Court axes ‘anti-religious’ condom law

Decision impacts role of personal morality at workplace; judge accused state of being discriminatory.

Written by Agencies | Tacoma | Published: February 23, 2012 10:16 am

A federal judge declared on Wednesday that a Washington state rule requiring pharmacists to dispense emergency contraceptives against their religious beliefs is unconstitutional.

In a decision with national implications for the role of personal morality in the workplace,U.S. District Judge Ronald Leighton also imposed an injunction blocking enforcement of the regulation.

Leighton said he struck down the state rule because it violated the pharmacists’ right to conscientious objection.

The ruling only applies to Washington state but is sure to reverberate nationally,as it comes in the midst of a roiling political debate about a new federal regulation mandating that all health insurance plans – even those sponsored by religious employers – provide free birth control.

Several religiously affiliated universities have sued to block that insurance regulation. Their arguments are similar to those that prevailed in the pharmacy case – namely,that the government has no right to compel individuals to violate their sincerely held religious beliefs.

Washington Governor Chris Gregoire,a Democrat who had pushed for the pharmacy mandate,said the judge’s ruling left her concerned that some women will be denied timely access to emergency contraception,which can prevent pregnancy if taken within a few days of unprotected sex.

Gregoire said she saw strong arguments for an appeal of the ruling,though she said no decision had been made.

The lawsuit was brought by a drugstore owner in Olympia,Washington,and two of his pharmacists,all of whom shared the religious conviction that emergency contraceptives are tantamount to abortion because they can block a fertilized egg from implanting in the womb.

They refused to stock or dispense the medication,often referred to as the morning-after pill or by the brand name Plan B,and sued to block the regulation.

I’m just thrilled that the court ruled to protect our constitutional right of conscience,one of the pharmacists,Margo Thelen,said in a statement issued through her attorneys at the Becket Fund for Religious Liberty.

The case stems from a rule adopted by the Washington State Pharmacy Board in 2007 requiring pharmacies to stock and dispense most medications,including Plan B,for which there is a demonstrated community need.

In his 48-page opinion,Leighton noted that Washington permitted pharmacy owners to decide against stocking certain medications for any number of secular reasons – because they are expensive,for example,or inconvenient to dispense,or because they simply don’t fit into the store’s business plan. Yet the rule did not allow pharmacists to assert a religious reason for keeping certain drugs off their shelves.

A pharmacy is permitted to refuse to stock oxycodone because it fears robbery,but the same pharmacy cannot refuse to stock Plan B because it objects on religious grounds,the judge wrote. Why are these reasons treated differently under the rules?

TIMELY ACCESS

The judge also accused the state of enforcing the mandate selectively,noting that regulators had not opened cases against the many Catholic-affiliated pharmacies in the state that also refuse to dispense Plan B.

He suggested that a more logical way to ensure access to the contraceptive – while respecting religious conscience – would be to require pharmacists to refer patients to another drugstore that would fill the prescription if they declined to do it themselves.

The governor,however,has suggested that referrals would hinder timely access to the medication in rural areas,where there might be just one pharmacy for many miles.

Rene Tomisser,senior counsel for the state Attorney General,vehemently disputed the judge’s assertion that the regulation was being applied selectively or that it targeted Christian pharmacists in particular.

From the earliest years of our republic,[courts have held that a rule that is neutral and general has to be complied with by everyone,even if it affects someone’s religious beliefs,he said. He said the Washington rule was intended to ensure women’s access to an important and time-sensitive medication and that it was applied evenly to all pharmacies.

Leighton concluded in his opinion that the rules in question are not neutral,adding: They are 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.

Tomisser acknowledged that the state had not investigated or disciplined Catholic pharmacies for non-compliance,but said that was because they had received no complaints from consumers about those businesses. He,like the governor,said the state would consider an appeal.

While Leighton’s injunction technically applies only to the plaintiffs,Becket Fund lawyer Luke Goodrich said that as a practical matter,the state would now find it more difficult to enforce the regulation against other pharmacists.

Last spring,a state judge in Illinois struck down a similar law requiring pharmacies to dispense emergency contraception.

A handful of other states,including California,New Jersey and Wisconsin,have laws requiring pharmacies to fill all valid prescriptions,but loopholes allow pharmacists with moral objections to refer the patient to another drugstore.

Six states explicitly allow pharmacists to refuse to dispense contraceptives,and several more have broad right-to-conscience laws that provide some protection to pharmacists as well as to other healthcare professionals.

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