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Can Religious Pharmacists Refuse to Stock Plan B Pills?

By William Peacock, Esq. on August 04, 2014 1:31 PM

Under Hobby Lobby, a closely held corporation with religious objections can refuse to pay for insurance coverage for birth control and instead request an exemption from the Affordable Care Act's so-called "birth control mandate."

Does that logic extend to pharmacists and retailers who refuse to stock such pills? It would seem to, and a group of pharmacists just filed a brief advancing that point in an appeal by the State of Washington in the Ninth Circuit, where the state is seeking to have its birth control retail regulations upheld. The regulations require retailers to stock "Plan B" and "ella" drugs, rather than refer patients to other pharmacies, even if selling these drugs conflicts with the small business owners' religious beliefs.

District Court: Unconstitutional Rules

Even before Hobby Lobby, the district court sided with the pharmacists. In its opinion, the court noted that the rules seemed directly aimed at religious objectors and were therefore unconstitutional.

"The Board of Pharmacy's 2007 rules are not neutral, and they are not generally applicable," U.S. District Judge Ronald B. Leighton wrote. "They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted. The rules are unconstitutional as applied to Plaintiffs."

The Ninth Circuit held the appeal pending the outcome of Hobby Lobby.


Brief: Deeply Troubling, Especially After Hobby Lobby

Counsel for the plaintiffs filed a supplementary brief with the Ninth Circuit last week, arguing that Hobby Lobby provides even more support for the district court's holding:

"[I]t is undisputed that the effect of the Regulations is to force Plaintiffs to choose between their religious exercise and their profession. That is a deeply troubling result in light of Hobby Lobby. It is all the more troubling when the State has stipulated that Plaintiff's conduct causes no harm; when there is 'an existing, recognized, workable, and already-implemented' alternative that fully meets the State's goals [...] when the State regularly permits that alternative for a host of non-religious reasons; and when 35 state and national pharmacy associations fully support the use of that alternative for religious reasons."

Now here's the fun question: if the pharmacists win, will they claim that the referral itself is a violation of their religious rights? Other parties have made the claim that filling out the paperwork to request an exemption from the birth control mandate for employer-provided healthcare coverage is itself a violation of their religious beliefs, as it forces them to facilitate the procurement of abortifacients. Not saying that it will happen here, but it certainly could if one follows the Hobby Lobby rabbit hole deep enough.

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