Stormans, Inc. v. Wiesman

136 S.Ct. 2433 (Mem)

195 L.Ed.2d 870

STORMANS, INC., dba Ralph's Thriftway, et al.

v.John WIESMAN, Secretary, Washington State Department of Health et al.

No. 15–862.

Supreme Court of the United States

June 28, 2016.

The petition for a writ of certiorari is denied.

Justice ALITO, with whom THE CHIEF JUSTICE and Justice THOMAS join, dissenting from the denial of certiorari.

This case is an ominous sign.

At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications. There are strong reasons to doubt whether the regulations were adopted for—or that they actually serve—any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time. If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.

I

The Stormans family owns Ralph's Thriftway, a local grocery store and pharmacy in Olympia, Washington. Devout Christians, the Stormans seek to run their business in accordance with their religious beliefs. Among those beliefs is a conviction that life begins at conception and that preventing the uterine implantation of a fertilized egg is tantamount to abortion. Consequently, in order to avoid complicity in what they believe to be the taking of a life, Ralph's pharmacy does not stock emergency contraceptives, such as Plan B, that can "inhibit implantation" of a fertilized egg, 1 Supp. Excerpts of Record in Nos. 12–35221, 12–35223 (CA9), p. 1245 (SER). When customers come into the pharmacy with prescriptions for such drugs, Ralph's employees inform them that the pharmacy does not carry those products, and they refer the customers to another nearby pharmacy that does. The drugs are stocked by more than 30 other pharmacies within five miles of Ralph's . Stormans, Inc. v. Selecky, 854 F.Supp.2d 925, 934 (W.D.Wash.2012) ; see SER 1293. These pharmacies include an Albertson's located 1.9 miles from Ralph's and a Rite–Aid located 2.3 miles away.¹

As explained by the 5 national and 33 state pharmacist associations that urge us to take this case, "facilitated referral supports pharmacists' professionally recognized right of conscience" "without compromising patient care." Brief for National and State Pharmacists' Associations as Amici Curiae 17. In addition to protecting rights of conscience, facilitated referral also serves more practical ends. Pharmacies can stock only a small fraction of the more than 6,000 FDA-approved drugs now available. Pharmacies of all stripes therefore "refer patients to other pharmacies at least several times a day because a drug is not in stock."

854 F.Supp.2d, at 934. Because of the practice of facilitated referrals, none of Ralph's customers has ever been denied timely access to emergency contraceptives. Id., at 933.

Nevertheless, in 2007 the Washington State Board of Pharmacy (Board) issued rules mandating that pharmacies like Ralph's stock and sell contraceptives like Plan B. Under these regulations, a pharmacy may not "refuse to deliver a drug or device to a patient because its owner objects to delivery on religious, moral, or other personal grounds." Brief in Opposition for Washington State Respondents 10. The dilemma this creates for the Stormans family and others like them is plain: Violate your sincerely held religious beliefs or get out of the pharmacy business.

Ralph's, joined by two pharmacists with similar beliefs who work at other pharmacies, contends that the regulations target religiously motivated conduct for disfavored treatment and thereby "suppress religious belief or practice" in violation of the First Amendment's Free Exercise Clause. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 523, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). After a 12–day trial, the District Court agreed and enjoined the regulations, 854 F.Supp.2d 925 (findings of fact and conclusions of law); Stormans Inc. v. Selecky, 844 F.Supp.2d 1172 (W.D.Wash.2012) (opinion granting injunction).

The District Court found that the regulations were adopted with "the predominant purpose" to "stamp out the right to refuse" to dispense emergency contraceptives for religious reasons. Id., at 1178. Among other things, the District Court noted the following. When the Board began to consider new regulations, the Governor of the State "sent a letter to the Board opposing referral for personal or conscientious reasons." 854 F.Supp.2d, at 937. The State Human Rights Commission followed with "a letter threatening Board members with personal liability if they passed a regulation permitting referral" for religious or moral reasons. Id., at 938 ; see App. to Pet. for Cert. 374a–399a. And after the Board initially voted to adopt rules allowing referrals for reasons of conscience, the Governor not only sent another letter opposing the draft rules but "publicly explained that she could remove the Board members" if need be. 854 F.Supp.2d, at 938. "[T]his was the first instance in which a Governor had ever threatened the Board ... with removal." Id., at 939.

The Board heeded the Governor's wishes. As Steven Saxe, the Board's executive director, explained at the time: " ‘[T]he public, legislators and governor are telling us loud and clear that they expect the rule to protect the public from unwanted intervention based on the moral beliefs ... of a pharmacist.’ " Ibid. " ‘[T]he moral issue IS the basis of the concern.’ " Ibid. Saxe, a primary drafter of the regulations, recognized that the task was " ‘to draft language to allow facilitating a referral for only these non-moral or non-religious reasons .’ " Ibid. He suggested that making an express " ‘statement that does not allow a pharmacist/pharmacy the right to refuse for moral or religious judgment’ " might be a " ‘clearer’ " way to " ‘leave intact the ability to decline to dispense ... for most legitimate examples raised; clinical, fraud, business, skill, etc.’ " Ibid. And in the end, that is what the Board did. While the regulations themselves do not expressly single out religiously motivated referrals, the Board's guidance accompanying the regulations does: "The rule," it warns, "does not allow a pharmacy to refer a patient to another pharmacy to avoid filling the prescription due to moral or ethical objections

." SER 1248 (emphasis added).

Although the District Court found that the Board's intent was to target pharmacies that made referrals for religious or moral reasons, the court did not base its decision solely on that ground. Instead, the court considered the design of the regulations and concluded that they discriminated against religious objectors. 854 F.Supp.2d, at 967–990. Not only do the rules expressly contain certain secular exceptions, but the court also found that in operation the Board allowed pharmacies to make referrals for many other secular reasons not set out in the rules. Id., at 954–956, 970–971. The court concluded that "the ‘design of these [Regulations] accomplishes ... a religious gerrymander’ " capturing religiously motivated referrals and little else. Id., at 984 (quoting Church of Lukumi Babalu Aye, supra, at 535, 113 S.Ct. 2217 ; some internal quotation marks omitted).

The State appealed the District Court's decision, and the Ninth Circuit reversed. 794 F.3d 1064 (2015). Both in the Ninth Circuit and before this Court, the State defends the regulations as necessary to "ensur[e] that its citizens have safe and timely access to their lawful and lawfully prescribed medications." Id., at 1084. But the State has conceded that this is not really a problem. It stipulated that "facilitated referrals do not pose a threat to timely access to lawfully prescribed medications," and indeed "help assure timely access to lawfully prescribed medications ... includ[ing] Plan B." App. to Pet. for Cert. 335a.

I believe that the constitutionality of what Washington has done merits further review. As I discuss below, Ralph's has made a strong case that the District Court got it right, and that the regulations here are improperly designed to stamp out religious objectors. The importance of this issue is underscored by the 38 national and state pharmacist associations that urge us to hear the case. The decision below, they tell us, "upheld a radical departure from past regulation of the pharmacy industry" that "threatens to reduce patient access to medication by forcing some pharmacies—particularly small, independent ones that often survive by providing specialty services not provided elsewhere—to close." Brief for National and State Pharmacists' Associations as Amici Curiae 4, 5. Given the important First Amendment interests at stake and the potentially sweeping ramifications of the decision below, I would grant certiorari.

II

The question presented in this case concerns the constitutionality of two rules adopted by the Washington State Pharmacy Board in 2007. The first rule, known as the Delivery Rule, requires pharmacies to "deliver lawfully prescribed drugs or devices to patients and to distribute drugs and devices approved by the U.S. Food and Drug Administration for restricted distribution by pharmacies." Wash. Admin. Code § 246–869–010(1) (2009).² The Delivery Rule works in tandem with a pre-existing rule, called the Stocking Rule, that requires pharmacies to stock a "representative assortment of drugs in order to meet the pharmaceutical needs of its patients." § 246–869–150(1). The net result of these rules is that, so long as there is customer demand for emergency contraceptives, pharmacies like Ralph's must stock and dispense them regardless of any...