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Stormans, Inc. v. Wiesman

United States Court of Appeals, Ninth Circuit

July 23, 2015

STORMANS, INC., doing business as Ralph's Thriftway; RHONDA MESLER; and MARGO THELEN, Plaintiffs-Appellees,
v.
JOHN WIESMAN, Secretary of the Washington State Department of Health; DAN RUBIN; ELIZABETH JENSEN; EMMA ZAVALA-SUAREZ; SEPI SOLEIMANPOUR, Members of the Washington Pharmacy Quality Assurance Commission; MARK BRENMAN, Executive Director of the Washington Human Rights Commission; MARTIN MUELLER, Assistant Secretary of the Washington State Department of Health, Health Services Quality Assurance; CHRISTOPHER BARRY; NANCY HECOX; TIM LYNCH; STEVEN ANDERSON; ALBERT LINGGI; MAUREEN SIMMONS SPARKS; MAURA C. LITTLE; KRISTINA LOGSDON, Members of the Washington Pharmacy Quality Assurance Commission, Defendants-Appellants, and JUDITH BILLINGS; RHIANNON ANDREINI; JEFFREY SCHOUTEN; MOLLY HARMON; CATHERINE ROSMAN; TAMI GARRARD, Defendant-Intervenors. STORMANS, INC., doing business as Ralph's Thriftway; RHONDA MESLER; MARGO THELEN, Plaintiffs-Appellees,
v.
JOHN WIESMAN, Secretary of the Washington State Department of Health; DAN RUBIN; ELIZABETH JENSEN; EMMA ZAVALA-SUAREZ; SEPI SOLEIMANPOUR, Members of the Washington Pharmacy Quality Assurance Commission; MARK BRENMAN, Executive Director of the Washington Human Rights Commission; MARTIN MUELLER, Assistant Secretary of the Washington State Department of Health, Health Services Quality Assurance; CHRISTOPHER BARRY; NANCY HECOX; TIM LYNCH; STEVEN ANDERSON; ALBERT LINGGI; MAUREEN SIMMONS SPARKS; MAURA C. LITTLE; KRISTINA LOGSDON, Members of the Washington Pharmacy Quality Assurance Commission, Defendants, and JUDITH BILLINGS; RHIANNON ANDREINI; JEFFREY SCHOUTEN; MOLLY HARMON; CATHERINE ROSMAN; TAMI GARRARD, Defendant-Intervenors-Appellants

Argued and Submitted November 20, 2014, Portland, Oregon

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Appeals from the United States District Court for the Western District of Washington. D.C. No.3:07-cv-05374-RBL. Ronald B. Leighton, District Judge, Presiding.

SUMMARY [*]

Civil Rights

The panel reversed the district court's judgment, entered following a bench trial, in an action brought by the owner of a pharmacy and two pharmacists who have religious objections to delivering emergency contraceptives, and who challenged Washington state rules requiring the timely delivery of all prescription medications by licensed pharmacies.

The rules permit pharmacies to deny delivery for certain business reasons, such as fraudulent prescriptions or a customer's inability to pay. The rules also permit a religiously objecting individual pharmacist to deny delivery, so long as another pharmacist working for the pharmacy provides timely delivery.

Addressing plaintiffs' free exercise claim, the panel held that the rules, promulgated by the Washington Pharmacy Quality Assurance Commission, were facially neutral. The panel also held that the rules operated neutrally because they prescribed and proscribed the same conduct for all, regardless of motivation. The panel further held that the rules were generally applicable and that according to the evidence produced at trial, the rules (1) were not substantially underinclusive in their prohibition of religious objections but allowance of certain secular exemptions; (2) did not create a regime of unfettered discretion through the individualized exemptions that would permit discriminatory treatment of religion or religiously motivated conduct; and (3) were not selectively enforced.

Because the rules were neutral and generally applicable, rational basis review applied. The panel held that the rules were rationally related to Washington's legitimate interest in ensuring that its citizens have safe and timely access to their lawful and lawfully prescribed medications. The panel rejected plaintiffs' equal protection claim on the same basis as the free exercise claim.

Addressing plaintiffs' due process claim, the panel declined to recognize a new fundamental right. The panel held that it was unconvinced that the right to own, operate, or work at a licensed professional business free from regulations requiring the business to engage in activities that one sincerely believes lead to the taking of human life was so rooted in conscience and the Nation's tradition as to be ranked as fundamental.

Thomas L. Boeder (argued), Andrew L. Greene, Katherine D. Bennett, and Noah Guzzo Purcell, Perkins Coie LLP, Seattle, Washington; Lisa M. Stone, Molly Terwilliger, and Janet Chung, Legal Voice, Seattle, Washington; Laura Einstein, Planned Parenthood of the Great Northwest, Seattle, Washington, for Defendant-Intervenors-Appellants.

Alan D. Copsey (argued), Deputy Solicitor General, Robert M. McKenna, Attorney General, Rene Tomisser, Senior Counsel, Joyce A. Roper, Senior Assistant Attorney General, Olympia, Washington, for Defendants-Appellants.

Kristen K. Waggoner (argued) and Steven T. O'Ban, Ellis, Li & McKinstry PLLC, Seattle, Washington; Michael W. McConnell, Stanford, California; Luke W. Goodrich, The Becket Fund for Religious Liberty, Washington, D.C.; Steven H. Aden, Alliance Defending Freedom, Scottsdale, Arizona, for Plaintiffs-Appellees.

Sara L. Ainsworth, University of Washington School of Law, Seattle, Washington; Michael S. Wampold, Peterson Wampold Rosato Luna Knopp, Seattle, Washington, for Amici Curiae Organizations and Experts Dedicated to Ending Rape and Intimate Partner Violence.

Mary Re Knack and Sarah Joye, Williams, Kastner & Gibbs PLLC, Seattle, Washington, for Amici Curiae Public Health and Human Rights Organizations, et al.

Alex J. Luchenitser, Ayesha N. Khan, and Benjamin N. Hazelwood, Americans United for Separation of Church and State, Washington, D.C., as Amicus Curiae.

Shannon P. Minter, Christopher F. Stoll, Angela Perone, Asaf Orr, and Ashland Johnson, National Center for Lesbian Rights, San Francisco, California, for Amici Curiae AIDS United, et al.

Stephanie Toti, Senior Staff Attorney, New York, New York, as Amici Curiae Center for Reproductive Rights and for National Women's Law Center.

Jessica A. Skelton and Kymberly K. Evanson, Pacifica Law Group LLP, Seattle, Washington, for Amici Curiae Religious and Religiously-Affiliated Organizations and Individual Clergy.

Denise M. Burke and Mailee R. Smith, Americans United for Life, Washington, D.C., for Amici Curiae Members of the United States Congress.

Jason A. Levine and Eric A. White, Vinson & Elkins LLP, Washington, D.C., for Amici Curiae American Pharmacists Association, et al.

Mark E. Chopko, Marissa Parker, and Zeenat A. Iqbal, Stradley Ronon Stevens & Young, LLP, Washington, D.C., for Amici Curiae The Muslim Public Affairs Council, et al.

Christian J. Ward, Scott A. Keller, J. Campbell, and April L. Farris, Yetter Coleman LLP, Austin, Texas; Douglas Laycock, University of Virginia Law School, Charlottesville, Virginia, for Amici Curiae Constitutional Law Professors.

Dorinda C. Bordlee and Nikolas T. Nikas, Bioethics Defense Fund, Scottsdale, Arizona; Kimberlee Wood Colby, Christian Legal Society, Springfield, Virginia, for Amici Curiae Christian Medical Association, et al.

Kevin Marshall and Richard M. Re, Jones Day, Washington, D.C., for Amici Curiae The Church of the Lukumi Babalu Aye, Inc., et al.

Alexander Dushku and Justin W. Starr, Kirton/McConkie, Salt Lake City, Utah, for Amici Curiae Washington State Catholic Conference, et al.

Carrie L. Severino and Ammon Simon, Judicial Education Project, Washington, D.C., for Amici Curiae Agudath Israel of America, et al.

Sean D. Jordan, Kent C. Sullivan, Danica L. Milios, Travis Mock, and Peter Hansen, Sutherland Asbill & Brennan LLP, Austin, Texas; Jeffrey C. Mateer and Justin E. Butterfield, Liberty Institute, Plano, Texas, for Amicus Curiae Liberty Institute.

Matthew T. Nelson and Elinor Jordan, Warner Norcross & Judd LLP, Grand Rapids, Michigan, for Amicus Curiae The Bruderhof and Hopewell Mennonite Church.

Sandra Payne Hagood, La Jolla, California; Thomas C. Berg, University of St. Thomas Law School, Minneapolis, Minnesota, for Amici Curiae Individual Physicians, Obstetricians, and Health Care ...


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