was ripe for adjudication, Wardlaw explained the district court had erred in applying strict scrutiny to the Washington regulations based upon its finding that the new rules were neither neutral nor generally applicable.

As the Washington regulations “make no reference to any religious practice, conduct or motivation,” Wardlaw said the district court properly found they were facially neutral, but had erred in further considering the historical background of the ordinances.

Courts are not to consider the legislative history of a law, the events leading up to its adoption, or contemporaneous statements made by members of the decision making body in determining in a free exercise case, she said.

She acknowledged that pharmacists who object to Plan B for religious reasons might be affected by the regulations more than others, but emphasized that this would not undermine the neutrality of the rules.

“The Free Exercise Clause is not violated even though a group motivated by religious reasons may be more likely to engage in the proscribed conduct,” she wrote, citing as examples the ban on polygamy and destroying draft cards.

Additionally, Wardlaw said the trial court went astray from precedent by applying a version of the intermediate scrutiny test to determine whether the Washington regulations were generally applicable.

“Utilizing the correct legal standard, the new rules are generally applicable because they are not substantially under-inclusive,” she said, noting that the rules apply to all lawful medications, not just those that pharmacies or pharmacists may oppose for religious reasons, and that those with religious objections to Plan B are obligated to comply with the rules to the same extent as those who do not.

As the rules are neutral and generally applicable, they should have been subjected to a rational basis standard of review, Wardlaw wrote.  And although they appeared rationally related to Washington’s legitimate interest in ensuring that its citizens receive lawfully prescribed medications without delay, Wardlaw said the issue must be determined by the district court in the first instance.

The district court may issue a new injunction when it reconsiders the religious-freedom arguments, but it should apply only to the case’s plaintiffs and their employers, not the entire state, Wardlaw added. It must also reweigh the balance of hardships among the parties and reconsider the public interests at stake in assessing whether the plaintiffs should be entitled to injunctive relief.

Judges Richard R. Clifton and N. Randy Smith joined Wardlaw in her decision, but Clifton wrote separately to express his disagreement with Wardlaw’s exclusion of legislative history as a category of material that may be considered in evaluating the neutrality of a regulation.

“Legislative history is too well established as a legal resource for us to declare it off limits…” he said. “When the issue is whether a given statue or regulation is neutral and of general applicability, it is not illogical to consider the historical background of how the provision in question came to be adopted.”

But even considering the legislative history of the Washington regulations, Clifton said he was persuaded the rules were neutral and of general application and therefore subject to rational basis review.

Chad Allred, an attorney for the plaintiffs, said such a ruling was expected. Allred noted that an order from the district court earlier this year spelled out what would happen next in the event the Ninth Circuit overturned the previous injunction.

“All of the plaintiffs’ claims are still alive,” Allred said.

Gregoire spokesman Pearse Edwards said the governor hadn’t read the ruling yet, but “appreciates that the ruling reinforces the value of the doctor-patient relationship and access for all to care that they need.”

The case is Stormans, Inc. v. Selecky, 07-36039.


Copyright 2009, Metropolitan News Company