9th Circuit Fills Prescription for Religious Refusals at the Pharmacy

By Sondra Goldschein, Director of State Advocacy, ACLU Reproductive Freedom Project

Last week, the U.S. Court of Appeals for the 9th Circuit lifted the injunction (PDF) on the Washington State pharmacy rules that protect a patient's right to access medication without discrimination or delay. This is good news for the millions of women seeking to purchase contraception at pharmacies.

Across the country, we hear stories of individual pharmacists and pharmacies refusing to fill prescriptions based on a religious objection. Many times these stories come from patients trying to fill prescriptions for birth control, including emergency contraception.

Because the ACLU is committed to the health care needs of patients and the religious freedom of individual pharmacy employees, we advocate for solutions that protect both. So we were quite pleased when the Board of Pharmacy in Washington State issued rules that do exactly that. These rules, passed in 2007, make it clear that pharmacies have the responsibility to fill all valid prescriptions and satisfy all lawful requests for drugs like emergency contraception that certain patients can get without a prescription from behind the counter. An individual pharmacist with a religious objection will be able to ask another pharmacist on duty to provide the medicine, but in all cases, the pharmacy must provide the medication in a timely manner.

Our excitement for the rules was replaced with bewilderment when a federal district court blocked their enforcement pending trial; in Stormans, Inc. v. Selecky, the court said that the rules likely violated the First Amendment's protection of religious liberty. And we weren't the only ones who disagreed with the district court's analysis: on Wednesday, the 9th Circuit lifted the injunction on Washington State's pharmacy rules and found that the trial judge abused his discretion.

The 9th Circuit held that the purpose of the rules "was not to eliminate religious objections to the delivery of lawful medicines, but to eliminate all objections that do not ensure patient health, safety, and access to medication." The court noted that "the rules actually provide for religious accommodation — an individual pharmacist can decide whether to dispense a particular medication based on his religious beliefs and a particular pharmacy may continue to employ that pharmacist by making appropriate accommodations."

Stormans, Inc. v. Selecky, was filed by two individual pharmacists and a pharmacy. Seven Washington patients, represented by Legal Voice and Planned Parenthood of the Great Northwest, intervened in the case to help the state defend the rules. The case now returns to the district court.