Victory For Religious Liberty in Washington

Well, this is a pleasant surprise. Another ruling has come down in the very litigated Stormans v. Selecky case, again from the trial court.

This is the case in which a pharmacy refused to dispense the Plan B contraception/abortifacient pill because it violated the owners’ religious beliefs. First, note that the case was instigated by Planned Parenthood.  From the Judge Ronald B. Leighton’s ruling:

This case presents a novel question: can the State compel licensed pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious belief that doing so terminates a human life? In 2007, under pressure from the Governor, Planned Parenthood, and the Northwest Women’s Law Center, the Washington State Board of Pharmacy enacted regulations designed to do just that.

The rule required all pharmacies to dispense all legally prescribed medications and substances:

The rule primarily at issue, commonly known as the “delivery rule,” requires pharmacies to timely deliver all lawfully prescribed medications, including the emergency contraceptives. Under the delivery rule, a pharmacy’s refusal to deliver is grounds for discipline, up to and including revocation of its license. In operation, the delivery rule bars a pharmacy from referring patients seeking Plan B to other pharmacies, meaning they must dispense the drugs.

In violation of the regulations, but in conformity with their religious beliefs, the Plaintiffs refused to dispense Plan B to Planned Parenthood test shoppers and others. The Board launched a series of investigations, and this suit was the result. Based on the evidence presented at trial, the Board’s regulations, while facially acceptable, are in practice unconstitutional.

The Court laid out the options to a pharmacy owner who objects on religious grounds to dispensing a prescription:

In the case of a pharmacy owner with religious objections to Plan B, there is no option other than to leave the business—and the Board was well aware of this result when it designed the rule.

The court found that some aspects of the rule were not enforced, such as required “stocking” of drugs, but others were—primarily those impacting religious objection.  (We saw a similar dichotomy in the Walter Hoye abortion bubble case in Oakland, in which a law preventing women entering an abortion clinic from being approached was not applied against pro choice advocates but was against a pro life pastor.)

And, as I have been writing for awhile, this case impacts assisted suicide, now legal in WA:

...it is clear that Washington State can prohibit medical providers from assisting in taking life, and it can permit them to participate in taking a life. But can the state compel medical providers to participate in taking a life?  If the Death with Dignity Act had required medical providers to participate in assisted suicide, there is little doubt that the medical providers would have the right to refuse to do so. The only difference between this difficult case and that presumably easy one is that here, the parties do not agree that a life is at stake. There is no doubt about the consequences of assisted suicide; here, there is doubt. It is unlikely that there would ever be the political will to mandate that a doctor participate in an assisted suicide, a capital punishment, or an abortion.

Capital punishment, yes. The others—don’t be so sure—powerful voices already are so advocating, or requiring complicity via mandatory referral, as occurs in Victoria, Australia (abortion) and the Dutch Medical Association ethical opinion (euthanasia).

Bottom line:

In sum, the evidence demonstrates that the burden of the rules falls almost exclusively on religious objectors to Plan B, the Board of Pharmacy has interpreted the rules in favor of secular conduct over similar religiously-motivated conduct, and the rules themselves proscribe more religious conduct than necessary to achieve patient access. The rules are not neutral and are therefore subject to strict scrutiny.

That means the state must show a “compelling state interest.”

A regulation is not constitutional when the government applies it in a selective, discriminatory manner, thus singling out the plaintiffs’ religiously motivated conduct, When the government enforces a law against religious conduct but not similar secular conduct, it devalues religious reasons by judging them to be of lesser import than nonreligious reasons. This is exactly what has occurred here...

The Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable. They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted. The rules are unconstitutional as applied to Plaintiffs.

Don’t tell me Planned Parenthood isn’t a cultural aggressor.  It picked this fight precisely because it wants to destroy resistance, particularly from the religious, to its ideological views.

The last time this judge ruled in favor of the pharmacy, the Ninth Circuit Court of Appeals reversed and remanded for further consideration, which resulted in the current decision—not as sweeping a victory as the first.  This ain’t a done deal by any means, and I am not sure what impact it will have on the litigation over President Obama’s anti-Catholic Free Birth Control Rule.  I smell Supreme Court in about 2 years.