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Bench Memos

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Pharmacists’ Conscience Rights on Trial—Introduction



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An important case for the cause of religious liberty is on trial in federal court in the state of Washington. In Stormans, Inc. v. Selecky, owners of a family pharmacy, called  Ralph’s, in Olympia, and two individual pharmacists, Rhonda Mesler and Margo Thelen, are challenging state regulations that require them to dispense the drug Plan B.

Plan B is intended to be taken following intercourse by a woman or girl who wants to avoid becoming pregnant. According to its manufacturer, Plan B can operate either to prevent conception (i.e., in a genuinely contraceptive manner) or to prevent implantation of an already fertilized egg (i.e., as an abortifacient*).

The pharmacy owners and the two individual pharmacists are Christians whose religious beliefs forbid them from participating in the destruction of an unborn human life. They believe that dispensing Plan B constitutes direct participation in the destruction of human life.

Ralph’s does not stock Plan B. Before the challenged regulations were adopted by the state of Washington in 2007, Ralph’s informed customers who requested Plan B of nearby pharmacies where they could purchase the drug, and it offered to call the pharmacies on their behalf. There are more than thirty pharmacies within five miles of Ralph’s that stock and dispense Plan B.

Rhonda Mesler and Margo Thelen are longtime pharmacists who were employed by other pharmacies. They both informed their employers when they were hired that they could not dispense Plan B for reasons of conscience. Because no other pharmacists were on duty during their shifts, they, with their employers’ permission, referred customers seeking Plan B to one of many nearby pharmacies. But, under the 2007 regulations, that accommodation is no longer permitted. Thelen has already lost her job, and Mesler will likely lose hers if the regulations are not struck down.

Pharmacies in Washington, as elsewhere, routinely refer customers to other pharmacies when they receive requests for drugs that are not in stock. Even for drugs that are in stock, they sometimes exercise the discretion to refer customers to other pharmacies where, for example, the customer’s insurance creates hassles related to reimbursement and forms of payment.

The primary—and very important—legal question that plaintiffs present is whether, under the Free Exercise Clause of the federal Constitution, the state of Washington may prohibit them from engaging in referrals for reasons of religious conscience when it has long permitted, and continues to permit, pharmacies to engage in a wide variety of referrals for secular reasons. In other words, can the 2007 regulations really be said to be “neutral and generally applicable” under the Supreme Court’s test in its 1990 decision in Employment Division v. Smith?

A resolution of this question in favor of plaintiffs might also promote the practice of referrals as a model for resolving various clashes between non-discrimination laws and religious conscience.

I will explore these points more fully in subsequent posts.

Let me highlight that I have drawn in this post, and expect to draw in subsequent posts, from the plaintiffs’ trial brief submitted by the outstanding lawyers at the Becket Fund for Religious Liberty and the Seattle law firm of Ellis, Li & McKinstry.

* There is a rhetorical dispute over how best to label this second means by which Plan B is said to operate. Some call it contraceptive, but that is clearly wrong, as it occurs after conception. There is an argument that the term “abortifacient” should be reserved for drugs that operate after implantation, but for most opponents of abortion the morally relevant fact is that this second means of Plan B destroys the life of an already existing human embryo. That’s why I believe the term “abortifacient” (rather than, say, the more obscure term “contragestative”) fairly conveys this second means.



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