Elizabeth Slattery writes about the rule of law, the proper role of the courts, civil rights and equal protection, and the scope of constitutional provisions such as the Commerce Clause and the Recess Appointments Clause as a legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Read her research.
Cole Wintheiser is a member of the Young Leaders Program at The Heritage Foundation.
Can a state force pharmacists to prescribe abortion-inducing drugs at the expense of their religious beliefs? This is the central issue in a case the Supreme Court may agree to hear in its next term.
In 2007, the State of Washington passed a law requiring all pharmacies to deliver “all lawfully prescribed drugs or devices” in a timely manner to all customers. This “Delivery Rule” contains several exemptions such as business or convenience reasons for not stocking certain drugs, but there is no exemption for religious objections.
The Stormans believe that by dispensing these drugs, they would be aiding in the destruction of human life, directly contradicting their Christian faith.
Ralph’s Thriftway, a small family-run grocery store and pharmacy, was investigated by the state’s Pharmacy Quality Assurance Commission for refusing to stock any form of abortifacient, such as Plan B. The Stormans family, which owns Ralph’s, cites religious beliefs as its justification for refusing to stock abortifacient drugs. The Stormans believe that by dispensing these drugs, they would be aiding in the destruction of human life, directly contradicting their Christian faith.
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Although Ralph’s does not carry Plan B, if a customer requests it, employees provide a list of local pharmacies and drug stores that carry the drug, even going so far as to call other pharmacies to confirm that the drug is in stock.
There are over 30 other pharmacies and drug stores that carry Plan B within five miles of Ralph’s, all of which are included on their referral list. Thus, not a single Ralph’s customer in search of Plan B has ever been denied timely access to it.
Every other state in the U.S. allows such referrals, and the state of Washington itself has stipulated that conscience-based referrals “do not pose a threat to timely access to lawfully prescribed medications.”
Abortion rights activists learned about Ralph’s conscience-based referrals and began sending test shoppers to the store, who filed complaints with the Pharmacy Quality Assurance Commission after they received a referral rather than a filled prescription. This led to an investigation, and Ralph’s was threatened with losing its pharmacy license. Subsequently, the Stormans filed suit against the State of Washington, arguing that the Delivery Rule violates the First Amendment’s Free Exercise Clause, among other claims.
A federal district court ruled in favor of the Stormans, finding that the Delivery Rule intentionally targeted religious practice for disfavored treatment and failed strict scrutiny review. The judge noted:
A pharmacy is permitted to refuse to stock oxycodone because it fears robbery, but the same pharmacy cannot refuse to stock Plan B because it objects on religious grounds. … Both pharmacies refuse and refer, both refusals inhibit patient access, yet the secular refusal is permitted and the religious refusal is not.
The district court pointed out that pharmacies nationwide, as well as in Washington, refuse to carry different drugs for various reasons: if the drug is unprofitable, requires additional equipment or training, or attracts an “undesirable clientele.” The exemptions would allow a pharmacy to refuse to sell just about any drug, as long as it is not for religious reasons.
On appeal, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed the district court decision, holding that the Delivery Rule is a neutral and generally applicable law and is therefore subject to rational basis review (a lower standard of review than strict scrutiny).
The panel found that the law easily survived rational basis review because it was rationally related to the state’s legitimate interest in “ensuring that its citizens have safe and timely access to their lawful … medications.”
Now the Stormans have petitioned the Supreme Court to review their case, which the Court should consider sometime in March.
The Stormans argue that the legal issue involved should be governed by the Supreme Court’s ruling in Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993), in which the Court held that states may not pass laws prohibiting people from engaging (or refusing to engage, as in this case) in conduct for religious reasons while permitting people to engage in the same conduct for nonreligious reasons.
In the Lukumi case, the Court struck down city ordinances banning the slaughter of animals that, although facially neutral, were aimed specifically at practitioners of Santeria, a religious group that practiced ritual animal slaughter. The Court explained that while the ordinances were put in language that was “the epitome of neutral,” they blatantly targeted those who adhere to the Santeria faith.
The Supreme Court noted that the ordinances were neither neutral nor generally applicable because they burdened a particular religious group “but almost no others” and exempted many others.
The Stormans argue that the Delivery Rule affects them in the same way:
[It] burdens religious objections but no others; [it] prohibit[s] conscience-based referrals even when the State has stipulated that they pose no threat to timely access to Plan B and [it is] riddled with secular exemptions that undermine [the] stated goal in a similar or greater degree than conscience-based referrals would” (internal citations omitted).
The First Amendment’s Free Exercise Clause was intended to protect citizens from exactly this form of targeting by the government. Washington State, in an attempt to force a secular set of values upon its citizens, has violated one of the principle rights guaranteed to all Americans in the First Amendment.
While some people might not agree with the Stormans, or share their opposition to abortion, it is essential to recognize that the government should not be able to force Americans to set aside their deeply held beliefs simply because they step outside the four walls of a church.
Pharmacists, just like everyone else, have a right to exercise their religious beliefs.