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June 29, 2012

Under What Circumstances Can a State Compel a Pharmacy to Provide “Morning After” Drugs Against the Religious Objections of Pharmacists?

Co-authored with Professor Alan Brownstein.  Cross-posted from Justia.com.

Much attention has been directed toward the asserted clashes between the federal government’s recently adopted policies concerning health insurance coverage for contraceptive services, on the one hand, and religious liberties, on the other.  But state laws and policies present just as much, if not more, potential for infringement of religious liberties.  In the present column, we analyze a recent case from the state of Washington that sheds important light on the current state of the constitutional right to the free exercise of religion, and that also illustrates many of the big unanswered questions concerning the meaning of the First Amendment’s Free Exercise Clause.

Background on the Case

The case, Stormans Inc. v. Selecky, which was decided by a federal district court in Seattle earlier this year, and is now presumably destined for resolution by the federal appellate courts, involves a pair of Washington State rules that operate in tandem: (1) the “stocking rule,” which requires pharmacies to stock “a representative assortment of drugs in order to meet the pharmaceutical needs of its patients,” and (2) the “delivery rule,” which requires pharmacies in Washington to timely deliver to patients all lawfully prescribed medications, including the emergency contraceptive known as “Plan B.”  Plan B is a drug that, when taken after unprotected sex, delays ovulation and can also prevent a fertilized egg from adhering to the wall of the uterus (implanting).  Plan B is most effective if taken within three days after sex occurs.

Some Washington pharmacists who hold the sincere religious belief that life begins at conception (that is, when an egg is fertilized by a sperm) refused to dispense Plan B to customers who sought it.  Under Washington’s rules, a pharmacy that fails to stock and deliver lawfully prescribed drugs is subject to discipline, including revocation of its license.  It is not enough that a pharmacy refers patients to other pharmacies that will provide the contested drugs; the rules require each pharmacy to dispense the drugs, regardless of the pharmacy’s religious convictions. (A conscience exemption does apply to individual pharmacists, but it does not extend to the pharmacy itself.  This distinction may raise problems for small pharmacies, and is particularly problematic in cases where the pharmacy owner himself or herself conscientiously objects to distributing certain drugs.)

In the federal lawsuit brought against Washington State officials to challenge the rules, the federal judge framed the question as whether “the State [can] compel licensed pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious belief that doing so terminates a human life.”

The judge, Ronald Leighton, concluded that, in light of the entire record, Washington State could not compel delivery of Plan B consistent with the rights enjoyed by the pharmacies under the First Amendment’s protection of the “free exercise of” religion.

Deconstructing Free Exercise Doctrine:  What Does “Neutral and Generally Applicable” Mean?

In analyzing plaintiffs’ free exercise claim, Judge Leighton conceded, as he had to, that the pharmacy regulations are neutral on their face; they do not single out religious exercise for discriminatory treatment.  This was an important first step, because under the Supreme Court’s famous 1990 holding in Employment Division v. Smith, the Free Exercise Clause provides no protection to religious individuals who are substantially burdened by “neutral laws of general applicability.”

Judge Leighton’s analysis did not stop here, however. In some cases, even an ostensibly facially neutral law may not be a neutral law of general applicability for free exercise purposes.  And if a law that substantially burdens the free exercise of religion is not a neutral and generally applicable law, it must be justified under strict scrutiny to satisfy constitutional review.

The controlling Supreme Court precedent here is Church of Lukumi Babalu Aye v. Hialeah. At issue in that case were a series of Hialeah, Florida city ordinances prohibiting the ritual sacrifice of animals—a practice engaged in for religious purposes by members of the Santeria faith.  Although the challenged regulations never explicitly mentioned religion or the Santeria faith, the Court determined that the laws were not neutral and generally applicable regulations and struck them down under strict scrutiny review.

Justice Kennedy’s majority opinion in the case applied an extraordinarily complicated, multi-factor analysis to reach its conclusion.  First, Justice Kennedy determined that the challenged laws were not neutral. Looking behind and beyond the literal language of the ordinances, he concluded the Hialeah laws constituted a “religious gerrymander,” in that the impact of the laws fell exclusively on members of the Santeria faith, and no one else sacrificed animals in the area.  Also, the regulations were over-inclusive and far more prohibitive than the city’s asserted public health and preventing animal cruelty concerns would justify.

In addition, Justice Kennedy focused on one particular ordinance that prohibited the unnecessary killing of animals. This requirement apparently applied only to the religious sacrifice of animals; no other practice involving the killing of animals—including the use of live rabbits to train greyhounds for racing—was considered unnecessary or unlawful under Florida law.  Of equal concern to the Court was the degree of discretion exercised by government officials in determining whether the killing of animals would be considered necessary. This kind of individualized assessment of whether a law applies undermines the neutrality of a law that was important to the Smith holding.

Finally, Kennedy looked at the legislative history record to demonstrate that the Hialeah City Council was overtly hostile to the Santeria faith.  Significantly, however, only one other Justice joined this section of Kennedy’s opinion, and Justices Scalia and Rehnquist explicitly rejected the use of such direct inquiries into legislative motive to evaluate the constitutionality of a law.

Having established that the Hialeah ordinances were not neutral, Justice Kennedy went on to conclude that they were also not generally applicable.  The problem here was that the laws were unacceptably under-inclusive. Hialeah asserted public health interests and concerns about preventing cruelty to animals to justify its laws.  But many activities, such as hunting or the use of animals in medical experiments, were not restricted.  Again, it appeared that Hialeah’s laws targeted the prohibited conduct only when it was undertaken for religious purposes.

Applying Lukumi to Washington State’s Rules

The Lukumi framework is complicated and confusing. In particular, the Court provided no guidance as to whether all of the problems it identified in Hialeah’s laws were necessary to determine that a law was not neutral and generally applicable.  Nor did the Court suggest how much weight should be assigned to each of the factors it discussed.  The Selecky court occasionally got distracted winding its way through this morass, but the focus of its discussion went to the heart of the Lukumi analysis—the rejection of religious gerrymanders.

Here, in practice, according to Judge Leighton, the Washington regulatory scheme was not neutral because it was riddled with secular unwritten and written exemptions. Among other unwritten exemptions, for example, was the fact that a pharmacy could refuse to stock a drug because the drug had a short shelf life, was expensive or difficult to store, involved additional paperwork, fell outside the pharmacy’s business niche, or increased the likelihood that the pharmacy would be a target for crime.  Both the stocking rule’s unwritten exemptions, and the delivery rule’s written exemptions, were indeterminate and required discretion in their application. Moreover, many of these exemptions would clearly burden patient access to desired pharmaceuticals. If this potential burden was tolerable for all of these secular exceptions, why was it an intolerable risk to permit a pharmacy to refuse to stock and distribute Plan B?  Indeed, it did not appear that the stocking regulation in particular had ever been applied against any pharmacy other than that of the plaintiffs in this case.  Judge Leighton also opined that the background history of the regulations further supported his conclusion that the purpose and motive of the application of these regulations to plaintiffs was the State’s disagreement with conscience claims relating to Plan B.

Judge Leighton also ruled that Washington’s regulations were not generally applicable, because they were selectively enforced.  There are numerous outpatient or retail pharmacies in Washington affiliated with Catholic hospitals.  None of these pharmacies stocked or dispensed Plan B.  Yet the State had never enforced its stocking and delivery regulations against them.

The State attempted to distinguish Lukumi, in part by arguing that the secular exemptions it granted were categorical, unlike the individualized assessment of whether killing animals in Florida was “necessary.” Judge Leighton responded by explaining that many of the State’s exemptions did require discretion—particularly since the State interpreted the exemptions expansively to apply to analogous circumstances.  Moreover, the court concluded that it would make no difference to its analysis even if the exemptions were clear and categorical.

Two cases from the U.S Court of Appeals for the Third Circuit were cited by Judge Leighton to support his contention that the existence of even categorical secular exemptions to a regulation precludes the law from being characterized as neutral and generally applicable for free exercise purposes. The opinion in Fraternal Order of Police v. Newark, written by Judge, now Justice, Alito is more easily summarized. In that case, Muslim police officers sought a religiously motivated exemption from the Newark Police Department’s grooming standards that prohibit officers from having beards. Their request was denied. However, the Department categorically exempted officers from this grooming requirement if they suffered from a physical condition that makes regular shaving medically problematic.  Because there was a categorical exemption to the grooming regulation, Judge Alito held that the grooming standard was not a neutral and generally applicable law. The refusal to provide an accommodation to the Muslim officers was then subjected to strict scrutiny review and ultimately rejected.

Based on its analysis of Lukumi and Fraternal Order of Police, Judge Leighton applied strict scrutiny to the case before him. (It remains to be seen whether the Ninth Circuit will agree with him; already once, in this case, the Ninth Circuit had undone Judge Leighton’s preliminary order enjoining implementation of Washington State’s rules, and the Ninth Circuit opinion could plausibly be read to say that, under the Ninth Circuit’s reading of relevant Supreme Court case law, nothing beyond minimum rationality review applies.  If so, the Ninth Circuit will find Judge Leighton’s ruling defiant and likely reverse it.  Judge Leighton insisted that the Ninth Circuit’s prior ruling on the “thin” record of a preliminary injunction hearing did not control his analysis of the more complete record developed during trial.)

Under strict scrutiny, it is quite understandable that Judge Leighton concluded that the challenged regulatory scheme failed this rigorous level of review.  Indeed, from the court’s perspective, there was little to argue about. The only arguably compelling state interest that might justify the regulations was the need to provide patients timely access to the drugs they sought. The State’s tolerance of other exemptions already undermined this justification.  Further, from Judge Leighton’s perspective, the State had acknowledged that an accommodation allowing a pharmacy to refuse to stock and distribute Plan B, but requiring it to refer patients to other pharmacies that would provide this service, would eliminate any threat to patients who desired timely access to the drug.

Variations on Selecky That Highlight Free Exercise Quandaries

Under Judge Leighton’s analysis (and again, the Ninth Circuit may see things differently), Selecky is in many ways a relatively straightforward case.  There were numerous individualized secular exemptions to the regulations; there was no record of the regulations being enforced outside of the context of religiously based conscience claims; and a “refuse and refer” accommodation would not pose a threat to patients obtaining timely access to the drugs they were seeking. (We, of course, have not examined the record and express no opinion on the accuracy of these findings and conclusions.)

Because the specific drug in this case relates to abortion and contraception, the free exercise issues addressed here are particularly controversial. But suppose we change the facts so that a pharmacy raised a different religious or moral objection to a different drug.  Assume the drug in question was developed on the basis of questionable medical research that imposed unwarranted risks and suffering on human subjects, or that the drug was produced in sweatshop facilities in third world countries. Arguably, the conclusion in this case would seem less provocative in these different circumstances.

If we change other facts, however, it should be clear that the Selecky analysis raises far more questions than it answers. For example, the court in Selecky repeatedly refers to the history of the regulation to support the conclusion that the State’s purpose was to single out religious exemptions for discriminatory treatment. Suppose no such record existed. Should that make a difference? The unwillingness of most members of the Court to join the legislative motive section of Kennedy’s opinion in Lukumi, and the repudiation by Chief Justice Rehnquist and Justice Scalia of this approach, suggests at least the possibility that a direct purpose analysis in these kinds of cases is unnecessary and irrelevant.

A more problematic variation of the facts would be a situation in which a religious accommodation were rejected, some secular exemptions were granted, but other requested secular exemptions were also rejected. Here, the religious accommodations would be treated the same as some secular accommodations, but less favorably than other secular exemptions. Is that still a religious gerrymander?

If there were a history of the State rejecting some requested secular accommodations based on business needs or convenience, should the refusal to provide religious accommodations for dispensing Plan B be characterized as neutral rather than discriminatory?

What if, in the Lukumi case, there was also a secular fraternity operating in Hialeah that engaged in animal sacrifices as part of its pledge ceremony? If both the religious and non-religious acts of animal sacrifice were prohibited, should the Court’s analysis have been different?

Another difficult case would be one where the requested religious accommodation would, in fact, impose some significant burden on patient access to desired drugs.

There are really two legal inquiries here. First, would avoiding the burden on patient access constitute a sufficiently compelling state interest to satisfy strict scrutiny review? (The extent to which patient access was also burdened by secular exemptions the State had granted would be relevant to this analysis.)

Second, would the religious exemption violate the Establishment Clause prohibition against accommodations that reach too far and impose unacceptable burdens on third parties or the public interest?

It is not clear, at least to us, that the strict scrutiny standard for free exercise purposes and the unacceptable burden on non-beneficiaries Establishment Clause standard always require the same inquiry or results.

The last question left open in Selecky is whether the analysis in Fraternal Order of Police—which requires strict scrutiny review of any law substantially burdening religious exercise if there is any (even a categorical) secular exemption to the law—is really reconcilable with the holding of Employment Division v. Smith.  As many scholars have noted, a great many laws have some categorical exemptions to their application. If all these laws are subject to strict scrutiny review, the scope of the Court’s holding in Smith will be substantially undermined.

Does Washington’s Rule Implicate or Violate Other Rights Beyond Free Exercise?

In addition to relying on free exercise, Judge Leighton’s opinion also found that Washington’s rule violates the Fourteenth Amendment’s guarantee of equal protection, and may very well violate notions of substantive due process under the same amendment.  The invocation of equal protection and substantive due process highlight how free exercise doctrine might be similar to—but also different from—the requirements of these Fourteenth Amendment provisions.

As to equal protection, Judge Leighton said that a facially neutral law violates the equal protection norm if the plaintiff can prove invidious motive and intent to discriminate.  This is certainly true in the race setting; a law that does not mention racial groups but that imposes harm upon them, and that is demonstrated to be motivated by a desire to inflict this harm, is unconstitutional.  Judge Leighton cited Justice Kennedy’s opinion in Lukumi to support the idea that the same principles should govern free exercise cases. But, as noted earlier, Justice Kennedy’s approach was not embraced by seven members of the Court. Perhaps the Court in Lukumi did not disagree with Justice Kennedy, but rather felt only that it didn’t want to make new law by holding that motive analysis applies in the religion setting.  But if the Court is best understood as having rejected Justice Kennedy’s importation of motive inquiry into free exercise doctrine itself, then wouldn’t the Court also be reluctant to accept such inquiries when they are restyled as equal protection challenges directly?

As for substantive due process, Judge Leighton, while not actually ruling in the plaintiffs’ favor on this ground, intimated that it is his view that there is there a substantive due process right not to be compelled to facilitate killing someone else, and that this should protect the pharmacies against Washington State’s stocking and delivery rules.

But Judge Leighton was likely too quick in analyzing the key issue here:  Even assuming that there is a substantive due process right to be free from the compelled taking of life, would that principle apply to “morning after” pills?  In concluding that it would, Judge Leighton argued that while not every person might equate a “morning after” pill with the affirmative killing of another, the plaintiffs do, and the government cannot second-guess sincere religious beliefs. But that argument mistakenly mixes religion clause and substantive due process analysis.

We don’t second-guess what an individual understands his religious beliefs to require in free exercise cases. But under substantive due process doctrine, the question is not what any individual subjectively believes, but whether society’s tradition and history would protect a particular activity from government interference. Thus, in this case, the question would be whether society (not any particular individual) has traditionally recognized “morning after” pills to be taking human life in the same sense as, say, killing enemy soldiers or assisting a suicide takes life.