586 F.3d 1109 (9th Cir. 2009), 07-36039, Stormans, Inc. v. Selecky

Docket Nº:07-36039, 07-36040.
Citation:586 F.3d 1109
Opinion Judge:WARDLAW, Circuit Judge:
Party Name:STORMANS, INC., doing business as Ralph's Thriftway; Rhonda Mesler; Margo Thelen, Plaintiffs-Appellees, v. Mary SELECKY, Secretary of the Washington State Department of Health; Laurie Jinkins, Assistant Secretary of Washington Health Systems Quality Assurance; George Roe; Susan Thiel Boyer; Dan Connolly; Gary Harris; Vandana Slatter; Rebecca Hille;
Attorney:Kristen K. Waggoner, Seattle, WA, for the plaintiffs-appellees. Alan D. Copsey, Assistant Attorney General, Olympia, WA, for defendants-appellants. Rima J. Alaily, Seattle, WA, for the defendants-intervenors-appellants.
Judge Panel:Before: KIM McLANE WARDLAW, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.
Case Date:October 28, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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586 F.3d 1109 (9th Cir. 2009)

STORMANS, INC., doing business as Ralph's Thriftway; Rhonda Mesler; Margo Thelen, Plaintiffs-Appellees,

v.

Mary SELECKY, Secretary of the Washington State Department of Health; Laurie Jinkins, Assistant Secretary of Washington Health Systems Quality Assurance; George Roe; Susan Thiel Boyer; Dan Connolly; Gary Harris; Vandana Slatter; Rebecca Hille; Rosemarie Duffy, Members of the Washington Board of Pharmacy; Ellis Casson; Deborah Sious Cano-Lee; Jerry Hebert; Shawn Murinko, Commissioners for the Washington Human Rights Commission; Mark Brenman, Executive Director of the Washington Human Rights Commission; Yvonne Lopez Morton acting Commissioner of the Human Rights Commission of the State of Washington, Defendants-Appellants,

and

Judith Billings; Rhiannon Andreini; Jeffrey Schouten; Molly Harmon; Catherine Rosman; Emily Schmidt; Tami Garrard, Defendant-intervenors.

Stormans, Inc., doing business as Ralph's Thriftway; Rhonda Mesler; Margo Thelen, Plaintiffs-Appellees,

v.

Mary Selecky, Secretary of the Washington State Department of Health; Laurie Jinkins, Assistant Secretary of Washington Health Systems Quality Assurance; George Roe; Susan Thiel Boyer; Dan Connolly; Gary Harris; Vandana Slatter; Rebecca Hille; Rosemarie Duffy, Members of the Washington Board of Pharmacy; Ellis Casson; Deborah Sious Cano-Lee; Jerry Hebert; Shawn Murinko, Commissioners for the Washington Human Rights Commission; Mark Brenman, Executive Director of the Washington Human Rights Commission, Defendants,

and

Yvonne Lopez Morton, acting Commissioner of the Human Rights Commission of the State of Washington, Defendant-Appellant,

Judith Billings; Rhiannon Andreini; Jeffrey Schouten; Molly Harmon; Catherine Rosman; Emily Schmidt; Tami Garrard, Defendant-intervenors-Appellants.

Nos. 07-36039, 07-36040.

United States Court of Appeals, Ninth Circuit.

October 28, 2009

Argued and Submitted July 8, 2008.

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Kristen K. Waggoner, Seattle, WA, for the plaintiffs-appellees.

Alan D. Copsey, Assistant Attorney General, Olympia, WA, for defendants-appellants.

Rima J. Alaily, Seattle, WA, for the defendants-intervenors-appellants.

Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. CV-07-05374-RBL.

Before: KIM McLANE WARDLAW, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.

ORDER AND OPINION

ORDER

Appellees' petition for panel rehearing is GRANTED. The prior opinion filed on July 8, 2009, and reported at 571 F.3d 960 is vacated concurrent with the filing of a New Opinion today.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing en banc is DENIED. Subsequent petitions for panel rehearing and for rehearing en banc may be filed with respect to the New Opinion.

IT IS SO ORDERED.

OPINION

WARDLAW, Circuit Judge:

We must decide whether the district court abused its discretion by preliminarily enjoining the enforcement of new rules promulgated by the Washington State Board of Pharmacy (" Board" ) that require pharmacies to deliver lawfully prescribed Federal Drug Administration (" FDA" )-approved medications and prohibit discrimination against patients, on the ground that the rules violate pharmacies' or their licensed pharmacists' free exercise rights under the First Amendment to the U.S. Constitution. We have jurisdiction pursuant to 28 U.S.C. § 1292. Because we conclude that the district court incorrectly applied a heightened level of scrutiny to a neutral law of general applicability, and because the injunction is overbroad, we vacate, reverse, and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

The practice of pharmacy in the state of Washington is regulated by the Washington State Board of Pharmacy pursuant to a comprehensive regulatory scheme which directs the Board to " [r]egulate the practice of pharmacy and enforce all laws placed under its jurisdiction," " [e]stablish the qualifications for licensure," conduct disciplinary proceedings, and " [p]romulgate rules for the dispensing, distribution, wholesaling, and manufacturing of drugs and devices and the practice of pharmacy for the protection and promotion of the

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public health, safety, and welfare." Wash. Rev.Code Ann. § 18.64.005. Under the Code, a license is required for " any person to practice pharmacy or to institute or operate any pharmacy." Id. at § 18.64.020. A " pharmacist" is defined as " a person duly licensed by the Washington state board of pharmacy to engage in the practice of pharmacy," id. at § 18.64.011(10), and a " pharmacy" is defined as " every place properly licensed by the board of pharmacy where the practice of pharmacy is conducted," id. at § 18.64.011(12). The " practice of pharmacy" " includes the practice of and responsibility for: [i]nterpreting prescription orders [and] the compounding, dispensing, labeling, administering, and distributing of drugs and devices," in addition to information-sharing and monitoring responsibilities. Id. at § 18.64.011(11).

In January 2006, the Board became concerned with the lack of clear authority regarding destruction or confiscation of lawful prescriptions and refusals by pharmacists to dispense lawfully prescribed medications. Recognizing the importance of providing Washington patients timely access to all medications, the Board initiated a rulemaking process to address these issues. For sixteen months, the Board considered its various rulemaking options, receiving 21,000 written comments and testimony from the public and various interest groups. Pursuant to the Washington Administrative Procedure Act, Wash. Rev.Code Ann. § 34.05.325, the Board conducted well-attended hearings on the proposed rules.

Some public comments addressed the availability of a variety of prescription medicines and devices, such as syringes, prenatal vitamins, oral contraceptives, and AIDS medications. Most of the comments, however, focused on whether pharmacists should be allowed to refuse to dispense a lawful prescription for Plan B based on their personal, moral, or religious beliefs.

Approved by the FDA on July 28, 1999, Plan B is a postcoital hormonal emergency contraceptive which contains the same hormones as ordinary birth control pills, estrogen and progestin, in much stronger dosages. It is used to prevent pregnancy after the intended method of birth control fails or after unprotected sexual activity. Plan B is most effective within the first 12 to 24 hours after sexual intercourse and becomes less effective with each passing hour. It should be taken within 72 hours of sexual intercourse. After 120 hours, it has no effect. Plan B is approved for over-the-counter dispensation nationwide to adults eighteen and over. The drug must be held behind the pharmacist's counter and can be sold to any adult, male or female, upon age verification. At the time of the district court's decision, females younger than eighteen were required to present a medical prescription to obtain the drug.1

The drug is generally available to Washington residents through pharmacies, physicians' offices, government health centers, hospital emergency rooms, Planned Parenthood, the Internet, and a toll-free hotline. Seventy-seven percent of Washington pharmacies, responding to a sample survey of 121 pharmacies conducted before the adoption of the challenged new rules,2

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typically stock Plan B. Those who did not cited low demand (15 percent) 3 or an easy alternative source (2 percent). Only two pharmacies (2 percent) surveyed did not stock the drug because of personal, religious, or moral objections. If the survey is accurate and representative, that translates into approximately 27 of the 1,370 licensed pharmacies in Washington. The survey does not reveal how many pharmacists in the state decline to dispense the drug.

One of the comments received by the Board during its rulemaking process was set forth in an April 17, 2006, letter from the Washington State Human Rights Commission's (" HRC" ) Executive Director, Marc Brenman. HRC was created by the legislature and is authorized to act to prevent discrimination in violation of the Washington Law Against Discrimination ("WLAD" ). Wash. Rev.Code Ann. § 49.60.010. It may issue and investigate complaints, attempt conciliation, or refer matters to the Attorney General's Office for a hearing before an administrative law judge. Id. §§ 49.60.230, .250; Wash. Admin. Code §§ 162-08-071 to -190. HRC is not authorized to make a final determination that discrimination occurred or to issue penalties. See Wash. Rev.Code Ann. § 49.60.240. HRC is authorized to comment on rules being considered by other agencies or state officials. See id. § 49.60.110 (" [HRC] shall formulate policies to effectuate the purposes of this chapter and may make recommendations to agencies and officers of the state or local subdivisions of government in aid of such policies and purposes."). It was under this authority that the Executive Director submitted a letter to the Board, which concluded:

It is illegal and bad policy to permit pharmacists to deny services to women based on the individual pharmacists' religious or moral beliefs. We have examined the issue from federal and state law perspectives, from the public interest, and from possible defenses and compromises that could be raised and made. On no ground would refusal to fill a lawful prescription for emergency contraception be appropriate.

The letter also posited that any pharmacy or pharmacist who declined to dispense Plan B for any reason engaged in sex discrimination in violation of...

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