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

9th Circuit: Pharmacies Can Be Required to Provide Emergency Contraception July 27, 2015

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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