Court Rejects Pharmacists’ Right of Conscience

Ninth Circuit rules that family-owned pharmacy must violate their faith

For Immediate Release: July 23, 2015

Media Contact: Stephanie Keenan, skeenan@becketfund.org, 202-349-7226

Washington, D.C. – Today, in Stormans v. Wiesman, the Ninth Circuit Court of Appeals upheld controversial Washington state regulations that require a family-owned pharmacy and two individual pharmacists to dispense the morning-after and week-after pills in violation of their religious beliefs. The Washington regulations go further than regulations in any other state in forcing pharmacists to violate their religious beliefs.

“Today’s decision is unfortunate,” said Luke Goodrich, Deputy General Counsel of the Becket Fund for Religious Liberty. “The government has no business punishing citizens solely because of their religious beliefs. The pharmacists in this case willingly refer patients to over 30 pharmacies that stock the morning-after pill within a five mile radius, and no patient has ever been denied timely access to any drug. The pharmacists’ practices are also supported by the American Pharmacists Association and are legal in every other state.”

The court’s opinion, written by Judge Susan P. Graber, acknowledges that “pharmacies whose owners object to the distribution of emergency contraception for religious reasons may be burdened disproportionately” by the state’s rules. It also acknowledges that the plaintiffs “ha[ve] been implicated in a disproportionate percentage of [the State’s] investigations,” and that there may be “other means that might achieve the [State’s] purpose” without burdening the plaintiffs. Nevertheless, the court rejected the plaintiffs’ claims because it “conclude[d] that the rules are neutral and generally applicable and that the rules rationally further the State’s interest in patient safety.”

Margo Thelen, Rhonda Mesler, and the Stormans family have worked in the pharmacy profession for over sixty years. Because they believe that life begins at the moment of fertilization, they do not sell the morning-after or week-after contraception pills. Instead, they willingly refer customers to one of over thirty pharmacies that sell the drugs within five miles of their store. For decades, this has been standard pharmacy practice, has been approved by the American Pharmacists Association, and has been legal in all 50 states.

But in 2005, the State of Washington passed a new regulation requiring pharmacies to sell these drugs in violation of their faith. The regulation allows pharmacies to refer patients elsewhere for a wide variety of business, economic, and convenience reasons—such as a when a drug is unprofitable, attracts an undesirable clientele, or falls outside the pharmacy’s chosen business niche. But it makes it illegal to refer patients for reasons of conscience.

Due to the regulation, Margo Thelen was terminated from her job; Rhonda Mesler was told she would lose her job if the regulation remained in place; and the Stormans family was threatened with the loss of its pharmacy license. On July 25, 2007, the plaintiffs filed a lawsuit to prevent this new regulation from forcing them out of their profession.

After a twelve-day trial, on February 22, 2012, a federal court in Washington struck down the regulation as unconstitutional. The state appealed to the 9th Circuit Court of Appeals, which today upheld the regulation.

The plaintiffs are represented by The Becket Fund for Religious Liberty, together with Alliance Defending Freedom, the law firm of Ellis, Li, & McKinstry, and former Tenth Circuit Judge Michael McConnell.

The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. For over 20 years, it has defended clients of all faiths, includingBuddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians.Its recent cases include three major Supreme Court victories: the landmark ruling inBurwell v. Hobby Lobby, and the 9-0 rulings inHolt v. HobbsandHosanna-Tabor v. EEOC, the latter of which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”

For more information, or to arrange an interview with a Becket Fund attorney, please contact Stephanie Keenan at skeenan@becketfund.org or 202-349-7226.

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