Before heading out of town, the Supreme Court issued one last list of cases it would accept for appeal in the next term, along with a much longer list of cases where it was declining to review for one reason or another. Among the cases rejected for appeal is one from Washington State in which the Ninth Circuit Court of Appeals had ruled against a pharmacist who objected to stocking and selling the so-called “morning after” pill due to their belief that it was an abortifacient and that selling the product would violate their religious beliefs:
The Supreme Court will not review Washington state’s requirement that pharmacies dispense emergency contraceptives to women, prompting a complaint from conservative justices that it was an “ominous sign” for religious liberty.
Justice Samuel A. Alito Jr. issued a sharp dissent Tuesday to the court’s decision not to review a lower court’s ruling upholding the regulations. He was joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas.
Alito said that the case raised important First Amendment claims by religious pharmacists but that “this court does not deem the case worthy of our time. If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”
It takes the votes of four members of the court to accept a case for full briefing and review.
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Ralph’s Thriftway, a grocery store and pharmacy in Olympia, Wash., owned by a religious Christian family, brought the challenge. The family said it believes that life begins at conception and that “preventing the uterine implantation of a fertilized egg is tantamount to abortion,” Alito wrote. (There is disagreement about whether emergency contraception is an abortifacient.)
The pharmacy’s employees inform those who request Plan B or other emergency contraception that the store does not stock the drugs and refers customers to pharmacies that do.
But regulations issued in 2007 by the Washington State Board of Pharmacy require that all pharmacies stock the drugs. The regulations do not require an individual pharmacist to dispense the drugs but say stores must have on hand one pharmacist who will.
A district judge struck down the regulations, but the U.S. Court of Appeals for the 9th Circuit overruled.
The state of Washington argued that its protections for individual pharmacists showed that it was sensitive to religious objectors. The board’s regulations “accommodate individual pharmacists’ beliefs while fulfilling its mission of ensuring that patients timely receive needed medicines; and second, to ensure timely access to all medications (not just emergency contraceptives),” its brief to the court said.
Alito saw it differently: The state’s “bottom line is clear: Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives.”
As a preliminary matter, it’s important to note that while this case does appear on it’s surface to resemble the Hobby Lobby case and others dealing with employer-provided coverage for birth control under the Affordable Care Act, there are important differences that explain why the Plaintiffs in this case are in a far more precarious position. Namely, in Hobby Lobby and those related cases the employers at issue were able to take advantage of the Federal Religious Freedom Restoration Act, which provides certain statutory protections to people who have valid religious objections to otherwise generally applicable laws. In this case, previous Supreme Court case law establishes that the Federal RFRA cannot be used to invalidate state laws or the actions of state government agencies. Additionally, Washington does not appear to have a legislatively enacted RFRA, but rather a series of RFRA-like decisions from state courts that apparently don’t provide a defense or cause of action in this case similar to the one available in Hobby Lobby. The resulting lack of a RFRA is significant, because it means that the case must be judged almost entirely based upon the First Amendment and applicable case law that it is decidedly not favorable to the arguments the pharmacists are making.
As it turns out, this isn’t the first time this particular case has come up in a post here at OTB. I first made note of it back in 2012 when a Federal District Court Judge ruled in favor of the pharmacists in this case and held that they could not be compelled to sell the “morning after” pill if they have a valid religious objection. That ruling was eventually overturned by the Ninth Circuit Court of Appeals in July of last year, and it was the appeal of that ruling that the Supreme Court rejected this week. In it’s opinion, the Ninth Circuit relied primarily on the Supreme Court’s decision in Employment Division v. Smith in which the Supreme Court had rejected the religious liberty claims of a Native American fired for using peyote even though it was agreed by all parties that the peyote use was part of a Native American religious ceremony. The Supreme Court rejected the claim and noted the following in the most important part of the opinion written by Justice Scalia, “The right to exercise one’s religion freely, 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 prescribes) conduct that his religion prescribes (or proscribes).” The Court in Smith went on to note the following:
The “compelling government interest” requirement seems benign, because it is familiar from other fields. But using it as the standard that must be met before the government may accord different treatment on the basis of race, see, e.g., Palmore v. Sidoti, or before the government may regulate the content of speech, see, e.g., Sable Communications of California v. FCC, is not remotely comparable to using it for the purpose asserted here. 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.
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The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.”
In other words, in and of itself a claim that a law of general applicability may conflict with a claim of religious liberty is not sufficient to sustain a claim under the First Amendment. This applies to the employment laws at issue in Smith, and the pharmacy regulations at issue here, and it would have most likely applied to the HHS mandate in Hobby Lobby but for the Religious Freedom Restoration Act, which was passed by Congress and a number of states in response to the ruling in Smith. These RFRA laws don’t overrule Smith, though, because legislation can’t overrule opinions interpreting a provision of the Constitution. Instead, the RFRA laws purport to provide additional protections beyond the First Amendment, something which is arguably a violation of the Constitution itself. In any case, because of the lack of a RFRA law here, Smith controls the case and it’s likely that the Justices, with the apparent exception of Justices Alito and Thomas, who filed a dissent from the Court’s refusal to grant an appeal, just didn’t see the need to revisit that decision.
Not surprisingly, the failure of the Supreme Court to take up this appeal has caused Rod Dreher to be as melodramatic as usual. His blog post on the matter is titled “Christians Can No Longer Be Pharmacists,” and the rhetoric is about what you’d expect:
What has happened today to the Stormans is only the beginning. They fought the good fight, all the way to the Supreme Court — but they lost. You need to get over the idea that if we only fight hard enough and pray hard enough, that we will certainly win. Don’t misunderstand: we have to fight with everything we have. But we have to recognize that as the darkness grows and thickens, we are going to be losing these cases. We live in what Pope St. John Paul II called the Culture of Death. We need what I call the Benedict Option for a moment such as this for the Stormans, and for every Christian pharmacist who lives in a state that compels them to sell poison to expectant mothers who wish to exterminate the lives in their wombs. The Stormans will need help. They will need the spiritual and moral support of their community, both locally and beyond, and they will need financial help, because their family business has just been destroyed by the government. All because they would not sell a baby-killing pill that is widely available in pharmacists all over the state.
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The Left always accuses the Right of advancing the culture war, even though it is usually the Right playing defense. The pharmacists’ situation is a classic example. Nobody in Washington state had the slightest problem finding
RU-486Plan B. If they couldn’t get it at the Stormans’ pharmacy, there were plenty pharmacies nearby where they could. Conscience exemptions are standard nationwide, and state and national pharmacy professional associations filed amicus briefs supporting the Stormans. Nobody wanted this regulation, except the Jacobins of the Sexual Revolution.
Dreher’s objections are, of course, irrelevant. The State of Washington has made the public policy determination that licensed pharmacies must stock legally permissible drugs and provide them to customers who present valid prescriptions or otherwise qualify to have the medication distributed to them. The state isn’t requiring the pharmacist to administer the drug, or to endorse it in any way whatsoever, they are simply being required to provide the customer with what they are requesting, which in this case consists of a box sitting on a shelf behind the pharmacy counter. To be honest, the argument that this requirement violates religious liberty as that concept has been traditionally understood is silly. One does not have the right to violate a law that applies to everyone else and claim that you are protected by the First Amendment, in no small part because there’s no evidence in history or the law that the Amendment was ever intended to be used in this manner. If Dreher objects, then he should encourage Washington state to pass legislation granting protection to religious pharmacists, but they have chosen not to do that and, as such, the Ninth Circuit clearly got this case right.
For those interested in this history of this case, here’s the Ninth Circuit’s opinion in the case:
Storman’s Inc. v. Wiesman 9th Circuit Opinion by Doug Mataconis
And here’s the Alito/Thomas dissent from the decision to decline the appeal:
