The Stocking Rule requires a pharmacy “to maintain at all times a representative assortment of drugs in order to meet the pharmaceutical needs of its patients.” “Representative assortment” is not defined or explained, but it plainly connotes a sample, not the physically impossible requirement of stocking all drugs approved for human use. And in its forty-year history, the Stocking Rule has never been enforced against anybody. When the Pharmacy Commission inspects pharmacies, it checks for many things, but not for compliance with the Stocking Rule.
Throughout the litigation in the lower courts, there were administrative complaints against Stormans pending the with Commission. If and when the Commission finally acts on one of those complaints and penalizes Stormans, that part of the case will be more ripe. But the intention not to interfere with any business reasons for stocking drugs will look no different – it will still depend on the drafting history of the regs and the complete lack of enforcement action against anyone else. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, June 28, 2016 12:13 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case "[The Ninth Circuit] accepted without question the unwritten ban on religious refusals [to stock], and refused to acknowledge the equally unwritten permission for business refusals [to stock]." My understanding is that (i) the stocking rule on its face does not permit any reasons for refusal to stock, other than a lack of demand among customers; but that (ii) in practice Washington has rarely if ever sanctioned any pharmacy for failing to stock any drug--including the plaintiffs here, who have not yet been sanctioned. Therefore the case is woefully premature: If and when Washington sanctions Stormans for refusing to stock Ella or Plan B, and if and when Stormans sues to challenge this enforcement action as discriminatory (rather than challenging the rules on their face, which are nondiscriminatory, as Stormans did here), then we might have a trial to see if the state has declined to likewise sanction similarly situated pharmacies that have invoked other sorts of reasons for non-stocking, or otherwise treated such pharmacies more favorably than the state treats Stormans. But we're not there yet. On Tue, Jun 28, 2016 at 11:50 AM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: The lack of clarity in the record arises the state’s decision to pursue its goals by indirection. Nothing in the text of the regulations prohibits refusals to stock and deliver drugs for religious, moral, or ethical reasons. Yet everyone understands that that is the whole point. Nothing in the text of the regulations either prohibits or permits refusals to stock and deliver drugs for business reasons. Yet nearly everyone understands that permitting the longstanding tradition of refusals for many and varied business reasons was an equally intended part of the deal. Everything is clear to the industry, but nothing is written down. The Ninth Circuit allowed this strategy to work. It accepted without question the unwritten ban on religious refusals, and refused to acknowledge the equally unwritten permission for business refusals. The argument that it was also part of the intention to prohibit refusals for secular ethical reasons is like Hialeah’s argument that its ordinances would also apply to voodoo, and that voodoo was not a religion. One tiny application that is arguably secular – really just a variation on the religious objection – does not make a law generally applicable. And in fact, despite considerable effort at trial, the state could find no example of a pharmacist with secular moral objections to religious contraception. That appears to be an empty set in Washington. The Alito dissent is apparently why the case was held so long and relisted so many times. And of course I like the Alito dissent. But I have to say that his footnote 6 is utterly shameless in light of his dissent yesterday in Woman’s Whole Health. He says that of course Stormans can bring “a future as-applied challenge to the Board’s regulations.” But yesterday, a much less thorough litigation of a pre-enforcement challenge was obviously res judicata in a post-enforcement challenge based on actual experience. It is hard to see how he can have it both ways. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:434-243-8546>
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