Injunction of state rule requiring pharmacists to fill drugs was overbroad

I am surprised that we have not heard much about Stormans, Inc v Selecky, ____F.3d____(9th Cir. July 8, 2009).  The 9th held that a district court abused its discretion by enjoining the Washington State Board of Pharmacy from enforcing its rules requiring pharmacies and pharmacists to fill lawfully prescribed medications, including RU-486 and Plan B contraception, on the ground that the rules violate pharmacists’ free exercise rights under the First Amendment. The lower court incorrectly applied a heightened level of scrutiny to what the Ninth Circuit concluded was a neutral law of general applicability. The purpose of the new rules was not to eliminate religious objections to delivery of lawful medicines, but to eliminate all objections that do not ensure patient health, safety, and access to medication. Thus, the rules do not target practices because of their religious motivation, and rational basis scrutiny should have been applied. Moreover, the preliminary injunction was overbroad: The court erroneously treated the as-applied challenge brought by the plaintiffs as a facial challenge to the rules, and thus abused its discretion by enjoining the enforcement of the antidiscrimination provisions as to all pharmacists and pharmacies in the state of Washington who refuse to sell or dispense Plan B for any reason—religious or otherwise, including refusals grounded in individual morals, conscience, or even personal distaste or discriminatory prejudices, the appeals court noted.

Mitchell H. Rubinstein