9th Circuit: pharmacists must dispense morning-after pill

posted at 10:15 am on July 11, 2009 by Ed Morrissey
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The most overturned appellate court has teed up another case for the Supreme Court to consider — and likely soon. The 9th Circuit overturned an injunction in a district court case, allowing the state of Washington to force a pharmacy to stock and dispense morning-after pills, which causes the abortion of an embryo in the early days of a pregnancy. The pharmacy owners had objected, claiming that the law violated their religious practice:

Pharmacists are obliged to dispense the Plan B pill, even if they are personally opposed to the “morning after” contraceptive on religious grounds, a federal appeals court ruled Wednesday.

In a case that could affect policy across the western U.S., a supermarket pharmacy owner in Olympia, Wash., failed in a bid to block 2007 regulations that required all Washington pharmacies to stock and dispense the pills.

Family-owned Ralph’s Thriftway and two pharmacists employed elsewhere sued Washington state officials over the requirement. The plaintiffs asserted that their Christian beliefs prevented them from dispensing the pills, which can prevent implantation of a recently fertilized egg. They said that the new regulations would force them to choose between keeping their jobs and heeding their religious objections to a medication they regard as a form of abortion.

Ralph’s owners, Stormans Inc., and pharmacists Rhonda Mesler and Margo Thelen sought protection under the 1st Amendment right to free exercise of religion and won a temporary injunction from the U.S. District Court in Seattle pending trial on the constitutionality of the regulations. That order prevented state officials from penalizing pharmacists who refused to dispense Plan B as long as they referred consumers to a nearby pharmacy where it was available.

On Wednesday, a three-judge panel of the U.S. 9th Circuit Court of Appeals lifted the injunction, saying the district court was wrong in issuing it based on an erroneous finding that the rules violated the free exercise of religion clause of the U.S. Constitution.

There have been two different issues in the legal fight over Plan B.  In one group, pharmacists not working for themselves — for instance, at chain pharmacies — objected to dispensing the pill and wanted job protection despite their refusal.  Those cases hardly stand up to scrutiny.  The owner of the pharmacy has the right to decide on his own inventory and what to sell, and the employees of that pharmacy either should follow that policy or find a job somewhere else if it offends them.  It falls into the same category as a cashier who refuses to handle meat at the checkout counter because he’s a vegetarian.

However, this is something else.  The owners of the pharmacy do not want to stock the pills for their own reasons.  Even apart from religious grounds, that still seems to be their decision in the marketplace.  If they don’t want to sell aspirin, or Ginsu knives, or inflatable life vests for swimming pools, that should be their decision, too.  If their customers object to their policies, they will find other pharmacies to patronize.  The government has a public interest in telling retailers what they cannot sell for safety reasons (like dynamite, as an example), but should not force business owners to sell something they do not want to sell.

I’ll be interested in the appeal to this decision.  I suspect we’ll get another 5-4 decision.  I just hope that the decision will support the rights of business owners to determine for themselves the products and services they will offer.

Update: Gabriel Malor wants to emphasize that this ruling overturned the temporary injunction sought by the pharmacy, and is not a ruling on the case itself, which proceeds in district court.  I believe the ruling can be appealed to attempt to reinstate the injunction, and I hope it is.

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