Why A Federal District Court Was Wrong to Apply Strict Scrutiny to a Washington State Law Requiring Pharmacies, But Not Individual Pharmacists, to Fill "Plan B" Prescriptions

By MARCI HAMILTON

Thursday, Nov. 15, 2007

As abortion opponents have succeeded in using state laws to trim back the impact of Roe v. Wade, they have also been emboldened to seek to prohibit the distribution of contraceptives. Accordingly, pharmacists who are "pro-life" have refused to fill prescriptions for the Plan B pill, which recent studies show to prevent ovulation.

A woman can take the Plan B pill soon after having had sex (or having been raped), in order to prevent pregnancy. Normally, it can be readily procured at her local pharmacy. This ready availability is critical for this time-sensitive drug. It is most effective if taken within 72 hours, but should be taken as soon as possible, as the effectiveness lessens with each passing hour. If a woman is already pregnant, however, Plan B will not terminate the pregnancy. Thus, Plan B must be distinguished from RU-486, which must be given in the context of a doctor's office or a hospital, and which does, in fact, induce an abortion.

In extreme cases, pharmacists have torn up the prescription, refused to hand the prescription back to the patient, and lectured or harassed the patient. Under Washington State law, the pharmacist may not engage in those acts, and pharmacies may not simply refuse to fill Plan B prescriptions. In fact, the law pertains to all medications, but the controversy surrounds Plan B.

Last week, however, a U.S. District Court in Washington State ruled, in Stormans v. Selecky, that the law is subject to strict scrutiny and therefore issued a preliminary injunction against the law's application.

How the Washington Case Intersects with the Debate Over Plan B

The Washington case is an excellent example of the debate swirling around the country. There are two accommodations conservative religious pharmacists typically demand:

First, a pharmacist may demand the right to hand the prescription to another pharmacist without the same religious objections. This remains entirely legal under Washington State's law.

Second, a pharmacist or pharmacy may demand the right to "refuse and refer" - that is, to send the woman to another pharmacy. This is arguably prohibited by Washington State's law. Since the responsibility under the law lies with the pharmacy to ensure the patient gets the medication, this is impermissible. The only exceptions to this requirement are if the pharmacy happens to be out of stock, there is fraud or error, or if the drug is contraindicated. This last reason reinforces the fact that pharmacists are not simply clerks in drugstores, but rather licensed professionals, whose job it is to serve the public.

In sum, Washington State's law can be viewed as a compromise solution, ensuring that individual pharmacists need not compromise their religious beliefs, yet also ensuring that women with Plan B prescriptions will be able to fill them at their neighborhood pharmacy.

The U.S. District Court Ruling

Unfortunately, the U.S. District court in Washington State did not see the law as the reasonable compromise that it is. Instead, it held that the law is not neutral or generally-applicable, and, therefore, is subject to strict scrutiny.

Reasoning that the law only affects individuals with religious objections to filling Plan B prescriptions, the court saw the law as targeting those individuals -- even though ultimately, the responsibility to staff at least one pharmacist willing to fill Plan B prescriptions lies with the pharmacy, not with any individual.

After deeming the law to have targeted the pharmacists under the First Amendment's Free Exercise Clause, the judge held that "strict scrutiny" applied. Under that test, a law or regulation must serve a compelling government interest, and must also be the least restrictive means of serving that interest (in other words, the means that least restricts identified constitutional rights).

Having decided that strict scrutiny applied, the judge reasoned that the state was likely to be unable to prove both that it had a compelling interest in requiring provision of the medication and that the law was not the least restrictive means. Indeed, he derided the state's interest as little more than an interest in serving patients' "convenience," while characterizing the religious believer's interest at one point as a "fundamental right."

Why the Judge's Ruling Is Plainly In Error, Under Supreme Court Precedent

Supreme Court precedent shows that the judge's reasoning is simply wrongheaded. Let's begin with Employment Div. v. Smith. That decision held that neutral, generally-applicable laws can sweep religious believers within their scope. For instance, in Smith itself, the general federal ban on peyote was allowed to sweep in uses of peyote in religious ceremonies.

Based on Smith, there is no question that Washington State could simply pass a law requiring all pharmacies and pharmacists, as a condition of receiving their licenses to practice, to dispense every valid prescription presented - including Plan B. That is a neutral, generally-applicable law with an obviously legitimate public purpose of increasing access to needed medications. Washington has gone beyond that, permitting individual pharmacists to avoid filling the prescription.

It makes little sense to subject a law to more scrutiny when it provides more accommodation for religious believers than the underlying neutral, generally-applicable version. This move puts courts in the business of second-guessing legislative judgments about the public good, which is precisely where they do not belong, as I argue in God vs. the Gavel. No federal judge has the institutional capacity to make a judgment whether Plan B needs to be available to patients or not - that is a classic public policy issue.

Granted, too, the law may have an incidental effect on religious belief when a particular pharmacy, based on religious belief, refuses to fill a particular prescription. But the peyote ban similarly had an incidental effect on religious belief when a particular believer could not use peyote at a particular ceremony, and the Court still upheld it. The bottom line is that incidental effects do not trigger strict scrutiny under the Free Exercise Clause. This is true even if the law is targeting behavior that happens to be religiously motivated but also creates a risk of harm to patients.

Moreover, an even more directly relevant Supreme Court precedent, Griswold v. Connecticut, clearly establishes the specific right to procure contraception. In that case, a married couple was not permitted to obtain contraception through their doctor by state law, and the Court held that the denial was a violation of a constitutionally-protected right of privacy. This holding has been established law for 40 years and given the vast majority of Americans who use contraception, it is a permanent feature of American constitutional law.

A Law with Disproportionate Effect Is Not Deemed by the Supreme Court To Be Inherently Discriminatory

Granted, the U.S. District Court judge notes, in support of his belief that strict scrutiny applies, that the only pharmacists that have been affected by the relevant provisions are those with a religious objection to Plan B. In other words, he ruled that disproportionate effect necessarily triggers strict scrutiny.

However, this is not the law under the Free Exercise Clause. It is one thing when a law is designed to restrict only the particular conduct of a single religion as in Church of Lukumi Babalu Aye v. City of Hialeah, where Hialeah created a regulation that could only be applied to the Santerians' worship practices. It is quite another when a law regulates general conduct, such as the evenhanded dispensing of medication, and particular religious individuals choose to disobey the general regulation on the basis of their religious beliefs. The latter describes the situation here.

Indeed, the disproportionate effect argument has never even been the standard under the Equal Protection Clause, including when the issue was racial discrimination, as the Supreme Court's decision Washington v. Davis attests. In that case, minority police taking a test determining promotion argued that they were the victims of discrimination, because the test results disproportionately affected them. The Court ruled that disproportionate effect is insufficient to prove intentional discrimination.

The fact that only one religious sect engages in the practice does not prove that the legislature is acting out of discriminatory motives, as opposed to concern for the public good. For example, imagine the court had learned that a religious sect was permitting children to die of treatable medical ailments, in violation of the state's neutral, generally-applicable medical neglect laws. There would be no constitutional defense available for the sect, even though it happened that it was the only entity (and the only religious entity) so acting. Both courts and legislatures can learn about harm arising from a single religious entity and then forestall everyone from doing it.

The Accommodation Washington State Chose is the Right One

The appropriate standard of review is rationality review, and it is obvious that the existing accommodation is rational. Even if the court had no basis to protect the pharmacies' Free Exercise rights as a matter of right, should the legislatures have done so as a matter of grace? Here, too, the argument is shaky. Allowing the pharmacy to "refuse and refer" creates a potentially endless trek for the patient, and ironically, may lead to an abortion that never should have had to occur. What happens when all pharmacies in an especially religious area refuse and refer? Or when the area is sparsely populated and extremely large geographically? With the clock ticking, will women have to desperately drive to a faraway pharmacy, hoping they will be in time, and if they are too late, face the painful choice between abortion and an unwanted pregnancy?

The court's condescending treatment of the woman's plight as a matter of mere "convenience" is especially problematic here. The issue is not the high value of a right to avoid religious targeting, against a right not to use up gasoline. Rather, it is the right to obtain contraceptives free of state interference, against a much weaker right to force a court to carve out a religious accommodation from a neutral, generally-applicable law.

Washington reached a sensible public policy balance and the federal courts have no business entering this important, politically fraught public policy arena. The court in this case was buying into this new era of religious entitlement, which I have discussed in a previous column, the theory of which eases the difficulties of religious practice for some believers but threatens the liberty of every other American, believer or nonbeliever.

Another Wrinkle: Competing Religious Beliefs on Both Sides

Finally, the one fact the court never addressed is that there are competing religious beliefs on both sides here. The woman seeking contraception has a set of religious beliefs, too, and they permit the use of contraception. Why do the licensed pharmacist's beliefs get to trump the patient's beliefs? This is not a case of religion versus secularism, but rather, as usual in the United States, believer versus believer. It is a typical turn at this point for conservative Christians, especially in this arena, to label those opposed to them as "secularists," but the truth is that it is hard to find a secularist in the United States, and labeling religious believers as secularists is offensive. It demeans their religious worldview in ways that, if used to talk about conservative Christians' beliefs, would be deemed by them to be very offensive.

In the end, this erroneous decision goes well beyond contraception, and institutes a very slippery slope. What happens when stem cell research results in cures for horrendous ailments? Under the court's reasoning, pharmacists will have the constitutional right to avoid filling those prescriptions, too, because the pharmacist objects to the mode of research on religious grounds. That is a scary future.


Marci A. Hamilton is a Visiting Professor of Public Affairs and the Kathleen and Martin Crane Senior Research Fellow at the Program in Law and Public Affairs at Princeton University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Professor Hamilton's forthcoming book, which will be published this spring is titled, Justice Denied: What America Must Do to Protect Its Children(Cambridge 2008).

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