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Open season on religious persons?

In Stormans, Inc. v. Wiesman, the Supreme Court refused to review a federal court’s decision that upheld a Washington State regulation forbidding pharmacists from refusing to provide contraceptives or abortifacients contrary to their religious belief.

This refusal, in other words, lets the federal appellate court decision stand, which would permit Washington State to force the consciences of pharmacists. The case is potentially a dark precedent because it allows states to discriminate against religious believers, even when the discrimination against them is clear – and even when no one was adversely affected by the assertion of religious conscience.

As I have written elsewhere before, the regulation was enacted through the lobbying of pro-choice groups. And the legislative history is rather clear that barring people from exercising their moral or religious conscience was the entire point of the exercise.

State pharmacy board members were threatened with personal liability if they enacted a measure protecting conscience, and the governor promised to fire any board members who wanted to protect religious liberty. But Washington does allow pharmacists to refuse to stock or deliver drugs for any number of reason including low sales, and may refuse to fill prescriptions, again, for any number of reasons, including refusing to accept certain forms of insurance. The double standard was obvious.

The federal district court found in favor of the pharmacists, determining that the regulation was unconstitutional and that the evidence was clear that the burden of the regulation would fall almost entirely upon religious pharmacists. The appellate court then essentially disregarded all the evidence found by the district court and inserted its own assessment that the regulation was supportable.

The state tried to argue that the point of the regulation was to “ensur[e]  that  its  citizens  have  safe  and  timely access to their lawful and  lawfully prescribed medications.”  But in fact the State admitted that referrals from one pharmacist to another, which are common in the pharmaceutical profession because no single pharmacy can stock all of the thousands of possible drugs, “help  assure  timely  access  to  lawfully  prescribed medications,” and are no threat to anyone.

stormans

So if someone cannot pay, a pharmacy can refuse them anything. But if a pharmacist believes dispensing a drug violates her religious beliefs, Washington has essentially said that person should not work as a pharmacist.

Justice Samuel Alito, in dissenting (along with Chief Justice Roberts and Justice Thomas) from the Court’s refusal to hear the case, points to the core problem here. He wrote that “[t]here  are  strong  reasons  to  doubt whether  the  regulations  were  adopted  for – or  that  they actually  serve – any  legitimate  purpose.  And  there  is  much  evidence  that  the  impetus  for  the  adoption  of  the regulations  was  hostility  to  pharmacists  whose  religious beliefs  regarding  abortion  and  contraception  are  out  of step  with  prevailing  opinion  in  the  State.”

Justice Alito’s argument is supported by the facts here. Almost all other states have religious-conscience laws. Here, the state stipulated that no one had been denied access to drugs because a pharmacist had religious objections to filling a prescription. As in may jurisdictions, pharmacists have ready referral sources to fill prescriptions either for religious or on-religious reasons.

And as Justice Alito notes, there is precedent directly on point. The Supreme Court found that the First Amendment prohibits laws that are seemingly neutral but which were in fact passed in order to prohibit certain religious practices; that a 1993 case involved laws prohibiting animal slaughtering were in fact directed against practitioners of Santeria.

Here, the evidence was very similar that the regulation was promulgated with the express intention of prohibiting pharmacists from exercising their consciences. Justice Alito noted, “[w]hile the regulations themselves  do  not  expressly  single  out  religiously motivated  referrals,  the  [State Pharmacy] Board’s  guidance  accompanying the regulations does: ‘The rule,’  it warns, ‘does not allow  a  pharmacy  to  refer  a  patient  to  another  pharmacy  to avoid filling the prescription due to moral or ethical objections.’”

It is hard to underestimate the danger to religious freedom represented, first, by the logic in the Washington regulation, then by the Supreme Court’s refusal to uphold constitutional rights. There would rarely be a case as clearly discriminatory as this one: the state was on record that the whole point of the regulation was to prohibit the exercise of religious conscience, there was no customer denied a prescription, the regulations provide for numerous secular loopholes that would have the same effect of denying prescriptions to customers, and enforcement of the regulation could have the effect of causing pharmacies to close, thus reducing access to pharmacy services.

This is basically a poll tax or voter literacy test against religious believers: it looks neutral but we all know who its targets are.

The bad logic of the appellate court’s decision, of course, cannot be limited just to pharmacies. If even explicit intent to force religious persons to violate their conscience is not enough, there is no natural limit to what states like Washington can impose – and in which professions a state will next declare religious believers unwelcome.

Gerald Russello

Gerald Russello

Gerald J. Russello is a lawyer and editor of The University Bookman (www.kirkcenter.org)

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