Article I, Section 11: a Poor "plan B" for Washington's Religious Pharmacists

Publication year2021


Noel E. Horton(fn*)

Abstract: In Stormans, Inc. v. Selecky,(fn1) a group of Washington pharmacists contended their religious beliefs precluded them from dispensing the drug Plan B, a post-coital emergency contraceptive. They based their argument on rights conferred by the Free Exercise Clause of the First Amendment to the United States Constitution.(fn2) A United States District Court found in the pharmacists' favor and enjoined enforcement of rules issued by the Washington State Board of Pharmacy requiring pharmacies to deliver medications.(fn3) The Ninth Circuit reversed, finding that the district court erroneously applied a heightened level of scrutiny to a neutral law of general applicability.(fn4) Interestingly, the pharmacists did not bring a claim under the Washington State Constitution, a document that has been interpreted to confer greater protection for free exercise rights than the U.S. Constitution.(fn5) This Comment argues that even under the Washington State Constitution's heightened protection of free exercise, the pharmacists' position in Stormans would ultimately fail. The Board's rules protect public health and accommodate individual religious objections, thereby satisfying the Washington State Supreme Court's strict scrutiny test.


Pharmacists play a critical role in our society. Our nation is one where medications have become intertwined with many people's daily lives.(fn6) When abused or misused, many of these prescription medications can create serious health problems.(fn7) To manage potential deleterious effects, states license professional pharmacists to handle and dispense medications.(fn8) Consequently, pharmacists have become society's gatekeepers to medicines that individuals can legally obtain from no other source. Many of these medications are controversial.(fn9) Because pharmacists are human beings with their own moral and religious convictions, the prospect of providing certain controversial medications may seem morally reprehensible to some of them. Some pharmacists have been placed in a position where their religious beliefs prohibit dispensing the very medications with which they have been entrusted.(fn10) The health consequences of such a scenario are especially serious when dealing with time-sensitive medications or patients with limited access to health care facilities.

The Washington State Board of Pharmacy found this state of affairs to be disconcerting; in 2006, it began drafting new regulations to address the issue.(fn11) The Board solicited numerous comments from pharmacists and advocacy groups.(fn12) Most of these comments concerned the controversial drug Plan B,(fn13) a post-coital emergency contraceptive.(fn14) In the end, the Board adopted two new regulations: (1) an amendment to an existing regulation governing individual pharmacists,(fn15) and (2) a new regulation governing pharmacies.(fn16) The new rules allow individual pharmacists to refuse to distribute medications for religious reasons, but make the pharmacy responsible for ensuring that the drugs are nonetheless dispensed.(fn17)

The day before the rules took effect, a group of Washington pharmacists challenged the rules under the Free Exercise Clause of the U.S. Constitution's First Amendment.(fn18) The United States District Court for the Western District of Washington accepted their argument and enjoined enforcement of the rules in Stormans, Inc. v. Selecky(fn19) On appeal, the Ninth Circuit Court of Appeals reversed, concluding that because the regulations were neutral and generally applied, the district court erroneously applied heightened scrutiny.(fn20)

The pharmacists in Stormans rested their free exercise argument solely on the First Amendment.(fn21) But what if they had based their argument on the Washington State Constitution? In the wake of the Board's recently announced decision to undertake a new rulemaking process,(fn22) the answer to this question is especially relevant. Washington courts have interpreted the Free Exercise Clause of the Washington State Constitution(fn23) to be more protective of free exercise rights than the First Amendment.(fn24) Under Washington's free exercise clause, article I, section 11 of the Washington State Constitution, the State must show that any action burdening free exercise-even those that are neutral and generally applied-serve a compelling interest and employ the least restrictive means to achieve that interest.(fn25) This Comment argues that an article I, section 11 challenge by the pharmacists would ultimately fail. The interests served by the rules are sufficiently compelling, and the rules are narrowly tailored to achieve those interests.

Part I of this Comment provides a brief overview of free exercise law under the First Amendment. Part II shows how the Ninth Circuit's reasoning in Stormans is consistent with established First Amendment case law. Part III describes how the Washington State Supreme Court has interpreted article I, section 11 to be more protective than the First Amendment with respect to free exercise rights. Part IV depicts how Washington courts have consistently held that article I, section 11, even with its greater protection, generally does not shield citizens from state actions that promote public health, peace, and safety interests, such as laws promoting medical care. Finally, Part V argues that the pharmacy rules serve compelling public health interests and would thus be upheld in the face of an article I, section 11 challenge.


Under modern First Amendment jurisprudence, neutral and generally applicable laws burdening free exercise need only satisfy rational basis scrutiny.(fn26) This level of scrutiny requires the State to show merely that the law is a rational means to achieve a legitimate end.(fn27) To defeat a law under this standard, "[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it . . . ."(fn28)

The First Amendment provides, in relevant part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."(fn29) This provision embodies two distinct protections known conventionally as the Establishment and Free Exercise Clauses. Although these rights originally constrained only the federal government, they have been made applicable to the states through the Fourteenth Amendment.(fn30) Each of the religious protections guaranteed by the First Amendment has spawned its own intricate set of case law. Cases involving government interference with personal religious behavior or conduct typically implicate the Free Exercise Clause rather than the Establishment Clause.(fn31)

For example, in Sherbert v. Verner,(fn32) the Supreme Court held that the Free Exercise Clause requires application of the strict scrutiny test.(fn33) The Court determined that a Seventh Day Adventist could not be denied unemployment compensation because she refused to take a job that required her to work on her Sabbath.(fn34) Under strict scrutiny, a court must invalidate any government action that burdens the free exercise of religion unless such action serves a compelling state interest and uses the least restrictive means to achieve that interest.(fn35)

The Supreme Court modified the Sherbert test twenty-seven years later when it decided Employment Division, Department of Human Resources of Oregon v. Smith.(fn36) In that case, the Court upheld the denial of unemployment benefits to Native Americans who used peyote as part of their religious beliefs in violation of state law.(fn37) Justice Scalia, speaking for the majority, distinguished between laws whose purpose is to curtail free exercise of religion and those that are neutral and generally applied but have an incidental effect on religion.(fn38) The Smith majority reasoned that the First Amendment does not protect offenses against the latter type of law, noting that the Court had "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."(fn39) Thus, a state may, without offending the First Amendment, enact a law that burdens free exercise of religion provided that the law is neutral and generally applicable.(fn40) Laws fitting into this category need only survive rational basis scrutiny.(fn41)

Although the Court in Smith discussed at length its reasons for exempting neutral and generally applied laws from strict scrutiny in free exercise cases, it did not elaborate on the meaning of the terms "neutral" and "generally applicable."(fn42) The Court provided additional insight on this point in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah(fn43) Justice Kennedy, writing for the majority, acknowledged that "[n]eutrality and general applicability are interrelated," and "failure to satisfy one requirement is a likely indication that the other has not been satisfied."(fn44) Justice Kennedy then noted that each term had a distinct meaning in the free exercise context. Neutrality concerns whether "the object or purpose of the law is the suppression of religion or religious conduct."(fn45) At a minimum, the law...

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