Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

Nov 17 2014

Stormans case to be argued in federal Ninth Circuit court Thursday

PORTLAND, Ore. — This week, the Attorney General’s Office will defend rules requiring pharmacies to fill lawful prescriptions for time-sensitive medications.

On Thursday, Nov. 20, at 2 p.m. in Portland, Ore., the Ninth Circuit Court of Appeals will hear argument in the case of Stormans v. Wiesman, in which a pharmacy owner and two pharmacists challenge Washington rules requiring pharmacies to fill lawful prescriptions.

The plaintiffs object to filling certain prescriptions for emergency contraceptives based on their religious beliefs.  The state argues that the rules comply with the First Amendment and ensure that Washington residents have timely access to necessary medications.

“When Washington state residents are in need of medication to protect their health, they should not have to worry about whether the pharmacist will fill their prescription,” Attorney General Bob Ferguson said. “My office will continue to vigorously defend the rules requiring pharmacies to fill lawful prescriptions and ensure Washington residents have access to needed medications.”

This case, formerly known as Stormans v. Selecky, has a long history.  The rules at issue were adopted by the Washington Board of Pharmacy in 2007 after a lengthy process of discussion and public comment.

Kevin Stormans, whose family owns Ralph’s Thriftway and its pharmacy in Olympia, and two pharmacists who work elsewhere sued in federal court shortly after the rules were adopted.

Judge Ronald B. Leighton, of the Western District of Washington, concluded that the rules violated the First Amendment by impinging on the plaintiffs’ exercise of their religion, and he issued a preliminary injunction blocking the rules from being enforced.

The state appealed, and in 2009 the Ninth Circuit reversed the preliminary injunction, concluding that the rules did not discriminate on the basis of religion and thus should be reviewed under the “rational basis” test, which asks whether there was any rational basis for the rules.  The Ninth Circuit sent the case back to Judge Leighton for review under the rational basis standard.

Judge Leighton concluded, however, that rational basis review did not apply, and in 2012 conducted a trial regarding the rules.  Although nothing about the rules had changed since the Ninth Circuit’s 2009 ruling and the rules had not been enforced in the interim, Judge Leighton again concluded that the rules violated the First Amendment by impinging on the plaintiffs’ exercise of their religion.  

The state appealed that decision in 2012, and it is this appeal that the Ninth Circuit will hear on Thursday. 

The Ninth Circuit has postponed the argument several times, most recently while awaiting the U.S. Supreme Court’s decision in the Hobby Lobby case.  Because the Supreme Court ultimately decided that case based solely on the Religious Freedom Restoration Act, however, and not the First Amendment, it should have no impact on this case.

The state will be represented by Deputy Solicitor General Alan D. Copsey.  Argument will take place in the Second Floor Courtroom of the Pioneer Courthouse, 700 S.W. Sixth Avenue, Portland, Ore.


The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Attorney General Bob Ferguson is working hard to protect consumers and seniors against fraud, keep our communities safe, protect our environment and stand up for our veterans. Visit www.atg.wa.gov to learn more.

Contact: Alison Dempsey-Hall, Acting Communications Director