The Stormans family owns the pharmacy Ralph’s Thriftway, and they object to selling Plan B and ella—two potential abortifacients—because they believe life begins at conception. If customers ask for either of those drugs, Ralph’s staffers refer them to other nearby pharmacies. Ralph’s reports 30 pharmacies within five miles stock the drugs.
That was not satisfactory to the state of Washington, where the governor and abortion groups lobbied to change pharmacy rules to require the sale of abortifacient drugs over conscience objections. The Stormans and two other pharmacists objected to the new rules on First Amendment grounds, winning their case at the district court level, then losing at the 9th U.S. Circuit Court of Appeals.
On June 28 the Supreme Court told the pharmacists they do not have a case, rejecting their appeal.
“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,” wrote Justice Samuel Alito in a lengthy dissent from the decision not to hear the case. Chief Justice John Roberts and Justice Clarence Thomas joined his dissent, which means Justice Anthony Kennedy provided the decisive fifth vote to reject the case. The court requires four votes to take a case.
Throughout Alito’s dissent, he quoted Kennedy’s own words in Church of Lukumi Babalu Aye v. City of Hialeah, a 1993 case in which Kennedy ruled a city ordinance against animal sacrifice unconstitutionally targeted the religious exercise of the Church of Lukumi Babalu Aye.
If a law is designed to target an exercise of religion, it isn’t considered “neutral,” and must meet a higher constitutional standard to survive. In this case, the 9th Circuit considered the law “neutral” and never applied that higher standard to the case. Alito, citing evidence gathered in the district court, said the rule clearly targeted pharmacists who object to dispensing Plan B and ella on conscience grounds.
He also noted pharmacies can refuse to dispense medications for all kinds of “secular” reasons; pharmacies only come under condemnation if they do not dispense based on religious grounds. Washington state allows pharmacies to refuse prescriptions if they don’t accept a patient’s insurance or if it doesn’t accept Medicaid or Medicare.
“A pharmacy accordingly may deny all prescriptions to certain patients, many of whom (those on Medicaid) are particularly likely to lack ready means of traveling to another pharmacy,” Alito wrote. He said pharmacies refer patients to other pharmacies regularly because they may not stock every FDA-approved drug at any one time.
“The dilemma this creates for the Stormans family and others like them is plain: Violate your sincerely held religious beliefs or get out of the pharmacy business,” Alito wrote.
Washington officials, in announcing the rule, acknowledged some pharmacies may close in order not to violate their beliefs but claimed other pharmacies would take their place. The dissenters argued even if a pharmacy did replace the closing pharmacy eventually, closures would reduce access to all medications, not just plan B and ella.
“The bottom line is clear: Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives,” Alito wrote.
Kennedy’s vote here is confusing, given his pretty good record on religious liberty. For example, he joined the majority in Hobby Lobby in providing religious accommodation for business owners under the Religious Freedom Restoration Act.
A generous reading of Kennedy’s vote not to hear the case is that he foresaw a tie, which would have left the 9th Circuit ruling in place anyway. If the court granted the case for its next term, and a Democratic president appointed a ninth justice this fall or next year, that could have resulted in a bad national precedent on religious liberty. As it is, the 9th Circuit ruling is limited to Washington state.
— by Emily Belz | WNS