9th Circuit: Pharmacies Can Be Required to Provide Emergency Contraception

In another case involving a clash between claims of religious freedom and women’s health needs, the 9th Circuit Court of Appeals has upheld a law in the state of Washington that requires pharmacies to provide emergency contraception regardless of the religious beliefs of the owner of the company.

The Washington law allows individual pharmacists to refuse to fill a birth control prescription as long as there is another pharmacist at the same establishment that can fill it in a timely manner, but requires the pharmacies themselves to fill all valid prescriptions with no exemption for a prescription that might violate the religious beliefs of the owners. But the pharmacy that filed the suit refused to stock emergency contraceptives like Plan B because they believed them to cause abortion, in contradiction to their religious views.

This case was not based on the federal Religious Freedom Restoration Act because the Supreme Court already ruled that the federal RFRA does not apply to state laws and the state of Washington does not have a state RFRA. The plaintiffs thus argued their case on the grounds of the Free Exercise Clause, the Due Process Clause, the Equal Protection Clause, and the Supremacy Clause.” The court applied the rational basis test and ruled that because time is of the essence in cases requiring emergency contraception, aka the morning after pill, the state has a compelling interest in protecting the health of women who need it.

The district court had initially tried to apply strict scrutiny and the appeals court had already lifted that court’s preliminary injunction and remanded it back for a full trial. Ultimately, the district court still ruled in favor of the plaintiffs. The appeals court, however, ruled that regardless of the ruling in Hobby Lobby, the rational basis test applied rather than strict scrutiny because the plaintiffs had not sued under RFRA:

Last year, the Supreme Court addressed the statutory protections afforded by the Religious Freedom Restoration Act of 1993 (“RFRA”). RFRA, which applies only to federal laws, provides protections to religious

practices above and beyond those afforded by the Constitution; specifically, the statute prevents the federal government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.” The Court expressly limited its holding to that statutory context. Here, Plaintiffs have not asserted claims under RFRA; nor could they, because they challenge only state laws and regulations, to which RFRA does not apply.

So without RFRA, the court defaulted to the pre-RFRA standards in the cases that initially prompted Congress to pass RFRA:

Under the rule announced in Smith and affirmed in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah

(“Lukumi”), a neutral law of general application need not be supported by a compelling government interest even when “the law has the incidental effect of burdening a particular religious practice.” Such laws need only survive rational basis review. For laws that are not neutral or not generally applicable, strict scrutiny applies.

The court ruled that this is a generally applicable law that applies to everyone equally, not one that specifically targeted pharmacists with an objection to contraception:

To the extent that the record reveals anything about the Commission’s motivation in adopting the rules, it shows that the Commission approached the problem from the point of view of ensuring patients’ timely access to prescription medications. The Commission did not act solely in response to religious objections to dispensing emergency contraception. It was also concerned with the safe and timely delivery of many other drugs, which may or may not engender religious objections. See id. at 1114 (noting that public testimony “addressed the availability of a variety of prescription medicines and devices, such as syringes, prenatal vitamins, oral contraceptives, and AIDS medications”). For example, the Commission had heard testimony that patients “were not getting access to” prescription medications and devices used to treat diabetes and HIV. Similarly, the district court noted that “since 1997 there have been at least nine complaints to the [Commission] regarding a pharmacy’s refusal (or failure) to dispense drugs other than Plan B.” Accordingly, the Commission was “motivated by concerns about the potential deleterious effect on public health that would result from allowing pharmacists to refuse to dispense

lawfully prescribed medications based on personal, moral objections (of which religious objections are a subset).”

Nothing in the record developed since Stormans I alters that conclusion. Therefore, the district court clearly

erred in finding discriminatory intent.

It will be interesting to see if the Supreme Court decides to hear an appeal of the case. If so, they can’t apply RFRA (unless they overturn City of Bourne v Flores, but since the plaintiffs did not invoke RFRA, that’s highly unlikely), but is it possible that they would go back and overturn Smith and Lukumi and reestablish the standard in Yoder and Sherbert, which RFRA had reestablished by statute? That would require a finding that the Constitution itself required such religious exemptions and that any law that burdened religious belief would require strict scrutiny.

Should that happen, it would leave Scalia in a bit of a bind. He wrote the opinion in Smith that said unequivocally that the Free Exercise Clause did not require such exemptions:

What it produces in those other fields — equality of treatment, and an unrestricted flow of contending speech — are constitutional norms; what it would produce here — a private right to ignore generally applicable laws — is a constitutional anomaly.

… The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.

Which is one argument I would make against RFRA as well. Would Scalia reverse himself and rule that the Constitution requires religious exemptions from all generally applicable laws and that all such laws must meet strict scrutiny? If not, there’s no way the court overturns the 9th Circuit’s ruling. Stay tuned.

You can read the full ruling here.

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What Are Your Thoughts?leave a comment
  • Artor

    I wish the court would also determine that a pharmacist, who is not qualified to make diagnoses, is practicing medicine without an appropriate license if he decides that a patient does not deserve her appropriately prescribed medicine. Also, a pharmacist who doesn’t understand the difference between a contraceptive and an abortifacient doesn’t seem competent to hold the job at all. Bullshit like this should be grounds for immediate termination, revocation of medical licenses, and investigation by the appropriate authorities.

  • howardhershey

    It’s never the principle for Scalia. It’s always the specifics.

  • raven

    Would Scalia reverse himself and rule that the Constitution requires religious exemptions from all generally applicable laws and that all such laws must meet strict scrutiny?

    He might. At least in specific cases.

    Scalia doesn’t follow any sort of principles. The law is what he thinks it should be at any given time. And he usually goes with whatever the RCC, the GOP, and the fundies want.

    So refusing to sell birth control is a religious right but using hallucinogenic drugs in religious ceremonies isn’t. It’s all ad hoc.

  • colnago80

    I wonder if the pharmacist would object to selling condoms?

  • Saad

    colnago80, #4

    Are you kidding? Ensuring the happiness of penises is among the most hallowed of the religious freedoms.

  • raven

    But the pharmacy that filed the suit refused to stock emergency contraceptives like Plan B because they believed them to cause abortion, in contradiction to their religious views.

    This is a lie!!!

    As already pointed out by Artor.

    Plan B is an ovulation inhibitor not an implantation inhibitor. It’s basically a higher dose of birth control drugs that are ovulation inhibitors.

    The Hobby Lobby guy Greene said the same thing. The Supreme Court said religious beliefs don’t have to be true meaning they can be lies and still be religious beliefs. Which most religious beliefs are anyway.

    I doubt if these pharmacists really care one way or another. It’s all about petty tyrants excercising power to inconvenience a few women. Religion poisons everything.

  • cptdoom

    Artor @1 – couldn’t agree with you more. Physicians have long had the right to prescribe any medication for almost any reason, including off-label uses. So the pharmacist, unless he/she has access to the patient’s medical record, has no idea of the diagnosis. Under the federal HIPAA law, it’s not even clear whether the pharmacist has the right to know the diagnosis, as that is considered protected health information (PHI). It all depends on whether a pharmacist is considered a provider who is treating the patient. If not then the pharmacist should be limited to the “minimum necessary” PHI to do his/her job.

    I also really wonder whether these “moral” pharmacists stop to consider all the other drugs they dispense that very well could cause a spontaneous abortion – chemotherapy for instance.

  • Synfandel

    saad @5 wrote:

    Are you kidding? Ensuring the happiness of penises is among the most hallowed of the religious freedoms.

    Trust me: condoms do not make penises happy.

  • colnago80

    Re Saad @ #5

    It is my information that Santorum believes that sale of condoms should also be banned,.

  • Saad

    Synfandel, #8

    Haha! I didn’t mean it like that. :)

    colnago80, #9

    Did not know that about Santorum. That seems like weird stance to have even for him.

  • eric

    Artor:

    I wish the court would also determine that a pharmacist, who is not qualified to make diagnoses, is practicing medicine without an appropriate license if he decides that a patient does not deserve her appropriately prescribed medicine.

    The pharmacy seems to have gotten around that argument by simply not stocking the drug. Thus (if they get their way) there is no pharmacist making a medical decision about whether the woman needs it, they’re simply relating a business decision by their corporation not to stock it. I’m glad the court ruled the way it did, but I don’t think your argument is going to fly because that would imply that every pharmacy in the nation is legally obligated to stock every possible prescription drug in existence.

  • colnago80

    Re Saad @ #10

    Well Santorum is one weird dude. His wife Karen is even weirder. She shacked up for 10 years with an obstetrician who performed abortions and was also the physician who delivered her.

  • raven

    Just for fun, I looked up who does sell Plan B. Which BTW, isn’t a prescription drug.

    Plan B One-Step Emergency Contraceptive … – Walmart

    www .walmart. com/…/Plan-B…Emergency-Contraceptive…/2913…

    Rating: 5 – ‎1 vote – ‎$46.87

    Buy Plan B One-Step Emergency Contraceptive Levonorgestrel Tablet, 1.5 mg at Walmart.com.

    Walmart, Walgreens, and Amazon. com all sell it.

  • raven

    Well Santorum is one weird dude. His wife Karen is even weirder.

    No matter how warped you think Satanorum is, he is even more warped.

    His wife Karen also had an abortion to remove a dying fetus*. A standard medical procedure that Catholic hospitals refuse to do. There are cases where women in Catholic hospitals were refused this procedure and subsequently died of septicemia.

    Satanorum simply denies it happened despite it being well documented. Guy is a flaming hypocrite.

    * Satanorum subsequently took the dead fetus home to show his kids. Playing with dead bodies always struck me as a bit weird but then again, I’m not Catholic.

  • footface

    Raven @ 6: this is what kills me, too. Someone believes Plan B is an abortifacient, when in truth it isn’t. Fine, anyone can believe whatever they like. But what makes this particular (incorrect) belief a religious belief? The belief that Plan B causes abortion isn’t found in any holy book or religious doctrine. When is a belief a religious belief?

  • raven

    The belief that Plan B causes abortion isn’t found in any holy book or religious doctrine. When is a belief a religious belief?

    Good question.

    I don’t know and maybe no one knows.

    I suppose if it isn’t true or provable, it ends up being a religious belief as opposed to a fact or the truth.

    There really isn’t any requirement that a religious belief be found in a holy book and church doctrines change all the time and new ones appear constantly. The RCC ban on birth control isn’t found in the bible. It isn’t even very old, being made up by a Pope sometime in the 20th century.

  • D. C. Sessions

    When is a belief a religious belief?

    When there is absolutely no evidence supporting it and people insist on it anyway.

  • Die Anyway

    eric@11: “… would imply that every pharmacy in the nation is legally obligated to stock every possible prescription drug in existence.”

    I think the States get around that by specifying a minimum formulary in order to maintain a pharmacy license. You don’t have to carry everything but you must carry certain things. Control of the business license gives the State a pretty big stick.

  • Chiroptera

    [Scalia] wrote the opinion in Smith that said unequivocally that the Free Exercise Clause did not require such exemptions….

    Yabbut, Smith involved a Native American who wanted to use peyote. This present case is a conservative Christian who wants to deny women health care. I’m pretty sure that Scalia’s brilliant legal mind will be able to finesse a difference.

  • Zugswang

    I wish the court would also determine that a pharmacist, who is not qualified to make diagnoses, is practicing medicine without an appropriate license if he decides that a patient does not deserve her appropriately prescribed medicine. Also, a pharmacist who doesn’t understand the difference between a contraceptive and an abortifacient doesn’t seem competent to hold the job at all. Bullshit like this should be grounds for immediate termination, revocation of medical licenses, and investigation by the appropriate authorities.”

    Pharmacist here. I understand the sentiment behind the post, but I wanted to clarify some things about the role of the pharmacist. We’re are the last medical professional between you and your medications because (among other things) we’re also double-checking the prescription to make sure that there isn’t anything that could cause potential harm to the patient (wrong dose, wrong product, drug interactions, missing information on the prescription, outright forgeries, etc.). I’ve refused to fill prescriptions as written for medically-defensible reasons, because I’m as liable as the doctor for anything that’s wrong about the medication once it’s in a patient’s hands. Usually I fill it after I call the doctor to address concerns or clarify mistakes, but sometimes I get Rxs from docs that are just downright shady (particularly for controlled substances like opioids, muscle relaxers, etc.) that I simply will not fill because there is no medically valid reason for it.

    But to your point, there is a world of difference between medically defensible refusals to dispense a medication and refusing to dispense because a pharmacist’s whimsical and arbitrary faith decided that abortions were bad sometime around the early 1970’s. (That, and Plan B is available over-the-counter now, which means that pharmacists don’t even need to be involved in the exchange, technically)

  • whheydt

    I’m not at all surprised by Santorum’s objection to condoms. That’s just RCC dogma in action. The counter-argument I’d like see would run something like this… If your ‘god’ is omnipotent, why can’t ‘he’ make a condom fail if he was a particular female to become pregnant? He believes in a ‘god’ that can’t overcome a condom, let alone a pill.

    Poul and Karen Anderson once wrote a short story around the idea that “the embrace of a god (Hermes in the story) is *always* fertile” and in the end, the first valiant deed of the hero that is born was his victory over the pill.

  • Donnie

    cptdoom says

    July 27, 2015 at 10:28 am

    So the pharmacist, unless he/she has access to the patient’s medical record, has no idea of the diagnosis. Under the federal HIPAA law, it’s not even clear whether the pharmacist has the right to know the diagnosis, as that is considered protected health information (PHI). It all depends on whether a pharmacist is considered a provider who is treating the patient. If not then the pharmacist should be limited to the “minimum necessary” PHI to do his/her job.

    Which is what pisses me off about Walgreens and their good faith dispensing . The pharmacist demanded my diagnosis code from the GP. When I told him that he did not need it, he assured me he did. When I asked under what statutory / regulations he told me about ‘good faith dispensing’. He refused to tell me it was only a Walgreens policy and not a Federal/State/Local regulation.

    The best thing is that store location has since closed.

    /end rant on pharmacists

  • Saad

    cptdoom #7 & Donnie #22,

    You’re thinking of the pharmacist’s role as solely a dispenser.

    It is entirely within the scope of the practice of pharmacy for the pharmacist to have access to any relevant medical information (this includes diagnoses) pertaining to the medication he/she is dispensing. Also, it is entirely within their scope to have access to all other medications the patient is taking.

    In fact, not only is it in the scope, it is their responsibility to be aware of such things.

    Maybe the respective pharmacists in these cases were acting like jerks, but asking the prescribing physician what they’re treating before dispensing a medication is perfectly fine (and a good thing because the pharmacist has to review medication appropriateness before dispensing).

  • John Hinkle

    @Zugswang

    …sometimes I get Rxs from docs that are just downright shady (particularly for controlled substances like opioids, muscle relaxers, etc.)…

    Would happen to have a list of those doctors? For research purposes, of course.

  • Donnie

    @27 Saad

    Maybe the respective pharmacists in these cases were acting like jerks, but asking the prescribing physician what they’re treating before dispensing a medication is perfectly fine (and a good thing because the pharmacist has to review medication appropriateness before dispensing).

    I respectfully, and utterly disagree. The pharmacist:

    1. Does not have access to my 20+ year medical file that my GP has created

    2. Does not have 4 years of medical school, 2 years of residency, 1 year of fellowship, and is not board certified in being a Doctor

    3. Does not have extensive background or historical medical notes on my condition(s)

    Putting, or injecting, a pharmacist in between my doctor, my doctor’s orders, and myself is not the role of a pharmacist. The pharmacist’s role is to :

    1. Fill my Doctor’s orders

    2. Review the Doctor’s orders against my existing medication for any contraindication as a double check against my Doctor (and myself). Note: Last ER visit, I had to correct the attending Doctor and Nurse PA because they missed a contraindication of one of my existing medications.

    3. Suggest points of discussion with my Doctor if the pharmacist sees a better or alternative solution for me to discuss with my Doctor.

    The pharmacist is not in the position to contradict my Doctor. If they were, the pharmacist would be my Doctor.

  • Saad

    Donnie, #25

    I’m a practicing pharmacist and pharmacists all over the United States are doing what I posted every day. You can go ask any pharmacist near you.

    Of course, the vast majority of the time there are no issues, but we’re screening for them on every new prescription.

    If you’re being placed on a new medication, it is a pharmacist’s duty and responsibility to verify the appropriateness of that medication (this includes drug-disease match, appropriate dosage, and potential for drug interaction (screened against the rest of your medications, unless of course the patient provides us an incomplete list of meds and medical conditions they have).

    Putting, or injecting, a pharmacist in between my doctor, my doctor’s orders, and myself is not the role of a pharmacist.

    But that’s precisely what the pharmacist is. Before the prescribed medication gets to the patient, it is solely the pharmacist who decides if it’s appropriate or not.

    The pharmacist is not in the position to contradict my Doctor.

    We absolutely are. It’s one of the main roles of the pharmacist. Pharmacist’s job is medication therapy management and not mere dispensing.The doctor prescribes medication; we review it and make sure it’s good to go. If there’s an issue, we contact the doctor to discuss it. I’ve done so numerous times.

  • Donnie

    The pharmacist is not in the position to contradict my Doctor.

    We absolutely are. It’s one of the main roles of the pharmacist. Pharmacist’s job is medication therapy management and not mere dispensing.The doctor prescribes medication; we review it and make sure it’s good to go. If there’s an issue, we contact the doctor to discuss it. I’ve done so numerous times.

    1. I am not saying that a pharmacist should not contact the Doctor, if the medication proscribed is for an off-brand usage or otherwise unusual.

    2. I am not saying that the pharmacist should not check for and advise of contraindications.

    3. I am not saying that a pharmacist should not offer his/her professional advice to me on alternative medication(s).

    I totally agree that you, as a pharmacist, should (must) do the above. However,

    Putting, or injecting, a pharmacist in between my doctor, my doctor’s orders, and myself is not the role of a pharmacist.

    But that’s precisely what the pharmacist is. Before the prescribed medication gets to the patient, it is solely the pharmacist who decides if it’s appropriate or not .

    If I present you a legally valid prescription, and after you discuss it with my Doctor you still do not fill it then you are no different than the Pharmacist in the OP stating their religious objection to fulling a Plan B prescription. My Doctor has my complete medical history and you do not and you should not. My Doctor is the maintainer of my medical information. As a pharmacist, by denying to fill a valid prescription and delaying access to my medications, you are substituting your professional opinion over my Doctor’s fully informed medical opinion.

    In the specific Walgreens example, I was required sign a release form and have my Doctor authorize release of all personal medical information, released to not a specific pharmacist but to “Walgreens” with no time limits or other limits outside of HIPPA. The pharmacist was required to obtain this release in order to indemnify the pharmacist from Walgreens punishment for prescribing Schedule II medication.

    I would not allow Walgreens, or any other pharmacist, this level of intrusion into my medical history and into the Doctor-Patient relationship.

    The pharmacist is not in the position to contradict my Doctor.

    We absolutely are.

    Then you are no better than the pharmacist who substitutes their personal, religious objections.

  • Saad

    Donnie, #27

    If I present you a legally valid prescription, and after you discuss it with my Doctor you still do not fill it then you are no different than the Pharmacist in the OP stating their religious objection to fulling a Plan B prescription.

    Wrong. The Plan B refusal is superstitious discriminatory bullshit. I’ve only refused to fill one prescription in my career so far after discussing it with the doctor. It was a high dose fluoxetine which I didn’t feel comfortable filling despite having spoken to the doctor.

    As a pharmacist, by denying to fill a valid prescription and delaying access to my medications, you are substituting your professional opinion over my Doctor’s fully informed medical opinion.

    By valid do you mean legally valid or medically valid? The latter is open to the discretion of healthcare providers.

    And substituting my professional opinion over a doctor’s medical opinion is also within the scope of pharmacy practice. The key here is professional opinion (which I can defend and cite reasons for if asked). The Plan B nonsense is nothing like this.

    Then you are no better than the pharmacist who substitutes their personal, religious objections.

    Pharmacists can (and do) contradict doctors based on valid medical reasons. It’s not common, but it happens and it’s a perfectly normal and accepted thing in the medical field. How are you not getting this?

    I’m not sure why you’re seeing this as pharmacists being antagonists to doctors. We’re not. We just won’t let prescriptions that we deem to be inappropriate based on our professional judgement go to the patient without resolving the matter first with the prescriber.

    You simply don’t know what you’re talking about. Anyway, I’ve given you the information. I’m a pharmacists familiar with the role of pharmacists and familiar with pharmacy law. This is how it works. Doctors and others in healthcare know this. You’re trying to argue against established role of the medical profession that thousands of pharmacists are performing every hour of every day.