Sep 15, 2011

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.

Round One:

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 federal trial court ruled in favor of the plaintiffs and issued a preliminary injunction barring the State from enforcing the regulations against any pharmacy or pharmacist that refers patients to a nearby source of Plan B. 

The state appealed, and in March 2008 we filed an amicus brief, in support of the regulations, with the U.S. Court of Appeals for the Ninth Circuit. We explained that the regulations already accommodate objecting pharmacists by permitting them, for example, to pass a prescription along to a colleague at the same store. And we argued that the regulation neither singles out religious beliefs for negative treatment nor applies solely to religious objectors.

In July 2009, the Ninth Circuit reversed the lower court's decision and allowed the state to enforce the regulations; the panel issued an updated opinion in October 2009.

Round Two:

After the Board voted to retain the original regulation, the trial court ruled that the regulations were unconstitutional because they allowed pharmacies to refuse to stock or dispense medications for certain secular, business-related reasons but not for religious or moral reasons. The trial court also asserted that the regulations had been selectively enforced against pharmacies with religious objections. 

The state appealed again. In September 2012, we filed a second amicus brief in support of the regulations. We observed that the regulations impose little burden on religious practice, accommodate the religious objections of individual pharmacists, and serve a compelling interest in ensuring that patients receive timely access to their medications.

In July 2015, the Ninth Circuit again reversed the trial court's decision and upheld the state law.

In January 2016, the pharmacists asked the U.S. Supreme Court to review the Ninth Circuit's decision.

In June 2016, the Supreme Court decided that it would not hear the case, thus leaving the Ninth Circuit's decision unaltered.