Stormans Inc. v. Selecky

• Decision Date: 22 February 2012
• Docket Number: Case No. C07–5374 RBL.
• Citation: 844 F.Supp.2d 1172
• Parties: STORMANS INCORPORATED, et al., Plaintiffs, v. Mary SELECKY, Secretary of the Washington State Department of Health, et al., Defendants, and Judith Billings, et al., Intervenors.
• Court: U.S. District Court — Western District of Washington

844 F.Supp.2d 1172

STORMANS INCORPORATED, et al., Plaintiffs,

v. Mary SELECKY, Secretary of the Washington State Department of Health, et al., Defendants,andJudith Billings, et al., Intervenors.

Case No. C07–5374 RBL.

United States District Court,

W.D. Washington,

at Tacoma.

Feb. 22, 2012.

Kristen K. Waggoner, Steven Thomas O'Ban, Ellis Li & McKinstry, Seattle, WA, Luke W. Goodrich, Steven H. Aden, Alliance Defense Fund, Eric N. Kniffin, The Becket Fund for Religious Liberty, Washington, DC, Benjamin W. Bull, Alliance Defense Fund, Scottsdale, AZ, for Plaintiffs.

Alan D. Copsey, Rene David Tomisser, Joyce A. Roper, Agriculture & Health, Olympia, WA, for Defendants.

OPINION

RONALD B. LEIGHTON, District Judge.

I. SUMMARY

This case presents a novel question: can the State compel licensed pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious belief that doing so terminates a human life? In 2007, under pressure from the Governor, Planned Parenthood, and the Northwest Women's Law Center, the Washington State Board of Pharmacy enacted regulations designed to do just that.

The rule primarily ¹ at issue, commonly known as the “delivery rule,” requires pharmacies to timely deliver all lawfully prescribed medications, including the emergency contraceptives Plan B and ella.² Under the delivery rule, a pharmacy's refusal to deliver is grounds for discipline, up to and including revocation of its license. In operation, the delivery rule bars a pharmacy from referring patients seeking Plan B to other pharmacies, meaning they must dispense the drugs.

In violation of the regulations, but in conformity with their religious beliefs, the Plaintiffs refused to dispense Plan B to Planned Parenthood test shoppers and others. The Board launched a series of investigations, and this suit was the result. Based on the evidence presented at trial, the Board's regulations, while facially acceptable, are in practice unconstitutional.

II. BACKGROUND³

A. The Parties.

Plaintiffs are two individual pharmacists and a corporate pharmacy.⁴ Each holds the sincere religious belief that life begins at conception, when an egg from the female is fertilized by the sperm from the male. Taken after unprotected sex, emergency contraceptives Plan B and ella delay ovulation, ⁵ and can also prevent a fertilized egg from adhering to the wall of the uterus (implanting). Plan B is most effective if taken within three days, while ella is effective for five. Because of their religious beliefs, Plaintiffs refuse to dispense Plan B.

The State Defendants are individuals sued in their official capacities, charged with the promulgation, interpretation and enforcement of Board of Pharmacy regulations, including the 2007 Rules. The Defendant–Intervenors are various individuals personally concerned about access to lawful medications in Washington. Two are HIV-positive individuals concerned that the success of Plaintiffs' claims could result in the denial of lawfully prescribed and medically necessary drugs to combat their condition, based on the asserted religious or moral judgment of the dispensing pharmacist or pharmacy. They do not claim that they have been denied access to lawfully prescribed medications in the past.

The remaining Intervenors are women of child-bearing age who have been denied access to Plan B, who have heard that pharmacists in various pharmacies will refuse to dispense Plan B and will judge, intimidate, or harass them, who have engaged in “test shopping” to determine which pharmacies will not deliver Plan B, or who simply want to participate in order to ensure that women have access to Plan B.

B. The Pharmacy Board Rules and Their Operation.

The Board's 2007 rulemaking resulted in two new rules: the delivery rule and the pharmacist responsibility rule. The Board also gave a new interpretation to its pre-existing stocking rule. The effect of the new rules and the new interpretation is to force religious objectors to dispense Plan B.

The delivery rule imposes a “duty to deliver” on pharmacies:

(1) Pharmacies have a duty to deliver lawfully prescribed drugs or devices to patients and to distribute drugs and devices ... in a timely manner consistent with reasonable expectations for filling the prescription, except for the following or substantially similar circumstances:

(a) Prescriptions containing an obvious or known error ...

(b) National or state emergencies or guidelines affecting availability ...

(c) Lack of specialized equipment or expertise needed to safely produce, store, or dispense drugs ...

(d) Potentially fraudulent prescriptions; or

(e) Unavailability of drug or device despite good faith compliance with WAC 246–869–150.

(2) Nothing in this section requires pharmacies to deliver a drug or device without payment of their usual and customary or contracted charge.

Wash. Admin. Code § 246–869–010 (entitled “Pharmacies' Responsibilities”). The delivery rule operates in tandem with the stocking rule, which requires a pharmacy to stock a “representative assortment of drugs in order to meet the pharmaceutical needs of its patients.” Id.§ 246–869–150 (entitled “Physical standards for pharmacies—Adequate stock”). The rules, however, do not apply directly to pharmacists themselves.

Pharmacists have a statutory right to conscientious objection, and thus, may not be “required by law or contract in any circumstances to participate in the provisionof or payment for a specific service if they object to so doing for reason of conscience or religion.” Wash. Rev.Code § 48.43.065(2)(a) (applying to “health care providers,” including pharmacists). The Board's 2007 “pharmacist responsibility rule” recognized this right. It prohibits a pharmacist from destroying or refusing to return unfilled a lawful prescription, from violating a patient's privacy, and from unlawfully discriminating against, intimidating, or harassing a patient. See id. § 246–863–095. A pharmacist may refuse to fill a prescription, but a pharmacy may not. Accordingly, a pharmacy employing a pharmacist with a religious objection to Plan B can discharge its obligation under the delivery rule by having another on-duty pharmacist deliver the medication. The practical effect of the delivery rule (and the board's current interpretation of the stocking rule) nevertheless directly and adversely impacts pharmacists with a religious objection to dispensing Plan B.

Pharmacies without the need or ability to have two pharmacists on duty at all times cannot employ a pharmacist with a religious objection to dispensing Plan B without risking a violation of the delivery rule, if a patient with a valid Plan B prescription seeks to have it filled at that pharmacy. Nor does the fact that the rules obligate the pharmacy (and not the pharmacist) to timely deliver lawfully prescribed medications permit a pharmacist operating his own pharmacy to comply with the delivery rule without violating his conscience. Because a pharmacy must fill a prescription for Plan B, if it employs a pharmacist who objects, it must staff a second pharmacist simply to ensure that the pharmacy can comply. In effect, the conscientious objector costs the pharmacy twice what a single, non-conscientious objector does. For pharmacies that need only one pharmacist per shift, such a cost is unreasonable, and the pharmacy's only real option is to fire the conscientious objector. The delivery rule thus renders the pharmacist's right to conscientious objection illusory.

In the case of a pharmacy owner with religious objections to Plan B, there is no option other than to leave the business—and the Board was well aware of this result when it designed the rule.⁶

In practice, both the stocking rule and delivery rule contain exemptions not present in their text. While the stocking rule states pharmacies must carry a representative assortment of drugs requested by its patients, in practice, pharmacies refuse to carry drugs for a variety of reasons. Pharmacies regularly refuse to stock such drugs as oxycodone for fear of robbery; they refuse to dispense syringes because they dislike the clientele they associate with the product. Pharmacies may decline to stock a drug because it is expensive, because the “return on investment is less than desired, or because of the “hassle factor”—additional paperwork or patient tracking. Pharmacies may decline to stock drugs because they have contracted with manufacturers of competing drugs or because the pharmacy opts to serve a particular niche market. None of these exemptionsexist in the text of the rules; but in practice, the Board allows pharmacies to shape their stock rather than allowing patients to do so. Further, the Board has no written policy or procedure about how to enforce the stocking rule. And in at least 40 years, the Board has never enforced the stocking rule against any pharmacy—until the delivery rule required pharmacies to deliver Plan B.

Like the stocking rule, the delivery rule operates far more loosely than its text suggests. For example, the Board has interpreted the delivery rule to allow pharmacies to refuse to deliver a drug because it does not accept a patient's particular insurance or because it does not accept Medicare or Medicaid. That leeway exists because the delivery rule exempts a pharmacy from its duty to deliver in not just the five enumerated categories, but in all “substantially similar circumstances.”

C. Development of the Board of Pharmacy Regulations.

The Board's regulations have been aimed at Plan B and conscientious objectors from their inception. The events leading to promulgation began in 2005, when Planned Parenthood and the Northwest Women's Law Center contacted Christina Hulet, Senior Health Policy Advisor to the Governor, who began meeting with the groups. Ms. Hulet then referred the groups to Steven Saxe, the Pharmacy Board's Executive Director, and in doing so, informed Mr. Saxe that Northwest...