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Broad support for pharmacists' freedom, near-unanimous opposition to extreme Wash. state policy

Briefs filed with US Supreme Court include 13 states, 38 pharmacy associations, more than 4,600 medical professionals

Monday, Feb 8, 2016
WASHINGTONFourteen briefs have been filed with the U.S. Supreme Court that encourage it to weigh in on Washington state rules that force pharmacy owners and pharmacists to stock and dispense drugs contrary to their religious beliefs instead of allowing them to refer customers to other pharmacies and pharmacists as they are allowed to do in all 49 other states. The state allows referrals for a variety of reasons but singles out religiously motivated referrals as prohibited.

Among the briefs in support of the petition that a Washington state pharmacy and two pharmacists filed with the high court last month are ones signed by 43 members of Congress; 13 state attorneys general; 29 notable legal scholars; more than 4,600 individual health care professionals; and 38 professional pharmacy associations, including the nation’s largest, the American Pharmacists Association.

“No one should be forced to choose between following their deepest religious beliefs and following an unjust, unneeded government mandate that targets only people of faith. The state of Washington allows referrals for nearly any reason but does not allow referrals motivated by faith. The briefs filed with the Supreme Court agree that this kind of hostility to religion isn’t constitutional or the least bit necessary,” said Alliance Defending Freedom Senior Vice President of Legal Services Kristen Waggoner. ADF attorneys are lead counsel on behalf of the pharmacy and the two pharmacists in the case, Stormans v. Wiesman. Attorneys with the Becket Fund for Religious Liberty and Ellis, Li & McKinstry PLLC are serving as co-counsel together with attorney Michael McConnell.

In July of last year, the U.S. Court of Appeals for the 9th Circuit reversed a district court’s decision against the rules, which Planned Parenthood drafted at the behest of former Gov. Christine Gregoire. Gregoire publicly campaigned for the rules and replaced members of the state’s Pharmacy Commission after it initially voted unanimously in favor of such referrals.

After a 12-day trial that concluded in 2012, a federal district court in Washington suspended the state’s regulations. The ruling permitted the two pharmacists, Margo Thelen and Rhonda Mesler, and the owners of Stormans, Inc., which runs Ralph’s Thriftway in Olympia, to continue to refer customers rather than sell the drugs Plan B and ella. The two drugs are widely available in Washington state, including at more than 30 pharmacies within a five mile radius of Ralph’s Thriftway. The state together with attorneys from Planned Parenthood and Legal Voice appealed the district court’s decision to the 9th Circuit, which reversed that decision.

The American Pharmacists Association and the 37 other national and state pharmacy associations that support the referrals explain in their brief to the Supreme Court that “the Ninth Circuit’s decision effectively eliminated pharmacists’ right not to participate in actions they conscientiously oppose, even though a ‘right of conscience’ has always been integral to the ethical practice of pharmacy.”

“This need not be a battle between pharmacists’ right of conscience and patients’ right of access. Rather, the pharmacist-patient relationship is mutually reinforcing, and the time-honored practice of facilitated referral respects both the right of conscience and the right of access,” the brief continues, adding that the state’s “sky-is-falling scenario of patients in rural communities having zero access to emergency contraceptives without Washington’s rule is highly implausible – yet ironically is a scenario that would be more likely if independent pharmacies in rural communities are forced to close in the face of invasive regulation.”

“The state allows pharmacies to refer for many different reasons. In practice, it only bans religiously motivated referrals,” said Stormans, Inc., Vice-President Greg Stormans. “With more than 30 pharmacies stocking these drugs within five miles of our store, it is more than disappointing that the state is demanding that we violate our conscience or jeopardize our family business. All we are asking for is the ability to live out the beliefs that we hold, as Americans have always been able to do, and to be able to refer patients for religious reasons, as the medical and pharmacy associations overwhelmingly recommend.”

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.
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Friend-of-the-court briefs filed with U.S. Supreme Court