STORMANS INC v. SELECKY ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STORMANS INC., doing business as 
RALPH’S THRIFTWAY; RHONDA
MESLER; MARGO THELEN,
Plaintiffs-Appellees,
v.
MARY SELECKY, Secretary of the
Washington State Department of
Health; LAURIE JINKINS, Assistant
Secretary of Washington Health
Systems Quality Assurance; Nos. 07-36039
GEORGE ROE; SUSAN TIEL BOYER; 07-36040
DAN CONNOLLY; GARY HARRIS;
VANDANA SLATTER; REBECCA HILLE; D.C. No.
ROSEMARIE DUFFY, Members of the
Washington Board of Pharmacy;
 CV-07-05374-RBL
Western District of
ELLIS CASSON; DEBORAH SIOUS Washington,
CANO-LEE; JERRY HEBERT; SHAWN Tacoma
MURINKO, Commissioners for the ORDER
Washington Human Rights
Commission; MARK BRENMAN,
Executive Director of the
Washington Human Rights
Commission; YVONNE LOPEZ
MORTON, acting Commissioner of
the Human Rights Commission of
the State of Washington,
Defendants-Appellants,
and

5007
5008 STORMANS INC. v. SELECKY
JUDITH BILLINGS; RHIANNON 
ANDREINI; JEFFREY SCHOUTEN;
MOLLY HARMON; CATHERINE
ROSMAN; EMILY SCHMIDT; TAMI 
GARRARD,
Defendant-Intervenors-
Appellants.

Filed May 1, 2008
Before: Thomas G. Nelson, A. Wallace Tashima and
Jay S. Bybee, Circuit Judges.
Order;
Dissent by Judge Tashima
ORDER
The Plaintiffs-Appellees filed suit in district court to enjoin
the enforcement of Washington Administrative Code 246-
863-095(4)(d) and 246-869-010(4)(d). Those regulations, as
enforced by the Washington State Board of Pharmacy, pro-
hibit pharmacies and pharmacists from refusing to dispense a
contraceptive known as “Plan B” or the “morning after” pill.
The district court granted the preliminary injunction on the
grounds that enforcement of the regulations would interfere
with the rights of the Plaintiffs-Appellees under the Free
Exercise Clause of the U.S. Constitution. Defendant-
Intervenors seek a stay pending appeal of the district court’s
preliminary injunction in this case.
There are four factors we consider when presented with a
motion for a stay pending appeal:
STORMANS INC. v. SELECKY 5009
(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the
proceedings; and (4) where the public interest lies.
Golden Gate Restaurant v. City and County of San Francisco,
512 F.3d 1112, 1115 (9th Cir. 2008) (quoting Hilton v. Braun-
skill, 481 U.S. 770, 776 (1987)). We have recently explained
that to satisfy steps (1) and (2), we will accept proof either
that the applicant has shown “a strong likelihood of success
on the merits [and] . . . a possibility of irreparable injury to
the [applicant],” or “that serious legal questions are raised and
that the balance of hardships tips sharply in its favor.” Id. at
1115-16 (emphasis added; citations omitted). We have
described these alternative formulations as “ ‘two interrelated
legal tests’ that ‘represent the outer reaches of a single contin-
uum.’ ” Id. at 1115 (quoting Lopez v. Heckler, 713 F.3d 1432,
1435 (9th Cir. 1983)).
The motion to stay the district court’s injunction is denied.
Even assuming the district court erred in concluding that the
Washington regulations violate the Free Exercise Clause,
there is insufficient evidence that Appellant-Intervenors will
face irreparable harm if the injunction remains in effect pend-
ing appeal.
The district court found that “there has been no evidence
presented to the Court that access [to Plan B] is a problem. It
is available at all but a few licensed pharmacies in Washing-
ton state and can be accessed through physicians offices, cer-
tain government health centers, hospital emergency rooms,
Planned Parenthood and the internet.” The district court also
relied on a survey conducted by the Washington State Board
of Pharmacy. Of the 135 pharmacies surveyed, “93 typically
stocked emergency contraceptives while 28 did not. Of those
who did not, 18 cited low demand and three relied on an ‘easy
5010 STORMANS INC. v. SELECKY
alternative source.’ Only two pharmacies said they did not
stock emergency contraceptives because of religious or per-
sonal reasons.” The district court concluded:
The Court has been presented no evidence establish-
ing that anyone in the State of Washington, includ-
ing intervenors, has ever failed to obtain Plan B
within the 72-hour window of effectiveness because
one or more pharmacists-pharmacies refused to fill
a lawful prescription for Plan B or refused to stock
and/or dispense Plan B as an over-the-counter drug.
In their application for a stay pending appeal, the
Defendant-Intervenors do not controvert these findings.
Instead, they cite other evidence — which was before the dis-
trict court and discussed in its order — of two women who
sought Plan B and were refused by a pharmacist, a woman
who has heard that Plan B is not available at pharmacies and
obtained Plan B from Planned Parenthood, and a woman who
has not used Plan B but participated in a Planned Parenthood
testing program and made inquiries at five pharmacies. The
most serious cases are those of the two women who were
refused Plan B by pharmacists; neither woman was unable to
obtain Plan B. In the one case, the pharmacist directed the
woman to another pharmacy in the area; in the second case,
another pharmacist on duty at the store filled the prescription.
There is no evidence that any woman who sought Plan B was
unable to obtain it. This anecdotal evidence falls short of even
the “possibility of irreparable harm” in the absence of a stay
pending appeal.
Accordingly, upon the record before the court, a stay of the
district court’s injunction is not warranted.
Appellant-Intervenors’ alternative motion to expedite oral
argument of these cases is granted. These cases have been cal-
endared for oral argument on June 3, 2008 in Seattle, Wash-
STORMANS INC. v. SELECKY 5011
ington. Appellees’ motion to continue oral argument will be
addressed by separate order.
TASHIMA, Circuit Judge, dissenting, in part:
Defendants-Intervenors appeal from the district court’s
grant of a preliminary injunction, enjoining Washington’s
amended pharmacy regulations (the “regulations”).1 They
have moved for a stay of the injunction pending appeal.
Because the stay applicants have demonstrated a strong likeli-
hood of success on the merits, at least the possibility of irrepa-
rable harm, and that the public interest weighs in their favor,
I would stay the district court’s preliminary injunction pend-
ing appeal. I dissent from the denial of a stay.
I. Factual and Procedural Background
In Washington, pharmacy practice is governed by a com-
prehensive regulatory scheme administered by the Washing-
ton State Board of Pharmacy (the “Pharmacy Board”). See
Wash. Rev. Code § 18.64.005. In 2006, responding to media
reports and complaints about pharmacists who refused to fill
certain prescriptions, including the so-called Plan B contra-
ceptive, the Pharmacy Board initiated a rulemaking process to
address what, if anything, should be done about pharmacies
and pharmacists who refuse to dispense certain drugs because
they believe those drugs to be religiously or morally objec-
tionable. This issue has proven to be controversial.
1
The heart of the regulations provides:
Pharmacies have a duty to deliver lawfully prescribed drugs or
devices to patients and to distribute drugs and devices approved
by the U.S. Food and Drug Administration for restricted distribu-
tion by pharmacies, or provide a therapeutically equivalent drug
or device in a timely manner consistent with reasonable expecta-
tions for filling the prescription. . . .
Wash. Admin. Code § 246-869-010(1).
5012 STORMANS INC. v. SELECKY
The controversy boils down to this: To women’s health
advocates, Plan B is a necessary component of a woman’s
reproductive freedom and health. When a woman and her sex-
ual partner’s primary contraception fails, or when they fail to
use a contraceptive, Plan B gives a woman a second opportu-
nity to prevent a pregnancy. The medication is not taken pro-
phylactically, but instead is taken post-coital. Its efficacy at
preventing a pregnancy, however, is time-sensitive. Delaying
the first dose even by several hours substantially increases the
odds of pregnancy, and its efficacy diminishes linearly with
time. See Frank Davidhoff & James Trussell, Plan B and the
Politics of Doubt, 296 JAMA 1775, 1775 (2006).
To opponents of Plan B, the drug is not a contraceptive but
an abortifacient. That is, they argue that Plan B does not pre-
vent pregnancy, but terminates it. At least some pharmacists
(and pharmacy owners) share that view and also believe that
terminating a pregnancy is morally wrong, violates religious
precepts, or both. To these pharmacists, participating in the
dispensing of Plan B would be violative of their deeply held
religious or moral beliefs. Pursuant to that belief, some refuse
to dispense Plan B. Therefore, to women’s health advocates,
religious and moral objectors stand between their reproduc-
tive health and freedom, putting women at risk of unintended
or unwanted pregnancies. To pharmacists-objectors, a require-
ment to dispense drugs that they find morally or religiously
objectionable presents a dilemma, forcing them to choose
between their work as a pharmacist and their deeply-held
moral and religious beliefs.2
During the Washington rulemaking process, some, most
notably the Washington State Pharmacy Association
2
Although Plan B is now available over-the-counter, it must be stocked
behind the pharmacy counter and must be requested by the patient, and it
is available to women under 18 only by prescription. Thus, the OTC status
of Plan B for adults has not removed the pharmacist from the dispensing
of the drug.
STORMANS INC. v. SELECKY 5013
(“WSPA”), advocated for the creation of a right to refuse for
pharmacists, while others, including Planned Parenthood, the
Northwest Women’s Law Center, and the Washington State
Human Rights Commission (“WSHRC”), advocated against
any right to refuse. Following input from these groups and
interested individuals, the Pharmacy Board initially proposed
a draft rule that would have allowed pharmacists to refuse to
dispense a medication that the pharmacists found morally or
religiously objectionable, but proscribed pharmacists or phar-
macies from actively obstructing a patient’s effort to obtain
lawfully prescribed drugs.
This proposal was met with prominent opposition. Gover-
nor Christine Gregoire publicly voiced her opposition to the
proposed rule. In a letter to the Pharmacy Board, the Gover-
nor focused on the “patient perspective,” arguing that “no one
should be denied appropriate prescription drugs based on the
personal, religious, or moral objection of individual pharma-
cists”; instead, “the bottom line . . . [is that] a lawful prescrip-
tion should be filled unless there are clinical or patient safety
issues.” The Governor publicly warned the Pharmacy Board
that she could remove them should they not reconsider their
initial proposal, but she was nevertheless hopeful that it would
not to come to that.
The Governor eventually brought several interest groups
together, including the WSPA and Planned Parenthood, and
together, they offered an alternative to the proposed draft rule.
The Pharmacy Board unanimously adopted the Governor’s
brokered alternative, requiring pharmacies to dispense all law-
fully prescribed drugs, or a therapeutic equivalent, in a timely
manner, see Wash. Admin. Code § 246-869-010, and defining
unprofessional conduct on the part of pharmacists to include
destroying or refusing to return an unfilled lawful prescrip-
tion, violating a patient’s privacy, discriminating against
patients, or intimidating or harassing a patient, see id. § 246-
863-095. The regulations do not recognize a right of refusal
for pharmacists, but they do not preclude a pharmacy from
5014 STORMANS INC. v. SELECKY
accommodating an objecting pharmacist so long as another
pharmacist is available to fill prescriptions. As the Pharmacy
Board, in a post-adoption letter, informed pharmacies and
pharmacists, “[t]he rule does not mandate that individual
pharmacists dispense all prescriptions regardless of the phar-
macist’s personal objection,” but “a pharmacy cannot avoid
filling prescriptions by referring [the patient] to another phar-
macy” even if the only pharmacist on duty has personal objec-
tions. The regulations became effective on July 26, 2007.
The day before the regulations’ effective date, Stormans
Inc., which operates two pharmacies in Olympia, Washington,
Rhonda Mesler, and Margo Thelen, who are Washington
pharmacists (collectively, “Plaintiffs”), brought a First
Amendment free exercise challenge to the regulations.3 Plain-
tiffs believe that Plan B is an abortifacient and that the use of
such a drug is violative of their sincerely-held religious
beliefs. Plaintiffs argue that the regulations violate their free
exercise rights, contending that the regulations intentionally
seek to suppress their religious practices because the regula-
tions force them to choose between their livelihood and the
exercise of their religion. Amend. Comp. at 9-13. Immedi-
ately upon filing their complaint, Plaintiffs moved for a pre-
liminary injunction, seeking to enjoin the State from
enforcing the regulations against them. Following filing of the
motion for preliminary injunction, three women who have
been refused Plan B in the past, two women who may need
timely access to Plan B in the future, and two HIV-positive
individuals who need timely access to medications to manage
their illness (collectively, “Defendants-Intervenors”), inter-
vened pursuant to Federal Rule of Civil Procedure 24(a).
The district court, concluding that Plaintiffs had demon-
strated a likelihood of success on their free exercise challenge
3
Plaintiffs also brought equal protection, preemption, and procedural
due process challenges to the regulations, see Amend. Comp. at 13-17, but
the preliminary injunction was based only on free exercise grounds.
STORMANS INC. v. SELECKY 5015
and a possibility of irreparable injury, granted the preliminary
injunction. Stormans, Inc. v. Selecky, 524 F. Supp. 2d 1245,
1266 (W.D. Wash. 2007). Instead of enjoining the State from
enforcing the regulations only against Plaintiffs, however, the
district court enjoined the State from enforcing the regulations
against any pharmacy or pharmacist:
The defendants are enjoined from enforcing [Wash.
Admin. Code] 246-863-095(4)(d) and [Wash.
Admin. Code] 246-869-010(4)(d) (the anti-
discrimination provisions) against any pharmacy
which, or pharmacist who, refuses to dispense Plan
B but instead immediately refers the patient either to
the nearest source of Plan B or to a nearby source for
Plan B.
Id. Perhaps recognizing that the injunction was overbroad,
Plaintiffs moved to narrow the injunction so that it would
apply only to the named plaintiffs and the employers of the
named-objecting pharmacists. That motion was denied.
Defendants-Intervenors appealed from the granting of the pre-
liminary injunction and requested a stay from the district
court, which was denied. They have now moved this court for
a stay of the preliminary injunction pending appeal.
II. Standard for Granting a Stay Pending Appeal
To determine whether we should grant a stay pending
appeal, we consider four factors: “(1) whether the stay appli-
cant has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceed-
ing; and (4) where the public interest lies.” Hilton v. Braun-
skill, 481 U.S. 770, 776 (1987); accord Golden Gate Rest.
Ass’n v. City & County of S.F., 512 F.3d 1112, 1115 (9th Cir.
2008); Natural Res. Def. Council, Inc. v. Winter (“Winter I”),
5016 STORMANS INC. v. SELECKY
502 F.3d 859, 863 (9th Cir. 2007); Lopez v. Heckler, 713 F.2d
1432, 1435-36 (9th Cir. 1983).
The “irreparably-injured” and “likelihood-of-success” fac-
tors are considered on “a sliding scale in which the required
degree of irreparable harm increases as the probability of suc-
cess decreases.” Golden Gate, 512 F.3d at 1116 (quoting Win-
ter I, 502 F.3d at 862). Where the stay applicant demonstrates
a strong likelihood of success, the possibility of irreparable
injury is sufficient to warrant a stay. See Golden Gate, 512
F.3d at 1115-16; Winter I, 502 F.3d at 862. On the other end
of the sliding scale, where the stay applicant demonstrates that
the balance of hardships tips sharply in its favor, the applicant
must show only that it raises “serious legal questions.” Gol-
den Gate, 512 F.3d at 1116; Lopez, 713 F.2d at 1435. The
“public interest” factor is considered “separately from and in
addition to whether the applicant for stay will be irreparably
injured absent a stay.” Golden Gate, 512 F.3d at 1116 (quot-
ing Winter I, 502 F.3d at 863); accord Hilton, 481 U.S. at
776.
III. Discussion
Although essentially acknowledging that Defendants-
Intervenors are likely to succeed on the merits, the majority
nevertheless denies their motion for a stay, holding that “there
is insufficient evidence that Appellant-Intervenors will face
irreparable harm.” In so holding, the majority misconstrues
the law and the record. I consider each of the stay factors, in
turn.
A. Success on the Merits
The applicants have demonstrated a strong likelihood of
success on the merits because, contrary to the district court’s
holding, the Washington regulations do not violate Plaintiffs’
rights to the free exercise of religion. Because the majority
STORMANS INC. v. SELECKY 5017
virtually concedes that stay applicants meet this factor,4 I
touch on the merits only to explain why the district court
erred in this regard.
The Free Exercise Clause of the First Amendment provides
that “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof . . . .” U.S.
Const. amend. I (emphasis added). The Free Exercise Clause
excludes all regulation of religious beliefs, but does not
exclude the regulation of religiously-motivated actions so
long as the regulation is neutral and generally applicable. That
is, a rationally based neutral law of general applicability, even
when it proscribes (or prescribes) conduct that a particular
individual’s religion prescribes (or proscribes), does not vio-
late that individual’s free exercise right. Employment Div. v.
Smith, 494 U.S. 872, 879 (1990); see also Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
531 (1993). “A law is one of neutrality and general applicabil-
ity if it does not aim to ‘infringe upon or restrict practices
because of their religious motivation,’ and if it does not ‘in a
selective manner impose burdens only on conduct motivated
by religious belief.’ ” San Jose Christian Coll. v. Morgan Hill,
360 F.3d 1024, 1031 (9th Cir. 2004) (emphasis added) (quot-
ing Lukumi, 508 U.S. at 533, 543). A neutral and generally
applicable law will be upheld if it is rationally related to a
legitimate governmental purpose. Smith, 494 U.S. at 879
1. Neutrality
A law is neutral if its object is not aimed at infringing upon
or restricting practices “because of their religious motiva-
tion.” Lukumi, 508 U.S. at 533 (emphasis added); accord San
Jose Christian Coll., 360 F.3d at 1031. To determine the
object of the law, we must examine both the text of the regu-
lation (allowing us to ensure facial neutrality), and how the
4
The majority “assum[es that] the district court erred in concluding that
the Washington regulations violate the Free Exercise Clause. . . .”
5018 STORMANS INC. v. SELECKY
regulation operates (allowing us to ferret out facially neutral
laws that nevertheless have as their object the infringement or
restriction of religious practices because of their religious
motivations). See Lukumi, 508 U.S. at 533-40.
As noted, “we must begin with its text, for the minimum
requirement of neutrality is that a law not discriminate on its
face.” Id. at 533. “A law lacks facial neutrality if it refers to
a religious practice without a secular meaning discernible
from the language or context.” Id. Here, the regulations, as all
concede, are facially neutral. The regulations do not refer, in
any way, to religious practice or belief. They operate neutrally
against religiously-based conduct, as well as secularly-based
conduct. The regulations require pharmacies to fill valid, law-
ful prescriptions. Patients cannot be denied drugs because of
a particular pharmacist’s religious objections, moral objec-
tions, or any other kind of personal objection. Moreover,
because the regulations proscribe a pharmacy from refusing to
dispense valid, lawful prescriptions and do not require a par-
ticular pharmacist to dispense all valid, lawful prescriptions,
nothing in the regulations precludes a particular pharmacy
from accommodating a pharmacist-objector. In short, there is
no indication, either from the language of the regulations or
from the manner in which they operate, that the object of the
regulations is aimed at infringing upon or restricting practices
“because of their religious motivation.” Lukumi, 508 U.S. at
533 (emphasis added); accord San Jose Christian Coll., 360
F.3d at 1031.
Even though the text and the operation of the regulations
are neutral, the district court nevertheless concluded that the
regulations were not neutral. It reached that conclusion by
relying on the regulations’ administrative history, reasoning
that “[r]elevant evidence in the inquiry [to determine whether
the regulations are neutral] includes, at a minimum, the histor-
ical background of the decision under challenge, the specific
series of events leading to the enactment of the subject law(s),
and the legislative or administrative history, including con-
STORMANS INC. v. SELECKY 5019
temporaneous statements made by members of the decision-
making body.” Stormans, 524 F. Supp. 2d at 1258.
In employing that line of reasoning, the district court
applied the wrong legal standard. In Lukumi, Justice Kennedy
delivered the opinion of the Court, except as to Part II-A-2 of
his opinion. See 508 U.S. at 523. The passage quoted by the
district court, regarding the consideration of the legislative
history in determining whether the challenged regulation had
a discriminatory object, is from Part II-A-2 of Justice Kenne-
dy’s Lukumi opinion, which was not part of the majority opin-
ion of the Court. Compare Stormans, 524 F. Supp. 2d at 1258
(quoting, without citing, Lukumi), with Lukumi, 508 U.S. at
540-42 (plurality opinion). Rather, under Lukumi, even if the
Pharmacy Board “set out resolutely to suppress the [religious]
practices of [Plaintiffs], but ineptly adopted [regulations] that
failed to do so,” those regulations could not be said to prohibit
the free exercise of religion. 508 U.S. at 558-59 (Scalia, J.,
concurring in part and concurring in judgment). Thus, the dis-
trict court’s discussion of the regulations’ administrative his-
tory is beside the point.
Even assuming arguendo that the district court could con-
sider administrative history, the district court’s conclusion
that the administrative history “strongly suggests that the
overriding objective of the subject regulations was, to the
degree possible, to eliminate moral and religious objections
from the business of dispensing medication,” Stormans, 524
F. Supp. 2d at 1259, would not lead to the conclusion that the
regulations were not neutral. The district court recognized that
the Pharmacy Board was trying to eliminate religious as well
as secularly-based moral objections. Id. (concluding that the
“overriding objective of the subject regulations was, to the
degree possible, to eliminate moral and religious objections
from the business of dispensing medication”). The district
court, however, incorrectly treats moral objections and reli-
gious objections as interchangeable, even though moral objec-
tions to abortion are not necessarily religiously-based. Cf.
5020 STORMANS INC. v. SELECKY
Ariz. Life Coalition, Inc. v. Stanton, 515 F.3d 956, 972 (9th
Cir. 2008) (concluding that speech opposing abortion is not
speech that promotes faith or a specific religion). Indeed, the
fact that the Pharmacy Board sought to prevent religious and
moral objections from interfering with patients’ access to pre-
scriptions demonstrates that the State was not regulating
religiously-motivated conduct because of its religious motiva-
tion.
For example, in American Life League, Inc. v. Reno, the
Fourth Circuit held that the Freedom of Access to Clinic
Entrances Act (“FACE”), which prohibits obstructing abor-
tion clinics, was a neutral and generally applicable law even
though Congress enacted the law in response to abortion
clinic blockades, many of which were motivated by the reli-
gious beliefs of the obstructors. 47 F.3d 642, 654 (4th Cir.
1995). In that case, the plaintiffs argued that the object of the
law was to restrict the protests because of the protestors’ reli-
gious motivations. The Fourth Circuit, however, rejected that
argument because “[u]nder the Act it makes no difference
whether a violator acts on the basis of religious conviction or
temporal views. The same conduct is outlawed for all.” Id.
Thus, the law was generally applicable and neutral toward
religion, and as such, it did not offend the Free Exercise
Clause. Id. Here, the regulations, like FACE, proscribe the
same conduct for all, regardless of whether the pharmacist
refuses to fill the prescription based on religious, moral, tem-
poral, or other objections.
Because the regulations are facially neutral and do not
operate in a way that demonstrates that the object of the regu-
lations is aimed at infringing upon or restricting religious
practices or beliefs because of their religious motivation, the
regulations are neutral.
2. Generally Applicable
A regulation is not generally applicable when it pursues the
“governmental interests only against conduct motivated by
STORMANS INC. v. SELECKY 5021
religious belief.” Lukumi, 508 U.S. at 545. The general appli-
cability requirement insures that government “cannot in a
selective manner impose burdens only on conduct motivated
by religious belief.” Id. at 543; see also San Jose Christian
Coll., 360 F.3d at 1031. In other words, “[t]he Free Exercise
Clause protects religious observers against unequal treatment,
and inequality results when a legislature [or an administrative
agency] decides that the governmental interests it seeks to
advance are worthy of being pursued only against conduct
with a religious motivation.” Lukumi, 508 U.S. at 542-43.
The district court, however, invented a new test to deter-
mine whether the challenged regulations are generally appli-
cable. It held that a law is not generally applicable “if the
[challenged regulations’] means fail to match [the] ends”
employed by the regulator, and concluded that the “means,”
i.e., the challenged regulations, failed to achieve their
intended end because the regulations allowed for certain excep-
tions5 from the general duty to dispense lawful prescriptions.
See Stormans, 524 F. Supp. 2d. at 1260-63. Although
acknowledging that these “exemptions all reflect legitimate,
time-honored reasons for not filling a prescription immedi-
ately upon presentation by a patient,” the district court never-
theless concluded that these exemptions make the regulations
not generally applicable because the “means adopted by the
Board to accomplish its desired outcome . . . does nothing to
increase access to lawful medicines generally.” Id. at 1262.
General applicability simply does not require what the dis-
trict court demands. The district court’s “means” and “end”
test is, in essence, a version of intermediate scrutiny. See, e.g.,
Craig v. Boren, 429 U.S. 190, 197 (1976) (“To withstand con-
stitutional challenge, . . . classifications by gender must serve
5
For example, the regulations exempt pharmacies from that general duty
when the prescription cannot be filled because of a national emergency or
the lack of expertise with a given medicine, or when the prescription is
potentially fraudulent. See Wash. Admin. Code § 246-869-010(1)(a)-(e).
5022 STORMANS INC. v. SELECKY
important governmental objectives and must be substantially
related to the achievement of those objectives.”). Under inter-
mediate scrutiny, a regulation will be upheld if it is substan-
tially related to an important governmental objective. The
district court applied the wrong legal standard, and in so
doing, introduced a heightened scrutiny to a neutral law of
general applicability—a level of scrutiny that runs contrary to
the rule of Smith and Lukumi.
General applicability requires only that the burden not be
imposed only on religiously-motivated conduct. Cf. Lukumi,
508 U.S. at 524 (“[T]he principle of general applicability was
violated [in that case] because the secular ends asserted in
defense of the laws were pursued only with respect to conduct
motivated by religious beliefs.”). Here, the regulations burden
both religious and secular objections to the dispensing of cer-
tain drugs; therefore, they are generally applicable.
3. Rational Basis Review
Because the challenged regulations are neutral and gener-
ally applicable, rational basis review applies. See Miller v.
Reed, 176 F.3d 1202, 1206 (9th Cir. 1999) (citing Smith, 494
U.S. at 879). Under rational basis review, the regulations will
be upheld if they are rationally related to a legitimate govern-
mental purpose. See Gadda v. State Bar, 511 F.3d 933, 938
(9th Cir. 2007). Here, the regulations are rationally related to
Washington’s legitimate interest in ensuring that patients have
their lawful prescriptions dispensed without delay.
Smith and Lukumi require only that the regulations treat
religious belief and practice no differently than secularly-
motivated belief and practice. The regulations do just that.
The Supreme Court has never held that the Free Exercise
Clause creates a private right to ignore generally applicable
laws. Instead, it declared that the creation of such a right
would be “a constitutional anomaly.” Smith, 494 U.S. at 882,
885-86.
STORMANS INC. v. SELECKY 5023
“Laws,” [the Supreme Court has] said, “are made for
the government of actions, and while they cannot
interfere with mere religious belief and opinions,
they may with practices . . . . Can a man excuse his
practices to the contrary because of his religious
belief? To permit this would be to make the pro-
fessed doctrines of religious belief superior to the
law of the land, and in effect to permit every citizen
to become a law unto himself.”
Id. at 879 (quoting Reynolds v. United States, 98 U.S. 145,
166-67 (1879) (ellipsis in the original) (rejecting the argument
that the Free Exercise Clause precludes the application of
criminal bigamy laws to individuals whose religion com-
manded the practice)). “The government’s ability to enforce
generally applicable prohibitions of socially harmful conduct,
like its ability to carry out other aspects of public policy, can-
not depend on measuring the effects of governmental action
on a religious objector’s spiritual [integrity].” Id. at 885
(internal citations and quotation marks omitted). Defendants-
Intervenors have demonstrated that, in all probability, they
will prevail on the merits.
B. Balance of Hardships
Given that Defendants-Intervenors have demonstrated a
strong likelihood of success on the merits, they need show
only the possibility of irreparable injury if the stay is not
granted. See Golden Gate, 512 F.3d at 1115-16 (citing Winter
I, 502 F.3d at 862). The majority holds that “there is no evi-
dence that any woman who sought Plan B was unable to
obtain it. This anecdotal evidence falls short of even the ‘pos-
sibility of irreparable harm’ in the absence of a stay pending
appeal.” In so holding, the majority completely misconstrues
the meaning of the term “possibility of irreparable harm.”
The panel’s decision to deny the stay means that
Defendants-Intervenors will be placed at risk that the dispens-
5024 STORMANS INC. v. SELECKY
ing of Plan B will be delayed, potentially resulting in
unwanted pregnancies and all that accompanies it. The record
shows that five of the Defendants-Intervenors are sexually
active women in their childbearing years.6 Rhiannon Andreini
uses condoms as her primary means of birth control and has
already experienced the ill effects of a pharmacist who refuses
to dispense Plan B. Andreini, while on a family visit, sought
the emergency contraceptive because her partner’s condom
had broken during sexual intercourse. She was denied access
to Plan B by a Washington pharmacist, and had to cut her
family visit short in order to obtain Plan B from a familiar
pharmacist. Such delays in treatment create the possibility of
an unwanted pregnancy. The risk of another delay and an
unintended pregnancy is real. Molly Harmon also has experi-
enced a pharmacist’s refusal to dispense Plan B after her pri-
mary contraception failed. Harmon was also able to obtain
Plan B, preventing an unwanted pregnancy, but Harmon will
continue to be at risk of having the dispensing of emergency
contraception delayed or denied. Catherine Rosman has used
Plan B following a sexual assault. In the event of another sex-
ual assault, emergency contraception may be delayed or
denied, placing her at risk of conceiving a child from a sexual
assault. Emily Schmidt and Tami Garrard, although they have
never used emergency contraception, are nonetheless placed
at risk of having emergency contraception delayed or denied.
If this showing does not amount to a showing of the “possibil-
ity of irreparable harm,” it is difficult to conceive of a show-
ing that would.7
6
The other two Defendants-Intervenors are HIV-positive individuals
who need timely access to medication in order to manage their illness. I
do not consider their hardship because the preliminary injunction pertains
only to refusals to dispense Plan B.
7
Rejecting the showing of possible harm as “anecdotal,” the majority’s
denigration of the risk — the possibility — of irreparable harm faced by
Defendants-Intervenors, as well as all women of child-bearing age in
Washington, runs counter to our assessment of irreparable injury in Gol-
den Gate. There, after noting that approximately 20,000 uninsured work-
STORMANS INC. v. SELECKY 5025
On the other side of the balance is Rhonda Mesler’s conten-
tion that if the Pharmacy Board enforces the regulations
against the pharmacy for which she works, she “expect[s]” to
be fired, because she will refuse to dispense Plan B and the
pharmacy cannot afford to hire another pharmacist. Even
assuming that Mesler’s employer will terminate her if it is
required to comply with the regulations, when “ ‘[f]aced with
. . . a conflict between financial concerns and preventable
human suffering, we have little difficulty concluding that the
balance of hardships tips decidedly’ in favor of the latter.”
Golden Gate, 512 F.3d at 1126 (quoting Lopez, 713 F.2d at
1437). The remaining plaintiffs, Margo Thelen and Stormans
Inc., have not shown that they will suffer any irreparable harm
if the injunction is stayed.8 Thelen has religious and moral
objections to the dispensation of Plan B, but has been accom-
modated by her employer. Stormans contends that it will suf-
fer irreparable harm because the Pharmacy Board has
“express[ed] an intent to initiate disciplinary proceedings”
should Stormans fail to comply. Such an economic injury,
however, could hardly be considered irreparable. I conclude
that the balance of hardships tips strongly in favor of the stay
applicants.
Because the stay applicants have demonstrated a substantial
likelihood of prevailing on the merits, they need only demon-
strate a possibility of irreparable harm, which they have
clearly shown.
ers would be eligible for health benefits under the contested ordinance and
that “individuals without health coverage are significantly less likely to
seek timely medical care than those with coverage,” because “the Interve-
nors’ injuries include preventable human suffering,” we concluded that
“the balance of hardships tips sharply in favor of the parties seeking [stay]
relief.” Golden Gate, 512 F.3d at 1125-26.
8
I assume, for purposes of the stay motion, that Stormans, as a corpora-
tion, has a protectible free exercise right under the First Amendment.
5026 STORMANS INC. v. SELECKY
C. The Public Interest
The district court also erred by failing to consider the pub-
lic interest before granting the injunction.9 We have, however,
an independent duty to consider the public interest. Winter I,
502 F.3d at 864 (citing Hilton, 481 U.S. 770). The public
interest analysis in a stay is in part subsumed in the analysis
of the balance of hardship to the parties. See Golden Gate,
512 F.3d at 1126. The public interest analysis, however, is
much wider, because there are many women who are not par-
ties to this suit whose access to emergency contraception is
obstructed by the preliminary injunction. Id. Thus, the stay
places women throughout Washington at risk of having access
to emergency contraception delayed or denied, and thus
places them at risk of having unintended pregnancies. On the
other side, particular pharmacies may not accommodate all
pharmacists-objectors, and it is possible that pharmacies will
choose to terminate objecting pharmacists, causing financial
hardship to those pharmacists. Considering all the various
interests, I conclude that the public interest weighs in favor of
granting the stay.
Moreover, the public interest consideration is constrained
in this case because the responsible public officials in Wash-
ington have already considered the various implicated inter-
ests. See Golden Gate, 512 F.3d at 1126-27 (“[O]ur
consideration of the public interest is constrained in this case,
for the responsible officials . . . have already considered that
interest. Their conclusion is manifested in the [regulations]
that is the subject of this appeal.”). The regulations were
adopted by the Pharmacy Board after a lengthy public com-
ment period, which included more than 21,000 written com-
ments. I am “not sure on what basis a court could conclude
that the public interest is not served by a [regulation] adopted
in such a fashion. Perhaps it could so conclude if it were obvi-
ous that the [regulations are] unconstitutional . . . ; but, as evi-
9
The majority, too, fails to consider the public interest.
STORMANS INC. v. SELECKY 5027
denced by [my] analysis [of the free exercise challenge]
above, [I] think the opposite is likely to be held true.” Id. (cit-
ing Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943) (“[I]t
is in the public interest that federal courts of equity should
exercise their discretionary power with proper regard for the
rightful independence of state governments in carrying out
their domestic policy.”)).
I conclude that the public interest is served by staying the
district court’s preliminary injunction.
IV. Conclusion
Granting a pharmacist the right to refuse to fill a lawful
prescription for whatever reason is not constitutionally
required. See Smith, 494 U.S. at 890. “It may fairly be said
that leaving accommodation to the political process will place
at a relative disadvantage those religious” objections that do
not enjoy majority support; “but that unavoidable conse-
quence of democratic government must be preferred to a sys-
tem in which each conscience is a law unto itself or in which
judges weigh the social importance of all laws against the
centrality of all religious beliefs.” Id. The district court’s
understanding of the free exercise doctrine is at odds with
clearly established Supreme Court and Circuit case law. The
State of Washington through its Legislature has entrusted reg-
ulation of its pharmacy system to the Pharmacy Board. The
Pharmacy Board has spoken, and it has done so consistent
with the Constitution. Because Defendants-Intervenors have
met all of the requirements for a stay of the preliminary
injunction pending appeal, their motion for a stay should be
granted. I respectfully dissent from the panel’s refusal to issue
a stay.
I concur in that part of the Order granting Defendants-
Intervenors’ alternative motion to expedite oral argument.
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