recognizing that the Winter court rejected the Ninth Circuit sliding scale test because it was "too lenient”
How later courts described this case
- recognizing that the Winter court rejected the Ninth Circuit sliding scale test because it was "too lenient”
- noting that this is the “proper legal standard for preliminary injunctive relief”
- applying Winter factors rather than former sliding scale test
- “[T]he court should weigh the public interest in light of the likely consequences of the injunction. Such consequences must not be too remote, insubstantial, or speculative and must be supported by evidence.”
Written by the judges who cited it.
The opinion
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;
GEORGE ROE; SUSAN THIEL BOYER;
DAN CONNOLLY; GARY HARRIS; No. 07-36039
VANDANA SLATTER; REBECCA HILLE;
ROSEMARIE DUFFY, Members of the D.C. No.
Washington Board of Pharmacy; CV-07-05374-RBL
ELLIS CASSON; DEBORAH SIOUS
CANO-LEE; JERRY HEBERT; SHAWN
MURINKO, Commissioners for the
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,
8433
8434 STORMANS, INC. v. SELECKY
and
JUDITH BILLINGS; RHIANNON
ANDREINI; JEFFREY SCHOUTEN;
MOLLY HARMON; CATHERINE
ROSMAN; EMILY SCHMIDT; TAMI
GARRARD,
Defendant-intervenors.
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;
GEORGE ROE; SUSAN THIEL BOYER;
DAN CONNOLLY; GARY HARRIS;
VANDANA SLATTER; REBECCA HILLE;
ROSEMARIE DUFFY, Members of the
Washington Board of Pharmacy;
ELLIS CASSON; DEBORAH SIOUS
CANO-LEE; JERRY HEBERT; SHAWN
MURINKO, Commissioners for the
Washington Human Rights
Commission; MARK BRENMAN,
Executive Director of the
Washington Human Rights
Commission,
Defendants,
STORMANS, INC. v. SELECKY 8435
and
YVONNE LOPEZ MORTON, acting
Commissioner of the Human
Rights Commission of the State of No. 07-36040
Washington,
Defendant-Appellant, D.C. No.
CV-07-05374-RBL
JUDITH BILLINGS; RHIANNON OPINION
ANDREINI; JEFFREY SCHOUTEN;
MOLLY HARMON; CATHERINE
ROSMAN; EMILY SCHMIDT; TAMI
GARRARD,
Defendant-intervenors-Appellants.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
July 8, 2008—Seattle, Washington
Filed July 8, 2009
Before: Kim McLane Wardlaw, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Wardlaw;
Concurrence by Judge Clifton
STORMANS, INC. v. SELECKY 8441
COUNSEL
Kristen K. Waggoner, Seattle, Washington, for the plaintiffs-
appellees.
Alan D. Copsey, Assistant Attorney General, Olympia, Wash-
ington, for the defendants-appellants.
Rima J. Alaily, Seattle, Washington, for the defendants-
intervenors-appellants.
OPINION
WARDLAW, Circuit Judge:
We must decide whether the district court abused its discre-
tion by preliminarily enjoining the enforcement of new rules
promulgated by the Washington State Board of Pharmacy
(“Board”) that require pharmacies to deliver lawfully pre-
scribed Federal Drug Administration (“FDA”)-approved med-
ications and prohibit discrimination against patients, on the
ground that the rules violate pharmacies’ or their licensed
pharmacists’ free exercise rights under the First Amendment
to the U.S. Constitution. We have jurisdiction pursuant to 28
8442 STORMANS, INC. v. SELECKY
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.
I. FACTUAL AND PROCEDURAL BACKGROUND
The practice of pharmacy in the state of Washington is reg-
ulated by the Washington State Board of Pharmacy pursuant
to a comprehensive regulatory scheme which directs the
Board to “[r]egulate the practice of pharmacy and enforce all
laws placed under its jurisdiction,” “[e]stablish the qualifica-
tions for licensure,” conduct disciplinary proceedings, and
“[p]romulgate rules for the dispensing, distribution, wholesal-
ing, and manufacturing of drugs and devices and the practice
of pharmacy for the protection and promotion of the public
health, safety, and welfare.” Wash. Rev. Code Ann.
§ 18.64.005. Under the Code, a license is required for “any
person to practice pharmacy or to institute or operate any
pharmacy.” Id. at § 18.64.020. A “pharmacist” is defined as
“a person duly licensed by the Washington state board of
pharmacy to engage in the practice of pharmacy,” id. at
§ 18.64.011(10), and a “pharmacy” is defined as “every place
properly licensed by the board of pharmacy where the prac-
tice of pharmacy is conducted,” id. at § 18.64.011(12). The
“practice of pharmacy” “includes the practice of and responsi-
bility for: [i]nterpreting prescription orders [and] the com-
pounding, dispensing, labeling, administering, and
distributing of drugs and devices,” in addition to information-
sharing and monitoring responsibilities. Id. at
§ 18.64.011(11).
In January 2006, the Board became concerned with the lack
of clear authority regarding destruction or confiscation of law-
ful prescriptions and refusals by pharmacists to dispense law-
fully prescribed medications. Recognizing the importance of
providing Washington patients timely access to all medica-
tions, the Board initiated a rulemaking process to address
STORMANS, INC. v. SELECKY 8443
these issues. For sixteen months, the Board considered its var-
ious rulemaking options, receiving 21,000 written comments
and testimony from the public and various interest groups.
Pursuant to the Washington Administrative Procedure Act,
Wash. Rev. Code Ann. § 34.05.325, the Board conducted
well-attended hearings on the proposed rules.
Some public comments addressed the availability of a vari-
ety of prescription medicines and devices, such as syringes,
prenatal vitamins, oral contraceptives, and AIDS medications.
Most of the comments, however, focused on whether pharma-
cists should be allowed to refuse to dispense a lawful pre-
scription for Plan B based on their personal, moral, or
religious beliefs.
Approved by the FDA on July 28, 1999, Plan B is a post-
coital hormonal emergency contraceptive which contains the
same hormones as ordinary birth control pills, estrogen and
progestin, in much stronger dosages. It is used to prevent
pregnancy after the intended method of birth control fails or
after unprotected sexual activity. Plan B is most effective
within the first 12 to 24 hours after sexual intercourse and
becomes less effective with each passing hour. It should be
taken within 72 hours of sexual intercourse. After 120 hours,
it has no effect. Plan B is approved for over-the-counter dis-
pensation nationwide to adults eighteen and over. The drug
must be held behind the pharmacist’s counter and can be sold
to any adult, male or female, upon age verification. At the
time of the district court’s decision, females younger than
eighteen were required to present a medical prescription to
obtain the drug.1
The drug is generally available to Washington residents
1
As of April 22, 2009, pursuant to a court order, the FDA had notified
the manufacturer of Plan B that it may, upon submission and approval of
an appropriate application, market Plan B without a prescription to women
seventeen years of age and older.
8444 STORMANS, INC. v. SELECKY
through pharmacies, physicians’ offices, government health
centers, hospital emergency rooms, Planned Parenthood, the
Internet, and a toll-free hotline. Seventy-seven percent of
Washington pharmacies, responding to a sample survey of
121 pharmacies conducted before the adoption of the chal-
lenged new rules,2 typically stock Plan B. Those who did not
cited low demand (15 percent)3 or an easy alternative source
(2 percent). Only two pharmacies (2 percent) surveyed did not
stock the drug because of personal, religious, or moral objec-
tions. If the survey is accurate and representative, that trans-
lates into approximately 27 of the 1,370 licensed pharmacies
in Washington. The survey does not reveal how many phar-
macists in the state decline to dispense the drug.
One of the comments received by the Board during its rule-
making process was set forth in an April 17, 2006, letter from
the Washington State Human Rights Commission’s (“HRC”)
Executive Director, Marc Brenman. HRC was created by the
legislature and is authorized to act to prevent discrimination
in violation of the Washington Law Against Discrimination
(“WLAD”). Wash. Rev. Code Ann. § 49.60.010. It may issue
and investigate complaints, attempt conciliation, or refer mat-
ters to the Attorney General’s Office for a hearing before an
administrative law judge. Id. §§ 49.60.230, .250; Wash.
Admin. Code §§ 162-08-071 to -190. HRC is not authorized
to make a final determination that discrimination occurred or
to issue penalties. See Wash. Rev. Code Ann. § 49.60.240.
HRC is authorized to comment on rules being considered by
other agencies or state officials. See id. § 49.60.110 (“[HRC]
shall formulate policies to effectuate the purposes of this
2
We acknowledge that the survey may not accurately reflect the current
state of affairs. We expect that on remand, the district court will be pro-
vided with more recent and comprehensive data.
3
According to the survey, 72 percent of pharmacies in the state of
Washington had less than 25 requests for Plan B per year. Nearly 13 per-
cent had between 26 and 50 requests; 6 percent had between 51 and 100
requests; and 11 percent had greater than 100 requests.
STORMANS, INC. v. SELECKY 8445
chapter and may make recommendations to agencies and offi-
cers of the state or local subdivisions of government in aid of
such policies and purposes.”). It was under this authority that
the Executive Director submitted a letter to the Board, which
concluded:
It is illegal and bad policy to permit pharmacists to
deny services to women based on the individual
pharmacists’ religious or moral beliefs. We have
examined the issue from federal and state law per-
spectives, from the public interest, and from possible
defenses and compromises that could be raised and
made. On no ground would refusal to fill a lawful
prescription for emergency contraception be appro-
priate.
The letter also posited that any pharmacy or pharmacist who
declined to dispense Plan B for any reason engaged in sex dis-
crimination in violation of federal and state law, even if
another on-site pharmacist filled the prescription. It concluded
that the Board itself risked liability under WLAD if it were to
permit such refusals.
After considering a number of draft rules,4 the Board
4
The first draft of the rule allowed a pharmacist to refuse to fill a lawful
prescription if another on-site pharmacist would dispense the medication
without delay. One of the second drafts required pharmacists to fill lawful
prescriptions, but the alternative second draft allowed a pharmacist to
refuse and refer a patient to another provider. The third draft did not
require pharmacies to fill lawful prescriptions and allowed pharmacies and
pharmacists to refuse to dispense a medication. In response to that draft,
Washington State Governor Christine Gregoire offered the assistance of
her office to help the Board work toward a solution to prevent the poten-
tially deleterious effects of allowing pharmacists to refuse to dispense
legally prescribed medication on the basis of unlimited and illegitimate
reasons. A fourth draft was negotiated, but subsequent substantive changes
to it precluded agreement. Finally, two more drafts were prepared for pub-
lic comment, the text of which corresponded substantially with the final
rules.
8446 STORMANS, INC. v. SELECKY
adopted two rules by unanimous vote on April 12, 2007. The
first rule, an amendment to Washington Administrative Code
section 246-863-095, governs pharmacists. Under this rule, a
pharmacist may be subject to professional discipline for
destroying or refusing to return an unfilled lawful prescrip-
tion, violating a patient’s privacy, or unlawfully discriminat-
ing against, or intimidating or harassing a patient. The rule,
however, does not require an individual pharmacist to dis-
pense medication in the face of a personal objection.
The second rule, Washington Administrative Code section
246-869-010, governs pharmacies. It requires pharmacies “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
. . . in a timely manner consistent with reasonable expecta-
tions for filling the prescription.” A pharmacy may substitute
a “therapeutically equivalent drug” or provide a “timely alter-
native for appropriate therapy,” but apart from certain neces-
sary exceptions,5 a pharmacy is prohibited from refusing to
deliver a lawfully prescribed or approved medicine. A phar-
macy is also prohibited from destroying or refusing to return
an unfilled lawful prescription, violating a patient’s privacy,
or unlawfully discriminating against, or intimidating or
harassing a patient.
In the Concise Explanatory Statement accompanying the
regulations, the Board noted that it created a right of refusal
for individual pharmacists by allowing a pharmacy to “ac-
5
See Wash. Admin. Code §§ 246-869-010(1)(a)-(e), (2) (exempting
pharmacies from the general duty to deliver when the prescription cannot
be filled due to lack of payment, because it may be fraudulent or errone-
ous, or because of declared emergencies, lack of specialized equipment or
expertise, or unavailability of a drug despite good faith compliance with
Washington Administrative Code section 246-869-150, which provides in
part that “[t]he pharmacy must maintain at all times a representative
assortment of drugs in order to meet the pharmaceutical needs of its
patients”).
STORMANS, INC. v. SELECKY 8447
commodate” a pharmacist who has a religious or moral objec-
tion. A pharmacy may not refer a patient to another pharmacy
to avoid filling a prescription because the pharmacy has a
duty to deliver lawfully prescribed medications in a timely
manner. A pharmacy may accommodate a pharmacist’s per-
sonal objections in any way the pharmacy deems suitable,
including having another pharmacist available in person or by
telephone.
The regulations took effect on July 26, 2007.
Stormans, Inc., doing business as Ralph’s Thriftway, a gro-
cery store in Olympia, Washington, which also operates a
pharmacy, and individual pharmacists Rhonda Mesler and
Margo Thelen (collectively, “Appellees”), filed a lawsuit pur-
suant to 42 U.S.C. § 1983 on July 25, 2007, the day before the
effective date of the rules, in the U.S. District Court for the
Western District of Washington.6 They allege as-applied vio-
lations of the Equal Protection and Due Process Clauses of the
Fourteenth Amendment, the Supremacy Clause, and Title VII.
They ultimately seek a permanent prohibition against enforce-
ment of the new rules and the Washington State
antidiscrimination law, WLAD, Wash. Rev. Code Ann.
§ 49.60, against “pharmacists and pharmacies that object to
dispensing Plan B on moral or religious grounds.”
Appellees assert that their personal religious views do not
6
Named defendants are members of the Pharmacy Board, representa-
tives of the Department of Health as well as the Executive Director and
every member of HRC (collectively, “State Appellants”), including Mary
Selecky, Secretary of the State of Washington Department of Health
(“Department”); Laurie Jinkins, Assistant Secretary of the Department;
George Roe, Susan Thiel Boyer, Dan Connolly, Gary Harris, Vandana
Slatter, Rebecca Hille, Rosemarie Duffy, members of the Washington
State Board of Pharmacy; Mark Brenman, Executive Director, and
Yvonne Lopez Morton, Ellis Casson, Deborah Sious Cano-Lee, Jerry
Hebert, Shawn Murinko, members of the Washington State Human Rights
Commission.
8448 STORMANS, INC. v. SELECKY
permit them to dispense Plan B, and, consequently, they
refuse to provide Plan B to patients who request it. They
claim that the Board’s rules impinge on their constitutional
right of free exercise of religion, arguing that the rules force
them to choose between their religious beliefs as Christians
and their livelihood.
The two individual pharmacists claim that by compelling
their employers to hire another pharmacist to work with them
during their shift—an accommodation about which their
employers have expressed varying degrees of concern—the
regulations will cause them to voluntarily leave their jobs or
be terminated. Mesler has so far remained with her employer,
who accommodated her during the five months between the
effective date of the new rules and the issuance of the prelimi-
nary injunction. Mesler alleges, however, that without the
court’s injunction, she expects to be fired, because her
employer has told her that it would not be able to accommo-
date her. Thelen voluntarily resigned from her former
employment to work at a pharmacy that accommodates her
religious belief by ensuring there is always another pharma-
cist on duty.
Stormans, which is owned by Ken Stormans and his three
children, claims that it has been under investigation since May
2006, and that the Board is investigating complaints that its
pharmacy has refused to stock or sell Plan B. In his declara-
tion, Vice President Kevin Stormans states that he received a
phone call in May 2006 asking whether Ralph’s Thriftway
carried Plan B. He did not know the answer and did not know
much about the drug. After a pharmacy employee told him
that Ralph’s did not carry Plan B because customers had not
requested it, he told the caller that the store did not carry the
product. Soon afterwards, Stormans received a few other
inquiries as to why Ralph’s did not stock Plan B. These inqui-
ries prompted Kevin Stormans to research Plan B. After he
learned that Plan B can prevent a fertilized egg from implant-
ing in the uterus, and because Stormans’s owners believe life
STORMANS, INC. v. SELECKY 8449
begins with fertilization, Stormans decided that it would not
sell the drug.
In the summer of 2006, the Board began investigating
Ralph’s Thriftway and questioned Kevin Stormans, requiring
a written statement. Though the Board closed that investiga-
tion without taking any action, in January 2007, the Board ini-
tiated a new investigation against Ralph’s. Kevin Stormans
asserts that the matter has been referred to the Board’s legal
counsel for final review. After Stormans filed suit, the Board
began a new investigation of Ralph’s under the new rules.
This investigation is pending. Stormans expects that the
Board’s investigation will result in disciplinary charges,
including possible revocation of its pharmacy license, as well
as the initiation of an enforcement action by HRC if the pre-
liminary injunction is overturned.
The district court granted the motion of seven individuals
to intervene pursuant to Federal Rule of Civil Procedure
24(a). These individuals (collectively, “Intervenors”) are five
women who have been refused Plan B and/or may need
timely access to Plan B in the future, and two HIV-positive
individuals who need timely access to prescribed medications
to manage their illness.7
7
Intervenors are: Judith Billings, Rhiannon Andreini, Jeffrey Schouten,
Molly Harmon, Catherine Rosman, Emily Schmidt, and Tami Garrard.
In 2003, a pharmacist on duty at a Seattle pharmacy near the University
of Washington refused to fill Molly Harmon’s Plan B prescription. The
pharmacist lectured Harmon about her choice of birth control. Though
upset, Harmon insisted on speaking with the head pharmacist who ulti-
mately dispensed the drug. In March 2007, Emily Schmidt was unable to
obtain Plan B at two pharmacies in Wenatchee, Washington, because the
pharmacy owner or pharmacist refused to dispense the drug. In November
2005, Rhiannon Andreini went to a pharmacy in Mukilteo, Washington,
to purchase Plan B when her regular method of contraception failed. The
pharmacist appeared to disapprove and stated that the store did not carry
it. Andreini drove more than seventy miles back to her home to go to a
pharmacy she knew would dispense the drug. Catherine Rosman, a case
8450 STORMANS, INC. v. SELECKY
Plaintiffs moved for a preliminary injunction, asking that
the court enjoin enforcement of the new rules against them
pending litigation. On November 8, 2007, the district court
issued an order granting a preliminary injunction based solely
on plaintiffs’ free exercise claim. Stormans, Inc. v. Selecky,
524 F. Supp. 2d 1245, 1266 (W.D. Wash. 2007). The court
enjoined the State Defendants “from enforcing [Washington
Administrative Code] §§ 246-863-095(4)(d) and 246-869-
010(4)(d) (the anti-discrimination provisions) against any
pharmacy which, or pharmacist who, refuses to dispense Plan
B but instead immediately refers the patient either to the near-
est source of Plan B or to a nearby source for Plan B.” Id.8
The State Defendants and the Intervenors timely appealed
and asked the district court to stay the preliminary injunction
pending appeal. Plaintiffs opposed the stay, but apparently
manager who assists women and adolescent girls suffering from domestic
violence, is concerned that refusals to dispense Plan B will compound the
trauma that her clients and thousands of girls and women like them will
suffer as a result of sexual violence every year in Washington. Rosman
has taken Plan B on two occasions, once following a sexual assault. In
both instances, she chose to obtain the medication from Planned Parent-
hood because she heard several accounts of pharmacists refusing to dis-
pense the drug or otherwise harassing patients.
Dr. Jeffrey Schouten, a Clinical Assistant Professor of Surgery at the
University of Washington and a primary care physician at Washington’s
largest HIV-specialty clinic, and Judith Billings are HIV-positive. Dr.
Schouten testified in favor of the new rules, explaining the importance of
timely access to drugs for HIV-positive patients and individuals who have
just been exposed to the virus. According to Dr. Schouten, because some
people associate HIV status with certain lifestyle choices, these patients
are at risk of pharmacy refusals and the serious health risks that accom-
pany delayed access to needed medication.
8
While the injunction refers only to the antidiscrimination provisions of
the new rules, it appears the parties and district court understand that the
injunction is intended to stop all enforcement actions under the new rules
against any pharmacy or pharmacist refusing to dispense Plan B for what-
ever reason.
STORMANS, INC. v. SELECKY 8451
recognizing that the injunction was overbroad, moved to mod-
ify the preliminary injunction, seeking to narrow its scope
only to the named plaintiffs and their employees. The district
court denied the motions.
On May 1, 2008, another panel of our court denied Interve-
nors’ motion to stay the district court’s injunction pending
appeal. Stormans Inc. v. Selecky, 526 F.3d 406, 408 (9th Cir.
2008). Judge Tashima dissented from the denial of the stay.
Id. at 409-18 (Tashima, J., dissenting in part).
II. JURISDICTION AND STANDARD OF REVIEW
The district court’s jurisdiction is based on 28 U.S.C.
§§ 1331 and 1343. We have jurisdiction under 28 U.S.C.
§ 1292(a)(1).
The district court’s grant of a preliminary injunction is
reviewed for “abuse of discretion” and should be reversed if
the district court based “its decision on an erroneous legal
standard or on clearly erroneous findings of fact.” FTC v.
Enforma Natural Prods., Inc., 362 F.3d 1204, 1211-12 (9th
Cir. 2004). “[W]e consider a finding of fact to be clearly erro-
neous if it is implausible in light of the record, viewed in its
entirety, or if the record contains no evidence to support it.”
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d
782, 794 (9th Cir. 2005) (citations omitted). The district
court’s interpretation of the underlying legal principles, how-
ever, is subject to de novo review. See Cal. Pharmacists Ass’n
v. Maxwell-Jolly, 563 F.3d 847, 849 (9th Cir. 2009); Brown
v. Cal. Dep’t of Transp., 321 F.3d 1217, 1221 (9th Cir. 2003).
Finally, because “[i]njunctive relief . . . must be tailored to
remedy the specific harm alleged,” Lamb-Weston, Inc. v.
McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991), “[a]n
overbroad injunction is an abuse of discretion,” id.
The district court’s determination whether a party has
standing is reviewed de novo. See Buono v. Norton, 371 F.3d
8452 STORMANS, INC. v. SELECKY
543, 546 (9th Cir. 2004). Ripeness is also a question of law
reviewed de novo. See Manufactured Home Cmtys. Inc. v.
City of San Jose, 420 F.3d 1022, 1025 (9th Cir. 2005). Ques-
tions of standing and ripeness may be raised and considered
for the first time on appeal, including sua sponte. See Wash.
Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 850
(9th Cir. 2001) (en banc), aff’d sub nom. Brown v. Legal
Found. of Wash., 538 U.S. 216 (2003); Columbia Basin
Apartment Ass’n v. City of Pasco, 268 F.3d 791, 796-97 (9th
Cir. 2001) (reviewing standing sua sponte even though not
raised by either party).
III. DISCUSSION
A. Justiciability
Federal jurisdiction is limited to “actual ‘cases’ and ‘con-
troversies.’ ” Allen v. Wright, 468 U.S. 737, 750 (1984). We
conclude that Appellees have standing to assert their claims
under the Free Exercise Clause. Although their claims against
the State Appellants are ripe for review, the claims they assert
against HRC are not ripe for consideration and should be dis-
missed.
1. Standing
[1] “Article III standing is a controlling element in the defi-
nition of a case or controversy.” Alaska Right to Life Political
Action Comm. v. Feldman, 504 F.3d 840, 848 (9th Cir. 2007)
(alteration and internal quotation marks omitted). “[T]o sat-
isfy Article III’s standing requirements, a plaintiff must show
(1) it has suffered an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the chal-
lenged action of the defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will be redressed by a
favorable decision.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (quot-
STORMANS, INC. v. SELECKY 8453
ing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)).
Intervenors argue that Stormans, a for-profit corporation,
lacks standing to assert a claim under the Free Exercise
Clause. We decline to decide whether a for-profit corporation
can assert its own rights under the Free Exercise Clause and
instead examine the rights at issue as those of the corporate
owners.
In First National Bank of Boston v. Bellotti, the Supreme
Court held that the “proper question” was “not whether corpo-
rations ‘have’ First Amendment rights and, if so, whether they
are coextensive with those of natural persons.” 435 U.S. 765,
776 (1978). “Instead, the question must be whether [the chal-
lenged statute] abridges [rights] that the First Amendment was
meant to protect.” Id. The Court refused to “address the
abstract question whether corporations have the full measure
of rights that individuals enjoy under the First Amendment.”
Id. at 777.
[2] We have held that a corporation has standing to assert
the free exercise right of its owners. See EEOC v. Townley
Eng’g & Mfg. Co., 859 F.2d 610, 620 n.15 (9th Cir. 1988). In
Townley, a closely held manufacturing company whose own-
ers made a covenant with God to run their business according
to the principles of Christian faith, argued that under the Free
Exercise Clause, they were entitled to an exemption from the
requirement that employers accommodate employees assert-
ing religious objections to devotional services. We reasoned
that “[b]ecause Townley is merely the instrument through and
by which Mr. and Mrs. Townley express their religious
beliefs, it is unnecessary to address the abstract issue whether
a for-profit corporation has rights under the Free Exercise
Clause independent of those of its shareholders and officers.”
Id. at 619-20. We found that “Townley presents no rights of
its own different from or greater than its owners’ rights”
because the corporation is an “extension of the beliefs” of the
8454 STORMANS, INC. v. SELECKY
owners, and “the beliefs of [the owners] are the beliefs and
tenets of the Townley Company.” Id. at 620 (internal quota-
tion marks omitted). We therefore held that “Townley has
standing to assert Jake and Helen Townley’s Free Exercise
rights,” id. at 620 n.15, and examined the rights at issue as
those of Jake and Helen Townley.
Here, Ken Stormans is the president, and his three children,
including Kevin Stormans, serve as vice presidents of Stor-
mans. Stormans asserts that because Ralph’s is a fourth-
generation, family-owned business whose shareholders and
directors are made up entirely of members of the Stormans
family, Kevin Stormans’s opposition to Plan B is that of
Ralph’s and all the owners. In the amended complaint, Stor-
mans alleges that Ralph’s cannot sell Plan B “based on reli-
gious and moral grounds,” and that Kevin “Stormans’[s]
religious beliefs prevent him from selling a drug that inten-
tionally terminates innocent human life.” Stormans argues
that Ralph’s is an extension of the beliefs of members of the
Stormans family, and that the beliefs of the Stormans family
are the beliefs of Ralph’s. Thus, Stormans, Inc. does not pre-
sent any free exercise rights of its own different from or
greater than its owners’ rights. We hold that, as in Townley,
Stormans has standing to assert the free exercise rights of its
owners.9
9
The Supreme Court has elsewhere considered the free exercise rights
of business owners. See, e.g., United States v. Lee, 455 U.S. 252 (1982)
(considering the claim of an Amish employer seeking an exemption on his
employees’ behalf from the payment of social security taxes on religious
grounds); Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (consid-
ering the free exercise claim of nonprofit corporations operating religious
schools affiliated with Christianity challenging a tax policy granting
exemptions only to educational institutions that do not racially discrimi-
nate). Moreover, Townley also indicates that an organization that asserts
the free exercise rights of its owners need not be primarily religious, as
Townley’s main function—manufacturing of mining equipment—was a
secular activity.
STORMANS, INC. v. SELECKY 8455
[3] Harris v. McRae, 448 U.S. 297 (1980), is not to the
contrary. In Harris, the Women’s Division of a church, as an
organization, sought to challenge a restriction on the use of
federal funds for abortion. The Court held that because “the
[Free Exercise] claim asserted here is one that ordinarily
requires individual participation”—because a plaintiff must
“show the coercive effect of the enactment as it operates
against him in the practice of his religion”—and because
members of the Women’s Division had a “diversity of
view[s]” concerning the law, the organization did not satisfy
the requirements for associational standing. Id. at 321 (inter-
nal quotation marks omitted); see also Hunt v. Wash. Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977). But here, Stor-
mans is not seeking relief as an organization and does not
need to satisfy the requirements for associational standing.
Thus, we will consider the rights of the owners as the basis
for the Free Exercise claim.
[4] Stormans meets the standing criteria to pursue free
exercise claims in this case. Its injuries are “concrete and par-
ticularized,” “actual or imminent, not conjectural or hypothet-
ical,” and “fairly traceable” to the new rules. See Friends of
the Earth, Inc., 528 U.S. at 180. Because the new rules
require the pharmacy to deliver medications, such as Plan B,
in a timely manner, Stormans will not be able to avoid stock-
ing Plan B on the basis of its religious objections. Its injuries
will certainly be ameliorated should the new rules be held
unconstitutional.
[5] The individual pharmacists, Mesler and Thelen, also
enjoy standing to sue under the Free Exercise Clause.10 The
injuries suffered by Mesler and Thelen are “concrete and par-
ticularized” and “actual or imminent, not conjectural or hypo-
thetical.” See id. Mesler alleges that, without the court’s
10
Whether Mesler’s and Thelen’s claims under the Free Exercise Clause
are meritorious is a question distinct from whether they have standing to
sue. Intervenors confuse the two issues.
8456 STORMANS, INC. v. SELECKY
injunction, she expects to be fired because her religious con-
victions prohibit her from dispensing Plan B and her
employer has told her that it will not be able to accommodate
her. Thelen alleges she was forced to leave her former job
(after her pharmacy was unable to hire a second pharmacist)
to work at a pharmacy that accommodates her religious belief
by ensuring that there is always another pharmacist on duty.
Thelen has taken a job farther away from her house for less
pay because her religious beliefs did not allow her to dispense
Plan B.
[6] While indirect, there is a causal connection between the
new rules and Mesler’s threatened termination. Though “it
does not suffice if the injury complained of is ‘the result of
the independent action of some third party not before the
court,’ that does not exclude injury produced by determinative
or coercive effect upon the action of someone else.” Bennett
v. Spear, 520 U.S. 154, 169 (1997) (quoting Lujan, 504 U.S.
at 560-61) (emphasis, alterations, citations, and internal quo-
tation marks omitted). The new rules require a pharmacy to
deliver medication in a timely manner—an act for which
pharmacies generally depend upon their pharmacists. If cer-
tain pharmacists believe they cannot deliver certain medica-
tions and their employer is unable to accommodate this moral
or religious belief, the pharmacy may not employ in the first
place—and may terminate—the objecting pharmacists. Thus,
if the new rules had not been passed, Mesler would not expect
to lose her job and Thelen would not have been forced to find
a new job. Furthermore, a favorable decision likely will
redress the alleged injuries. If the new rules are invalidated,
Mesler and Thelen will not be limited to employment only at
pharmacies able to accommodate their religious views.
In addition to the immutable requirements of Article III,
“the federal judiciary has also adhered to a set of prudential
principles that bear on the question of standing.” Valley Forge
Christian Coll. v. Ams. United for Separation of Church and
State, Inc., 454 U.S. 464, 474 (1982). “[P]rudential standing
STORMANS, INC. v. SELECKY 8457
concerns require that we consider . . . whether the alleged
injury is more than a mere generalized grievance, whether
[plaintiffs] are asserting [their] own rights or the rights of
third parties, and whether the claim falls within the zone of
interests to be protected or regulated by the constitutional
guarantee in question.” Alaska Right to Life Political Action
Comm., 504 F.3d at 848-49 (internal quotation marks omit-
ted).
[7] The prudential “zone of interest” test, as the Supreme
Court has observed, is “not meant to be especially demand-
ing.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987).
“Prudential standing is satisfied unless [the party’s] ‘interests
are so marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed
that [the legislature] intended to permit the suit.’ ” Ocean
Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 861
(9th Cir. 2005) (quoting Clarke, 479 U.S. at 399). Appellees
also meet the prudential standing requirements. Appellees’
conduct is directly regulated by the new rules and their consti-
tutional interests are, according to the Appellees, directly
infringed by the new rules. It is difficult to imagine a more
appropriate group of plaintiffs to challenge new rules govern-
ing the conduct of pharmacies and pharmacists than a phar-
macy and two pharmacists.
2. Ripeness
[8] “[R]ipeness is peculiarly a question of timing, designed
to ‘prevent the courts, through avoidance of premature adjudi-
cation, from entangling themselves in abstract disagree-
ments.’ ” Thomas v. Anchorage Equal Rights Comm’n, 220
F.3d 1134, 1138 (9th Cir. 2000) (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 148 (1967), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977)) (internal
quotation marks omitted). “Our role is neither to issue advi-
sory opinions nor to declare rights in hypothetical cases, but
to adjudicate live cases or controversies consistent with the
8458 STORMANS, INC. v. SELECKY
powers granted the judiciary in Article III of the Constitu-
tion.” Id. Constitutional ripeness, in many cases, “coincides
squarely with standing’s injury in fact prong” and “can be
characterized as standing on a timeline.” Id.
[9] As detailed above, Appellees’ injuries are “real and
concrete rather than speculative and hypothetical.” Id. at 1139
(internal quotation marks omitted). However, when a litigant
brings a preenforcement challenge, we have found that “a
generalized threat of prosecution” will not satisfy the ripeness
requirement. Id. “Rather, there must be a genuine threat of
imminent prosecution.” Id. (internal quotation marks omit-
ted). There are three factors we consider when analyzing the
genuineness of a threat of prosecution: “whether the plaintiffs
have articulated a ‘concrete plan’ to violate the law in ques-
tion, whether the prosecuting authorities have communicated
a specific warning or threat to initiate proceedings, and the
history of past prosecution or enforcement under the chal-
lenged statute.” Id.
In Thomas, landlords claimed that their pro-marriage reli-
gious beliefs prevented them from renting housing to unmar-
ried couples and therefore would compel them to violate a law
banning housing discrimination on the basis of marital status.
We found that the claims were not ripe because the landlords
had only a general “ ‘intent’ to violate the law on some uncer-
tain day in the future—if and when an unmarried couple
attempts to lease one of their rental properties.” Id. at 1140.
The landlords could not even specify “when, to whom, where,
or under what circumstances” “they have refused to rent to
unmarried couples in the past.” Id. at 1139. We held that “[a]
general intent to violate a statute at some unknown date in the
future does not rise to the level of an articulated, concrete
plan.” Id.
[10] Here, by contrast, although Appellees cannot control
when a patient requesting Plan B will visit their pharmacy—
prompting a refusal constituting a violation of the new rules—
STORMANS, INC. v. SELECKY 8459
the Appellees can point to specific past instances when they
have refused to sell Plan B or have made the decision not to
stock the medication, which are direct violations of the chal-
lenged rules.
[11] Intervenors also contend that Mesler’s and Thelen’s
claims are unripe because there has not been any state action
threatening them and the new rules do not threaten them
directly. However, the Board need not take any further action
for individual pharmacists to be affected by the new rules; the
very existence of the new rules may cause an employer to ter-
minate a pharmacist who objects to dispensing a medication.
Given the procedural posture of the case, and considering that
the new rules became effective one day after the lawsuit was
brought, the record with respect to Mesler and Thelen is
sparse. We do not know whether Mesler’s and Thelen’s
employers have been contacted by the Board; nor do we even
know their employers’ identity. Still, we conclude that their
claims are ripe for review because as a result of the new rules
and the guiding principles communicated by the Board,
Thelen has been forced to leave her job, and Mesler is in dan-
ger of termination.
Until June 2007, Thelen served as a staff pharmacist in a
Washington retail pharmacy and was the only pharmacist on
duty during her work hours. She had informed her employer
when hired that her religious beliefs would prevent her from
dispensing Plan B. When customers requested Plan B, Thelen
referred them to local pharmacies that she knew sold the drug.
When she learned that the Board passed the new rules, but
before they went into effect, Thelen contacted the Board to
make sure she understood what the new rules would require.
A member of the Board responded to her emails, and
instructed her that she would not face discipline by refusing
to dispense Plan B for moral or religious objections, but that
her pharmacy would be subject to discipline “[i]f another
pharmacist is not available or if the patient will not wait for
the change of shift.” According to Thelen, her “employer said
8460 STORMANS, INC. v. SELECKY
the company could not hire another pharmacist to work with
[her] or to remain on call.” “Because they could not accom-
modate [her] religious beliefs, [her] employer said it would
not work for [her] to remain employed there.” “Even though
[she] absolutely loved [her] job and the fact that it allowed
[her] to work in [her] local community,” Thelen declares that
she “was forced to find other employment.” Because she
could not find any pharmacy positions in her community and
the new rules limited her employment opportunities, Thelen
found work at a hospital pharmacy with a “much longer com-
mute, less income and work hours,” and less desirable work
shifts that keep her away from her family until around 10 p.m.
many nights.
Rhonda Mesler was hired by her current employer in
November 2004. When she was hired, she told her supervisor
that she objected to dispensing Plan B, and her employer
agreed to accommodate her by not forcing her to dispense the
drug. When customers requested Plan B, Mesler referred them
to nearby pharmacies. She is the only pharmacist on duty dur-
ing her shift. After receiving a June 25, 2007, email from the
Department of Health concerning the new rules that would go
into effect on July 26, 2007, Mesler emailed her supervisor.
She “asked how the store would handle [her] religious objec-
tion.” Mesler’s “employer . . . said that the company cannot
afford to hire another pharmacist to work with [her].” Mesler
thus “expect[s] to be fired from [her] position very soon.”
In the amended complaint, Appellees seek a declaratory
judgment, and a preliminary and permanent injunction. We
determine whether a declaratory judgment action is ripe for
adjudication by evaluating “whether the facts alleged, under
all the circumstances, show that there is a substantial contro-
versy, between parties having adverse legal interests, of suffi-
cient immediacy and reality to warrant the issuance of a
declaratory judgment.” Md. Cas. Co. v. Pac. Coal & Oil Co.,
312 U.S. 270, 273 (1941). Although Mesler has not yet suf-
fered the consequences of the new rules, her employer has
STORMANS, INC. v. SELECKY 8461
informed her that it will not be able to accommodate her
refusal to dispense Plan B under them. She is at serious risk
of losing her job because of these new rules. This risk is suffi-
ciently real and immediate such that, assuming her claims
have merit, a declaratory judgment or injunction is warranted.
Thelen’s claims are also ripe. Her employer told her “it would
not work for [her] to remain employed there.” She was forced
to find another job. That job is less desirable to Thelen for
many reasons. Thus, there is a substantial controversy of suf-
ficient immediacy and reality to warrant the issuance of
declaratory and injunctive relief. If the rules are struck down,
Thelen would not be limited to working only in those pharma-
cies that could accommodate her religious beliefs.
In addition to the State Appellants, Appellees sued HRC,
the entity responsible for enforcing WLAD. Appellees base
their challenge against HRC entirely on an April 17, 2006, let-
ter sent to the Board by HRC’s Executive Director while the
rulemaking process was pending. The letter advised that it
would be “illegal and bad policy to permit pharmacists to
deny services to women based on the individual pharmacists’
religious or moral beliefs.” According to the letter, it is
HRC’s opinion that any pharmacy or pharmacist who declines
to dispense Plan B for any reason engages in sex discrimina-
tion in violation of federal and state law, even if another on-
site pharmacist filled the prescription. The district court relied
on the views expressed in the April 2006 letter, the posting of
the letter on HRC’s website, and HRC’s history in “aggres-
sively pursu[ing] violators of the WLAD” to conclude that
plaintiffs’ claims against the HRC Appellants are ripe for
judicial review. Stormans, 524 F. Supp. 2d at 1256.
We disagree. In Alaska Right to Life Political Action Com-
mittee v. Feldman, the executive director of the state Commis-
sion on Judicial Conduct issued a letter interpreting the Code
of Judicial Conduct to require recusal of judges committed to
a position on an issue that could come before the court. 504
F.3d at 846. A political action committee brought suit against,
8462 STORMANS, INC. v. SELECKY
inter alia, members of the Commission, when judges refused
to answer the committee’s questionnaire regarding their views
on abortion. We dismissed the suit on ripeness grounds, find-
ing no threat of enforcement because the letter was written by
a commission that had no enforcement power and that had
never taken, and could never take, action against a judge
because it was actually the duty of the state supreme court to
discipline judges for violations of the Code. Id. at 850.
[12] Similarly, here, because no enforcement action against
plaintiffs is concrete or imminent or even threatened, Appel-
lees’ claims against HRC are not ripe for review. First, HRC
has no authority to enforce the Board rules and therefore can-
not bring an enforcement action under the new rules or revoke
a pharmacist’s license. Second, while Appellees allege that
HRC intends to charge pharmacies and pharmacists who
refuse to dispense Plan B with sex discrimination under
WLAD, HRC also lacks authority to discipline violations of
WLAD or to issue penalties. As in Alaska Right to Life, the
final determination of discrimination is made by an indepen-
dent tribunal—in this case, an administrative law judge. See
Wash. Rev. Code Ann. § 49.60.250. According to Brenman,
HRC’s Executive Director, HRC has received no complaints
and has taken no action against any pharmacy or pharmacist
for any conduct related to the new rules. Brenman has even
declared that he did not intend his 2006 letter to be construed
as a rule and that it cannot be understood as such. The Wash-
ington Supreme Court has held that “an agency’s written
expression of its interpretation of the law does not implement
or enforce the law and is advisory only.” Wash. Educ. Ass’n
v. Wash. State Pub. Disclosure Comm’n, 80 P.3d 608, 611
(Wash. 2003) (en banc) (internal quotation marks omitted)
(analyzing interpretive guidelines posted on agency website).
Moreover, the April 2006 letter, written a year before the new
rules were adopted, was not a specific warning to Appellees
and binds no one. Even if the letter—which was not directed
to Appellees or any other specified pharmacy or pharmacist—
could be construed to be a threat of enforcement, it is nothing
STORMANS, INC. v. SELECKY 8463
more than a generalized threat.11 Moreover, the Board has
even disagreed with the letter by approving accommodations
the letter identified as discriminatory, such as allowing a sec-
ond pharmacist (or perhaps a pharmacy technician) to sell the
drug.
The district court further erred by considering the history of
HRC’s enforcement of WLAD claims as evidence of a “his-
tory of past prosecution.” In Thomas, we dismissed the land-
lords’ claim on ripeness grounds because the defendant
agency had never enforced the actual law challenged and had
investigated only citizen complaints. 220 F.3d at 1141. HRC
has never initiated an action against any pharmacist refusing
to provide Plan B. Thus, how aggressively HRC generally
enforces WLAD against claims of discrimination is irrelevant
to examining whether HRC is specifically threatening to
enforce WLAD against Appellees.
[13] HRC is authorized to comment on rules being consid-
ered by other agencies or state officials, and that is exactly
what it did when it issued the April 2006 letter. Therefore,
Appellees’ claims against the HRC appellants are not ripe and
they must be dismissed on remand.
Finally, we examine the issue of prudential ripeness.
Though a concrete case or controversy is present, we also
evaluate whether we should decline to exercise jurisdiction on
the basis of two interrelated factors: “the fitness of the issues
for judicial decision and the hardship to the parties of with-
11
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), which Appellees
cite in support of their argument, does not suggest otherwise. In that case,
the obscenity commission’s notices were sent to specific companies listing
particular books the commission wished to censor, with a warning of crim-
inal prosecution. There were also subsequent visits by the police. The
notices directly impaired sales. Id. at 62-64. Here, Appellees have not
shown any injury from the issuance of the Brenman letter, which was
addressed to the Board, not to any pharmacies or pharmacists.
8464 STORMANS, INC. v. SELECKY
holding court consideration.” Id. (quoting Abbott Labs., 387
U.S. at 149).
[14] “To meet the hardship requirement, a litigant must
show that withholding review would result in direct and
immediate hardship and would entail more than possible
financial loss.” US West Commc’ns v. MFS Intelenet, Inc.,
193 F.3d 1112, 1118 (9th Cir. 1999) (internal quotation marks
omitted). We consider whether the “regulation requires an
immediate and significant change in the plaintiffs’ conduct of
their affairs with serious penalties attached to noncompli-
ance.” Ass’n of Am. Med. Colls. v. United States, 217 F.3d
770, 783 (9th Cir. 2000) (internal quotation marks omitted).
This factor is certainly met, because unless Appellees prevail
in this litigation, they will suffer the very injury they assert—
they will be required to dispense Plan B over their religious
and moral objections.
[15] “A claim is fit for decision if the issues raised are pri-
marily legal, do not require further factual development, and
the challenged action is final.” US West Commc’ns, 193 F.3d
at 1118 (internal quotation marks omitted). We consider
“whether the administrative action is a definitive statement of
an agency’s position; whether the action has a direct and
immediate effect on the complaining parties; whether the
action has the status of law; and whether the action requires
immediate compliance with its terms.” Ass’n of Am. Med.
Colls., 217 F.3d at 780. Although the new rules may undergo
some amendment or agency construction, they currently have
the force of law and would be binding on Appellees as written
absent the existence of preliminary relief. There is no indica-
tion that these rules are anything other than a “definitive state-
ment of an agency’s position,” “requir[ing] immediate
compliance” by Appellees. This situation is unlike that in
Thomas, in which the court held that “the landlords’ claim
rests upon hypothetical situations with hypothetical tenants,”
and, due to the lack of an “adequately developed factual
record,” was not ripe. 220 F.3d at 1142. Here, the record is
STORMANS, INC. v. SELECKY 8465
admittedly sparse, but the circumstances presented by Appel-
lees are not hypothetical. If a patient enters their pharmacies
requesting Plan B, which the record reflects has occurred,
Appellees will refuse to deliver the medication. Whether this
action would directly violate the new rules is a “primarily
legal” inquiry. Because there are no incomplete hypotheticals
or open factual questions akin to those in Thomas, see id. at
1142 n.8 (noting that it was unclear from the record, for
example, “whether the landlords’ view on appropriate tenants
extends to female roommates”), we hold that despite the pre-
liminary nature of the record, Appellees’ claims satisfy the
requirements of prudential standing.
B. Grant of Preliminary Injunction
When the district court applied the legal standard for grant-
ing a preliminary injunction, it did not have the benefit of the
Supreme Court’s decision in Winter v. Natural Res. Def.
Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 374 (2008). As
a result, the district court applied the legal standard subse-
quently rejected by the Supreme Court in Winter as “too
lenient.” Id. at 375.
[16] Before Winter was decided, we had held that to prevail
on a motion for preliminary injunction, the plaintiff must
demonstrate:
either: (1) a likelihood of success on the merits and
the possibility of irreparable injury; or (2) that seri-
ous questions going to the merits were raised and the
balance of hardships tips sharply in its favor. These
two alternatives represent extremes of a single con-
tinuum, rather than two separate tests. Thus, the
greater the relative hardship to the party seeking the
preliminary injunction, the less probability of suc-
cess must be shown.
See, e.g., Clear Channel Outdoor Inc. v. City of L.A., 340
F.3d 810, 813 (9th Cir. 2003) (emphasis added and alterations
8466 STORMANS, INC. v. SELECKY
and internal quotation marks omitted). In Winter, the Supreme
Court definitively refuted our “possibility of irreparable inju-
ry” standard, stating “the Ninth Circuit’s ‘possibility’ standard
is too lenient. Our frequently reiterated standard requires
plaintiffs seeking preliminary relief to demonstrate that irrep-
arable injury is likely in the absence of an injunction.” Winter,
129 S. Ct. at 375. The Court instructed that “[i]ssuing a pre-
liminary injunction based only on a possibility of irreparable
harm is inconsistent with our characterization of injunctive
relief as an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such
relief.” Id. at 375-76 (citing Mazurek v. Armstrong, 520 U.S.
968, 972 (1997) (per curiam)).
[17] Applying Winter, we have since held that, “[t]o the
extent that our cases have suggested a lesser standard, they
are no longer controlling, or even viable.” Am. Trucking
Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th
Cir. 2009) (footnote omitted). Thus, the district court’s appro-
priate application of our pre-Winter approach in granting
relief is now error. The proper legal standard for preliminary
injunctive relief requires a party to demonstrate “that he is
likely to succeed on the merits, that he is likely to suffer irrep-
arable harm in the absence of preliminary relief, that the bal-
ance of equities tips in his favor, and that an injunction is in
the public interest.” Winter, 129 S. Ct. at 374.
1. Likelihood of Success on the Merits
The district court held that Appellees demonstrated “a like-
lihood of success on the merits” of their Free Exercise claim.
Because this holding was based on the district court’s findings
that the new rules are not neutral and generally applicable,
which in turn triggered application of the strict scrutiny stan-
dard of review, it was in error. Thus, the district court’s con-
clusion that the new rules fail strict scrutiny review because
they were neither justified by a compelling interest nor nar-
STORMANS, INC. v. SELECKY 8467
rowly tailored constitutes an abuse of discretion. Stormans,
524 F. Supp. 2d at 1264.
(a) Free Exercise Challenge
[18] The Free Exercise Clause, applicable to the states
through the Fourteenth Amendment, Cantwell v. State of
Conn. 310 U.S. 296, 303 (1940), provides that “Congress
shall make no law . . . prohibiting the free exercise [of reli-
gion],” U.S. Const., amend. I. The right to freely exercise
one’s religion, however, “does not relieve an individual of the
obligation to comply with a ‘valid and neutral law of general
applicability on the ground that the law proscribes (or pre-
scribes) conduct that his religion prescribes (or proscribes).’ ”
Employment Div., Dep’t of Human Res. of Or. v. Smith, 494
U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S.
252, 263 n.3 (1982) (Stevens, J., concurring in judgment)).
Under the governing standard, “a law that is neutral and of
general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect
of burdening a particular religious practice.” Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
531 (1993).
Underlying the Supreme Court’s jurisprudence is the prin-
ciple that the Free Exercise Clause “embraces two concepts[ ]
—freedom to believe and freedom to act. The first is absolute
but, in the nature of things, the second cannot be. Conduct
remains subject to regulation for the protection of society.”
Cantwell, 310 U.S. at 303-04. This principle traces its roots
to the idea that allowing individual exceptions based on reli-
gious beliefs from laws governing general practices “would
. . . make the professed doctrines of religious belief superior
to the law of the land, and in effect [ ] permit every citizen to
become a law unto himself.” Reynolds v. United States, 98
U.S. 145, 167 (1878). The Smith Court explained that it is
[p]recisely because we are a cosmopolitan nation
made up of people of almost every conceivable reli-
8468 STORMANS, INC. v. SELECKY
gious preference, and precisely because we value
and protect that religious divergence, we cannot
afford the luxury of deeming presumptively invalid,
as applied to the religious objector, every regulation
of conduct that does not protect an interest of the
highest order.
494 U.S. at 888 (citation and internal quotation marks omit-
ted). Such a presumption would have wide-ranging and injuri-
ous effects on our society, as exemptions could be mandated
from “compulsory military service, . . . payment of taxes, . . .
health and safety regulation such as manslaughter and child
neglect laws, compulsory vaccination laws, drug laws, and
traffic laws, [and] social welfare legislation such as minimum
wage laws, child labor laws, animal cruelty laws, environ-
mental protection laws, and laws providing for equality of
opportunity.” Id. at 889 (citations omitted).
The principles enunciated by the Court in Smith and
Lukumi thus flow from the Court’s free exercise jurispru-
dence. In its first case addressing the Free Exercise Clause,
the Court held that congressional legislation prohibiting the
practice of polygamy was constitutional, and that those who
made polygamy part of their religious practice, such as mem-
bers of the Mormon Church at the time, were not excepted
from the statute’s operation. See Reynolds, 98 U.S. at 166.
The Court explained that Congress was “free to reach actions
which were in violation of social duties or subversive of good
order,” id. at 164, because “[l]aws are made for the govern-
ment of actions, and while they cannot interfere with mere
religious belief and opinions, they may with practices,” id. at
166.
The Court focused on the distinction between belief and
conduct again in Cantwell, 310 U.S. at 303-04, when it invali-
dated a state statute requiring a license for religious solicita-
tion because the officer would have had to determine, as a
condition for the license, whether the applicant had a religious
STORMANS, INC. v. SELECKY 8469
belief. The Court explained that if the law had been a “general
regulation” of conduct that did “not involve any religious
test,” it would not have been “open to any constitutional
objection.” Id. at 305. In a subsequent case, the Court con-
cluded that requiring public school children to salute the flag
as part of a daily school exercise did not violate the Free
Exercise Clause because “[c]onscientious scruples have not,
in the course of the long struggle for religious toleration,
relieved the individual from obedience to a general law not
aimed at the promotion or restriction of religious beliefs.”
Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 594 (1940),
overruled on other grounds by W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624 (1943). It emphasized that “[t]he mere
possession of religious convictions which contradict the rele-
vant concerns of a political society does not relieve the citizen
from the discharge of political responsibilities.” Id. at 594-95.
The Supreme Court continued to uphold the constitutional-
ity of such “general law[s] not aimed at the promotion or
restriction of religious beliefs.” Id. at 594. In Prince v. Massa-
chusetts, 321 U.S. 158 (1944), the Court found that a mother
could be prosecuted pursuant to child labor laws when she
used her Jehovah’s Witnesses children to dispense religious
literature in the streets. The state was permitted to prevent
these children “from doing there what no other children may
do.” Id. at 171. In Braunfeld v. Brown, 366 U.S. 599 (1961),
the Court upheld a law that prohibited retail sales on Sunday.
Orthodox Jews challenged the law because they already
closed their businesses on Saturdays for religious reasons, and
claimed that to close their business on Sunday as well would
result in economic hardship and thus interfere with the free
exercise of their religion. The Court found that the law “sim-
ply regulate[d] a secular activity” and declined to find the law
invalid. Id. at 605.
The Court articulated the current governing standard—that
a neutral law of general applicability will not be subject to
strict scrutiny review—in Smith and Lukumi. In Smith, the
8470 STORMANS, INC. v. SELECKY
plaintiff was fired from his job after using peyote for sacra-
mental purposes. Peyote use violated state law, and, as a
result, Smith was denied unemployment compensation. Smith,
494 U.S. at 874. Although the Court confirmed that the gov-
ernment may not regulate religious beliefs, it stated that it has
“never held that an individual’s religious beliefs excuse him
from compliance with an otherwise valid law prohibiting con-
duct that the State is free to regulate.” Id. at 878-79. The
Court thus held that because Oregon’s prohibition on peyote
use is constitutional, and Smith’s dismissal resulted from ille-
gal peyote use, it was permissible to deny Smith unemploy-
ment compensation. Id. at 890.
The Court held that neutral and generally applicable stat-
utes that regulate conduct are not required to pass strict scru-
tiny review, thus limiting the viability of Sherbert v. Verner,
374 U.S. 398 (1963), which previously had applied the com-
pelling interest test to governmental denial of unemployment
compensation. The Court reasoned that while “[t]he ‘compel-
ling government interest’ requirement seems benign[ and]
familiar” from cases analyzing race discrimination and con-
tent regulation of speech, it is unsuitable for the free exercise
context. Smith, 494 U.S. at 885-86. “What it produces in those
other fields—equality of treatment and an unrestricted flow of
contending speech—are constitutional norms; what it would
produce here—a private right to ignore generally applicable
laws—is a constitutional anomaly.” Id. at 886. The Court con-
cluded that it would “contradict[ ] both constitutional tradition
and common sense” to make a person’s obligation to obey a
generally applicable neutral law “contingent upon the law’s
coincidence with his religious beliefs, except where the
State’s interest is ‘compelling.’ ” Id. at 885.
In Lukumi, the Court reiterated “the general proposition
that a law that is neutral and of general applicability need not
be justified by a compelling governmental interest even if the
law has the incidental effect of burdening a particular reli-
gious practice.” 508 U.S. at 531. However, “[a] law burdening
STORMANS, INC. v. SELECKY 8471
religious practice that is not neutral or not of general applica-
tion must undergo the most rigorous of scrutiny,” id. at 546,
and is “invalid unless it is justified by a compelling interest
and is narrowly tailored to advance that interest,” id. at 533.
[19] As the district court correctly recognized, Smith and
Lukumi govern this case. To determine whether rational basis
review or strict scrutiny applies, we must first decide whether
the new rules are neutral and generally applicable. Though
“[n]eutrality and general applicability are interrelated, and . . .
failure to satisfy one requirement is a likely indication that the
other has not been satisfied,” id. at 531, we consider each of
the two criteria in turn. We must evaluate the text of the chal-
lenged law as well as its “effect . . . in its real operation.” Id.
at 535.
(i) Neutrality
[20] “[I]f the object of a law is to infringe upon or restrict
practices because of their religious motivation, the law is not
neutral.” Lukumi, 508 U.S. at 533.
The Supreme Court in Lukumi found that city ordinances
prohibiting certain ritual animal sacrifices, and operating to
preclude the main part of a religious sect’s worship services,
were not neutral on their face and in their effect. Id. at 542.
The Court first examined the plain text of the ordinances as
adopted. It noted that the challenged ordinances specifically
referred to the prohibited practices as “sacrifice” and “ritual.”
Id. at 534-35. Further, the concomitant resolution, as adopted,
provided that “ ‘residents and citizens of the City of Hialeah
have expressed their concern that certain religions may pro-
pose to engage in practices which are inconsistent with public
morals, peace or safety,’ ” and “ ‘reiterate[d]’ the city’s com-
mitment to prohibit ‘any and all [such] acts of any and all reli-
gious groups.’ ” Id. (alterations in original).
The Court then considered whether these ordinances were
underinclusive in their effect, i.e., whether “the burden of the
8472 STORMANS, INC. v. SELECKY
ordinance, in practical terms, falls on Santeria adherents but
almost no others.” Id. at 536. The Court concluded that it did.
It found that the ordinances constituted a “religious gerryman-
der,” id. at 534 (internal quotation marks omitted), because
“the only conduct subject to [the challenged ordinances] is the
religious exercise of Santeria church members,” id. at 535,
and because “few if any killings of animals are prohibited
other than Santeria sacrifice,” even when they raise the same
public health concerns, id. at 536.
The Court also considered whether the ordinances were
overinclusive. It noted that the ordinances “prohibit Santeria
sacrifice even when it does not threaten the city’s interest in
the public health.” Id. at 538-39. Finding “significant evi-
dence of the ordinances’ improper targeting of Santeria sacri-
fice in the fact that they proscribe more religious conduct than
is necessary to achieve their stated ends,” the Court concluded
that the ordinances were overinclusive, and, therefore, not
neutral. Id. at 538.
[21] Applying the Lukumi analysis to the plain text of the
ordinances, the district court correctly concluded that the new
rules are facially neutral. See Stormans, 524 F. Supp. 2d at
1257. “A law lacks facial neutrality if it refers to a religious
practice without a secular meaning discernable from the lan-
guage or context.” Id. (citing Lukumi, 508 U.S. at 533). The
new rules make no reference to any religious practice, con-
duct, or motivation. Therefore, the rules are facially neutral.
The district court, however, also considered something the
Lukumi majority did not—the historical background of the
ordinances. The analysis of the legislative history of the chal-
lenged regulation, while proper in the equal protection con-
text, was sanctioned as a part of the free exercise analysis
only in Justice Kennedy’s nonprecedential Part II.A.2 discus-
sion in Lukumi, which was joined only by Justice Stevens.12
12
Though the district court did not actually cite Part II.A.2 of Lukumi,
it quoted Justice Kennedy’s historical analysis verbatim. Compare Stor-
mans, 524 F. Supp. 2d at 1258, with Lukumi, 508 U.S. at 540 (Kennedy,
J., joined by Stevens, J.).
STORMANS, INC. v. SELECKY 8473
Lukumi, 508 U.S. at 540-42 (Kennedy, J., joined by Stevens,
J.). Chief Justice Rehnquist and Justices Scalia and Thomas
joined all but that portion of the opinion because, in their
view, such an inquiry was inappropriate in the free exercise
context. See id. at 558 (Scalia, J., concurring in part and con-
curring in the judgment) (“I do not join [Part II.A.2] because
it departs from the opinion’s general focus on the object of the
laws at issue to consider the subjective motivation of the
lawmakers . . . . As . . . noted elsewhere, it is virtually impos-
sible to determine the singular motive of a collective legisla-
tive body.” (internal quotation marks omitted)). Justice Scalia,
the author of the Smith opinion, explained that the Free Exer-
cise Clause “does not refer to the purposes for which legisla-
tors enact laws, but to the effects of the laws enacted.” Id.13
[22] The Supreme Court has not adopted Justice Kennedy’s
analysis in any subsequent free exercise case. Thus, in decid-
ing whether a law is neutral and generally applicable under
the Free Exercise Clause, we do not consider the legislative
history of the law—its historical background, the events lead-
ing up to its adoption, and its legislative or administrative his-
tory, including contemporaneous statements made by
members of the decisionmaking body. Id. See generally
Smith, 494 U.S. 872.14
13
We may discern with certainty only that Chief Justice Rehnquist and
Justices Scalia and Thomas did not join Part II.A.2 of the opinion due to
disagreement with Justice Kennedy’s use of legislative history. Justices
Souter, Blackmun, and O’Connor disagreed with Smith’s holding and may
have agreed with Justice Kennedy’s approach. See Lukumi, 508 U.S. at
559 (Souter, J., concurring in part and concurring in the judgment) (declin-
ing to join Part II because of concerns “about whether the Smith rule mer-
its adherence”). Justice White joined all but Part II.A of the opinion.
Justice Blackmun filed an opinion concurring in the judgment, in which
Justice O’Connor joined, explaining that he “continue[s] to believe that
Smith was wrongly decided,” and “while [he] agree[s] with the result the
Court reaches in this case, [he] arrive[s] at that result by a different route.”
Id. at 578 (Blackmun, J., concurring in the judgment).
14
San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024 (9th
Cir. 2004), does not mandate a contrary result. In a footnote in that deci-
8474 STORMANS, INC. v. SELECKY
Analyzing, as required by the Supreme Court in Lukumi,
the “text” of the new rules, 508 U.S. at 533, and “the effect
of [the rules] in . . . real operation, id. at 535, there is no evi-
dence that the new rules prohibit or mandate certain practices
“because of their religious motivation,” id. at 533. The new
rules do not aim to suppress, target, or single out in any way
the practice of any religion because of its religious content.
Though the procedural posture presents a sparse record, that
record sufficiently reflects that the object of the rules was to
ensure safe and timely patient access to lawful and lawfully
prescribed medications. The rules, as written and in their
effect, require delivery of all lawfully prescribed medications,
save for when one of several narrow exemptions, discussed in
greater detail below, permits refusal. Aside from those
exemptions, any refusal to dispense—regardless of whether it
is motivated by religion, morals, conscience, ethics, discrimi-
natory prejudices, or personal distaste for a patient—violates
the rules. Therefore, the new rules are neutral on their face
and in their operation.
That the new rules prohibit all improper reasons for refusal
to dispense medication—permitting only refusals for reasons
enumerated in the narrow class of exemptions—suggests that
the purpose of the new rules was not to eliminate religious
objections to delivery of lawful medicines, but to eliminate all
objections that do not ensure patient health, safety, and access
sion, we expressed a lack of concern with the district court’s citation of
an opinion of our court discussing the Equal Protection Clause because
“[t]he Supreme Court has approved reference to equal protection jurispru-
dence . . . ‘[i]n determining if the object of a law is a neutral one under
the Free Exercise Clause.’ ” Id. at 1030 n.4 (quoting Lukumi, 508 U.S. at
540). We neither elaborated on that statement nor examined the historical
or legislative background of the challenged ordinance in reaching our con-
clusion that the ordinance at issue was generally applicable and neutral.
See id. at 1032 (“[T]here is not even a hint that College was targeted on
the basis of religion . . . .”). Nor has any other case relied on San Jose
Christian College for the proposition that an appropriate consideration in
the neutrality determination is the legislative history of the enactment.
STORMANS, INC. v. SELECKY 8475
to medication. Thus, the rules do not target practices because
of their religious motivation.
[23] That the rules may affect pharmacists who object to
Plan B for religious reasons does not undermine the neutrality
of the rules. The Free Exercise Clause is not violated even
though a group motivated by religious reasons may be more
likely to engage in the proscribed conduct. See Reynolds, 98
U.S. at 166-67 (upholding a polygamy ban though the prac-
tice is followed primarily by members of the Mormon
church); cf. United States v. O’Brien, 391 U.S. 367 (1968)
(rejecting a First Amendment challenge to a statutory prohibi-
tion of the destruction of draft cards though most violators
likely would be opponents of war). The Fourth Circuit’s deci-
sion in American Life League, Inc. v. Reno, 47 F.3d 642 (4th
Cir. 1995), is instructive. There, the Fourth Circuit upheld the
Freedom of Access to Clinic Entrance Act, which established
criminal penalties and civil remedies for certain conduct
intended to injure, intimidate, or interfere with persons seek-
ing to obtain or provide reproductive health services. The
court found no free exercise violation—even though it
acknowledged that Congress passed the law in response to
anti-abortion protests—because it recognized that the Act
“punishe[d] conduct for the harm it causes, not because the
conduct is religiously motivated.” Id. at 654; see also Vision
Church v. Vill. of Long Grove, 468 F.3d 975, 999 (7th Cir.
2006) (finding no free exercise violation even if a zoning
ordinance targeted a proposed plan for a new church because
the commission was concerned about the nonreligious effect
of the church on the community); Knights of Columbus,
Council No. 94 v. Town of Lexington, 272 F.3d 25, 35 (1st
Cir. 2001) (finding no free exercise violation although a regu-
lation limiting displays on the town green was adopted in
response to a flood of religious groups seeking to erect dis-
plays). Thus, the district court erred in finding that “the object
of the regulations is to eliminate from the practice of phar-
macy . . . those pharmacists who, for religious reasons, object
to the delivery of lawful medications, specifically Plan B.”
8476 STORMANS, INC. v. SELECKY
Stormans, 524 F. Supp. 2d at 1258. The neutrality of the new
rules is not destroyed by the possibility that, disproportion-
ately, it is pharmacists with religious objections to Plan B
who will require accommodation under the rules.
(ii) General Applicability
[24] A law is not generally applicable when the govern-
ment, “in a selective manner[,] impose[s] burdens only on
conduct motivated by religious belief.” Lukumi, 508 U.S. at
543. The “selective manner” analysis tests the rules for sub-
stantial underinclusiveness. For example, the Lukumi Court
concluded that the challenged ordinances were not of general
applicability because “each of Hialeah’s ordinances pursues
the city’s governmental interests only against conduct moti-
vated by religious belief.” Id. at 545. Because the ordinances
“fail[ed] to prohibit nonreligious conduct that endanger[ed]
these interests in a similar or greater degree than Santeria sac-
rifice does,” id. at 543, it was religion, and religion alone, that
bore the burden of the ordinances, giving the ordinances the
“appearance of a prohibition that society is prepared to
impose upon [Santeria worshippers] but not upon itself,” id.
at 545 (alteration in original) (citations and internal quotation
marks omitted). According to the Court, “[t]his precise evil is
what the requirement of general applicability is designed to
prevent.” Id. at 545-46. Thus, it was the ordinances’ substan-
tial underinclusiveness with respect to the city’s supposed
interests in protecting the public health and preventing cruelty
to animals that led to the Court’s conclusion that the ordi-
nances were not generally applicable.
[25] Instead of analyzing whether the new rules were sub-
stantially underinclusive, the district court decided that it
should “examine the law’s means and the law’s ends: if the
means fail to match the ends, the statute likely targets reli-
gious conduct and is therefore not generally applicable.” Stor-
mans, 524 F. Supp. 2d at 1260. It held that the new rules “do
not appear to the Court to be of general application” because
STORMANS, INC. v. SELECKY 8477
“[t]he evidence now before the Court convinces it that the
‘means’ used by the rulemakers do not square with the ‘end’
currently espoused by the defendants.” Id. at 1263. By adopt-
ing a means/ends test instead of the Lukumi underinclusive-
ness analysis, the district court committed legal error. The
means/ends test is, in essence, a version of intermediate scru-
tiny under which a regulation must be substantially related to
an important governmental objective. See, e.g., Craig v.
Boren, 429 U.S. 190, 197 (1976). The district court thus
applied a level of scrutiny that runs contrary to the rule of
Smith and Lukumi.
[26] Utilizing the correct legal standard, the new rules are
generally applicable because they are not substantially
underinclusive. There is no evidence that State Appellants
pursued their interests only against conduct with a religious
motivation. Under the rules, all pharmacies have a “duty to
deliver” all medications “in a timely manner.” Neither regula-
tion challenged in this case applies to refusals only for reli-
gious reasons. The new rules apply to all lawful medications,
not just those that pharmacies or pharmacists may oppose for
religious reasons. Pharmacies and pharmacists who do not
have a religious objection to Plan B must comply with the
rules to the same extent—no more and no less—as pharma-
cies and pharmacists who may have a religious objection to
Plan B. Therefore, the rules are generally applicable.
The narrow class of exemptions—necessary reasons for
failing to fill a prescription—does not impair the general
applicability of the rules. These provisions exempt a phar-
macy from its comprehensive duty to deliver medications in
certain enumerated situations, such as when a state of emer-
gency is declared, a prescription is potentially fraudulent or
erroneous, or the patient cannot pay. Wash. Admin. Code
§§ 246-869-010(1)(a)-(e), (2).15 The district court acknowl-
edged that these exemptions “all reflect legitimate, time-
15
See supra note 4 (listing exemptions).
8478 STORMANS, INC. v. SELECKY
honored reasons for not filling a prescription.” Stormans, 524
F. Supp. 2d at 1262. Nonetheless, it concluded that because
the new rules do not mandate delivery of all medications
under all circumstances, the rules do not actually further
access to medications. Id.
The district court’s reasoning is unpersuasive. How much
the new rules actually increase access to medications depends
on how many people are able to get medication that they
might previously have been denied based on religious or gen-
eral moral opposition by a pharmacist or pharmacy to the
given medication. Whatever that number, it will not be smal-
ler than the number of pharmacists or pharmacies affected by
the regulation, so it cannot be shrugged off as insignificant.
The existing exemptions are narrow. Nobody could seri-
ously question a refusal to fill a prescription because the cus-
tomer did not pay for it, the pharmacist had a legitimate belief
that it was fraudulent, or supplies were exhausted or subject
to controls in times of declared emergencies. Nor can every
single pharmacy be required to stock every single medication
that might possibly be prescribed, or to maintain specialized
equipment that might be necessary to prepare and dispense
every one of the most recently developed drugs. Instead of
increasing safe and legal access to medications, the absence
of these exemptions would likely drive pharmacies out of
business or, even more absurdly, mandate unsafe practices.
Therefore, the exemptions actually increase access to medica-
tions by making it possible for pharmacies to comply with the
rules, further patient safety, and maintain their business.
That the pharmacy regulations recognize some exceptions
cannot mean that the Board has to grant all other requests for
exemption to preserve the “general applicability” of the regu-
lations. There is no claim that the existing regulation recog-
nizing these exceptions has not been fairly applied or that it
will not be fairly and evenly applied in the future. These
exemptions are a reasonable part of the regulation of phar-
STORMANS, INC. v. SELECKY 8479
macy practice, and their inclusion in the statute does not
undermine the general applicability of the new rules.
The text of the new rules itself suggests that their objective
was to increase access to all lawfully prescribed medications,
including Plan B. According to the survey cited by the district
court, 23 percent of the pharmacies in the state do not carry
Plan B, amounting to 315 pharmacies throughout the state.
Moreover, even among the pharmacies that carry the drug, it
is unclear how many pharmacists refuse to dispense it. Based
on the sparse record before it, the district court erred in find-
ing that access to Plan B was not a problem, especially given
that state officials have already made findings suggesting the
opposite.16 See Final Significant Analysis for Rule Concerning
Pharmacists’ Professional Responsibilities, WAC 246-863-
095 & Pharmacies’ Responsibilities, WAC 246-869-010.
The district court also erred in finding that the Board has
“chosen [to rely] on state and federal antidiscrimination laws
to define when refusal to dispense is or is not allowed.” Stor-
mans, 524 F. Supp. 2d at 1262. The district court found this
“choice of weapons” suspicious and concluded that because
the antidiscrimination provisions prohibit only certain refusals
and do not “require pharmacies or pharmacists to dispense
lawful medications without delay every time they are request-
ed,” the rules are underinclusive and therefore not generally
applicable. Id. The district court’s finding is not supported by
the record. The new rules, as any other rule promulgated by
16
The district court’s reliance on “[t]he fact that the Pharmacy Board
initially proposed a draft rule permitting a pharmacist/pharmacy to not fill
a lawful prescription for reasons of conscience” as “further evidence” that
access to Plan B was not a problem was also clearly erroneous. See Stor-
mans, 524 F. Supp. 2d at 1261. The first draft rule proposed by the Board
would have allowed a pharmacist to refuse to fill a lawful prescription
only if another pharmacist onsite would dispense the medication without
delay. This rule does not support the district court’s conclusion that access
to Plan B was not an issue. Moreover, Lukumi teaches us that we must
review the rules as adopted, not in their prior versions.
8480 STORMANS, INC. v. SELECKY
the Board, will be enforced by the Board pursuant to Wash-
ington Revised Code Annotated section 18.64.165, which per-
mits the Board to “refuse, suspend, or revoke [a pharmacy’s
or pharmacist’s] license” when “[t]he licensee . . . has vio-
lated any of the rules and regulations of the board of pharma-
cy.” While the new rules prohibit discrimination against
patients in a manner already prohibited by state or federal
laws, they also require pharmacies to deliver lawfully pre-
scribed and approved drugs in a timely manner, and mandate
stocking of drugs to serve the needs of the community. In
contrast, the HRC is in charge of compliance with WLAD and
is authorized to recommend action to other officials in
response to possible violations of WLAD. WLAD is a com-
prehensive but general antidiscrimination law—“an exercise
of the police power of the state for the protection of the public
welfare, health, and peace of the people of this state, and in
fulfillment of the provisions of the Constitution of this state
concerning civil rights.” Wash. Rev. Code Ann. § 49.60.010.
WLAD does not “define when refusal to dispense is or is not
allowed.” Stormans, 524 F. Supp. 2d at 1262. Thus, WLAD
is decidedly not the enforcement mechanism of the new rules.
Pharmacies were already subject to antidiscrimination laws
as places of public accommodation. Wash. Rev. Code Ann.
§ 49.60.215. The antidiscrimination subsections of the new
rules reiterate that antidiscrimination laws forbid pharmacies
or pharmacists from discriminating against protected groups.
They are not limited to refusals to dispense or distribute cer-
tain medications. For example, the antidiscrimination subsec-
tions would prohibit a pharmacist from filling all lawful
prescriptions for, but requiring additional payment from, per-
sons of a particular race or ethnic group, or refusing to accept
personal checks only from persons with a disability.
Antidiscrimination laws also prohibit a pharmacy or a phar-
macist from refusing to dispense a drug because of a personal
animus or objection to a patient based upon that patient’s
membership in a protected class.
STORMANS, INC. v. SELECKY 8481
[27] As a corollary, the Board’s rules regulate the practice
of pharmacy, primarily by requiring pharmacies to deliver
lawfully prescribed and approved drugs in a timely manner.
The rules do not equate a pharmacist’s refusal to dispense a
drug because of a religious objection to the drug with a phar-
macist’s discrimination against a patient in a manner prohib-
ited by state or federal law. Further, a pharmacy could violate
the new rules by not stocking Plan B despite community
demand even if, in doing so, it was not violating any state or
federal antidiscrimination laws. Thus, the district court’s find-
ing that the Board relies on antidiscrimination laws to deter-
mine which refusals to deliver medication are and are not
lawful was incorrect. Therefore, the court clearly erred in con-
cluding that the challenged rules are underinclusive and not
generally applicable.
The district court failed to give proper weight to the rules’
distinction between pharmacies and pharmacists. The rules do
not prohibit individual pharmacists from refusing to dispense
a medication for religious reasons. A pharmacist may refuse
to dispense Plan B on a religious ground because ultimately
it is the duty of the pharmacy, not the pharmacist, to “deliver
lawfully prescribed drugs.” Compare Wash. Admin. Code
§ 246-869-010 (governing pharmacies), with id. § 246-863-
095 (governing pharmacists). The district court found that
accommodation of objecting pharmacists was too burdensome
on the pharmacy because the only method of accommodation
available is the hiring of another pharmacist to work side-by-
side with the objecting pharmacist. Id. at 1256; see also id. at
1253 (stating the rules allow for only a “narrow right of con-
science . . . if the pharmacist worked with another pharmacist
on shift who would dispense the medication in place of the
conscientious objector”). But this finding is contrary to the
evidence. The record demonstrates that several different
methods of accommodation are available. For example, the
Board itself stated, in a post-adoption letter to pharmacists
and pharmacy owners, that for females eighteen and over, “[a]
pharmacy technician can sell Plan B as an over-the-counter
8482 STORMANS, INC. v. SELECKY
product, but the pharmacist must be available to provide the
patient with consultation and advice if requested.” It may also
be sufficient to have a second pharmacist available by tele-
phone if the onsite pharmacist objects to dispensing a medica-
tion or providing a requested consultation. Thus, the rules do
not selectively impose an undue obligation on conduct moti-
vated by religious belief because the rules actually provide for
religious accommodation—an individual pharmacist can
decide whether to dispense a particular medication based on
his religious beliefs and a particular pharmacy may continue
to employ that pharmacist by making appropriate accommo-
dations.
(b) Application of Rational Basis Review
[28] Because the rules are neutral and generally applicable,
the district court should have subjected the rules to the ratio-
nal basis standard of review. The district court instead intro-
duced a heightened scrutiny to a neutral law of general
applicability, contrary to the rule of Smith and Lukumi. When
a law is neutral and generally applicable, the rational basis
test applies. See Miller v. Reed, 176 F.3d 1202, 1206-07 (9th
Cir. 1999) (holding that a regulation requiring the use of a
social security number to obtain a driver’s license survives
rational basis review on a free exercise challenge). Under
rational basis review, the rules will be upheld if they are ratio-
nally related to a legitimate governmental purpose. See Gadda
v. State Bar of Cal., 511 F.3d 933, 938 (9th Cir. 2007). To
invalidate a law reviewed under this standard, “[t]he burden
is on the one attacking the legislative arrangement to negative
every conceivable basis which might support it.” Heller v.
Doe by Doe, 509 U.S. 312, 320 (1993) (alteration in original)
(internal quotation marks omitted). The record before us does
not suggest that Appellees have negated every conceivable
basis supporting the new rules, so it appears that the new rules
are rationally related to Washington’s legitimate interest in
ensuring that its citizen-patients receive lawfully prescribed
medications without delay.
STORMANS, INC. v. SELECKY 8483
[29] The district court, however, has not yet had the oppor-
tunity to analyze or to make the appropriate factual findings
as to whether the new rules are rationally related to a legiti-
mate governmental purpose. Whether the rules pass muster
under the rational basis test must be determined by the district
court in the first instance.
2. Balance of Hardships
To qualify for injunctive relief, the plaintiffs must establish
that “the balance of equities tips in [their] favor.” Winter, 129
S. Ct. at 374. In assessing whether the plaintiffs have met this
burden, the district court has a “duty . . . to balance the inter-
ests of all parties and weigh the damage to each.” See L.A.
Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d
1197, 1203 (9th Cir. 1980). Without discussion or analysis,
the district court found that “[t]he facts presented show, to the
Court’s satisfaction, . . . the possibility of irreparable injury.”
Stormans, 524 F. Supp. 2d at 1264. As discussed above, how-
ever, the correct standard is not whether there is a “possibili-
ty” but whether there is a “likelihood of irreparable injury.”
Winter, 129 S. Ct. at 375. Given that the district court applied
the incorrect pre-Winter legal standard for granting injunctive
relief and that it applied a strict scrutiny standard of review,
the district court must reweigh the balance of hardships
among the parties and reconsider the interests at stake.
In reweighing the harms, the district court should focus on
the harms to the individual Appellees and the Intervenors. The
alleged injury to the Appellees is interference with their con-
stitutional right of free exercise of their religion. Though
“[b]y bringing a colorable First Amendment claim, [the
movant] certainly raises the specter of irreparable injury,”
“simply raising a serious [First Amendment] claim is not
enough to tip the hardship scales.” Paramount Land Co. LP
v. Cal. Pistachio Comm’n, 491 F.3d 1003, 1012 (9th Cir.
2007). If Appellees are compelled to stock and distribute Plan
B without the benefit of the preliminary injunction, and a trial
8484 STORMANS, INC. v. SELECKY
on the merits shows that such compulsion violates their con-
stitutional rights, Appellees will have suffered irreparable
injury, since “[u]nlike monetary injuries, constitutional viola-
tions cannot be adequately remedied through damages.”17 See
Nelson v. Nat’l Aeronautics & Space Admin., 530 F.3d 865,
882 (9th Cir. 2008). Even if Thelen and Mesler leave their
jobs or Stormans closes the pharmacy, they will not necessar-
ily avoid constitutional injury. See id. (“[T]he loss of one’s
job does not carry merely monetary consequences; it carries
emotional damages and stress, which cannot be compensated
by mere back payment of wages.”).
There are also several possible harms to Intervenors since
an injunction against enforcement of the new rules places the
Intervenors at risk that the dispensing of Plan B will be
delayed or denied. Some of these threatened harms to Interve-
nors may be mitigated by limiting the scope of the injunction.
The district court must determine the likelihood that these
harms will occur and weigh any harm likely to be suffered by
the Intervenors if the injunction is granted against the injury
that will likely befall the Appellees if it is not.
3. Public Interest
The district court also failed to weigh in its analysis the
public interest implicated by the injunction, as Winter now
requires. See 129 S. Ct. at 374. When the reach of an injunc-
tion is narrow, limited only to the parties, and has no impact
on non-parties, the public interest will be “at most a neutral
factor in the analysis rather than one that favor[s] [granting
or] denying the preliminary injunction.” See Bernhardt v. L.A.
17
If Appellees’ injury was primarily financial, the balance would not tip
to Appellees, because the injury would not be considered irreparable. See
L.A. Mem’l Coliseum Comm’n, 634 F.2d at 1202 (9th Cir. 1980); see also
Braunfeld, 366 U.S. at 606 (rejecting a challenge to a regulation that “may
well result in some financial sacrifice in order to observe [appellants’] reli-
gious beliefs”).
STORMANS, INC. v. SELECKY 8485
County, 339 F.3d 920, 931 (9th Cir. 2003). If, however, the
impact of an injunction reaches beyond the parties, carrying
with it a potential for public consequences, the public interest
will be relevant to whether the district court grants the prelim-
inary injunction. See Sammartano v. First Judicial Dist.
Court, 303 F.3d 959, 965 (9th Cir. 2002) (“ ‘In cases where
the public interest is involved, the district court must also
examine whether the public interest favors the plaintiff.’ ”)
(alteration omitted) (quoting Fund for Animals v. Lujan, 962
F.2d 1391, 1400 (9th Cir. 1992)); see also Golden Gate Rest.
Ass’n v. City & County of S.F., 512 F.3d 1112, 1126 (9th Cir.
2008). “[When] an injunction is asked which will adversely
affect a public interest . . . the court may in the public interest
withhold relief until a final determination of the rights of the
parties, though the postponement may be burdensome to the
plaintiff.” Weinberger v. Romero-Barcelo, 456 U.S. 305,
312-13 (1982). In fact, “courts . . . should pay particular
regard for the public consequences in employing the extraor-
dinary remedy of injunction.” Id. at 312.
In this case, the overbreadth of the district court’s injunc-
tion implicates the public interest. The district court did not
merely enjoin enforcement of the Washington regulations
against the plaintiffs, as it should have, see infra Part III.B.4.
Rather, it purported to enjoin the enforcement of the regula-
tions against “any pharmacy . . . or pharmacist who, refuses
to dispense Plan B . . .” See Stormans, 524 F. Supp. 2d at
1266. The injunction clearly reached non-parties and impli-
cated issues of broader public concern that could have public
consequences.
Even if the district court had limited the application of the
injunction to the named Appellees, the public interest is still
a necessary consideration given the facts of this case. The
“general public has an interest in the health” of state residents.
See Golden Gate Rest. Ass’n, 512 F.3d at 1126. There is a
general public interest in ensuring that all citizens have timely
access to lawfully prescribed medications. With regard to
8486 STORMANS, INC. v. SELECKY
Plan B, it may be in the public interest to deny the injunction
to the extent that it is likely that sexually active women of
childbearing age will be denied reasonable access to Plan B.
Likewise, the injunction may not be in the public interest if
it would likely cause unreasonable delay to a woman’s ability
to acquire and use the drug, where such delay may render the
drug ineffective in preventing an unwanted pregnancy.
There may be additional evidence showing the public’s
interest in the grant or denial of the injunctive relief in this
case. The plaintiffs bear the initial burden of showing that the
injunction is in the public interest. See Winter, 129 S. Ct. at
378. However, the district court need not consider public con-
sequences that are “highly speculative.” See Golden Gate
Rest. Ass’n, 512 F.3d at 1126. In other words, the court should
weigh the public interest in light of the likely consequences of
the injunction. Such consequences must not be too remote,
insubstantial, or speculative and must be supported by evi-
dence. See id.; cf. Eccles v. Peoples Bank of Lakewood Vill.,
333 U.S. 426, 434 (1948) (concluding that a grievance that is
“too remote and insubstantial” or “too speculative in nature”
does not justify an injunction or declaratory relief).
Finally, the district court should give due weight to the seri-
ous consideration of the public interest in this case that has
already been undertaken by the responsible state officials in
Washington, who unanimously passed the rules that are the
subject of this appeal. See Golden Gate Rest. Ass’n, 512 F.3d
at 1127 (“The public interest may be declared in the form of
a statute.” (internal quotation marks omitted)); see also Bur-
ford 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.” (internal quotation marks omitted)).
This case may present a situation in which “otherwise
avoidable human suffering” results from the issuance of the
STORMANS, INC. v. SELECKY 8487
preliminary injunction. Golden Gate Rest. Ass’n, 512 F.3d at
1125. The district court clearly erred by failing to consider the
public interest at stake.
4. Scope of Injunction
[30] “Injunctive relief . . . must be tailored to remedy the
specific harm alleged.” Lamb-Weston, 941 F.2d at 974. “An
overbroad injunction is an abuse of discretion.” Id.
The district court should have limited the injunction to the
named Appellees, as was requested by Appellees themselves
in their initial motion for a preliminary injunction, or even to
the named Appellees and their employers as requested in
Appellees’ subsequent motion for modification of the injunc-
tion. Instead, the court issued an overbroad injunction, enjoin-
ing enforcement of the new rules “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.” Stormans,
524 F. Supp. 2d at 1266. The district court abused its discre-
tion in enjoining the rules themselves as opposed to enjoining
their enforcement as to the plaintiffs before him who asserted
religious objections to dispensing Plan B.
[31] By enjoining enforcement of the rules, the district
court erroneously treated the as-applied challenge brought in
this case as a facial challenge. This flies in the face of the
well-established principle that “[g]enerally speaking, when
confronting a constitutional flaw in a statute, we try to limit
the solution to the problem. We . . . enjoin only the unconsti-
tutional applications of a statute while leaving other applica-
tions in force.” Ayotte v. Planned Parenthood of N. New
England, 546 U.S. 320, 328-29 (2006). There is no evidence
that every pharmacist in the state of Washington considers
dispensing Plan B to be a breach of their religious or moral
values, and it is unlikely that this is the case.
8488 STORMANS, INC. v. SELECKY
[32] The district court abused its discretion by enjoining the
enforcement of the antidiscrimination provisions as to all
pharmacists and pharmacies in the state of Washington who
refuse to sell or dispense Plan B for any reason—religious or
otherwise—as long as a patient is immediately referred to a
“nearby source” for Plan B. It failed to tailor the injunction to
remedy the specific harm alleged by the actual Appellees—an
infringement of their First Amendment right to free exercise
of religion. Because the injunction does not limit permissible
refusals to those based on religious grounds, it permits phar-
macies or pharmacists to refuse to provide Plan B for any rea-
son, including refusals grounded in individual morals,
conscience, or even personal distaste or discriminatory preju-
dices. The Free Exercise Clause, however, only protects the
free exercise of religion. U.S. Const. amend. I. It does not
protect those with moral or other objections. Cf. Ariz. Life
Coal. Inc. v. Stanton, 515 F.3d 956, 972 (9th Cir. 2008) (find-
ing that speech opposing abortion is not speech that promotes
faith or a specific religion). Further, the First Amendment cer-
tainly does not protect discriminatory conduct, such as a
refusal to serve patients based on race or sex—it may not
even protect such discriminatory practices when they are
grounded in religious beliefs. See Bob Jones Univ., 461 U.S.
at 604 (upholding denial of tax-exempt status to private
schools that racially discriminated because of sincerely held
religious beliefs). Therefore, the injunction, supposedly based
on a free exercise challenge to the new rules, is fatally over-
broad because it is not limited to the only type of refusal that
may be protected by the First Amendment—one based on
religious belief.
[33] Limiting any injunction to the three Appellees—and to
the harms alleged and the relief requested—would also miti-
gate much of the potential harm that Intervenors, patients and
their families, and the general public in the state of Washing-
ton would otherwise face under an injunction that allows any
and all pharmacies and pharmacists to refuse to dispense Plan
B for any reason. The record reflects that the Stormans’ phar-
STORMANS, INC. v. SELECKY 8489
macy at Ralph’s Thriftway is located in Olympia, Washing-
ton, within a five-mile radius of approximately thirty other
pharmacies. Enjoining enforcement of the rules as against
Stormans only would not present great hardships to the Inter-
venors or the public, as they would continue to have access
to desired medications, including Plan B, at numerous alterna-
tive pharmacies in the same area until the trial on the merits
is complete. Similarly, enjoining enforcement of the rules
against Mesler and Thelen will not present a great hardship to
Intervenors or the public, who will only need to avoid the one
additional pharmacy where Mesler works out of more than a
thousand pharmacies in the state of Washington, since
Thelen’s employer already accommodates her religiously
based refusal.
[34] The record does not support an injunction that is
directed to persons other than the parties before the court and
their employers. We therefore remand to the district court for
consideration of whether the new rules pass rational basis
review, whether the Appellees are likely to suffer irreparable
harm, whether the balance of equities tips in the Appellees’
favor, and whether the public interest supports the injunction.
If the district court finds an injunction is warranted, the
injunction must be limited to the named Appellees, and, if the
court finds necessary, to their employers.
5. Remaining Claims
Because the original injunction was predicated only upon
Appellees’ free exercise claim, we find it unnecessary to
reach Appellees’ equal protection, preemption, procedural due
process, and Title VII claims. While we have the discretion to
“affirm the district court on any ground supported by the
record,” Sony Computer Entm’t, Inc. v. Connectix Corp., 203
F.3d 596, 608 (9th Cir. 2000) (internal quotation marks omit-
ted), in light of the undeveloped record, we decline to do so.
Cf. Big Country Foods, Inc. v. Bd. of Educ. of the Anchorage
Sch. Dist., 868 F.2d 1085, 1087-88 (9th Cir. 1989) (“We
8490 STORMANS, INC. v. SELECKY
question the appropriateness of [movant’s] attempt to use the
appellate process to resolve a question that must first be
resolved in the district court.”).18
IV. CONCLUSION
We hold that the district court abused its discretion in
applying an erroneous legal standard of review, failing to
properly consider the balance of hardships and the public
interest, and entering an overbroad injunction. On remand, the
district court must apply the rational basis level of scrutiny to
determine whether Appellees have demonstrated a likelihood
of success on the merits. The district court must also deter-
mine whether Appellees have demonstrated that they are
likely to suffer irreparable harm in the absence of preliminary
relief, whether the balance of equities tips in the favor of the
three Appellees, and whether the public interest supports the
entry of an injunction. If the court finds in favor of Appellees,
it must narrowly tailor any injunctive relief to the specific
threatened harms raised by Appellees. The order granting the
preliminary injunction is REVERSED; the preliminary
injunction is VACATED; and the case is REMANDED to
the district court for further proceedings consistent with this
opinion. The claims against HRC Appellants are DIS-
MISSED as not ripe. The motion to strike that portion of
Appellees’ brief that addresses the Title VII claim is GRANT-
ED.19
18
The State Appellants’ partial opposition to Appellees’ Motion to
Exceed Type-Volume Limitation was construed by this court, on April 23,
2008, as a motion to strike Section V.B. of Appellees’ answering brief,
which addresses the Title VII claim. We grant the motion to strike.
19
The new rules, Washington Administrative Code sections 246-863-
095 and 246-869-010, are effective as of the filing date of this opinion,
and, except to the extent that the district court, upon reconsideration in
light of this disposition, issues a preliminary injunction as to the named
plaintiffs and their employers, may be enforced in accordance with the law
of the state of Washington.
STORMANS, INC. v. SELECKY 8491
CLIFTON, Circuit Judge, concurring:
I concur in the judgment and join all but one small part of
the majority opinion, in which the opinion declares that “in
deciding whether a law is neutral and generally applicable
under the Free Exercise Clause, we do not consider the legis-
lative history of the law.” Majority op. at 8473.
The majority opinion bases this conclusion on its observa-
tion that in Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520 (1993), a majority of the Court did not
join the portion of Justice Kennedy’s opinion that considered
legislative history. But neither did a majority of the Court
declare in Lukumi that legislative history should not be con-
sidered. As the majority opinion correctly notes, at 8473 n.
13: “We may discern with certainty only that Chief Justice
Rehnquist and Justices Scalia and Thomas did not” sanction
the use of legislative history. The view of those three justices
is not a holding of the Court.
The majority opinion does not offer any other basis for
excluding legislative history, as a category, as material that
may be considered in evaluating the neutrality of a regulation.
Legislative history is too well established as a legal resource
for us to declare it off limits—and to reject the district court’s
reliance on it in this case—without a better explanation. When
the issue is whether a given statute or regulation is neutral and
of general applicability, it is not illogical to consider the his-
torical background of how the provision in question came to
be adopted.
Even considering the legislative history of the regulation at
issue in this case, however, I am satisfied that the regulation
is neutral and of general application. I thus join in the conclu-
sion that the rules challenged here should be subject to ratio-
nal basis review, as well as in the other portions of the
majority opinion.