Stormans, Inc. v. Wiesman
| Citation | 794 F.3d 1064 |
| Decision Date | 23 July 2015 |
| Docket Number | Nos. 12–35221,12–35223.,s. 12–35221 |
| Parties | STORMANS, INC., doing business as Ralph's Thriftway ; Rhonda Mesler; and Margo Thelen, Plaintiffs–Appellees, v. John WIESMAN, Secretary of the Washington State Department of Health; Dan Rubin; Elizabeth Jensen; Emma Zavala–Suarez; Sepi Soleimanpour, Members of the Washington Pharmacy Quality Assurance Commission; Mark Brenman, Executive Director of the Washington Human Rights Commission ; Martin Mueller, Assistant Secretary of the Washington State Department of Health, Health Services Quality Assurance; Christopher Barry; Nancy Hecox ; Tim Lynch ; Steven Anderson; Albert Linggi; Maureen Simmons Sparks; Maura C. Little; Kristina Logsdon, Members of the Washington Pharmacy Quality Assurance Commission, Defendants–Appellants, and Judith Billings; Rhiannon Andreini; Jeffrey Schouten; Molly Harmon ; Catherine Rosman; Tami Garrard, Defendant–Intervenors. Stormans, Inc., doing business as Ralph's Thriftway ; Rhonda Mesler; Margo Thelen, Plaintiffs–Appellees, v. John Wiesman, Secretary of the Washington State Department of Health; Dan Rubin; Elizabeth Jensen; Emma Zavala–Suarez; Sepi Soleimanpour, Members of the Washington Pharmacy Quality Assurance Commission; Mark Brenman, Executive Director of the Washington Human Rights Commission ; Martin Mueller, Assistant Secretary of the Washington State Department of Health, Health Services Quality Assurance; Christopher Barry; Nancy Hecox ; Tim Lynch ; Steven Anderson; Albert Linggi; Maureen Simmons Sparks; Maura C. Little; Kristina Logsdon, Members of the Washington Pharmacy Quality Assurance Commission, Defendants, and Judith Billings; Rhiannon Andreini; Jeffrey Schouten; Molly Harmon ; Catherine Rosman; Tami Garrard, Defendant–Intervenors–Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas L. Boeder (argued), Andrew L. Greene, Katherine D. Bennett, and Noah Guzzo Purcell, Perkins Coie LLP, Seattle, WA; Lisa M. Stone, Molly Terwilliger, and Janet Chung, Legal Voice, Seattle, WA; Laura Einstein, Planned Parenthood of the Great Northwest, Seattle, WA, for Defendant–Intervenors–Appellants.
Alan D. Copsey (argued), Deputy Solicitor General, Robert M. McKenna, Attorney General, Rene Tomisser, Senior Counsel, Joyce A. Roper, Senior Assistant Attorney General, Olympia, WA, for Defendants–Appellants.
Kristen K. Waggoner (argued) and Steven T. O'Ban, Ellis, Li & McKinstry PLLC, Seattle, WA; Michael W. McConnell, Stanford, CA; Luke W. Goodrich, The Becket Fund for Religious Liberty, Washington, D.C.; Steven H. Aden, Alliance Defending Freedom, Scottsdale, AZ, for Plaintiffs–Appellees.
Sara L. Ainsworth, University of Washington School of Law, Seattle, WA; Michael S. Wampold, Peterson Wampold Rosato Luna Knopp, Seattle, WA, for Amici Curiae Organizations and Experts Dedicated to Ending Rape and Intimate Partner Violence.
Mary Re Knack and Sarah Joye, Williams, Kastner & Gibbs PLLC, Seattle, WA, for Amici Curiae Public Health and Human Rights Organizations, et al.
Alex J. Luchenitser, Ayesha N. Khan, and Benjamin N. Hazelwood, Americans United for Separation of Church and State, Washington, D.C., as Amicus Curiae.
Shannon P. Minter, Christopher F. Stoll, Angela Perone, Asaf Orr, and Ashland Johnson, National Center for Lesbian Rights, San Francisco, CA, for Amici Curiae AIDS United, et al.
Stephanie Toti, Senior Staff Attorney, New York, New York, as Amici Curiae Center for Reproductive Rights and for National Women's Law Center.
Jessica A. Skelton and Kymberly K. Evanson, Pacifica Law Group LLP, Seattle, WA, for Amici Curiae Religious and Religiously–Affiliated Organizations and Individual Clergy.
Denise M. Burke and Mailee R. Smith, Americans United for Life, Washington, D.C., for Amici Curiae Members of the United States Congress.
Jason A. Levine and Eric A. White, Vinson & Elkins LLP, Washington, D.C., for Amici Curiae American Pharmacists Association, et al.
Mark E. Chopko, Marissa Parker, and Zeenat A. Iqbal, Stradley Ronon Stevens & Young, LLP, Washington, D.C., for Amici Curiae The Muslim Public Affairs Council, et al.
Christian J. Ward, Scott A. Keller, J. Campbell, and April L. Farris, Yetter Coleman LLP, Austin, TX; Douglas Laycock, University of Virginia Law School, Charlottesville, VA, for Amici Curiae Constitutional Law Professors.
Dorinda C. Bordlee and Nikolas T. Nikas, Bioethics Defense Fund, Scottsdale, Arizona; Kimberlee Wood Colby, Christian Legal Society, Springfield, VA, for Amici Curiae Christian Medical Association, et al.
Kevin Marshall and Richard M. Re, Jones Day, Washington, D.C., for Amici Curiae The Church of the Lukumi Babalu Aye, Inc., et al.
Alexander Dushku and Justin W. Starr, Kirton/McConkie, Salt Lake City, UT, for Amici Curiae Washington State Catholic Conference, et al.
Carrie L. Severino and Ammon Simon, Judicial Education Project, Washington, D.C., for Amici Curiae Agudath Israel of America, et al.
Sean D. Jordan, Kent C. Sullivan, Danica L. Milios, Travis Mock, and Peter Hansen, Sutherland Asbill & Brennan LLP, Austin, TX; Jeffrey C. Mateer and Justin E. Butterfield, Liberty Institute, Plano, TX, for Amicus Curiae Liberty Institute.
Matthew T. Nelson and Elinor Jordan, Warner Norcross & Judd LLP, Grand Rapids, MI, for Amicus Curiae The Bruderhof and Hopewell Mennonite Church.
Sandra Payne Hagood, La Jolla, CA; Thomas C. Berg, University of St. Thomas Law School, Minneapolis, MN, for Amici Curiae Individual Physicians, Obstetricians, and Health Care Practitioners Licensed in the State of Washington.
Appeals from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. 3:07–cv–05374–RBL.
Before: SUSAN P. GRABER, RICHARD R. CLIFTON, and MARY H. MURGUIA, Circuit Judges.
In order to promote patient safety in the state of Washington, the Washington Pharmacy Quality Assurance Commission (“Commission”) promulgated rules requiring the timely delivery of all prescription medications by licensed pharmacies. The rules permit pharmacies to deny delivery for certain business reasons, such as fraudulent prescriptions or a customer's inability to pay. The rules also permit a religiously objecting individual pharmacist to deny delivery, so long as another pharmacist working for the pharmacy provides timely delivery. But, unless an enumerated exemption applies, the rules require a pharmacy to deliver all prescription medications, even if the owner of the pharmacy has a religious objection.
Plaintiffs are the owner of a pharmacy and two individual pharmacists who have religious objections to delivering emergency contraceptives such as Plan B and ella. They challenge the rules on free exercise and other constitutional grounds. After a bench trial, the district court held that the rules violate the Free Exercise and Equal Protection Clauses, and the court permanently enjoined enforcement of the rules. Because we conclude that the rules are neutral and generally applicable and that the rules rationally further the State's interest in patient safety, we reverse.
The Commission regulates the practice of pharmacy in the state of Washington. Wash. Rev.Code § 18.64.001. A comprehensive regulatory scheme tasks the Commission to, among other duties, “[r]egulate the practice of pharmacy and enforce all laws placed under its jurisdiction”; “[e]stablish the qualifications for licensure of pharmacists or pharmacy interns”; conduct and manage disciplinary proceedings; assist in the enforcement of the pharmacy laws and regulations; 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 public health, safety, and welfare.” Id. § 18.64.005(1), (3)-(7).
To “practice pharmacy or to institute or operate any pharmacy,” a person must obtain a license. Id. § 18.64.020. A “pharmacist” is defined as “a person duly licensed by the commission to engage in the practice of pharmacy,” id. § 18.64.011(20), and a “pharmacy” is defined as “every place properly licensed by the commission where the practice of pharmacy is conducted,”id. § 18.64.011(21). The “practice of pharmacy” includes “[i]nterpreting prescription orders; the compounding, dispensing, labeling, administering, and distributing of drugs and devices; ... [and] the proper and safe storing and distributing of drugs and devices and maintenance of proper records thereof.” Id. § 18.64.011(23). Under what is known as the “Stocking Rule,” promulgated in 1967, a pharmacy “must maintain at all times a representative assortment of drugs” approved by the Food and Drug Administration (“FDA”) “in order to meet the pharmaceutical needs of its patients.” Wash. Admin. Code § 246–869–150(1). Violation of an administrative rule “shall constitute grounds for refusal, suspension, or revocation of licenses or any other authority to practice issued by the commission.” Wash. Rev.Code § 18.64.005(7).
In 2007, the Commission unanimously and formally adopted two new administrative rules. The first rule, known as the “Pharmacist Responsibility Rule,” amends a section titled “Pharmacist's professional responsibilities,” and it applies to the conduct of individual pharmacists. Wash. Admin. Code § 246–863–095. Under that rule, “[i]t is considered unprofessional conduct” for a pharmacist to: “(a) Destroy unfilled lawful prescription[s]; (b) Refuse to return unfilled lawful prescriptions; (c) Violate a patient's privacy; (d) Discriminate against patients or their agent in a manner prohibited by state or federal laws; and (e) Intimidate or harass a patient.” Id. § 246–863–095(4). Importantly, the parties agree that the foregoing rule does not require an individual pharmacist to dispense medication if the pharmacist has a religious, moral, philosophical, or personal objection to delivery. Stormans, Inc. v. Selecky (“Stormans I ”), 586 F.3d...
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