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The Ninth Circuit's Wrong Ruling That Pharmacists Can't Refuse To Sell "Morning After" Pill
STEVELACKNER.COM ^ | July 9, 2009 | Steve Lackner

Posted on 07/09/2009 10:06:57 PM PDT by stevelackner

The L.A. Times reports that "pharmacists are obliged to dispense the Plan B pill, even if they are personally opposed to the 'morning after' contraceptive on religious grounds, a federal appeals court ruled Wednesday. In a case that could affect policy across the western U.S., a supermarket pharmacy owner in Olympia, Wash., failed in a bid to block 2007 regulations that required all Washington pharmacies to stock and dispense the pills. Family-owned Ralph's Thriftway and two pharmacists employed elsewhere sued Washington state officials over the requirement. The plaintiffs asserted that their Christian beliefs prevented them from dispensing the pills, which can prevent implantation of a recently fertilized egg. They said that the new regulations would force them to choose between keeping their jobs and heeding their religious objections to a medication they regard as a form of abortion. Ralph's owners, Stormans Inc., and pharmacists Rhonda Mesler and Margo Thelen sought protection under the First Amendment right to free exercise of religion and won a temporary injunction from the U.S. District Court in Seattle pending trial on the constitutionality of the regulations. That order prevented state officials from penalizing pharmacists who refused to dispense Plan B as long as they referred consumers to a nearby pharmacy where it was available. On Wednesday, a three-judge panel of the U.S. 9th Circuit Court of Appeals lifted the injunction. Other constitutional challenges are pending with the district court, which had been waiting for the 9th Circuit ruling on the injunction, said Chad Allred, a Seattle lawyer whose firm represents Stormans and the pharmacists. In anticipation of the injunction being vacated, Stormans and the two pharmacists secured an agreement with the state that it would not pursue sanctions against them until the other issues were decided at trial, Allred said."

The 9th Circuit held that Washington's Pharmacy Board rules are neutral regulations of general applicability that need only meet a rational basis test rather than the strict scrutiny standard used by the district court. But within the very opinion itself the judges seem to contradict themselves on this very point.

The Ninth Circuit stated that the new pharmacy rules are nuetral because they "do not aim to suppress, target, or single out in any way the practice of any religion because of its religious content." They said that they are generally applicable because there was "no evidence" that the State "pursued their interests only against conduct with a religious motivation. Under the rules, all pharmacies have a 'duty to deliver' all medications 'in a timely manner'" and the challenged regulations in the case do not apply "to refusals only for religious reasons." Yet the opinion also included the following not long thereafter: "How much the new rules actually increase access to medications depends on how many people are able to get medication that they might previously have been denied based on religious or general moral opposition by a pharmacist or pharmacy to the given medication." In other words, the entire success of the law they declare "nuetral" and "generally applicable" will be determined by its effect on religious people.

The Ninth Circuit itself quotes Supreme Court precedent to support the idea that the district court should not have looked to legislative history to determine whether a law is nuetral. The Ninth Circuit writes that "Justice Scalia, the author of the Smith opinion," one of the main cases the Ninth Circuit relies upon, "explained that the Free Exercise Clause 'does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted.'” How does that then square with the apellate court's own declaration that the increase in the avaliability of medication "depends on how many people are able to get medication that they might previously have been denied based on religious or general moral opposition by a pharmacist or pharmacy to the given medication"?

Businesses, including pharmacies, should be able to sell what they wish without government intervention forcing them to sell a product they find morally repulsive. When the government forces a religious person in a specific business to sell a specific product, in violation of his legitimate and deeply held religious and moral convictions, then common sense dictates that there may in fact be a serious conflict with the First Amendment's ban on government laws that "prohibit the free exercise" of religion.


TOPICS: Constitution/Conservatism; Culture/Society
KEYWORDS: conscienceclause; pharmacy; planb; proaborts

1 posted on 07/09/2009 10:06:57 PM PDT by stevelackner
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To: stevelackner

They may be required to despense it, but they aren’t reqiured to have it in stock. Sorry, Madam, but we will require a week to get your prescription.


2 posted on 07/09/2009 10:10:40 PM PDT by Oldexpat
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Comment #3 Removed by Moderator

Comment #4 Removed by Moderator

To: stevelackner
Businesses, including pharmacies, should be able to sell what they wish without government intervention forcing them to sell a product they find morally repulsive.

That much is true. But the notion that an individual pharmacist has the right to refuse to sell a medication that the business owner *does* want to sell, and still keep his/her job, is completely incompatible with the concepts of freedom and private enterprise. It's also an insanely dangerous slope, onto which endless numbers of Jehovah's Witnesses, Christian Scientists, Wahhabist Muslims, Orthodox Jews, Jainists, fanatical vegan animal rights activists, etc, could climb, all taking jobs in healthcare facilities and then refusing to do anything that violated their religious beliefs -- this one will refuse to assist in blood transfusions or even in taking blood donations that are likely to be used for transfusions or transporting blood within a facility if it is to be used for a transfusion, that one will refuse to administer any medications that were ever tested on animals or help feed a patient a meal that contains animal products, another one will refuse to assist patients with using a toilet that happens to face Mecca, and on and on. You take a job, and you either perform all the assigned work that comes with it, or you get fired. You do not have a right to use other people's money (including taxpayers' money) to force people to submit to your beliefs.

5 posted on 07/09/2009 10:22:56 PM PDT by GovernmentShrinker (Vote for a short Freepathon! Donate now if you possibly can!)
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To: SpineSurgeon
In Kansas third trimester abortions are legal up to the point of that child being born. My opinion is if your are a doctor and it is a medical procedure then you either do the abortion up to the point of the child being born or you need to get out of being a doctor go into veterinary work if you have an objection of third trimester abortions.
6 posted on 07/09/2009 10:31:28 PM PDT by guitarplayer1953
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Comment #7 Removed by Moderator

To: Oldexpat
They may be required to despense it, but they aren’t reqiured to have it in stock. Sorry, Madam, but we will require a week to get your prescription.

What's wrong with the lazy *ss women/girls that they can't go to another pharmacy and buy it? I guess they aren't PRO-CHOICE unless it pertains to them!

'Give me what I want when I want it' attitude is sickening!

8 posted on 07/09/2009 10:43:41 PM PDT by kcvl
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To: GovernmentShrinker

As the L.A. times reported the regulation said “a supermarket pharmacy OWNER in Olympia, Wash., failed in a bid to block 2007 regulations that required all Washington pharmacies to stock and dispense the pills.” Both the pharmacy owner and individual pharmacists were plaintiffs in the case.


9 posted on 07/09/2009 10:44:00 PM PDT by stevelackner
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To: SpineSurgeon
This is different from a doctor refusing to perform abortions.

How? Should they also be required to sell medication to euthanize people? Why not require them to sell pot too.

10 posted on 07/09/2009 10:48:55 PM PDT by kcvl
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Comment #11 Removed by Moderator

To: SpineSurgeon
Wrong.

It should be between their employer and the employee. If the employee doesn't want to do what the employer requires they can find another job. If the employer wants to accommodate them then that's the employers choice.

It is none of the governments business period.

12 posted on 07/09/2009 11:20:16 PM PDT by DB
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To: SpineSurgeon

And it was just as legal to turn the valve in the gas chambers of Germany. Just because something is legal does not mean it is moral. I stand up and applause these people for standing up for their moral beliefs. We all scream about the moral decline of America and these people stand up to it and you say they should quite their God given choice of a job and go cut bait.


13 posted on 07/09/2009 11:34:30 PM PDT by guitarplayer1953
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To: kcvl
A doctor assumes a risk when he takes on any patient and must weigh the risks and benefits of any procedure, test, or drug he dispenses or uses for the patient. If a doctor thinks an abortion is never in a patients best interest that is his opinion and he can use for the basis of his medical judgment. A pharmacist just fills an order for a doctor, much like how a Radiographer performs a CT or X-Ray.

The only time a doctor could not refuse to do an abortion is during emergency surgery from some kind of internal or external trauma, and not performing the abortion would result in the death of both the mother and child.

14 posted on 07/09/2009 11:35:43 PM PDT by LukeL (Yasser Arafat: "I'd kill for a Nobel Peace Prize")
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To: SpineSurgeon

“If it is a medication they stock”

That’s the problem. They didn’t want to stock it. Gummit says sorry, you have to, we don’t give a fig about conscience.


15 posted on 07/09/2009 11:36:22 PM PDT by HiTech RedNeck (Think of the D Party as what it really is: a criminal organization masquerading as a political party)
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To: guitarplayer1953
What is a doctor is a Jehovah's Witness and is in surgery and refuses to order a blood transfusion for the patient and the patient dies? There has to be some guidelines in place for when your religious convictions interfere with your job duties.
16 posted on 07/09/2009 11:40:12 PM PDT by LukeL (Yasser Arafat: "I'd kill for a Nobel Peace Prize")
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To: LukeL

Well, in that situation the patient’s life is at risk. Refusing to give someone the morning-after pill doesn’t pose a danger to their health. I agree that that there has to be some guidelines though.


17 posted on 07/09/2009 11:46:59 PM PDT by SMCC1
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To: SpineSurgeon
So? Don't stock it at all.

Problem solved.

18 posted on 07/09/2009 11:47:09 PM PDT by SAJ
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To: stevelackner

So based on this interpretation, I should have no problem buying my bacon at either a Halal or Kosher meat market? Good to know!


19 posted on 07/09/2009 11:48:32 PM PDT by brityank (The more I learn about the Constitution, the more I realise this Government is UNconstitutional !!)
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To: SAJ
Don't stock it at all.

Or give it a 100,000% markup.

20 posted on 07/10/2009 12:09:39 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: LukeL
What guide line would that be? Who would decide how you have to practice your faith in your job? Isn’t that best left up to the individual?
21 posted on 07/10/2009 12:10:49 AM PDT by guitarplayer1953
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To: guitarplayer1953
And it was just as legal to turn the valve in the gas chambers of Germany. Just because something is legal does not mean it is moral. I stand up and applause these people for standing up for their moral beliefs.

I agree with you. The question is, where does that moral obligation end. What exactly are the parameters. At what point are you completely free of the association.

The injuction allowed them to refrain from dispensing it as long as they referred consumers to a nearby pharmacy where it was available. Wouldn't that be like the person in your analogy who doesn't want to turn the valve, yet gives directions to his replacement on where he can find the chambers. Go down here and take a left, third building on the right. That's where the murders will take palce place. Tell 'em Hans sent you.

Are they really free of any moral association, or do they just think they are.....

22 posted on 07/10/2009 12:17:14 AM PDT by csense
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To: csense
They have participated in the act as far as I'm concerned. Being a Christian it is their moral obligation to be an ambassador of God. An ambassador is one who represents someone's authority.

5:19 To wit, that God was in Christ, reconciling the world unto himself, not imputing their trespasses unto them; and hath committed unto us the word of reconciliation.

5:20 Now then we are ambassadors for Christ, as though God did beseech you by us: we pray you in Christ's stead, be ye reconciled to God.

Ambassador (Noun)
1·· a diplomat of the highest rank; accredited as representative from one country to another.

23 posted on 07/10/2009 12:28:18 AM PDT by guitarplayer1953
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To: guitarplayer1953
They have participated in the act as far as I'm concerned.

That answers my question. Thanks for the response.

24 posted on 07/10/2009 12:36:05 AM PDT by csense
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To: stevelackner

How does the Ninth Circuit Court feel about compelling Muslim Grocers to carry pork products and alcoholic beverages?


25 posted on 07/10/2009 12:37:50 AM PDT by Grizzled Bear ("Does not play well with others.")
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To: Grizzled Bear
How does the Ninth Circuit Court feel about compelling Muslim Grocers to carry pork products and alcoholic beverages?

They won't force Muslim grocers to do any such thing.

If you're expecting logic and consistency from these bastards, you're going to be sadly disappointed.

26 posted on 07/10/2009 1:01:13 AM PDT by john in springfield (One has to belong to the intelligentsia to believe such things.No ordinary man could be such a fool.)
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To: LukeL; guitarplayer1953
What is a doctor is a Jehovah's Witness and is in surgery and refuses to order a blood transfusion for the patient and the patient dies?

How many surgeons are Jehovah's Witnesses?

That's the lamest "Straw Man" attack I've ever seen! I don't really see a Jehovah's Witness getting into that line of work. Do you?

I assume if a surgeon converts to that faith they would most likely change occupations.

How about, what if a brew meister is a Muslim and refuses to make beer?

Better yet, what if a prostitute is a Born Again Christian and refuses to have sex with someone who is not their husband?

Hey, what if a frog had wings? It wouldn't have to bump its butt on the ground when crossing the road!

27 posted on 07/10/2009 2:03:00 AM PDT by Grizzled Bear ("Does not play well with others.")
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To: SpineSurgeon
If you can't see the difference between a pharmacist being required to do his job (by filling prescriptions for patients that have been written by DOCTORS in a doctor-patient relationship (which is none of the pharmacist's BUSINESS)), and a doctor being forced to perform elective medical procedures on patients that he finds to be morally objectionable, then I can't help you.

Doctors do not get to dictate what a pharmacy can & will fill (which is none of the DOCTOR'S BUSINESS). That's why there are more than a couple of pharmacies in any one given area. You are perfectly welcome to choose a pharmacy that will sell what you dare to prescribe. There is also a patient-pharmacist relationship, in case you didn't know. We also service murderers, perverts, etc. We provide medication to prisons, jails, nursing homes, halfway houses, etc.

You may think you are a GOD but I beg to differ. So, a doctor is ALLOWED to choose what is morally objectionable to him/her but a pharmacist is not? Got it, DOC!

Thank God we work with doctors who don't have your attitude. They actually ask for advice & guidance when it comes to patients and vice versa. It's nice to have a working relationship with a doctor instead of a know-it-all attitude like yours. Sometimes we even protect the doctor's butt when patients go doctor shopping and the doctors protect ours when the patient goes pharmacy shopping. See how that works. But, you just keep thinking the pharmacy is at your beckon call and they have no business telling you anything. We prefer to work with the doctor & patient not against them.

28 posted on 07/10/2009 8:06:53 AM PDT by kcvl
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To: LukeL
A pharmacist just fills an order for a doctor, much like how a Radiographer performs a CT or X-Ray.

I am perfectly aware of what a pharmacist does since we have owned a pharamcy for longer than you have been alive.

29 posted on 07/10/2009 8:17:27 AM PDT by kcvl
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Comment #30 Removed by Moderator

To: stevelackner

Nope; it was the correct ruling (just like in the cases where Minneapolis Muslim cab drivers were told to find some other job if they didn’t want to carry people with alcohol or dogs).


31 posted on 07/10/2009 9:38:30 AM PDT by steve-b (Intelligent design is to evolutionary biology what socialism is to free-market economics.)
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To: SpineSurgeon
See related case.
32 posted on 07/10/2009 9:42:44 AM PDT by steve-b (Intelligent design is to evolutionary biology what socialism is to free-market economics.)
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To: Grizzled Bear
Lot's of what if’s there.And my point was who will decide how you or I should practice our faith in any given job. Because something is legal does not mean it is moral.
33 posted on 07/10/2009 4:57:09 PM PDT by guitarplayer1953
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