Stormans takes it to the Supremes

The effect of an eight-justice court on decisions from the 9th Circuit

On January 4, 2016, an appeal to the Supreme Court was submitted in the matter of Stormans v. Wiesman. Stormans v. Wiesman is the lawsuit filed by the owners of Ralph’s Thriftway over the state’s regulations that effectively require stocking and dispensing emergency contraception like Plan B and ella.  Since the Supreme Court of the United States (SCOTUS) refuses to review the vast majority of cases that request appeal, there was no certainty at that time that Stormans’ petition for a review would be granted. Yet there was reason for Stormans to hope: SCOTUS overturns almost all of the cases it hears from the 9^th Circuit appellate court (see “SCOTUS by the numbers”), so Stormans and their anti-choice, anti-gay legal advocacy group, the Alliance Defending Freedom (ADF) were highly likely to prevail if the court agreed to hear the case. All that changed on February 13 when Scalia died.

Why does Scalia’s death matter?

On reproductive justice issues, four of the justices belonging to the court of January 4, 2016, tended to vote conservatively on most issues, including matters of reproductive justice: Scalia, Roberts, Alito and Thomas. Four justices can be expected to protect women’s rights on choice issues: Ginsburg, Breyer, Sotomayor and Kagan, although Sotomayor and Kagan haven’t voted on many cases yet. Justice Anthony Kennedy has a mixed record on many ideological issues, including reproductive healthcare, sometimes voting with the conservatives (as in Hobby Lobby) and sometimes voting with the liberals (as in Planned Parenthood v. Casey).  With Scalia’s death, the prospect of winning a majority to sympathize with the Stormans’ claim that their first amendment rights are being infringed has been severely diminished; it is almost impossible to imagine any of the liberal justices siding with Stormans. In addition, there is a possibility that SCOTUS will be reluctant to grant review to controversial cases that are likely to deadlock while only eight justices are seated, reducing the chance that the case will even be taken up.  May Scalia rest in peace.

What’s happening now?

Four justices must agree to take on a case when a petition for writ of certiorari is submitted. (A petition for a writ of certiorari, or “cert petition” are legal terms for the request for SCOTUS to hear a case on appeal.)  After the state’s  and the intervenors’ responses to Stormans’ cert petition are submitted in early March, the justices and their law clerks will review the petition, the responses, and a slew of amici curiae submitted by a host of “friends,” who have an interest in the outcome of the case, although they are not directly involved.  At least one justice has to recommend discussing the case, and four justices must agree it’s worth reviewing in order for the cert petition to be granted.  Another option is for the court to “GVR” (grant, vacate, remand) the case, which invalidates the 9^th circuit’s ruling and requires the appellate court to rule again on the case—five votes are required for this action.  The Court also has an infrequently exercised option, which also requires five votes, to issue a summary judgment which would simply reverse the lower court’s decision without it being argued before SCOTUS.  Without Scalia, the Stormans case likely has one fewer vote for any of these options.  A decision on whether to hear the case, deny it, or dispose of it in some other manner will most likely be announced in early to mid-April.

Because the Supreme Court receives thousands of cert petitions and can only rule on eighty or so, it has to reject most of the appeals requested. Therefore, the Court tends to take on cases where its rulings will have an impact. It often select cases that it considers to address questions of exceptional importance, as well as cases where appellate or state supreme courts have ruled differently on the same issue (called a “circuit split”); rulings when there’s been a circuit split provide clear legal guidance to the lower courts. It is possible that the current Court will shy away from granting cert to controversial cases which are likely to deadlock before a ninth justice is confirmed, which may spotlight the Court’s weakness in the face of an inability to muster majority opinions, as well as waste its time.

What happens if SCOTUS denies review to Stormans v. Wiesman?

Since the state won on appeal at the 9^th Circuit, SCOTUS refusing to hear the case would constitute victory for the state, and the regulations would be affirmed and, presumably, enforced by the Board of Pharmacy. The regulations , created by the Washington Board of Pharmacy in 2007, require pharmacies to stock and dispense drugs needed by the community it serves, which would typically include emergency contraception products like Plan B and ella for most pharmacies. However, the regulations preserve the right of individual pharmacists to step aside if they have religious or conscientious objections to dispensing a drug, as long as the medication can be provided by the pharmacy in a timely manner. The distinction between the obligations of a pharmacy (must dispense) versus a pharmacist (may step aside) is a crucial one, and one that has been glossed over or misunderstood by the plaintiff’s attorneys, the 14 advocacy organizations that have filed amici curiae (see “With Friends Like These…” sidebar), and all of the media coverage of the appeal. Media outlets that have covered Stormans’ appeal have usually reprinted the ADF’s press release nearly verbatim, and are accompanied by headlines such as “Planned Parenthood is forcing pharmacists to dispense abortion pills.”

Although over 20 complaints were filed against Ralph’s Pharmacy in 2006 and 2007, most of the complaints were discharged without enforcement taken against Ralph’s. The remaining two complaints have languished because Ralph’s and the other plaintiffs have been protected from enforcement while their lawsuit was proceeding. Likewise, while the plaintiffs pursue an appeal, enforcement has been stayed by the 9^th circuit until the final disposition of the case by SCOTUS. If the cert petition is denied, the stay will no longer be in force, and Ralph’s Pharmacy can be disciplined for refusing to comply with state regulations. Ralph’s could potentially lose their pharmacy license.

Is the case worth SCOTUS taking?

To avoid the fate of most writ petitions, which are denied, petitioners typically try to frame their case as especially significant, either because it addresses a question of exceptional importance, or because a ruling by the Supreme Court is necessary to resolve a circuit split. (The Stormans cert petition claims all this and more.) Resolving circuit splits is important, so that U.S. citizens have uniformly similar rights–at least in theory–regardless of which court’s jurisdiction they reside in. Unsurprisingly, Ralph’s lawyers have tried to spin their appeal as necessary to resolve a circuit split, arguing that circuit courts have ruled differently on when exemptions to state regulations may be granted.  The lawyers claim that the state regulations unfairly target religious rights, because the pharmacy regulations being challenged allow certain non-secular exemptions to the requirement for pharmacies to dispense medication. The text of the regulations actually allows for very few exemptions, such as fraud, refusal to pay, and state and national emergencies which preclude maintaining stock of a medication. Does allowing any business to refuse to serve customers who won’t pay (a secular exemption) mean that all religious exemptions must be allowed, as well? This would seem to be the ridiculous endpoint of the plaintiff’s claim. The state’s response, due March 7, will presumably try to minimize the importance of the significance of the questions raised by Stormans v. Wiesman, and argue that the claim of a circuit split is deceptive.

Is the case worth pursuing for the petitioners?

If the Supreme Court were to grant review and the case deadlocked, two things could happen: the ruling of the lower court would be affirmed, and the regulations would be upheld without any precedent being set; or the case could be ordered for reargument at a later date.

Pursuing a Supreme Court case is expensive; preparing a cert petition has been estimated to cost at least $250,000. If review is granted and the case moves forward, costs to the petitioner can run into millions of dollars. Although it has not been disclosed how much the Stormans are paying out of pocket for their suit, it is very likely that they are paying nothing for attorneys’ fees, since litigation support is being provided by the ADF and the Becket Fund. Both organizations have been known to shop around for plaintiffs who can make a claim that allows them to pursue their aims of limiting choice, criminalizing homosexuality, and turning the U.S. into a theocracy.  Thus the real question is, is it worth it for these advocacy groups to continue pursuing the case? Or would their money be better spent trying to oppress people in other ways? Andrew Hamm of SCOTUSblog confirmed in a private email that it is permissible for petitioners to withdraw a cert petition before the Court has decided whether to grant a review or not, but once the petition has been granted, it can only be withdrawn by consent of all parties to the case. Inquiries to the Becket Fund and ADF regarding their intentions of continuing the suit were not answered. However, it is possible they will not find it worthwhile to allocate their resources to a case that is likely to fail.  The advocates want win cases that allow for the expansion of religious influence in American life; protecting Kevin Stormans from the moral taint of stocking Plan B in his pharmacy is not the primary issue for them. For ADF and the Becket Fund, a win would mean a Supreme Court ruling that set precedents that would have wide-ranging impact. (One example: the Hobby Lobby decision has been used to protect fundamentalist Mormons who violate federal child labor statutes. Praise the lord.) The only likely pathway to success for Stormans’ case post-Scalia would be to be granted a review, to have a deadlocked Court (catching Kennedy in a conservative mood), to be ordered for reargument after the composition of the Court changes, for a Republican to win the presidency, and for an anti-choice Justice to be nominated and confirmed prior to a successful reargument.

Speculation in the media regarding cases pending before SCOTUS has most often stated that when an eight-justice Court deadlocks, the decision of the lower court is affirmed, with the Supreme Court’s decision having no precedential value. However, Tom Goldstein of SCOTUSblog discusses another option for the Court: Reargument.  Many important cases have been reargued before a ruling was issued: Citizens United, Roe v. Wade, and Brown v. the Board of Education. Reargument can be ordered to examine new questions regarding a case, or when cases are deadlocked: this appears to have happened twice since Roberts has been chief justice, while Samuel Alito’s appointment was pending.  In cases where the lower courts have ruled differently on an issue, such as the upcoming group of cases challenging the contraception mandate of the Affordable Care Act (ACA), reargument offers a great prospect of a ultimately reaching a “single, clear” Supreme Court decision to guide the lower courts.

If Stormans v. Wiesman were to be heard and ordered for reargument, allowing a possibility of future victory, an additional benefit would be provided to Stormans: The continuation of the 9^th Circuit’s stay that protects Ralph’s pharmacy and the two pharmacists joining in the case from enforcement of the regulations until SCOTUS resolves the case. Given the unlikelihood of a ninth justice being appointed quickly, due to obstructionists in the Republican Congress, this would protect them from the soul-crushing chore of providing birth control to women while the case languishes.

Is emergency contraception really that bad, anyway?

At the time the Ralph’s boycott began, in early summer of 2006, the mistaken belief that Plan B could prevent implantation of a fertilized ovum was widely held, and served as the basis for claims that emergency contraception (EC) was “abortifacient.” Since pregnancy is medically defined as beginning after implantation occurs and a female’s body starts producing pregnancy hormones, even contraception methods that prevent implantation cannot be accurately described as abortifacient.  And it’s doubtful that implantation is prevented by any emergency contraception method other than an IUD, anyway. Back in 2006, it was hard to find information stating that the inhibition of implantation hadn’t been proven to occur due to EC pills; it was necessary to root around in medical journals. In the intervening decade, however, more scientific evidence has emerged, and it is now widely believed that EC works primarily by suppressing ovulation, so that no ovum is released post-coitally to be at risk for unwelcome fertilization. Currently, the labels for the European versions of Plan B and ella do not reference a possible inhibition of implantation at all.  Both levonorgestrel (marketed in the U.S. as Plan B) and uristatl (ella) are manufactured in Europe by HRA Pharmaceuticals.  HRA’s labelling for levonorgestrel (brand name: Norlevo), states that “Norlevo prevents ovulation and fertilisation.” Its labelling for ulipristal or “ellaOne” states that “ellaOne works by postponing ovulation.”

Since the lawsuit began in 2007, the National Institutes of Health (NIH) and the Mayo Clinic have changed the information on their websites regarding the mode of action of EC, saying that “Emergency contraception most likely prevents pregnancy in the same way as regular birth control pills: By preventing or delaying the release of an egg from a woman’s ovaries [or] by preventing the sperm from fertilizing the egg” (NIH) and “Recent evidence strongly suggests that levonorgestrel doesn’t keep a fertilized egg from implanting” (Mayo Clinic). The FDA and Teva pharmaceuticals have not yet changed their labelling.

Anti-choicers have really taken the possibility of EC interfering with implantation and run with it: it was the basis for Hobby Lobby’s objections to complying with the ACA’s contraception mandate, and is claimed by a number of organizations that are currently challenging the ACA in the judicial system. Just think, if the FDA and Teva Pharmaceuticals had provided up-to-date information in their labelling of EC a few years ago, like everyone else does, the Supreme Court wouldn’t have had the occasion to rule that corporations have religious rights in the Hobby Lobby case. Insurance would cover birth control and the children could go to school! It is unclear why the FDA and Teva are so reluctant to change their labelling, but both affirmed recently that they have no plans to join the scientific consensus any time soon. Michelle Larkin of Teva stated “Teva cannot comment on the potential for future regulatory actions but continues to monitor the effectiveness and safety profile of drugs we produce. “Andrea Fischer of the FDA stated that “The FDA continues to monitor and review available scientific data information on levonorgestral emergency contraception as it becomes available and will communicate to the public as needed.” The time is now, Andrea; the public needs accurate information quickly before more rights are disproportionately afforded on the basis of “religious freedom” claims that really just amount to avoiding state and federal statutes and trying to control other people’s behavior.

Should you shop at Ralph’s and Bayview?

Ralph’s and Bayview’s owners care so much about denying woman birth control, they are willing to take it to the Supreme Court.  When the Ralph’s boycott began, one of our aims was to put consumer pressure on Ralph’s, to encourage the pharmacy to change its policy regarding emergency contraception. It quickly became obvious that regardless of how strongly the will of the community was expressed, the owners of Ralph’s didn’t care. They are more concerned with the potential loss of a fertilized ovum, which happens regularly due to natural causes but has likely never happened due to EC, than they are with their pharmacy customers.

Women seeking EC may be in desperate straits; emergency contraception is often used by women who have been raped, who are victims of domestic violence, or who are in difficult financial circumstances which would make pregnancy a severe hardship. The Stormans are so cocooned by their bourgeois privilege, that they can blithely state (as their attorneys did in numerous legal documents), that there are 30 pharmacies within five miles of Ralph’s where women can buy contraception. Clearly, they assume that everyone can jump in their car and drive to Haggen, and if Haggen is out of stock to Walgreen’s in Lacey or Safeway in Tumwater. As far as they know, no one in Olympia ever has to walk, or lacks for bus fare, or has to hurry up and get to their job, or get to their second job. Of course, the barriers which confront pharmacy customers often affect grocery customers, as well, making it logistically challenging for some downtown and Eastside residents to shop elsewhere. But if you have a choice, don’t forget: Ralph’s doesn’t want you to.

Janet Blanding has been writing about the Ralph’s boycott and subsequent lawsuit since 2006, when her Plan B prescription could not be filled there. After a year-long investigation, the Board of Pharmacy dismissed her complaint without action against Ralph’s.