Stormans Inc. v. Selecky

Fortunately I had some familiarity with the legal issues.  Otherwise, Judge Kim Wardlaw's statement of the issues would have been confusing - since her statement is framed argumentatively, and anti-civil rights:

We must decide whether the district court abused its discretion by preliminarily enjoining the enforcement of new rules promulgated by the Washington State Board of Pharmacy (“Board”) that require pharmacies to deliver lawfully prescribed Federal Drug Administration (“FDA”)–approved medications and prohibit discrimination against patients, on the ground that the rules violate pharmacies’ or their licensed pharmacists’ free exercise rights under the First Amendmentto the U.S. Constitution. We have jurisdiction pursuant to 28 U.S.C. § 1292. Because we conclude that the district court incorrectly applied a heightened level of scrutiny to a neutral law of general applicability, and because the injunction is overbroad, we vacate, reverse, and remand.
Stormans Inc. v. Selecky, No. 07-36039, Slip op. at 14414 (9th Cir. Oct. 28, 2009) (here).  The realpolitick: Pharmarcists must give patients the morning-after pill.  Or else.  Others will no doubt blog about this case, since it has Culture War stamped on top of it.  Selecky is a trickier case than most want to admit.  Some will say, "As a pharmacist, your job is to give people whatever drug they obtain a prescription for."

Yet a pharmacist must have a license to practice pharmacy.  Here, a pharmacist is being forced to not just choose between a job and his morals; but his profession and his morals.  An employer should of course be able to make someone choose between her job and her morals.  Isn't it more extreme to make a person who has spent years in college and post-graduate school to make that choice?

Many criminal defense lawyers will not represent child rapists.  Others disagree with that choice, and claim that a criminal defense lawyer should represent all clients.  Nevertheless, we all agree that there should be some play in the joints.  The State Bar should not require lawyers to represent child rapists.  A professional should have at least some discretion.

Why can't a pharmacist have a similar play in the joints?  If CVS wants to fire the pharmacist, fine.  The government's forcing a person to lose his livelihood seems cruel.

Selecky is a disturbing case.  Unfortunately, people on either side simply scream at each other.  We all too often act as if there are no reasonable counter-arguments.  Alas.

0 comments: