Planned Parenthood’s Use of Political Intimidation to Eviscerate Americans’ First Amendment Conscience Rights
Planned Parenthood appears to use every tool at its disposal–including political intimidation—to advance its radical pro-abortion agenda. Stormans v. Selecky,[i] a challenge to anti-conscience Washington State Board of Pharmacy rules, reveals just one example of Planned Parenthood’s intimidation tactics and political bullying.
Prior to 2007, pharmacies in Washington were permitted to refer patients to other providers if they could not fill a specific prescription for reasons of conscience. Washington’s “Basic Health Care Law,” enacted in 1995, provided that no healthcare entity—including pharmacies or pharmacists—“may be required by law or contract in any circumstances to participate in the provision of or payment for a specific service if they object to so doing for reason of conscience or religion.”[ii]
Planned Parenthood’s intimate role—over the course of the next two years—in changing Washington law and shaping anti-conscience regulations is detailed in the findings of fact and conclusions of law of the Stormans case. The Planned Parenthood-driven coercive regulations go so far as to prohibit pharmacies from providing “facilitated referrals”[iii] if a pharmacy or pharmacist had a conscience objection to delivering or dispensing so-called “emergency contraception” such as “Plan B.”
Importantly, as the court noted, as a result of Planned Parenthood’s involvement, “unlike most of the Board’s regulations, these [r]egulations were not the product of a neutral, bureaucratic process based solely on pharmaceutical expertise.”[iv] Instead, they were designed to facilitate Planned Parenthood and its allies’ political ends.
Planned Parenthood aggressively advocated against the recommendations of the professional boards and associations which supported conscience rights.[v] And, as the record in the case exposes, Planned Parenthood and Governor Christine Gregoire (a Democrat) went to great lengths to coerce and intimidate the Washington Board of Pharmacy until it capitulated to their anti-freedom agenda.
In the words of the court, it was a “highly political affair, driven largely by the Governor and Planned Parenthood—both outspoken opponents of conscientious objection to Plan B.”[vi]
Beginning in 2005, Planned Parenthood and Governor Gregoire worked doggedly to change the Washington Board of Pharmacy’s support for conscience rights. Each time the Board rejected Planned Parenthood’s position, pressure on the Board was increased.
Notably, Governor Gregoire did not seek out Planned Parenthood for its guidance in eliminating referral as an option to protect the freedom of conscience of Washington’s pharmacists and pharmacies. Rather, “Planned Parenthood sought to enlist the Governor’s help to prohibit conscientious referrals….”[vii] Changing Washington’s law to eliminate conscience protections was Planned Parenthood’s idea.
Despite initial pressure from Planned Parenthood and Governor Gregoire to eliminate conscience protections, at their August 2005 meeting, “The Board voted to continue to recommend referral…” and “publicly endorsed this message again in its October 2005 newsletter.”[viii]
In response to Planned Parenthood’s warning that the Washington State Pharmacy Association (WSPA) would support conscience rights at the Board’s January 2006 meeting, Governor Gregoire sent a letter to the Board again opposing conscientious referrals and appointed a new member to the Board, “who was a former Planned Parenthood board member whom Planned Parenthood had recommended.”[ix]
However, even these tactics were not enough to persuade the Board to abandon its pro-freedom principles. When the WSPA “recommended that pharmacists retain the right to refer,” the court notes, “no Board members expressed opposition to referrals for reason of conscience.”[x]
Planned Parenthood and Governor Gregoire were not deterred. They intensified their pressure to the point of engaging in aggressive bullying and threats.
Upon the “urging” of the Governor’s Office, Planned Parenthood began to work with the Human Rights Commission (HRC)—a state agency responsible for “administering and enforcing the Washington Law Against Discrimination”—as a means to “increase pressure on the Board” to drop support for conscience rights.[xi] As the factual findings describe, “within days” the HRC warned the Board director, Steven Saxe, that allowing pharmacists and pharmacies with conscientious objections to so-called “emergency contraception” to make a referral to another pharmacy was “illegally discriminating against women.”[xii]
In a letter from HRC’s Executive Director, Board Members were even “threaten[ed]… with personal liability if they passed a regulation permitting referral.”[xiii] (Emphasis added.)
Planned Parenthood’s fingerprints were all over the threat. “Planned Parenthood reviewed drafts and helped shape the message of this inter-governmental warning,” a warning that the court noted “was obviously intended to intimidate the Board.”[xiv]
At two public hearings, purported “refusal stories” were also presented to the Board – stories that had “originally surfaced in a March 2006 letter from Planned Parenthood.”[xv] As the court in the Stormans case notes, “None of [pharmacies’] customers has ever been denied timely access to emergency contraception.”[xvi] In fact, the court acknowledged that many of the “refusal stories” were not the result of natural encounters with access problems, but were “manufactured” by Planned Parenthood and other abortion advocates.[xvii]
Despite the latest round of intimidation and political gamesmanship, the Board still voted unanimously in favor of a rule permitting refusal for, among other reasons, reasons of conscience.[xviii]
“Governor Gregoire reacted swiftly and forcefully.”[xix] Within “hours,” she sent another letter to the Board.[xx] Her office also met with Planned Parenthood “to discuss rewriting the rule” that the Board had just approved unanimously.[xxi] (Four days later, Governor Gregoire also “publicly explained that she could remove the Board members when the Legislature returned if need be, but she did not ‘want this to be done like we’re in a dictatorship.’”[xxii])
Within a week, Planned Parenthood “presented a new draft rule to the Governor.”[xxiii] As Mr. Saxe later testified, “the primary difference” between the Board’s approved rule and Planned Parenthood’s rule was “conscientious objection.”[xxiv] As a matter of practicality, the rule could not prohibit all referrals for any reason. Pharmacies regularly refer patients for reasons other than conscientious objection, including business and economic realities. Only conscience-based referrals were targeted by Planned Parenthood.
“To forge a consensus in support” of the Planned Parenthood rule, Governor Gregoire created a task force.[xxv] The group included representatives from Planned Parenthood, but lacked “any conscientious objectors, faith-based health care providers, or any other outside organizations besides [the Governor’s] ‘advocates,’ which were women’s reproductive rights groups.”[xxvi]
Still, the task force experienced a similar divide: Planned Parenthood advocated against permitting referral, while the medical community advocated for conscience protection. Specifically, the findings note:
All three pharmacists on the taskforce (not including the Board’s Executive Director Saxe) urged the taskforce to revise the Governor’s rule to permit referral for both business and conscience reasons.[xxvii]
However, Planned Parenthood “continued to insist that referrals for reason of conscience were off the table.”
In the end, the taskforce “reached a compromise.”[xxviii] The WSPA gave up protecting conscience rights and in return, “the Governor, Planned Parenthood, and advocates agreed to permit referrals for business, economic, and convenience reasons.”[xxix] Thus, referral would not be per se impermissible, but only where it stemmed from a religious, ethical, or moral reason was it barred. (This exclusion only applied to the provision of so-called “emergency contraception.” Taskforce members had agreed to allow conscientious referrals for lethal drugs that could be prescribed under Washington’s Death With Dignity Act (which permits physician-assisted suicide).[xxx])
With the anti-conscience rule set for a vote, and despite Governor Gregoire having been “previously instructed not to contact Board members” under the advisement that such contact could be illegal, the bullying continued:
Just days before the vote, the Governor personally called Board Chair Assad Awan. She told Awan that he was “to do [his] job” and to “do the right thing” and that she was going to “roll up her sleeves and put on her boxing gloves.[xxxi]
Then, “to guarantee final approval” of the regulation, the court notes that “the Governor took another unprecedented step,”
She involved her “advocates”—Planned Parenthood, NWWLC [the Northwest Women’s Law Center] and NARAL—in the process of interviewing candidates for the Board. Board Chair Awan, who applied for a second term, testified that his interview focused almost exclusively on the pharmacy refusal issue. His reappointment was opposed by the “advocates,” and the Governor declined to reappoint him.[xxxii]
Planned Parenthood was now directly involved in determining the composition of the Board that had initially rejected its proposal to deny freedom of conscience to pharmacists and pharmacies.
“The Governor then selected two new candidates recommended by Planned Parenthood” and a Board member confirmation hearing was scheduled for the day immediately following the Board’s final vote on the regulations.[xxxiii] “[O]n April 12, 2007, the Board voted to approve the final Regulations. Three Board members were confirmed the next day.”[xxxiv]
Planned Parenthood’s orchestrated campaign is perhaps even more unsettling when considering that the denial of conscience rights is demonstrably unnecessary and unconstitutional.
Following a 12-day trial, the court issued a resounding decision supporting the conscience rights of pharmacists and pharmacies, holding that the Planned Parenthood-driven regulations violate the First (free exercise) and Fourteenth (equal protection) Amendments of the U.S. Constitution.
In sum, the political intimidation and bullying tactics of Planned Parenthood, exposed in the Stormans case, were employed solely to advance its radical ideology, not a constitutional end or a demonstrated need.
[i] Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. 2012) [hereafter Stormans opinion]; Findings of fact and conclusions of law at Stormans, Inc. v. Selecky, 2012 U.S. Dist. LEXIS 22375 (W.D. Wash. Feb. 22, 2012). [hereafter Stormans findings]
[ii] “Before the 2007 Washington Board of Pharmacy regulations, pharmacies in Washington were permitted to refer patients for reasons of conscience. In 1995, when the Washington legislature enacted the “Basic Health Care Law,” it also enacted statutory protections for freedom of conscience. RCW 48.43.065(1)-(2)(a); see also RCW 70.47.160(1)-(2)(a). The law recognizes that ‘every individual possesses a fundamental right to exercise their religious beliefs and conscience,’ and provides that no healthcare entity, including pharmacies or pharmacists, ‘may be required by law or contract in any circumstances to participate in the provision of or payment for a specific service if they object to so doing for reason of conscience or religion.’” Stormans findings at ¶ 12.
[iii] A “facilitated referral” means a referral of the customer to another provider, including, upon the patient’s request, calling the provider to make sure the product is in stock.
[iv] Stormans findings at ¶ 274.
[v] Id. at ¶ 30. “[T]he position of many professional health care organizations…endorse referral as an appropriate alternative for pharmacists who assert conscientious objections. This includes the American Medical Association, American Society of Health-System Pharmacists, National Community Pharmacists Association, the American Pharmacists Association, and the Washington State Pharmacists Association.”
[vi] Id. at ¶ 274.
[vii] Id. at ¶ 31.
[viii] Id. at ¶ 34.
[ix] Id. at ¶ 35.
[x] Id. at ¶ 36. Additionally, the American Pharmacists Association (APhA) has also adopted a policy expressly recognizing “the individual pharmacist’s right to exercise conscientious refusal,” and supporting increased access to medication “without compromising the pharmacist’s right of conscientious refusal.” The APhA position, adopted in 1998, endorses referral when a pharmacist has a conscientious objection. See id. at ¶ 25.
[xi] Id. at ¶ 38.
[xv] Id. at ¶ 39-40.
[xvi] Id. at ¶ 12.
[xvii] Id. at ¶ 99.
[xviii] Id. at ¶ 42. “At the June 1 meeting, the Board rejected the Governor’s favored rule. Instead, it voted unanimously in favor of the draft that permitted referrals for business, economic, convenience and conscientious reasons.”
[xix] Id. at ¶ 43.
[xxii] Id. at ¶ 44.
[xxiii] Id. at ¶ 46.
[xxiv] Id.at ¶ 48.
[xxv] Id. at ¶ 49.
[xxvii] Id. at ¶ 50.
[xxviii] Id. at ¶ 52.
[xxx] Id. at ¶ 53.
[xxxi] Id. at ¶ 57.
[xxxii] Id. at ¶ 60.
[xxxiii] Id. at ¶ 61.
[xxxiv] Id. at ¶ 62.