Legal Commentary

This week, the Ninth Circuit decided Stroman's v. Selecky, reversing the district court's grant of a preliminary injunction prohibiting enforcement of state regulations that would have required pharmacies and pharmacists to dispense Plan B contraception, despite pharmacists' religious- or conscious-based objections. (H/T: First Amendment Law Prof Blog). I write about this case for a largely personal reason: One of my earliest posts here at Prawfs, back when I was a bright-eyed and enthusiastic guest prawf, criticized the district court's decision enjoining the regulations.

The district court had subjected the regulations to strict scrutiny (which they, of course, failed), concluding they were not neutral laws of general applicability because they allowed pharmacists not to fill prescriptions for some reasons (such as time of emergency or the belief that the prescription is invalid or technical inability to fill) but not to refuse for religious reasons. I argued why this was wrong in my original post. The Ninth Circuit agreed the lower court was wrong, for basically similar reasons.

The court said that the law was neutral because it did not target conduct committed for religious reasons, but instead sought to eliminate all bases for refusing to fill a prescription other than those refusals that ensure patient health, safety, and access to medication. Importantly, the court recognized that the law disproportionately affected pharmacists with religious objections (because religious objectors would be the primary (only?) group likely to refuse to fill an otherwise-valid prescription), but held that this disparate impact did not render the law non-neutral.

The regs also are generally applicable; the district court erred by not focusing on the proper issue of whether the regs were impermissibly underinclusive. The court of appeals, again correctly, said that the regs required the filling of all lawful, proper prescriptions--no one may refuse to fill a lawful, proper prescription for religious or non-religious reasons. The exceptions in the regs (time of emergency, inability to pay, technical inability to fill, belief that the prescription is fraudulent) are narrow, limited to improper prescriptions or those that cannot be filled properly. The exemptions granted show that the state's purpose was to ensure access to all lawfully prescribed medications, including Plan B. The mere fact that some exemptions were granted does not render the laws not generally applicable. Nor does it require that all exemptions be granted where there is no similarity between the exemptions granted and the exemptions sought, in light of the statute's purpose.

The court of appeals remanded to the district court to reconsider whether the preliminary injunction should issue, applying the proper legal standard. So this case will continue.