The 9th U.S. Circuit Court of Appeals ruled yesterday in the case of Stormans Inc v. Wiesman that the state of Washington’s rules that require pharmacies to issue emergency contraceptives irrespective of their owner’s religious beliefs are constitutional.

The unanimous decision Thursday by the three-judge panel of the 9th U.S. Circuit Court of Appeals overturned a 2012 ruling by U.S. District Court Judge Ronald B. Leighton, who had found that the state’s rules violated the religious freedom of pharmacy owners. It was the second time the appeals court reversed Leighton in the case.
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In his initial ruling, Leighton said the rules infringed on the pharmacists’ religious freedom and issued an order blocking them, but in 2009 the appeals court reversed that decision. After holding an 11-day trial, Leighton in 2012 basically reaffirmed his original reasoning.

But the appeals court found that the rules were neutral, rather than targeted at suppressing the religious objections of the pharmacists.

The case arose because, once again, some religious people think that their personal beliefs take precedence over providing the public with the goods and services they have a reasonable right to expect.

Washington adopted rules in 2007 following reports that some women had been denied access to Plan B, which has a high dose of medicine found in birth-control pills and is effective if a woman takes it within a few days of unprotected sex. The rules said pharmacies must fulfill lawful prescriptions, but allowed individual pharmacists to refer patients to another pharmacist at the store if they have moral objections to fulfilling certain prescriptions.

A Ralph’s Thriftway pharmacy in Olympia and two pharmacists sued, saying the rules required them to violate their religious beliefs, because the drugs can prevent implantation of a fertilized egg, which they consider tantamount to abortion. They argued that they should be allowed to refer patients to a nearby drug store rather than fulfill the prescription themselves.

But the appeals judges — Susan P. Graber, Richard R. Clifton Mary H. Murguia — said that wasn’t good enough.

In their opinion the judges said that “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.”

They found that the state’s rules were operationally neutral and generally applicable and thus the rational basis standard, and not strict scrutiny, applied. The court ruled that the state met the rational basis standard because in its absence “pharmacists and pharmacies had refused to fill prescriptions for several kinds of medications other than emergency contraceptives. Specific examples included refusals, for a variety of reasons, to deliver diabetic syringes, insulin, HIV-related medications, and Valium.” The court also said that referring people to another pharmacy was not an adequate solution since “speed is particularly important considering the time-sensitive nature of emergency contraception and of many other medications” and that “referrals could lead to feelings of shame in the patient that could dissuade her from obtaining emergency contraception altogether.”

It should be emphasized that the state’s rules did allow individual pharmacists to use their religious beliefs to not dispense medications they disapproved of, but had no such exemptions for pharmacies, saying that the latter “must maintain at all times a representative assortment of drugs” approved by the Food and Drug Administration (“FDA”) “in order to meet the pharmaceutical needs of its patients.” The rule “contains no exemption for pharmacies whose owners object to delivery on religious, moral, philosophical, or personal grounds. An objecting pharmacy must deliver the drug or device and may not refer a patient to another pharmacy.”

Good. People have the right to expect certain services from business and governments. If an employee objects, then the employer can find some way to accommodate the employee but the service must be provided to the customer. The idea that businesses can pick and choose what services you provide based on some vague beliefs would create a nightmare of uncertainty for the public who would be totally at the mercy of the whims of the person who happened to be serving them.

As a result of this ruling you can cue the whining about religious persecution of pharmacy owners in addition to the bakers and florists and photographers and candlestick makers.

Meanwhile, our other whining friends, the Little Sister of the Poor, have submitted before the US Supreme Court their case objecting to filing a simple form stating their religious objections to providing contraception services to their employees as part of the their health insurance policies.