Pharmacists with Targets on their Backs

There is a gathering storm in the United States, threatening the right of conscience protected under the Free Exercise Clause of the First Amendment of the US Constitution. Although many other groups’ conscience rights have been targeted in lawsuits, pharmacists most recently have been singled out.

It is now commonplace for state pharmacy regulations to require that Plan B, an emergency contraceptive, be accessible through all drugstores, regardless of objections by conscientious pharmacists. Taking the contraceptive while pregnant, these pharmacists hold, can potentially cause early abortions during embryo implantation, a fact acknowledged by the drug manufacturer.

Pharmacists have lost their jobs in Illinois, Texas, and Wisconsin for their refusal to dispense Plan B. Only four states—Arkansas, Georgia, Mississippi, and South Dakota—have passed laws allowing conscience clauses. Colorado, Florida, Maine, and Tennessee have broad conscience clauses that do not specifically mention pharmacists. California pharmacists must dispense all legal prescriptions, allowing refusal only with an employer’s permission, with the proviso that the patient is able to get the prescription filled elsewhere in a timely manner.

New Jersey’s Governor Jon Corzine signed a bill in November 2007 forcing pharmacists to set aside their moral convictions to dispense Plan B. In 2006, Illinois Governor Rod Blagojevich announced his executive order, undermining pharmacists’ constitutional and statutory rights under the Illinois Health Care Right of Conscience Act. The American Center for Law and Justice sued Walgreens, Wal-Mart, and the governor on behalf of seven pharmacists.

FEDERAL JUDGE UPHOLDS RIGHT OF CONSCIENCE

But one refuge has appeared amidst the gathering storm: a federal judge’s ruling in a lawsuit in Washington state, which pits new pharmacy board regulations against the right of conscience. As constitutional scholar Charles E. Rice stated recently, the ruling brings “a restoration of clarity” to the issue.

On November 8, 2007, following oral arguments in the case, Stormans, Inc. v. Selecky, a preliminary injunction was granted by a federal judge in Washington state, temporarily halting the state’s efforts to undermine a pharmacist’s right of conscience.

Judge Ronald Leighton of the US District Court for the Western District of Washington wrote in his decision that “on the issue of Free Exercise of Religion alone, the evidence before the Court convinces it that plaintiffs, individual pharmacists, have demonstrated both a likelihood of success on the merits and the possibility of irreparable injury.”

The judge’s granting an injunction was the most recent event in a year-long effort by pharmacists to convince the Washington State Board of Pharmacy to establish a conscience clause. But the board reversed its previous support, voting unanimously instead to adopt rules dismissing pharmacists’ right of conscience in April 2007.

The reversal was prompted by Governor Christine Gregoire’s public threats to remove board members supporting a conscience clause, saying that the pharmacy board “had made a mistake” and she would “help them get the right answer.”

As the new board regulations state, pharmacists who object to dispensing emergency contraceptives must fill all “legal prescriptions” unless they are able to pass such requests to another pharmacist on staff. Otherwise, pharmacists face disciplinary action from the state board, including revoking of licenses.

The lawsuit against the state was brought by two pharmacists, Rhonda Mesler and Margo Thelen, after they lost their jobs for refusing to fill prescriptions for Plan B. The third plaintiff, pharmacy owner Kevin Stormans of Ralph’s Thriftway in Olympia, Washington, suffered boycotts and picketing at his drugstore. Stormans responded to the protests, saying: “We can’t compromise our morals and ethics regardless of what damages that might cause the business.”

Under the injunction, which is in effect until a scheduled trial in October 2008, both pharmacies and pharmacists may refuse to dispense the contraceptive drug, but they must also “immediately refer the patient either to the nearest source, or nearby source, of Plan B.”

State Senator Karen Keiser promised that the Democrat-controlled Washington legislature would advance a bill requiring pharmacists to dispense the pills. But other state officials were not as quick to respond.

“This is a complex issue with a complex ruling,” said Don Moyer, a state Department of Health spokesman, saying he would seek legal counsel.

DEBATING CONSCIENCE VERSUS ACCESS

Throughout oral arguments in federal court on September 26, 2007, Judge Leighton repeatedly questioned the state on its insistence that it acted merely out of concern for access to Plan B and other medications.

The attorney for the state, Paul B. Lawrence—a board member of the national American Civil Liberties Union and board member and past president of the ACLU of Washington—argued that access to prescription drugs was the only reason for the new regulations. Any perception that the state was threatening the right of conscience was merely “an incidental effect,” according to Lawrence.

However, Leighton wrote that it was not incidental, but a very real threat, saying that “the overriding objective of the [pharmacy board] regulations was to eliminate moral and religious objections from the business of dispensing medication.”

He continued: “The regulations appear designed to impose a Hobson’s choice for the majority of pharmacists who object to Plan B: dispense a drug that ends a life as defined by their religious teachings, or leave their present position in the state of Washington.”

Kelly Reese, an attorney for Planned Parenthood of Western Washington, believes the judge will not hold to his ruling when the case comes to trial. She insisted that the rule merely ensures “that patients get access to needed medications,” which is not “targeting religion.”

But the judge pointed to the lack of any evidence proving “that anyone in the state of Washington has ever failed to obtain Plan B within the 72-hour window of effectiveness because one or more pharmacists/pharmacies refused to fill a lawful prescription for Plan B.”

In fact, a recent survey showed that 72 percent of pharmacies in Washington received less than 25 requests per year for Plan B, or about two per month. In Washington, Plan B is available through physicians’ offices, some government health centers, hospital emergency rooms, Planned Parenthood clinics, and online.

Don Downing, an associate professor of pharmacy at the University of Washington, said not only are the vast majority of pharmacists in the state “ardent supporters” of Plan B, but that the drug is now sold over the counter, eliminating a need for a pharmacist altogether.

But Governor Gregoire insisted that the real issue is about “private medical decisions between patients and their physicians, and pharmacies filling doctor prescribed medications.” She claimed that the decision “weakens protections for victims of sexual assault, interferes with a women’s right to choose, [denying patients] their medication for no apparent reason.”

C.J. Kahler, a member of the Washington Pharmacy Association, which is working to pass a state conscience clause, explained that by following their consciences pharmacists were not “turning their backs on their patients.”

The truth is, “I am not able to meet your need,” Kahler said.

“I respect your need [as a patient], and I ask that you respect my right [as a pharmacist],” Kahler emphasized. His dilemma is summed up by an oath that pharmacists take, saying: “I will maintain the highest principles of moral, ethical, and legal conduct.”

Charles E. Rice, professor emeritus at the Notre Dame School of Law, commenting on the Washington state case, said that even though it was only a preliminary injunction that may not survive later proceedings, he believes that Judge Leighton’s “carefully reasoned opinion is a significant contribution to the restoration of clarity to the status of the free exercise of religion.”

Rice described the steps Judge Leighton took in reviewing Stormans v. Selecky, noting that: “The decisive factor in cases invoking the free exercise of religion is the standard of review.” Rice referred to the 1990 case, Employment Division v. Smith, where the Supreme Court held that “a neutral and ‘generally applicable law’ that conflicts with one’s religious belief or practice, will be upheld if it has a rational basis.”

If the law is not neutral but instead targets and discriminates against “some individuals because of their religious practices, it will be upheld only if it survives ‘strict scrutiny,’” testing whether or not the law is “narrowly tailored to serve a compelling state interest.” But Judge Leighton concluded that the Washington regulations “were not neutral nor of general applicability,” Rice said.

Leighton then “carefully analyzed the regulations in light of Smith and later cases, and concluded that ‘the Court cannot say that the…regulations advance a compelling state interest [or] are narrowly tailored to accomplish their announced purpose.’”

Deciding that the pharmacy board regulations failed “strict scrutiny,” Judge Leighton found that “the plaintiff pharmacists satisfied the requirement for a preliminary injunction in that they ‘have demonstrated both a likelihood of success on the merits and possibility of irreparable injury,’” according to Rice. Leighton also extended the injunction to pharmacies “in order to provide the needed protection for pharmacists,” Rice explained.

Kristen Waggoner, attorney for pharmacy owner Kevin Stormans and the two pharmacists, further explained that such a legal injunction, as handed down by the federal court in this case, “is hard to get.” The judge had to be convinced that the case could “win on First Amendment grounds” once it went to trial—a major coup for their side, Waggoner admitted.

Judge Leighton wrote that conscience rights are rarely threatened because “the principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in United States Supreme Court opinions.”

FIRST AMENDMENT RIGHTS UNDER ATTACK

Yet there have been an increasing number of disturbing cases dealing with “free exercise of religion” that involve other groups besides pharmacists. Federal and state constitutions officially protect a right of conscience for all their citizens. But it is clear that such conscience laws are now routinely ignored.

In an interview early in the debate over the Washington State Pharmacy Board regulations last year, Robert Muise, an attorney with the Thomas More Law Center in Ann Arbor, Michigan, said that his organization was working on a host of similar First Amendment lawsuits. He noted: “This is one of the most important areas in the law presently—trying to breathe life back into the Free Exercise Clause.”

In studying the plight of pharmacists’ right of conscience, Muise foretold what Judge Leighton would later decide following oral arguments in the lawsuit: that the claimed need for accessibility at the expense of conscience has little to do with access and everything to do with “forcing an agenda on people of faith.”

Lawsuits involving conscience rights, concerning everything from Boy Scout groups penalized for restricting membership to Catholic agencies threatened for refusing adoption services to homosexual couples, have multiplied over the last few years.

But conscientious objection by physicians is also a growing trend. In a story published on August 13, 2007, the online publication California Catholic Daily reported that, according to an August 2 USA Today article, “Doctors are becoming more assertive in refusing to treat patients for religious reasons.”

The Daily reported the case of Christine Brody, M.D., and Douglas Fenton, M.D., both OB/GYNs at North Coast Women’s Care in Vista, California who are being sued by a former patient for refusing to artificially inseminate her because she is a lesbian. The case has not yet been heard by the California state Supreme Court. The case follows an unfavorable ruling against the doctors in 2003 by the Fourth District State of Appeals Court.

George Delgado, M.D., a family practice physician, OB/GYN, and medical director at Culture of Life Family Services in California, reacted to this latest incident: “I see us as doctors with targets on our backs, because the aggressive ‘alternative lifestyle’ lobby, along with the ACLU, are seeking us out, trying to set us up for lawsuits, trying to put us out of business, and trying to set social agendas through the courts.”

WASHINGTON PHARMACISTS STILL IN JEOPARDY

As Professor Rice predicted, the ruling by Judge Leighton in Stormans v. Selecky has already received its first challenge. On December 13, 2007, it was announced that the ACLU, Planned Parenthood, and the Northwest Women’s Law Center are appealing the decision that granted a temporary injunction. They are asking that the judge also stay the injunction while the appeal is pending.

The appeal, which has been brought before the Ninth US Circuit Court of Appeals, claims that Leighton’s ruling misconstrues legal precedent. “This Court erred in determining that the rules are not neutral in application and instead are targeted to specific moral and religious objections by these Plaintiffs,” the appeal reads.

Also as threatened, Washington state Senator Karen Keiser has filed a bill in Olympia, and State Representative Brendan Williams is writing similar legislation that would force pharmacies to dispense all legal medications in a “timely” manner.