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Wednesday, November 14, 2007

Pharmacists and Free Exercise

Last week, Judge Ronald Leighton of the United States District Court for the Western District of Washington preliminarily enjoined Washington state regulations that would have prohibited pharmacists and pharmacies from discriminating against women and others trying to lawfully fill prescriptions, where the pharmacist had religious- or conscience-based objections to providing the medication at issue. Although the regulations applied to all prescriptions, the apparent goal was ensuring access to "Plan B" contraceptives in the face of refusals by pharmacists who believe life begins at conception. The court held that the regulations violated the pharmacists' liberty of free exercise of religion, by requiring them to engage in conduct that their religious beliefs define as murder.

Finding a violation of the Free Exercise Clause in a post-Employment Division v. Smith world is no mean feat, given Smith's declaration that neutral laws of general applicability are presumptively constitutional, even if they burden religiously motivated conduct, and need not allow for exemptions for such religiously motivated conduct. The key move was avoiding Smith and relying instead on Church of the Lukumi Babalu Aye v. City of Hialeah, which holds that a law that discriminates against individuals because of their religious practices and beliefs is subject to strict scrutiny. And once it got there, the Washington regulations, like just about every legal rule, were going to fail strict scrutiny.

Some thoughts after the jump.

1) The court insisted that the regulations were not neutral or generally applicable, thus taking the case out of Smith and into Lukumi. According to the court, the regulations allowed pharmacists to refuse to fill prescriptions for a number of secular reasons--including lack of expertise, lack of needed specialized equipment, potentially fraudulent prescriptions, an obvious or known error in the prescription--while prohibiting religious-based objections to filling. That indicates religious discrimination.

But I think the court's analysis is wrong here; the secular reasons for declining that are exempted by the Washington regs are not truly comparable to the religious reasons for declining that are prohibited. The exemptions seem designed to ensure proper filling of a proper and lawful prescription; they permit refusal when the prescription is improper or where the pharmacist is unable properly to fill it. But the regulations do not allow any refusal to fill a proper prescription that can be properly filled, regardless of whether the basis for the refusal is religious or secular. A law ceases to be neutral or generally applicable when it prohibits conduct done for religious purposes while allowing the identical conduct when done for secular purposes. That is not what is going on in Washington. Refusing to fill an incorrect or fraudulent prescription is not the same as refusing to fill a valid prescription. There is no religious discrimination when, as here, the law simply prohibits all refusals to fill a valid prescription, whether the refusal is religiously or secularly motivated.

2) Once into strict scrutiny, the state argued that it had two interests: 1) promoting health by ensuring access to medications and 2) preventing discrimination because of sex, in violation of state anti-discrimination law, by depriving women access to a gender-unique medication. Neither interest was compelling and the analysis of the second purported interest is telling. The court stated that refusing to fill a Plan B prescription, based on a religiously motivated belief in when life begins, is not gender discrimination. Reasonable minds differ about that question and refusing to participate in an act that one believes terminates life, merely because that act inevitably involves women, has nothing to do with gender or gender discrimination. As the court said, "plaintiffs' objection to Plan B is not about gender, it is about the sanctity of life as defined by their religious teaching." This notion is supported by Supreme Court case law. And it seems to be about the difference between discriminatory intent and discriminatory effect, with only the former being prohibited by state anti-discrimination law. But that seems to ignore the unique impact that allowing refusal has on women, and usually only women, seeking medical assistance.

3) The injunction puts in place in Washington the type of refuse-and-refer system that has become common in many states. A pharmacist and the pharmacy (if it only has one pharmacist) can refuse to fill a prescription, so long as she "immediately refers the patient either to the nearest source of Plan B or to a nearby source for Plan B." But this raises the question of whether this works geographically in remote parts of the state as well as it might in Seattle, where there may be no reasonably nearby source for the drug. Or whether it works in especially religious areas, where all nearby pharmacies share the same objection to filling the prescription.

4) According to Planned Parenthood statistics from 2004, twelve states permit health-care providers to refuse to provide abortion services, abortifacients, or other drugs and services on the basis of personal or moral objections and many other states have been considering similar bills exempting religious objectors from providing such services. In other words, the legislative process has been carving out special protections from otherwise-applicable requirements for religious objectors, which is where the Smith Court intentionally placed responsibility for creating religious accommodations. What makes the Washington case unique is that the First Amendment carved out the religious exception, making it mandatory as a constitutional matter.

Update: Thursday, 7:30 a.m. C.S.T.:

Marci Hamilton, one of the leading religion-clause scholars, devotes her FindLaw column to this case and is, as expected, highly critical of the decision. She highlights several points:

First, she argues that what the judge did was essentially to apply disparate-impact analysis, although the Free Exercise Clause under Lukumi applies only where there is intent to discriminate. The law did not prohibit only religiously based conduct (such as animal sacrifice); it prohibited all conduct generally (refusing to fill prescription) in which some people want to engage for religious reasons. That is the heart of Smith.

Second, in a point I overlooked, Hamilton emphasizes the fact that the initial regulations permitted an individual pharmacist in one store to refuse to fill for religious reasons, if she could refer the prescription to another pharmacist at the same store. But the pharmacies opposed this regulation (a pharmacy chain was one of the plaintiffs in the case), arguing that it would require them to bear the cost of hiring a second pharmacist. Hamilton argues that this is an appropriate (although not constitutionally compelled) compromise between the deeply held religious beliefs of individual pharmacists and the rights of patients to obtain lawfully prescribed medication. But the court ignored this, essentially elevating the economic interests of the pharamacy above those of the (mainly female) patients, with the court condescendingly deriding the latter interest as one of "convenience" of not having to drive to a different store.

Posted by Howard Wasserman on November 14, 2007 at 09:02 AM | Permalink


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I will take a middle ground between Prof. Berg and jw:

As the court described the claims, the plaintiffs only asserted violations of the First Amendment (or the First as incorporated in the Fourteenth)and the Court applied First Amendment precedent and analysis. There is no mention of any claims based on the Washington Constitution and no analysis of that. So it should not matter that Washington law is more protective of the plaintiffs when the plaintiffs did not assert a violation of their rights under that law. This may have been a litigation error; I do not know enough about the history of the case to say.

Where I depart with jw is that if the plaintiffs had asserted their rights under the Washington Constitution in addition to the First Amendment, the federal court would have had supplemental jurisdiction over those claims and the power to issue the injunction. It would not be enforcing state law through s. 1983/Ex Parte Young--it would be enforcing state law as a court sitting in the equivalent of diversity.

Posted by: Howard Wasserman | Nov 26, 2007 4:18:05 PM

Prof. Berg -- As long as the action is in federal court, it doesn't matter what state law says. The SCOTUS held in Pennhurst State School & Hosp. v. Halderman (1984) that the 11th Amendment prohibits a federal court from ordering state officials to conform their conduct to state law. The only claims that can be persued under an ex parte Young theory are federal ones.

Posted by: jw | Nov 26, 2007 4:06:18 PM

Whatever problems there might be under federal free exercise law and Smith, Washington's state free exercise jurisprudence rejects the Smith rule: it applies strict scrutiny even to burdens on religious exercise imposed by formally neutral statutes. See, e.g., Munns v. Martin, 131 Wash.2d 192, 930 P.2d 318 (1997); Locke v. Davey, 540 U.S. 712, 724 n.8 (2004) (noting the more demanding Washington rule). Perhaps there would have been an issue with the federal court considering a state law claim if it had rejected the federal claim -- but as a matter of the governing law, the compelling interest test seems clearly to apply to this case through the state constitution. And how can the state prove a compelling interest -- an interest "of the highest order," the case law says -- when, as the district court found after reviewing evidence, "lack of access to Plan B has thus far not been demonstrated"?

Posted by: Tom Berg | Nov 15, 2007 6:57:25 PM

Here is where, I think, the court got it wrong:

The First Amendment (under Smith) does not prohibit government from achieving rational goals by prohibiting or regulating conduct that may be performed for religious reasons, so long as it is not regulating only religious conduct while leaving identical conduct (or conduct that produces similar harms) when done for non-religious reasons.

Here, the regulations were designed to ensure that people had access to medications by, in essence, prohibiting all pharmacies from refusing to fill valid prescriptions that they otherwise are technically capable of filling. It so happened that the only people engaging in the practice of refusing to fill valid prescriptions were those motivated by religious beliefs. But that does not make the law non-neutral or not generally applicable. It means the law does have a disparate impact--it halts a practice that some people want to engage in for religious purposes. But the First Amendment requires an intent to discriminate, usually because government cuts-off religious-based practices while allowing similar practices (or practices that cause similar public harms) done with non-religious motivations, so that only the religiously based conduct is prohibited. That is not what is going on in Washington.

An illustration, expanding on Prof. Hamilton's column.

Suppose the state passes an anti-child-neglect law requiring parents to give their children reasonably available medicines for treatable illnesses (say, anti-biotics for an ear infection). That law is neutral and generally applicable: It requires all parents to provide medicine for their children. Now, imagine that members of some religious faith oppose giving children anti-biotics, believing that the child's health must be left to God's will. Under Smith, this law should not violate those parents' First Amendment rights simply because their reasons for not giving medicine are religiously based, when every other parent must follow that law. And that should not change simply because the only people who were declining to give their children medicine (and thus the people who prompted passage of the law) were doing so for religious reasons.

Posted by: Howard Wasserman | Nov 15, 2007 2:12:48 PM

Prof. Wasserman,

Could say a little bit more about why the laws here are neutral towards religion? As I read the court's opinion, the question of general applicability is a complete sideshow because the court had already determined, on page 16, that the "evolution of these regulations" shows that they were specifically "targeted [at] the religious practices of some citizens." Isn't this a case like *McCreary County* (2005) in which the final result was facially neutral but the history of the state action showed a religious bias?

Posted by: Anonymous Skeptic | Nov 15, 2007 1:27:14 PM

(This comment isn't so much about Plan B as it is about the regular birth control pill). I worry greatly about the ability of pharmacists to override a physician's determination as to what medications are medically necessary.

Yes, the vast majority of birth control prescriptions are to enable non-reproductive sex (not verboten by my Protestant church), or to lessen the uncomfortable side effects of menstruation that some women face.

A smaller percentage (my relative, age 11, utterly sexually inactive) are on birth control because they are also taking prescription medicine known or suspected to cause severe birth defects (in her case, acne medication) -- something a pharmacist should be able to recognize, though I don't know how the religious conflict would be resolved.

And then there's the case of my friend, a woman who has a reproductive disorder. Through use of the birth control pill, it's been nearly 10 years since she menstruated. The last time left her in the hospital for a week: her menstruations are life-threatening hemorrhages. The birth control pill is life-protecting in her case. (She's also married--not a celibate nun with this medical condition).

Ought a pharmacist be able to refuse to fill her prescription? Ought she describe her condition to the pharmacist in a plea to receive the pill? Ought there be a slip a doctor can issue that states, without explaining the medical reason, that pharmacist cannot refuse to fill this particular prescription? (Admittedly, this is all fairly hypothetical, as she lives in a major metropolitan area).

Posted by: Lee | Nov 14, 2007 11:45:00 AM

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