Pharmacists’ Conscience Rights on Trial—Violation of Free Exercise Rights

By Ed Whelan
January 4, 2012

Excerpt:
It is clear that the Washington state regulations at issue are not neutral and generally applicable. Washington’s alleged interest in its regulations is to promote its residents’ health by ensuring timely access to lawful medications.But, as I detailed in my post exploring those regulations, the regulations expressly set forth various secular exceptions to the general duty to dispense drugs. Some of these exceptions, as plaintiffs readily acknowledge, are consistent with Washington’s alleged interest, as they protect patients’ health and prevent fraud. But other exceptions affirmatively undermine that alleged interest just as much as, or more than, conscientious objections would.

For example, the state allows pharmacies to refer customers elsewhere when, for various secular reasons, it doesn’t have a drug in stock—for example, when the drug falls outside the pharmacy’s chosen business niche, when the pharmacy determines that the drug is too expensive or has too short a shelf life, or when its restocking practices have left it temporarily out of stock. The state also allows pharmacies to accept payments only from certain insurance plans, to refuse to serve Medicare or Medicaid patients, and to require payment in cash. And the state allows pharmacies to refer customers elsewhere when dispensing a drug would take extra time—such as when a drug requires simple compounding, extra patient monitoring, or additional paperwork.

In all of these cases, a customer who is referred elsewhere for Plan B (or any other drug) is in the same situation, and faces the same delay, as a customer who is referred elsewhere because a pharmacist has a conscientious objection to dispensing the drug. Yet the state bans only referrals for reasons of conscience and not referrals for these various business reasons. That shows that the regulations are not neutral and generally applicable.

The state defendants claim that the regulations are neutral and generally applicable because they forbid conscientious objections that are not religiously based along with those that are. But that claim misses the point. When considering whether a law is neutral and generally applicable, the question is not whether some secular conduct is banned together with religious conduct; the question is whether the law applies equally to all relevant conduct, both secular and religious. Here, the regulations ban referrals for reasons of conscience but permit analogous referrals for a wide variety of secular reasons—thus belying the asserted urgency of the state’s interest in ensuring timely access. (Further, there is no evidence in the record of any pharmacist who has non-religious “moral” objections to dispensing drugs, and any such moral objections might well qualify as religious for purposes of Free Exercise protection.) the rest