In what is sure to be a very controversial decision, U.S. District Court Judge Ronald Leighton has ruled that a law requiring pharmacies to stock the morning-after pill violates the religious freedom and equal protection rights of pharmacists who have religious objections to doing so. You can read the full ruling here. I haven’t read the entire thing yet, but it appears that he based the ruling largely on the grounds that since pharmacists are allowed leeway on what they stock for non-religious reasons, they should also be allowed to refuse to stock certain medications for religious purposes.
In practice, both the stocking rule and delivery rule contain exemptions not present in their text. While the stocking rule states pharmacies must carry a representative assortment of drugs requested by its patients, in practice, pharmacies refuse to carry drugs for a variety of reasons. Pharmacies regularly refuse to stock such drugs as oxycodone for fear of robbery; they refuse to dispense syringes because they dislike the clientele they associate with the product. Pharmacies may decline to stock a drug because it is expensive, because the “return on investment is less than desired, or because of the “hassle factor”—additional paperwork or patient tracking. Pharmacies may decline to stock drugs because they have contracted with manufacturers of competing drugs or because the pharmacy opts to serve a particular niche market. None of these exemptions exist in the text of the rules; but in practice, the Board allows pharmacies to shape their stock rather than allowing patients to do so. Further, the Board has no written policy or procedure about how to enforce the stocking rule. And in at least 40 years, the Board has never enforced the stocking rule against any pharmacy—until the delivery rule required pharmacies to deliver Plan B.
Like the stocking rule, the delivery rule operates far more loosely than its text suggests. For example, the Board has interpreted the delivery rule to allow pharmacies to refuse to deliver a drug because it does not accept a patient’s particular insurance or because it does not accept Medicare or Medicaid. That leeway exists because the delivery rule exempts a pharmacy from its duty to deliver in not just the five enumerated categories, but in all “substantially similar circumstances.”
But would he apply this reasoning consistently? If a pharmacist refused to stock drugs to treat AIDS because their religious belief is that AIDS is a punishment from God and should not be treated, would that be okay? If a pharmacist refused to stock a drug that treats sickle cell anemia because their religious belief is that sickle cell is God’s punishment on black people because they are the sons of Ham, would that be okay? And would it be okay because pharmacies are allowed to make other rational decisions on what they will or won’t stock?
Judge Leighton, it will not surprise you, was a George W. Bush appointee. And this decision is almost certain to be appealed.
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