This week, the Supreme Court denied a writ of certiorari for Stormans, Inc. v. Wiesman, in a move that should cause great concern for those who value religious freedom. Those are Supreme Court Associate Justice Samuel Alito’s words, not mine. Refusing to hear this case and issue a ruling has left Washington state pharmacists in the lurch, unable to express their sincerely held religious beliefs. Thanks to Justice Alito, we can see the reasons why this development should be so concerning:
1. Pharmacists can refuse to deliver a drug/device, but not for religious, moral, or personal reasons.
Don’t voice personal beliefs, or you will go out of business. Under the Delivery Rule adopted by the Washington State Pharmacy Board, pharmacies must deliver lawfully prescribed drugs or devices, if approved by the FDA. There are exceptions to the rule, and one in particular which stands out: if a drug is temporarily out of stock [§246–869–010(1)(e)]. Theoretically, a pharmacy could continue to claim exceptions (such as a perpetually out of stock Plan-B contraceptive) but be secretly harboring illegal religious or moral objections.
The situation is dually troubling for the First Amendment. Either you must violate your beliefs or lie about them. First Amendment protections have broken down to the point where yelling “fire” in a crowded theater and saying “I think abortion is murder” are equally problematic. One gets you thrown in jail, and the other puts you out of business. Okay, that may not be perfectly equivalent, but it is not as if anyone wants to be saying, “Silver lining: my livelihood may be gone, but at least I’m not in prison. Anyone want to go see the new X-Men movie?”
2. Gov. Gregoire used threats to get her way.
Referrals for reasons of conscience allow pharmacists to send customers requesting contraceptives to other pharmacies nearby that do not object to providing contraceptives. This ensures that customers get the service they are legally permitted, and that a pharmacist need not violate his or her conscience. Win-win.
As the Washington State Pharmacy Board started the process on creating these new regulations, the state governor at the time, Christine Gregoire, “sent a letter to the Board opposing referral for personal or conscientious reasons.” No problems there, as the governor is allowed to voice her opinion, but when the Board voted anyway to adopt rules allowing referrals for those reasons, the governor reminded the board of her power, “publicly explaining that she could remove the Board members” if need be. Understandably, the Board adjusted the language to fit her wishes. “Obey or disappear” is a compelling threat.
3. The Supreme Court won’t even consider the case.
“Look, it’s not that think your religious objections aren’t as important as someone’s desire to get a contraceptive from you, but we just don’t care enough to clarify the distinction.” The balance of a religiously minded conscientious objector to abortifacients of any kind must be taken into careful consideration against the desire for access to said abortifacients. The belief in question here is that these drugs/devices end a human life. Disagreeing with that belief does not end the conversation for those who object, like the Stormans. For the Supreme Court to refuse to take on this question is a smack in the face to pro-life individuals, in this case particularly Washington state pharmacists.
So while the Supreme Court majority may not believe this case warrants their attention, to the pharmacists in Washington, the question remains (unsatisfactorily) unanswered: Why can’t their religious beliefs at least be kept in balance with the legal right of consumers to purchase abortifacients?
For those concerned about diminishing religious freedom in this country, it is a question that deserves an answer.
Kevin Dawson is Deputy Operations Manager for the American Principles Project.