• Facebook
  • Twitter
  • Subscribe
  • RSS

SCOTUS Declines To Hear Appeal Of Pharmacists With Religious Objection To ‘Morning After’ Pill

Plan B

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.

(…)

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.

(…)

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.

(…)

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-486 Plan 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:

Storman’s Inc. v. Wiesman Dissent by Doug Mataconis

Related Posts:

  • None Found

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    Tough times for the pro-lifers. I honestly don’t know what their next move might be. It sure looks like they’ve run out of road.

    Like or Dislike: Thumb up 0 Thumb down 0

  2. Mr. Prosser says:

    @michael reynolds: It sure looks like they’ve run out of road Don’t bet on it.

    Like or Dislike: Thumb up 0 Thumb down 0

  3. humanoid.panda says:

    Somewhat to my surprise, as someone who thinks that 99% of the new generation of religious claims are BS, I am in slight disagreement with Doug. The key point for me is that the state of Washington was unable to actually a demonstrate a case in which a woman failed to obtain Plan B due to pharmacist malfeasance. In light of that reality, I think a compromise under which a pharmacy can avoid dispensing the medication if, and only if, there is another pharmacy nearby, and it is willing to compensate the patient for the hassle, and has to post advance notice about this to avoid humiliation of the patient, would be a better solution than a blanket regulation.

    Like or Dislike: Thumb up 0 Thumb down 0

  4. Grumpy Realist says:

    Yeah. It was Rod’s histrionics on this that sparked my comment wishing that he would just keep his mouth shut about law.

    What really irks me about this case is that there’s no evidence that Plan B acts as an abortificant, but we have to all bow down and pretend that the claimants belief that it is–is true.

    Like or Dislike: Thumb up 0 Thumb down 0

  5. 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.

    Are you really saying that you think every single Pharmacy in the state of Washington has a stock of every single approved drug currently on the market? I find that unlikely.

    Like or Dislike: Thumb up 0 Thumb down 0

  6. stonetools says:

    @humanoid.panda:

    I’m sure the pharmacist would reject this compromise as requiring them to help the woman find someone who would facilitate the murder of her precious little pre-born child. You can’t compromise with those who are uninterested in compromise.

    Like or Dislike: Thumb up 0 Thumb down 0

  7. Grumpy Realist says:

    @Stormy Dragon: considering that this whole mischuga started then pharmacists were refusing to stock AIDS drugs because of those icky icky gays….

    My solution would be very simple: either provide the Plan B or pay for an abortion after implantation or (if the woman desires instead) fund all medical treatments through childbirth as well as 18 years of child support.

    Like or Dislike: Thumb up 0 Thumb down 0

  8. humanoid.panda says:

    @stonetools:

    I’m sure the pharmacist would reject this compromise as requiring them to help the woman find someone who would facilitate the murder of her precious little pre-born child. You can’t compromise with those who are uninterested in compromise.

    Yes, I presumed that, except that the claims they made in court are based on apre-existing reference arrangements that exist in 49 states. Also, notably, their claims were supported by all the major proffesional organizations in the field..

    Like or Dislike: Thumb up 0 Thumb down 0

  9. @Grumpy Realist:

    Even better solution would be to just make Plan B available over the counter, so that women don’t have get an authority figure to approve their choices.

    Like or Dislike: Thumb up 0 Thumb down 0

  10. Grumpy Realist says:

    @Stormy Dragon: that still requires the pharmacy to stock it, however. Wasn’t Plan B recommended to be OTC some time ago?

    Like or Dislike: Thumb up 0 Thumb down 0

  11. @Grumpy Realist:

    If it was OTC, the stocking would be less of a problem too, because places other than licensed pharmacies could sell it.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. Argon says:

    Not surprisingly, the failure of the Supreme Court to take up this appeal has caused Rod Dreher to be as melodramatic as usual.

    The Dreher drinking game: Every time Rod writes the phrase ‘Benedict option’ take a drink. For ‘culture of death’, two drinks. Be sure to call ahead to the emergency room before starting.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. Gustopher says:

    @Stormy Dragon: I have no idea why people voted this comment down — I know that my local pharmacy does not stock some legally available drugs, not for moral or religious reasons, but just for stock management reasons.

    Is there a required stock list that all pharmacies must have on hand as part of their licensing? That sounds reasonable, but I haven’t found that list on the internet, perhaps buried in the news of this ruling.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. gVOR08 says:

    @Gustopher: My understanding from other stories is that the State of Washington has such a list.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. Paul Hooson says:

    Plenty of other people want to work and will take this worker’s job if they don’t want to perform their job duties. It’s the employer’s dime so an employee needs to follow orders and things the way the employer wants.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. Just 'nutha ig'rant cracker says:

    @Grumpy Realist: What confuses me about the situation here is that the pro-choice cohort has, at least in the past, held that virtually ALL birth control products for women (hmmmm…) are abortifacient (and the really hard liners are opposed to condoms because they see a prohibition in Leviticus). I’m seeing a distinction without a difference here.

    Of course, the answer for this family is to follow the advice of the Apostle Paul (modernized and adapted to the situation) “…but if running a pharmacy will cause people to sin, then I won’t run a pharmacy.”

    Like or Dislike: Thumb up 0 Thumb down 0

  17. Just 'nutha ig'rant cracker says:

    @Gustopher: I live in Washington also, and the situation that I have always experienced was that the pharmacy has anything that I might order available on 24 hours notice. At least indirectly, the pharmacy has everything available all the time.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. slimslowslider says:

    @Argon:

    Two shots for any mention of “law of merited impossibility” and a six pack if you can understand anything EliteCommInc is talking about.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. Kari Q says:

    @slimslowslider:

    If you think you understand what EliteCommInc is talking about, you should probably stop drinking because you’ve clearly had too much already.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. JohnMcC says:

    Wow, I thought that Grumpy Realist and I were probably the only OTB’ers who kept up with Rev Dreher. Wonder how many of his page clicks are from liberals tuning in to watch the melodrama?

    Like or Dislike: Thumb up 0 Thumb down 0

  21. slimslowslider says:

    @JohnMcC: the law of unmerited clicks.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. Neil Hudelson says:

    @JohnMcC:
    I lurk at Dreher’s–it’s like watching a slow motion car wreck every single day.

    And I’ve really come to appreciate Larison and Millman.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. grumpy realist says:

    @Just ‘nutha ig’rant cracker: which, if you’re dealing with a very time-sensitive pharmaceutical (which is what Plan B is) means you should have it on hand the entire time.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. sam says:

    My take of Rod is that he uses TAC primarily as a vehicle to sell his latest book. I sometimes wonder how Larison, Millman, et al. feel about his incessant God-bothering.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. grumpy realist says:

    @grumpy realist: P.S. There’s a difference between pharmaceuticals which are shelf-stable but are used within a very narrow time period, and pharmaceuticals which have a very short shelf life. Requiring a pharmacy to carry the first is an entire different kettle of piscine inhabitants from the latter.

    Like or Dislike: Thumb up 0 Thumb down 0

  26. Kari Q says:

    I mostly read Larison, but I do stop by Dreher’s blog to find out the ways Christians are being persecuted today. It’s an invaluable one stop source for that information.

    Like or Dislike: Thumb up 0 Thumb down 0

  27. Argon says:

    @Neil Hudelson:

    And I’ve really come to appreciate Larison and Millman.

    I suspect Rod is there for page views rather than content.

    Like or Dislike: Thumb up 0 Thumb down 0

  28. Just 'nutha ig'rant cracker says:

    @grumpy realist: My comment was addressed at the question of stocking “every single approved drug on the market” not priority of inventory. Sorry you misunderstood.

    Like or Dislike: Thumb up 0 Thumb down 0