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 D.C. No. SLATTER; REBECCA HILLE;

ROSEMARIE DUFFY, Members of the CV-07-05374-RBL

Washington Board of Pharmacy;  Western District of

ELLIS Washington, CASSON; DEBORAH SIOUS

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
JUDITH BILLINGS; RHIANNON 

ANDREINI; JEFFREY SCHOUTEN;

MOLLY HARMON; CATHERINE

ROSMAN; EMILY SCHMIDT; TAMI 

GARRARD,

Defendant-IntervenorsAppellants. 

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, prohibit 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. DefendantIntervenors 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: 

5008 STORMANS INC. v. SELECKY
(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. Braunskill, 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 continuum.’ ” 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 pending 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 Washington state and can be accessed through physicians offices, certain 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

STORMANS INC. v. SELECKY 5009
alternative source.’ Only two pharmacies said they did not

stock emergency contraceptives because of religious or personal reasons.” The district court concluded: 

The Court has been presented no evidence establishing that anyone in the State of Washington, including 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 district 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 calendared for oral argument on June 3, 2008 in Seattle, Wash5010 STORMANS INC. v. SELECKY
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 likelihood of success on the merits, at least the possibility of irreparable harm, and that the public interest weighs in their favor,

I would stay the district court’s preliminary injunction pending appeal. I dissent from the denial of a stay.

I. Factual and Procedural Background

In Washington, pharmacy practice is governed by a comprehensive regulatory scheme administered by the Washington 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 contraceptive, 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 objectionable. This issue has proven to be controversial. 

1The 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 distribution by pharmacies, or provide a therapeutically equivalent drug

or device in a timely manner consistent with reasonable expectations for filling the prescription. . . . 

Wash. Admin. Code § 246-869-010(1). 

STORMANS INC. v. SELECKY 5011
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 sexual partner’s primary contraception fails, or when they fail to

use a contraceptive, Plan B gives a woman a second opportunity to prevent a pregnancy. The medication is not taken prophylactically, 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 prevent 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 reproductive health and freedom, putting women at risk of unintended

or unwanted pregnancies. To pharmacists-objectors, a requirement 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

2Although 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. 

5012 STORMANS INC. v. SELECKY
(“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 pharmacies from actively obstructing a patient’s effort to obtain

lawfully prescribed drugs. 

This proposal was met with prominent opposition. Governor Christine Gregoire publicly voiced her opposition to the

proposed rule. In a letter to the Pharmacy Board, the Governor 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 pharmacists”; instead, “the bottom line . . . [is that] a lawful prescription 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 lawfully 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 prescription, 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

STORMANS INC. v. SELECKY 5013
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 pharmacist’s personal objection,” but “a pharmacy cannot avoid

filling prescriptions by referring [the patient] to another pharmacy” even if the only pharmacist on duty has personal objections. 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 Plaintiffs 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 regulations force them to choose between their livelihood and the

exercise of their religion. Amend. Comp. at 9-13. Immediately upon filing their complaint, Plaintiffs moved for a preliminary 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”), intervened pursuant to Federal Rule of Civil Procedure 24(a). 

The district court, concluding that Plaintiffs had demonstrated a likelihood of success on their free exercise challenge

3Plaintiffs 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. 

5014 STORMANS INC. v. SELECKY
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 antidiscrimination 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 preliminary 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 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 proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 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”),

STORMANS INC. v. SELECKY 5015
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” factors are considered on “a sliding scale in which the required

degree of irreparable harm increases as the probability of success decreases.” Golden Gate, 512 F.3d at 1116 (quoting Winter 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.” Golden 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 (quoting Winter I, 502 F.3d at 863); accord Hilton, 481 U.S. at

776.

III. Discussion

Although essentially acknowledging that DefendantsIntervenors 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

5016 STORMANS INC. v. SELECKY
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 violate 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 applicability 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) (quoting 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 motivation.” 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 regulation (allowing us to ensure facial neutrality), and how the

4The majority “assum[es that] the district court erred in concluding that

the Washington regulations violate the Free Exercise Clause. . . .” 

STORMANS INC. v. SELECKY 5017
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, lawful prescriptions. Patients cannot be denied drugs because of

a particular pharmacist’s religious objections, moral objections, 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 particular 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 historical 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 con5018 STORMANS INC. v. SELECKY
temporaneous statements made by members of the decisionmaking 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 Kennedy’s Lukumi opinion, which was not part of the majority opinion 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 district court’s discussion of the regulations’ administrative history is beside the point.

Even assuming arguendo that the district court could consider 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 religious objections as interchangeable, even though moral objections to abortion are not necessarily religiously-based. Cf.

STORMANS INC. v. SELECKY 5019
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 prescriptions demonstrates that the State was not regulating

religiously-motivated conduct because of its religious motivation. 

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 abortion 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 religious 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’ religious 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, temporal, or other objections. 

Because the regulations are facially neutral and do not

operate in a way that demonstrates that the object of the regulations 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

5020 STORMANS INC. v. SELECKY
religious belief.” Lukumi, 508 U.S. at 545. The general applicability 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 determine whether the challenged regulations are generally applicable. 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 exceptions5

 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 immediately upon presentation by a patient,” the district court nevertheless 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 district 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 constitutional challenge, . . . classifications by gender must serve

5For 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).

STORMANS INC. v. SELECKY 5021
important governmental objectives and must be substantially

related to the achievement of those objectives.”). Under intermediate scrutiny, a regulation will be upheld if it is substantially 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 certain drugs; therefore, they are generally applicable.

3. Rational Basis Review

Because the challenged regulations are neutral and generally 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 governmental 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 secularlymotivated 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. 

5022 STORMANS INC. v. SELECKY
“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 professed 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 commanded 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, cannot depend on measuring the effects of governmental action

on a religious objector’s spiritual [integrity].” Id. at 885

(internal citations and quotation marks omitted). DefendantsIntervenors 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 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.” 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 dispensSTORMANS INC. v. SELECKY 5023
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 experienced a pharmacist’s refusal to dispense Plan B after her primary 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 sexual 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 “possibility of irreparable harm,” it is difficult to conceive of a showing that would.7

6The 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. 

7Rejecting 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 Golden Gate. There, after noting that approximately 20,000 uninsured work5024 STORMANS INC. v. SELECKY
On the other side of the balance is Rhonda Mesler’s contention 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 accommodated by her employer. Stormans contends that it will suffer 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 demonstrate 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 Intervenors’ 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 corporation, has a protectible free exercise right under the First Amendment. 

STORMANS INC. v. SELECKY 5025
C. The Public Interest

The district court also erred by failing to consider the public 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 parties 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 Washington have already considered the various implicated interests. 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 comment period, which included more than 21,000 written comments. 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 obvious that the [regulations are] unconstitutional . . . ; but, as evi9The majority, too, fails to consider the public interest. 

5026 STORMANS INC. v. SELECKY
denced by [my] analysis [of the free exercise challenge]

above, [I] think the opposite is likely to be held true.” Id. (citing 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 consequence of democratic government must be preferred to a system 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 regulation 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 DefendantsIntervenors’ alternative motion to expedite oral argument.

STORMANS INC. v. SELECKY 5027


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