9th Circuit Fills Prescription for Religious Refusals at the Pharmacy

ACLU

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.

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.

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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.

9th Circuit Fills Prescription for Religious Refusals at the Pharmacy

ACLU

The ACLU works to protect both the needs of patients and the religious freedom of individual pharmacy employees. Rules in Washington State were issued to do just that, then a federal district court blocked enforcement.

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.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

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.

News Abortion

Pennsylvania’s TRAP Law Could Be the Next to Go Down

Teddy Wilson

The Democrats' bill would repeal language from a measure that targets abortion clinics, forcing them to meet the standards of ambulatory surgical facilities.

A Pennsylvania lawmaker on Wednesday introduced a bill that would repeal a state law requiring abortion clinics to meet the standards of ambulatory surgical facilities (ASF). The bill comes in response to the U.S. Supreme Court’s ruling striking down a similar provision in Texas’ anti-choice omnibus law known as HB 2.

A similar so-called targeted regulation of abortion providers (TRAP) law was passed in Pennsylvania in 2011 with bipartisan majorities in both the house and state senate, and was signed into law by former Gov. Tom Corbett (R).

SB 1350, sponsored by Sen. Daylin Leach (D-Montgomery) would repeal language from Act 122 that requires abortion clinics to meet ASF regulations. The text of the bill has not yet been posted on the state’s legislative website.

The bill is co-sponsored by state Sens. Art Haywood (D-Philadelphia), Larry Farnese (D-Philadelphia), and Judy Schwank (D-Berks).

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Leach said in a statement that there has been a “nationwide attack on patients and their doctors,” but that the Supreme Court’s ruling upholds the constitutionally protected right to terminate a pregnancy.

“Abortion is a legal, Constitutionally-protected right that should be available to all women,” Leach said. “Every member of the Pennsylvania General Assembly swore an oath to support, obey and defend the Constitution of the United States, so we must act swiftly to repeal this unconstitutional requirement.”

TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to medical clinics, have been passed in several states in recent years.

However, the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt that struck down two of the provisions in HB 2 has already had ramifications on similar laws passed in other states with GOP-held legislatures.

The Supreme Court blocked similar anti-choice laws in Wisconsin and Mississippi, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.

Commentary Contraception

For Students at Religious Universities, Contraception Coverage Isn’t an Academic Debate

Alison Tanner

When the U.S. Supreme Court sent a case about faith-based objections to the Affordable Care Act's contraceptive mandate back to lower courts, it left students at religious colleges and universities with continuing uncertainty about getting essential health care. And that's not what religious freedom is about.

Read more of our articles on challenges to the Affordable Care Act’s birth control benefit here.

Students choose which university to attend for a variety of reasons: the programs offered, the proximity of campus to home, the institution’s reputation, the financial assistance available, and so on. But young people may need to ask whether their school is likely to discriminate in the provision of health insurance, including contraceptive coverage.

In Zubik v. Burwell, a group of cases sent back to the lower courts by the U.S. Supreme Court in May, a handful of religiously affiliated universities sought the right to deny their students, faculty, and staff access to health insurance coverage for contraception.

This isn’t just a legal debate for me. It’s personal. The private university where I attend law school, Georgetown University in Washington, D.C., currently complies with provisions in the Affordable Care Act that make it possible for a third-party insurer to provide contraceptive access to those who want it. But some hope that these legal challenges to the ACA’s birth control rule will reverse that.

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Georgetown University Law Center refused to provide insurance coverage for contraception before the accommodation was created in 2012. Without a real decision by the Supreme Court, my access to contraception insurance will continue to be at risk while I’m in school.

I’m not alone. Approximately 1.9 million students attend religiously affiliated universities in the United States, according to the Council for Christian Colleges and Universities. We students chose to attend these institutions for lots of reasons, many of which having nothing to do with religion. I decided to attend Georgetown University Law Center because I felt it was the right school for me to pursue my academic and professional goals, it’s in a great city, it has an excellent faculty, and it has a vibrant public-interest law community.

Like many of my fellow students, I am not Catholic and do not share my university’s views on contraception and abortion. Although I was aware of Georgetown’s history of denying students’ essential health-care benefits, I did not think I should have to sacrifice the opportunity to attend an elite law school because I am a woman of reproductive age.

That’s why, as a former law clerk for Americans United for Separation of Church and State, I helped to organize a brief before the high court on behalf of 240 students, faculty, and staff at religiously affiliated universities including Fordham, Georgetown, Loyola Marymount, and the University of Notre Dame.

Our brief defended the sensible accommodation crafted by the Obama administration. That compromise relieves religiously affiliated nonprofit organizations of any obligation to pay for or otherwise provide contraception coverage; in fact, they don’t have to pay a dime for it. Once the university informs the government that it does not want to pay for birth control, a third-party insurer steps in and provides coverage to the students, faculty, and staff who want it.

Remarkably, officials at the religious colleges still challenging the Affordable Care Act say this deal is not good enough. They’re arguing that the mere act of informing the government that they do not want to do something makes them “complicit” in the private decisions of others.

Such an argument stands religious freedom on its head in an attempt to impose one group’s theological beliefs on others by vetoing the third-party insurance providers’ distribution of essential health coverage to students, faculty, and staff.

This should not be viewed as some academic debate confined to legal textbooks and court chambers. It affects real people—most of them women. Studies by the Guttmacher Institute and other groups that study human sexuality have shown that use of artificial forms of birth control is nearly universal among sexually active women of childbearing years. That includes Catholic women, who use birth control at the same rate as non-Catholics.

Indeed, contraception is essential health care, especially for students. An overwhelming number of young people’s pregnancies are unplanned, and having children while in college or a graduate program typically delays graduation, increases the likelihood that the parent will drop out, and may affect their future professional paths.

Additionally, many menstrual disorders make it difficult to focus in class; contraception alleviates the symptoms of a variety of illnesses, and it can help women actually preserve their long-term fertility. For example, one of the students who signed our brief told the Court that, “Without birth control, I experience menstrual cycles that make it hard to function in everyday life and do things like attend class.” Another woman who signed the brief told the Court, “I have a history of ovarian cysts and twice have required surgery, at ages 8 and 14. After my second surgery, the doctor informed me that I should take contraceptives, because if it happened again, I might be infertile.”

For these and many other reasons, women want and need convenient access to safe, affordable contraceptives. It is time for religiously affiliated institutions—and the Supreme Court—to acknowledge this reality.

Because we still don’t have an ultimate decision from the Supreme Court, incoming students cannot consider ease of access to contraception in deciding where to attend college, and they may risk committing to attend an university that will be legally allowed to discriminate against them. A religiously affiliated university may be in all other regards a perfect fit for a young woman. It’s unfair that she should face have to risk access to essential health care to pursue academic opportunity.

Religious liberty is an important right—and that’s why it should not be misinterpreted. Historically, religious freedom has been defined as the right to make decisions for yourself, not others. Religious freedom gives you have the right to determine where, how, and if you will engage in religious activities.

It does not, nor should it ever, give one person or institution the power to meddle in the personal medical decisions of others.