By Catholic News Service • Posted January 5, 2016

WASHINGTON (CNS) — Two pharmacists and a family-owned pharmacy have asked the Supreme Court to review a Washington state law that would force pharmacists to sell abortion-inducing contraceptive drugs.

The pharmacists, Margo Thelen and Rhonda Mesler, and the Stormans family have been battling the issue in court since 2007, at first blocking the law’s implementation the day before it was scheduled to go into effect.

They lost in July when a three-judge panel of 9th U.S. Circuit Court of Appeals reversed a 2012 court victory that would have permitted them to refuse to fill prescriptions for emergency contraception drugs such as Plan B and ella, and to refer customers to other pharmacies that would fill them.

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At the time, the pharmacists said they would appeal the ruling to the full 9th Circuit. But the request before the high court, submitted Jan. 4, asked the justices to look at the case.

“The Ninth Circuit reversed, ignoring the district court’s extensive factual findings and adopting an exceptionally narrow interpretation of the free exercise clause. It held that any law can satisfy the free exercise clause, no matter how clearly it targets religious conduct in practice, as long as it might also be applied to nonreligious conduct in theory,” said the petition.

It added, “For over 40 years, Congress and all 50 states have protected the right of pharmacists, doctors, nurses and other health professionals to step aside when asked to participate in what they consider to be an abortion. The (federal appellate court) decision … authorizes a dangerous intrusion on this right, which can only exacerbate intense cultural conflict over these issues.”

“It is absurd to force a pharmacy to sell drugs against their conscience when there are over 30 pharmacies within five miles that already sell the exact same drugs,” said a Jan. 4 statement by  Luke Goodrich, deputy general counsel of the Becket Fund for Religious Liberty, which is representing the pharmacists. “This law does nothing but punish people of faith.”

The 9th Circuit panel rejected the free exercise claim lodged by the plaintiffs, as well as claims on equal protection and due process, the latter of which had been rejected by the lower court but was considered anew by the appellate court. The judges held that the rules, promulgated by the Washington Pharmacy Quality Assurance Commission, were neutral on their face.

Thelen and Mesler work at a Ralph’s Thriftway grocery store in Washington state. It is owned by the Stormans family, which also owns the pharmacy located inside.

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“A retail pharmacy like Ralph’s typically stocks about 15 percent of available drugs,” said the petition to the Supreme Court. “Decisions about which drugs to stock are based on a variety of factors, such as demand for a drug, cost of a drug, whether a drug is sold only in bulk, shelf space, shelf life, manufacturer or supplier restrictions, insurance requirements and reimbursement rates, administrative costs, monitoring or training costs and competitors’ practices,” it added.

“When a customer requests a drug that a pharmacy does not stock, standard practice is to refer the customer to another pharmacy. Pharmacies do this many times daily,” the filing said. “Even when a drug is in stock, pharmacies routinely refer customers elsewhere for a variety of reasons — such as when a prescription requires extra time (like simple compounding or unit dosing), or when a customer offers a form of payment that the pharmacy does not accept. The state has stipulated that referral is standard practice and is often the most effective way to serve a customer.”

But in the pharmacists’ case, it added, they are “Christians who believe that life is sacred from the moment of conception. Because of their religious beliefs, petitioners cannot stock or dispense the morning-after or week-after pills — collectively, ‘Plan B’ — which the FDA has recognized can prevent implantation of an embryo. … Dispensing these drugs would make them guilty of destroying human life.”