Texas' Claim Against HHS Over Pharmacy Guidance Dismissed As Moot

In State of Texas v. U.S. Department of Health & Human Services, (WD TX, April 5, 2024), a Texas federal district court dismissed as moot a challenge to an HHS Guidance Document for pharmacies. Initially, HHS issued Guidance reminding retail pharmacies of their non-discrimination obligations. The state of Texas and a pharmacy sued contending that the Guidance required Texas pharmacies to dispense abortion-inducing drugs in violation of Texas law and in violation of religious beliefs of plaintiff pharmacy. HHS denied this and moved for dismissal of the complaint. The court disagreed. The court now describes that decision by saying in part:

So based on the suspicion that Defendants were “smurfing” the administration’s policy goal contrary to the Supreme Court’s holding in Dobbs, the Court shot down Defendants’ motion. [See prior posting.]

Three months after the court refused to dismiss the suit, HHS issued a revised Guidance which explicitly provided that the Guidance does not require pharmacies to fill prescriptions for the purpose of abortions. The court went on:

[D]espite the textual changes, which appear crafted specifically to capitulate to Plaintiffs’ claims, Plaintiffs remain unpersuaded....

Plainly put, Plaintiffs’ concern is that anyone—pregnant or not—can walk into a pharmacy with a prescription for methotrexate, which the pharmacy must fill under every circumstance because the prescription was lawfully prescribed for a non-abortion purpose like rheumatoid arthritis. It’s not an unreasonable concern....

From the Court’s perspective, it’s hard to account for the Revised Guidance’s plain text, Defendants’ reasons for issuing the Revised Guidance, and Defendants’ in-person statements, but then still conclude that Plaintiffs will be forced to dispense drugs for abortion purposes. Indeed, it seems the only way the Court could even “reasonably expect” that Plaintiffs’ alleged injury would occur at this point would be for the Court to disregard all of Defendants’ actions as deceptive litigation posturing.  

To be sure, that argument appeals to the Court’s healthy distrust for the fourth branch of government. But there is no evidence that Defendants have tried to enforce these “obligations” against Mayo or any pharmacy in Texas in the almost two years since the  Pharmacy Guidance was issued. ...

Plaintiffs have received everything they asked for; they should take the win. As a result, the issues are now moot and the Court lacks jurisdiction.

ADF issued a press release reacting to the decision.

Minnesota Court Hears Oral Arguments on Pharmacist's Refusal To Dispense Morning-After Pill

The Minnesota Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in Anderson v. Aitkin Pharmacy Services, LLC, (Dec. 21, 2023). At issue is whether a pharmacist violated the sex discrimination provisions of the Minnesota Human Rights Act when, because of his religious belief, he refused to dispense the morning-after emergency contraception drug ella and instead referred her to another pharmacist who could fill her prescription the next day. ADF issued a press release regarding the case.

Court Says HHS Used "Smurfing" To Avoid Review of Guidance To Pharmacies

In State of Texas v. U.S. Department of Health & Human Services, (WD TX, July 12, 2023), a Texas federal district court refused to dismiss a challenge by the state of Texas and a pharmacy company to the Department of Health & Human Service's July 14, 2022, Guidance to Nation's Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services.  Texas claims that the Guidance is an attempt to pre-empt Texas' abortion bans. Plaintiffs contend that the Guidance exceeds HHS's statutory authority and violates the Administrative Procedure Act. HHS alleges the plaintiffs lack standing. According to the court:

Plaintiffs’ standing in this case turns on the answer to a single question: does the Pharmacy Guidance require pharmacies to dispense drugs for abortion purposes? Defendants argue now that the Pharmacy Guidance only “addresses situations in which a pharmacy would fail to fill a prescription for non-abortion purposes.” What’s more, Defendants argue that “Texas cannot point to any language in the guidance that purports to require pharmacies to dispense drugs for abortion purposes.” Thus, in Defendants’ view, because the Pharmacy Guidance is not about abortion, it “does not conflict with, or purport to preempt, Texas laws that restrict abortion.” But that argument perfectly evidences agency smurfing—an executive branch breaking up a policy goal into silos, hoping to sever the threads that link the compartmentalized pieces to the executive’s goal....

This administration has, before and since Dobbs, openly stated its intention to operate by fiat to find non-legislative workarounds to Supreme Court dictates. This Court will not play along with such a breach of constitutional constraints.

Earlier in its opinion, the court set out at greater length its concern about "smurfing":

A recent trend among federal agencies appears to be borrowing a technique common among money launderers to avoid judicial review. The technique known as “smurfing” in the financial arena occurs when the launderer divides a large transaction—which might otherwise trigger a bank’s reporting requirements—into various smaller transactions to avoid detection....

Agency smurfing, similar to financial smurfing, occurs when the executive branch smurfs one policy goal into multiple, supposedly “unreviewable” and “unchallengeable” pieces. Consider an executive branch, who, immediately following a Supreme Court decision, seeks to achieve a policy goal contrary to the Court’s holding. The executive branch knows, however, that courts will likely view that policy goal as incompatible with the Supreme Court’s reasoning. In its efforts to avoid scrutiny, and eventual discovery of their true purpose, the executive branch breaks up the policy goal into separate, seemingly unrelated and innocent pieces—an executive order here, a press release and guidance there.

Mayo Pharmacy, a co-plaintiff, also alleged violation of its free exercise rights under RFRA. The court held that the case was brought in the wrong venue to assert that claim, and it transferred that claim to the District of North Dakota where venue lies. ADF issued a press release announcing the decision.

British Regulator Issues Guidance On Religious Beliefs In Pharmacy Practice

Britain's General Pharmaceutical Council, the regulator for pharmacists, pharmacy technicians and registered pharmacies in England, Scotland and Wales, this month issued a Guidance Document for pharmacy professionals titled In Practice: Guidance on Religion, Personal Values and Beliefs. Here is an excerpt from the document:

In some cases, a pharmacy professional’s religion, personal values or beliefs may influence their day-to-day practice, particularly whether they feel able to provide certain services.... 

Pharmacy professionals have the right to practise in line with their religion, personal values or beliefs as long as they act in accordance with equalities and human rights law and make sure that person-centred care is not compromised....

If a pharmacy professional is unwilling to provide a certain service, they should take steps to make sure the person asking for care is at the centre of their decision-making, so they can access the service they need in a timely manner and without hindrance.

[Thanks to Law & Religion UK for the lead.]

Supreme Court Denies Review In Washington State Pharmacy Case

The U.S. Supreme Court today denied review in Storman's Inc. v. Wiesman,  (Docket No. 15-682, cert. denied 6/28/2016), but over a 15-page dissent to the denial of certiorari written by Justice Alito and joined by Chief Justice Roberts and Justice Thomas. (Order List, scroll to pg. 7). In the case, the 9th Circuit upheld rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require pharmacies to deliver all prescriptions, even if the owner has a religious objection. An individual pharmacist with religious objections may refuse to fill a prescription only if another pharmacist working for the pharmacy does so. (See prior posting.)  In his dissent, Justice Alito argued in part:

there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State.

Washington Post reports on today's action by the Supreme Court. [Thanks to Marty Lederman via Religionlaw for the lead.]

Cert Filed In Challenge By Pharmacies To Required Filling of Emergency Contraception RX

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Stormans Inc. v. Wiesman, (cert. filed, 1/4/2016).  In the case, the U.S. 9th Circuit Court of Appeals upheld rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require pharmacies to deliver all prescription medications, even if the owner has a religious objection. An individual pharmacist with religious objections may refuse to fill a prescription only if another pharmacist working for the pharmacy does so. (See prior posting.) ADF issued a press release announcing the filing of the petition.

9th Circuit Rejects Free Exercise Challenge By Pharmacies To Required Filling of Emergency Contraception RX

In Stormans, Inc. v. Wiesman, (9th Cir., July 23, 2015), the U.S. 9th Circuit Court of Appeals upheld against constitutional challenge rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require a pharmacy to deliver all prescription medications, even if the owner of the pharmacy has a religious objection. An individual pharmacist with religious objections may refuse to fill the prescription if another pharmacist working for the pharmacy does so.

The court held that these rules are both facially and operationally neutral, and are generally applicable, so that  heightened scrutiny need not be applied to plaintiffs' free exercise challenge:

The possibility that pharmacies whose owners object to the distribution of emergency contraception for religious reasons may be burdened disproportionately does not undermine the rules’ neutrality.

The court also rejected plaintiffs' substantive due process challenge, rejecting the argument that there is a fundamental liberty interest in owning, operating or working at a licensed professional business free from regulations requiring activities that one sincerely believes lead to the taking of human life. Alliance Defense Fund immediately announced that it would appeal the court's decision. The Olympian reports on the 9th Circuit's decision.

9th Circuit Hears Oral Arguments In Conscience Challenge To Pharmacy Board Rules

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in Stormans, Inc. v. Weisman. (Audio of full oral arguments). In the case,  a Washington federal district court held unconstitutional the enforcement of rules of the Washington State Pharmacy Board that require pharmacies and pharmacists to dispense emergency contraception even when doing so violates a pharmacist's religious beliefs. (See prior posting.) The Oregonian reports on yesterday's oral arguments.