Stormans, Inc. v. Wiesman: Analysis and Implications By: Logan Griffith

 

Stormans, Inc. v. Wiesman: Analysis and Implications

By: Logan Griffith 

In June of 2016, the Supreme Court declined to grant certiorari to review the Ninth Circuit’s ruling in Stormans, Inc. v. Wiesman.[1] The case involved a set of pharmacy regulations in the state of Washington, one of which – the “deliver rule” – requires pharmacies to “deliver lawfully prescribed drugs and devices to patients.”[2] The rule contains some exceptions that excuse a pharmacy from filling such a prescription, such as when the prescription is erroneous, there is a national or state emergency, or the patient cannot pay.[3] Notably, there is no exception for a pharmacy to refuse to fill a prescription due to a religious or moral objection.[4]

Plaintiffs, a pharmacy and two individual pharmacists, successfully challenged the regulation in 2007 on Free Exercise grounds.[5] The Ninth Circuit reversed.[6] For a claim to succeed on Free Exercise grounds, the plaintiff essentially must show that the law is not neutral or that it is not generally applicable.[7] In the view of the Ninth Circuit, the plaintiffs here were unable to show either.[8] The tests for neutrality and general applicability are interrelated.[9] With regards to whether or not the law is neutral, the court looks to the objective or motivation behind the law.[10] Here, the Ninth Circuit found that the objective of the regulations was “[to] establish a practical means to ensure the safe and timely delivery of all lawful and lawfully prescribed medications to the patients who need them.”[11] The court also noted that “the rules prescribe and proscribe the same conduct for all, regardless of motivation.”[12] With regards to the general applicability of the law, the court primarily looked at whether or not the regulations were substantially underinclusive as to “non-religiously motivated conduct that might endanger the same governmental interest that the law is designed to protect.”[13] Here, the court found that the exemptions are “necessary reasons for failing to fill a prescription,” and thus are not underinclusive. [14]

As noted earlier, the plaintiffs then appealed to the Supreme Court. For the Supreme Court to grant a writ of certiorari, at least four members of the Court must vote in favor of granting.[15] Only three did – Justices Alito, Thomas, and Roberts – with Justice Alito authoring a dissenting opinion.[16] Justice Alito finds numerous problems with the nature of the Ninth Circuit’s opinion, but his bigger problem is arguably with the attitude of his fellow justices in refusing to hear the case.  Alito expresses concerns that Christian pharmacists will be made unemployable if they object to selling “abortifacients.”[17] This is due to the fact that the regulation would allow an individual pharmacist to refuse to fill a prescription she has a moral objection to, but would force the pharmacy to account for that and provide for a pharmacist that would fill such a prescription.[18] Alito cites the findings of the District Court as to the neutrality (or lack thereof) of the regulation, saying that “regulations were adopted with the ‘predominant purpose’ to ‘stamp out the right to refuse’ to dispense emergency contraceptives for religious reasons.”[19] The opinion also finds the “inability to pay” exemption particularly problematic.[20] Alito’s problem with this exemption is that it extends beyond “denying service to customers who won’t pay” and allows pharmacies to refuse to fill prescriptions for patients because the pharmacy does not accept the patient’s insurance.[21] Alito’s treatment of this exemption ignores the complex nature of the interactions between pharmacies and insurance providers, but that is beyond the scope of this writing.[22] In the end, Alito goes so far as to say “[t]he bottom line is clear: Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives.”[23]

Reactions to the Ninth Circuit’s decision and the Supreme Court’s refusal to grant certiorari have varied wildly. Some have viewed the decisions as an indication that “anti-Christian bigots” now have the force of law behind them, at least in the Ninth Circuit.[24] Commentators on the other side of the spectrum have characterized the reactions of right-wing commentators as “melodramatic” and “silly.”[25] Moreover, some have criticized the lawsuit itself as a “poor vehicle for resolving questions about the Free Exercise clause,” as the regulations had been in place for a year by the time the suit was filed, and the plaintiff-pharmacy had not been penalized in any way for their practice of “facilitated referrals.”[26] In the end, the concern that Christians will no longer be able to pursue careers as pharmacists is in all likelihood entirely overblown. More importantly, the people of the state of Washington will likely now have an easier time obtaining Plan-B.

[1] Stormans, Inc. v. Wiesman, 136 S. Ct. 2433.

[2] Id. at 2435.

[3] Id. at 2436.

[4] Id.

[5] Stormans, Inc. v. Wiesman 794 F.3d 1064, at 1073, 1074.

[6] See, Stormans, Inc. v. Wiesman 794 F.3d 1064.

[7] Id., at 1075.

[8] Id., at 1084.

[9] Id., at 1076.

[10] Id.

[11] Id., at 1077.

[12] Id.

[13] Id., at 1079.

[14] Id., at 1080.

[15] Robert Barnes, Supreme Court Won’t Hear Challenge to Rule that Pharmacies Dispense Emergency Contraception, The Washington Post (June 28, 2016), https://www.washingtonpost.com/politics/courts_law/supreme-court-wont-hear-challenge-to-rule-that-pharmacies-dispense-emergency-contraception/2016/06/28/

[16] Stormans, Inc. v. Wiesman, 136 S. Ct. 2433.

[17] Id., at 2433.

[18] Id., at 2434.

[19] Id., at 2434.

[20] Id., at 2439.

[21] Id.

[22] See generally, Lisa L. Causey, Nuts and Bolts of Pharmacy Reimbursement: Why It Should Matter to You, Health Law Perspectives (June 2009), available at http://www.law.uh.edu/healthlaw/perspectives/2009/(LC)%20Pharmacy.pdf.

[23] Id., at 2440.

[24] David French, Thanks to SCOTUS, Vicious Anti-Christian State Action is Legal in the Ninth Circuit, The National Review (June 28, 2016), http://www.nationalreview.com/corner/437269/thanks-scotus-vicious-anti-christian-state-action-legal-ninth-circuit.

[25] Doug Mataconis, SCOTUS Declines to Hear Appeal of Pharmacists with Religious Objection to “Morning After” Pill, Outside the Beltway (June 30, 2016), http://www.outsidethebeltway.com/scotus-declines-to-hear-appeal-of-pharmacists-with-religious-objection-to-morning-after-pill/.

[26] Emma Green, Even Christian Pharmacists Have to Stock Plan-B, The Atlantic (June 29, 2016), https://www.theatlantic.com/politics/archive/2016/06/pharmacists-have-to-sell-emergency-contracptioneven-if-it-violates-their-religious-beliefs/489182/.

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