- Court: U.S. Court of Appeals for the Ninth Circuit - U.S. District Court for the Western District of Washington
- AU’s Role: Amicus
- AU's Involvement Began: March 2008
- Status: Ongoing
Description
After learning of several incidents in Washington and other states in which pharmacists refused to fill prescriptions for birth-control pills, emergency contraception, and other medications, the Washington State Board of Pharmacy adopted regulations in July 2007 requiring pharmacies to dispense lawfully prescribed drugs, while allowing individual pharmacists to have a colleague fill a prescription if they themselves object to filling it for religious or moral reasons. Two pharmacists and a corporate pharmacy brought a lawsuit challenging the regulations and asking the court to enjoin their enforcement, particularly as they relate to the emergency contraceptive Plan B (the "morning-after pill"), on the ground that the regulations violate their rights under the Free Exercise Clause. The United States District Court for the Western District of Washington ruled in favor of the plaintiffs, issuing a preliminary injunction that barred the State from enforcing the regulations "against any pharmacy which, or pharmacist who, refuses to dispense Plan B but instead immediately refers the patient either to the nearest source of Plan B or to a nearby source for Plan B." On March 11, 2008, Americans United and the American Humanist Association submitted an amicus brief in support of the State’s appeal to the U.S. Court of Appeals for the Ninth Circuit. The brief explains that the regulations already accommodate objecting pharmacists by permitting them, for example, to pass a prescription along to a colleague at the same store. The brief argues that requiring pharmacies to fill prescriptions in a timely manner is a neutral regulation that neither singles out religious beliefs for negative treatment nor applies solely to religious objections, instead addressing the full range of situations in which pharmacists might refuse to fill prescriptions. On May 1, 2008, the Ninth Circuit denied the State’s request for a stay of the district court’s injunction pending appeal, but expedited oral argument in the case. Oral argument took place on July 8, 2008. On July 8, 2009, the Ninth Circuit reversed the lower court’s decision and vacated the preliminary injunction that barred enforcement of the regulations. The Ninth Circuit concluded that because the regulations ensure safe and timely patient access to all medications, and do not single out medications against which pharmacists might have religious objections, the regulations are neutral and generally applicable. Accordingly, the Circuit held that the lower court should have applied a more relaxed legal standard in deciding whether a preliminary injunction was warranted. The Circuit also held that district court’s preliminary injunction was too broad because it barred enforcement of the regulations to all pharmacists and pharmacies in the state, instead of only to those who had brought the lawsuit.
Most Recent Developments
On July 29, 2009, the pharmacy and pharmacists filed a petition for rehearing by the court’s three-judge panel and for rehearing by the court en banc. On October 28, the Ninth Circuit denied the petition for rehearing en banc, but it granted the petition for panel rehearing, vacated its earlier opinion, and issued a new opinion. The new opinion reached the same outcome, and applied mostly the same analysis, as the earlier opinion had.
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