Afternoon Jolt

Federal Court Upholds Washington Contraceptive Mandate

Religious pharmacists say they will appeal landmark ruling

By Josh Kelety July 24, 2015

Yesterday, the Ninth Circuit Court of Appeals (the Federal court with jurisdiction over western states and several territories) reversed a lower court ruling that had challenged Washington State’s requirement that pharmacies provide contraceptive drugs to patients with lawful prescriptions, even if the business has a religious objection.

“This decision says if you own a pharmacy, or run a pharmacy, even if you have people who believe that contraception or emergency contraception is immoral, and even if you as the owner of a pharmacy believe it's immoral, you still have to make sure that when that patient walks into the pharmacy the patient gets their medication,” said Lisa Stone, Executive Director of women’s rights group Legal Voice, and lawyer who has been involved in the case from the beginning.

The ruling, which came from a three-judge panel of the Ninth Circuit, is a win for contraception advocates who have been fighting a ten year-old legal battle alongside the Washington attorney general against  Storman Inc., a religiously conservative family corporation that operates several pharmacies in Olympia (including as Ralph’s Thriftway.) The pharmacies challenged rules adopted  in 2007 by the Washington Pharmacy Quality Commission (formerly the Washington State Board of Pharmacy) requiring that pharmacies fill contraception prescriptions, though individual pharmacists didn’t have to if the act violated their religious beliefs. Storman Inc., along with several pharmacists, claimed that the rules violated their First Amendment religious freedoms.

In a media release sent out yesterday by the religious liberties group, Alliance Defending Freedom (ADF), Kristen Waggoner—the ADF lawyer who represented Storman Inc—was quoted as saying, “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. This decision will affect many facilities within the state, including Catholic hospitals and pharmacies, which have made clear they will not dispense these drugs. As the district court noted, drugs like Plan B ... are widely accessible within the state. In fact, no woman anywhere in Washington has been denied timely access to these drugs for religious reasons. We will appeal this ruling.”

“It [was] a terrific win for individuals' rights to get their medications to get needed health care,” says Stone.“They [Storman Inc.] refused to even stock emergency contraception in their pharmacies. And then the individual pharmacists didn't want to dispense it,” Stone says. “So they sued the state of Washington.”

The case (Stormans Inc. v. Wiesman) been through some serious legal gymnastics over the last decade. After trial judge Ronald Leighton in a Tacoma district court (which is a step below the Ninth Circuit) sided with the dissident pharmacists and told the state not to enforce the rules, Legal Voice appealed the decision. The appeal sent it up to the Ninth Circuit, who then volleyed it back to the trial court saying that the judge used the wrong legal standard to analyze the rules and that his order was too broad. The judge technically complied with (but also got around) the circuit court by adjusting his ruling to narrow the scope of his order to just exempt the plaintiffs (Storman inc. and their pharmacists) from the contraceptive mandate, while simultaneously issuing another order telling the state to not enforce the rules while the trial was still pending. “Legal skirmishing” (as Stone put it) took place for three years (during which the pharmacy board couldn’t enforce its contraception rules due to the trial judge’s adjusted ruling telling the state to stand down). Depositions were gathered, documents produced, and attempts made to reach a settlement. In 2012, the trial judge reversed and re-issued his initial order, which was appealed again by the State and Legal Voice, resulting in yesterday’s ruling by the Ninth Circuit.

There are larger implications with the ruling, but with some limitations. While, the Ninth Circuit’s decision is applicable to all states and territories in their jurisdiction, it’s not limited to the pharmacy context. The legal analysis could be used to support similar state laws requiring equal treatment by businesses of customers, assuming the state already has a set of laws in place that equally apply to all businesses, similar to Washington’s pharmacy contraceptive mandate.

“This decision basically says, if any state has a law on the books that directs a business to treat all people equally, the business owner does not get to claim religious reasons to refuse to serve that person,” Stone says.

Stone stresses that this ruling won’t affect last year’s controversial ‘Hobby Lobby’ Supreme Court ruling—which said that employers can opt out of the Affordable Care Act’s mandate of covering contraceptive coverage in employee health insurance plans—because different legal standards were used in the two cases. The Ninth Circuit cited a Supreme Court ruling on a case out of Oregon (the Smith case) from the 90’s declaring that Native Americans who were denied unemployment benefits because they ritually used peyote couldn’t be exempt from drug laws due to religious burden. The Hobby Lobby, on the other hand, used the legal standard of the Federal Religious Freedom Restoration Act or RFRA, which actually was a response to the Smith case in an attempt to protect religious freedoms in the face of state laws (PubliCola reported on the Smith standard and its role in the Hobby Lobby ruling last year).

“This case was decided under the Smith standard because it's [Washington’s contraceptive rules] not a federal law,” said Stone.

But the case isn’t done yet. Judging from ADF's media release, Storman Inc. will likely appeal the ruling by either going to the full eleven judge panel of the Ninth Circuit or directly to the U.S. Supreme Court. If it were taken to the Supreme Court, the judges would likely look to see if there was a contrasting ruling among the various other circuit courts in a similar case, where there hasn’t been, according to Stone. At the same time, all it takes is four votes on the Supreme Court to accept a case, regardless of actions by other circuit courts.

“They [Storman Inc.] could take their toys and go home. I don't think that's going to happen,” said Stone.

"It is extremely disappointing that the court and the state demand that we violate our conscience or lose our family business. All we are asking is to be able to live out the beliefs that we hold, as Americans have always been able to do," Stormans Inc. President Kevin Stormans was quoted as saying in the ADF media release.

We have a call out to Kristen Waggoner.

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