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States Can Require Pharmacy Owners to Provide Birth Control, 9th Rules

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By Casey C. Sullivan, Esq. on July 24, 2015 3:59 PM

States can require pharmacies to dispense birth control even if the pharmacy's owner has religious objections, the Ninth Circuit ruled yesterday. The Court upheld a Washington State law that allowed individual pharmacists to refuse to fill prescriptions because of religious objections, so long as another onsite pharmacist will do so.

Pharmacy owners from Washington had objected, arguing that forcing them to fill birth control prescriptions violated their religious beliefs. A unanimous Ninth Circuit panel disagreed, however, finding that the rules were a neutral, rational regulation of the pharmacy industry.

A Contraception Compromise -- for Pharmacists, Not Pharmacies

Since the late '60s, Washington State has required pharmacies to abide by the "Stocking Rule," requiring them to maintain "a representative assortment of drugs" approved by the FDA. The effect of the rule was to ensure that drugs were widely available and to prevent pharmacists from picking and choosing just which prescriptions they would supply. With the development of "morning-after pills," such as Plan B, many pharmacists objected to provisioning the drugs, likening the emergency contraceptives to abortion.

Washington's law represented a compromise. Individual pharmacists can refuse to dispense medication based on certain "religious, moral, philosophical, or personal objections" -- but the pharmacy itself is required to provide the drugs, which are often made available through another, non-objecting pharmacist. The law contained no exemptions for the religious objections of pharmacy owners.

Rational Basis Applies

Stormans, a pharmacy in Olympia, Washington, refused to carry emergency contraception because of the owners' religious objections. They sued, claiming the rule violated the Free Exercise and Due Process Clauses. The Ninth Circuit found that the rule had only an "incidental effect" on pharmacy owners' religious practice. The law, after all, applied to all prescriptions, not just contraception, the Ninth Circuit reasoned. In that way, it was facially neutral. As such, it only needed to survive rational basis review -- an easy task generally and no more difficult in this case.

The Hobby Lobby Footnote

What about Hobby Lobby, you ask? You may remember that under last year's Supreme Court ruling, closely held corporations could seek exemption from Obamacare's contraception mandate. In that case, the owners of Hobby Lobby objected to providing the very same contraceptives. The Supreme Court ruled that the requirement impermissibly burdened the owners' free exercise of religion. Wouldn't the same logic apply?

No, the Ninth noted in a single footnote. Hobby Lobby applied statutory rights, namely the created by Religious Freedom Restoration Act. Because RFRA deals only with federal actions and does not implicate First Amendment concerns, Hobby Lobby had no bearing on the dispute, the Ninth concluded.

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