Pharmacists Seek SCOTUS Rx for Religious Freedom

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By Patrick Gregory

April 8 — The U.S. Supreme Court should side with religious freedom in a controversy over emergency contraception, panelists at an Alliance Defending Freedom discussion in Washington said April 8.

The panelists are supporting a free exercise challenge to regulations requiring pharmacists in the state of Washington to provide contraception including “Plan B,” regardless of their religious objections (84 U.S.L.W. 1190, 2/18/16).

The dispute is the latest battle over employers and employees' religious freedom, the panelists said.

If the U.S. Supreme Court doesn't find the regulations unconstitutional, “it will be the first time we've forced healthcare providers to participate in the taking of human life,” ADF's senior counsel Kristen Waggoner of Scottsdale, Ariz., said.

ADF is a conservative legal group. Waggoner represents the petitioners here, which include Stormans Inc.—the owner of a pharmacy in Washington—and two individual female pharmacists challenging the regulations.

The dispute involves multiple circuit splits relating to how a court should determine if a law is neutral and generally applicable rather than discriminatory, Waggoner said.

The Supreme Court could decide whether to grant certiorari as early as April 15.

Women's Rights

This controversy involves women's rights rather than discrimination, Alex Luchenitser of Americans United for Separation of Church and State, Washington, told Bloomberg BNA April 7.

This “is an issue where essentially religious groups are trying to claim religious freedom rights in an effort to trample upon the rights of women,” Luchenitser said.

Americans United supported the regulations as amicus curiae in two proceedings before the U.S. Court of Appeals for the Ninth Circuit (84 U.S.L.W. 127, 8/4/15).

Abortion Concern

The petitioners “are Christians who believe that life is sacred from the moment of conception,” according to their petition for certiorari.

Because Plan B “can prevent the implantation of an embryo,” the petitioners believe dispensing it “would make them guilty of destroying human life,” the petition says.

Their First Amendment free exercise challenge was twice rejected by the Ninth Circuit.

Singled Out?

The regulations let pharmacists refer customers to other pharmacies for a variety of reasons, Waggoner said.

But referrals are prohibited if given due to a pharmacy's religious objections to a drug, Waggoner said.

This prohibition is by omission. The rules' enumerated exemptions allowing referrals—listed in Wash. Admin. Code §246-869-010(1)—don't include objections based on religious, philosophical, moral or personal grounds.

By not allowing religious objectors to make such referrals, the regulations violate the petitioner's free exercise rights under the First Amendment, Waggoner said.

If Washington were merely concerned about protecting women's access to Plan B, it would prohibit referrals uniformly, Waggoner said.

By not doing so, the state showed that it was simply “stamping out religious objections,” Waggoner said.

Luchenitser, of Americans United, said the rules aren't discriminatory because they still “allow individual pharmacists to decline to provide or fill medication if they have a religious objection, so long as another pharmacist” at the same pharmacy “can fill the prescription for them.”

Circuit Split

By upholding regulations that allow secular referrals but prohibit religions ones, the Ninth Circuit created a circuit split on when laws should be considered neutral and nondiscriminatory, Waggoner said.

Waggoner pointed to Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), as evidence of the split.

In City of Newark, then-judge and current Justice Samuel A. Alito's decision found that a government's actions must face heightened scrutiny if they make “a value judgment in favor of secular motivations, but not religious motivations.”

Washington is basically arguing that as long as it doesn't explicitly mention its targeting of religion in the text, it hasn't committed religious discrimination, Waggoner said.

Latest Religious Freedom Row

The dispute is “part of a series of assaults on religious liberties” that includes the fight over the Affordable Care Act's contraceptive mandate, panelist Ed Whelan, who is president of the Ethics and Public Policy Center, Washington, said.

The Supreme Court heard oral argument March 23 in a dispute over whether the mandate applies to religious nonprofit organizations—with the justices appearing evenly divided—in Zubik v. Burwell, U.S., No. 14-1418, argued 3/23/16 (84 U.S.L.W. 3511, 3/24/16).

The high court subsequently directed the parties to file supplemental briefs, possibly indicating the court's desire to avoid a 4-4 split (84 U.S.L.W. 1419, 3/31/16).

Earlier this year, the Supreme Court declined to review a ruling upholding the dismissal of a challenge to the ACA's individual mandate that was based on the establishment clause, in Cutler v. HHS, U.S., No. 15-632, review denied 1/11/16 (84 U.S.L.W. 942, 1/14/16).

Moderator Mark Hemingway, who is a senior writer for The Weekly Standard, compared the case to decisions requiring bakers to make cakes for same-sex weddings (84 U.S.L.W. 203, 8/18/15).

American United's Luchenitser also tied the Washington dispute to such controversies.

The pharmacists' challenge “is one of many efforts that have been going on in the last few years all across the country by religious groups to try to use claims of religious freedom to trample upon the rights of others who don’t share the same religious beliefs,” Luchenitser said.

“There’s various cases all across the country where religious objectors are claiming the right to discriminate against gay and lesbian people based on their religious beliefs,” Luchenitser said.

The high court denied review in 2014 of a decision finding that a wedding business violated New Mexico antidiscrimination laws by refusing to photograph a same-sex commitment ceremony, in Elane Photography, LLC v. Willock, U.S., No. 13-585, review denied 4/7/14.

Contraception Access

Luchenitser said Washington's regulation is needed because Plan B “only works shortly after the need to use it arises.”

If “a pharmacy, especially in a rural location refuses to fill the prescription to sell” emergency contraception, “the customer has to go to try to find another pharmacy that will do so,” he said.

But if finding another pharmacy takes too long, it could be “too late” for the contraception to work, he said.

However, the trial court below found in over 100 pages of findings that no person had been denied a drug in Washington due to a pharmacist's religious objection, Waggoner said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com