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Tuesday, July 8, 2008

Today’s Plan B Showdown in Federal Court

posted by on July 8 at 15:38 PM

You’re not supposed to make predictions about how judges will rule based on what they say in the courtroom. But after the hearing in front of the 9th Circuit Court of Appeals in downtown Seattle this morning, where a lawyer for the Northwest Women’s Law Center argued that the court should lift an injunction against state Board of Pharmacy rules mandating that pharmacies must fill prescriptions for Plan B), I’m going to go out on a limb here: The injunction will be lifted and tailored to apply only to the complainants, Storman’s Pharmacy in Olympia and two pharmacists, Rhonda Mesler and Margo Thelen.

One member of the three-judge panel, Judge Randy Smith, was particularly animated in pressing both sides to explain why the court shouldn’t just limit the injunction to Storman’s. “Our own circuit says the injunction must be tailored to the abuse alleged,” he boomed, pointing out there was no evidence that people across the state were “up in arms” about the pharmacy board rule and the only people before the court were these three plaintiffs.

Storman’s attorney, Kristen Waggoner, objected to the idea of limiting the injunction to covering just her clients (even though, as the Judge Smith pointed out, that’s initially what they asked the District Court to do) because, she argued, religious rights would get trampled statewide as the case made its way through the courts.

The lawyers for NWLC objected to the idea that any sort of injunction, even a tailored one, should stand. They argued that the lower court, the U.S. District Court in Western Washington, had incorrectly based its injunction ruling on a U.S. Supreme Court case in which the Court ruled that a law had been unconstitutionally written to specifically target and discriminate against a religion (Santeria and animal sacrifice in this instance!).

NWLC and the state argued that the pharmacy board rules were written neutrally and did not mention any religion, so they did not target any religion. They argued the correct case for the court to cite would have been Smith—a peyote case!—where the Supreme Court held that outlawing peyote, even if it discriminated against Native American rituals, was a-okay, legally, because the law prohibited the use of illegal drugs for everyone, not just Native Americans.

The judges did ding the women’s advocates, though, one one point, noting that the rules in today’s case weren’t neutral across the board. For example, Judge Richard Clifton pointed out that the rules had exemptions for economic reasons (pharmacies could opt out if supplying a drug did not pencil out). The attorney for Storman’s piled on, pointing out that there was also a “mental” exemption—say, if a pharmacy felt it didn’t have the expertise to fill a certain drug prescription.

Indeed, Judge Clifton said the rule was “picking and choosing” who was worthy of exemptions.

Afterward, NWLC director Lisa Stone said all the exemptions—others include fake prescriptions and contraindication of meds— were based on public health issues. Her point: The exemptions aren’t gerrymandered to target any one religion, they’re designed to protect public health.

Storman’s counsel also got into trouble. During the only moment in the hearing when the larger (giant, really) questions about separation of church and state and First Amendment rights at the center of this case came into play, the judges trashed Waggoner for conflating religious objections with moral and conscientious and political objections, explaining that there was no First Amendment protection for “moral” beliefs. They called her brief “sloppy.”

“Could you strike down an entire statute based on someone’s political objections to the FDA?” Judge Smith asked.

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Religious rights?

My pharmacist better not start putting up a Golden Cross at the dispensary or this devotee of the Flying Spaghetti Monster is going to call in the Pirates and solve the Global Warming Debate for him once and for all ...

Posted by Will in Seattle | July 8, 2008 4:00 PM

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