The U.S. Supreme Court has dealt a setback to religious freedom and prompted a warning from three of its members.
The high court announced June 28 it would not consider an appeal by pro-life pharmacists of a lower court decision they argued violates their First Amendment, free-exercise-of-religion rights. The justices’ refusal to review the federal appeals court opinion apparently will force the closure of the pharmacy involved and the departure from the profession or state of the pharmacists in the case.
Three of the justices dissented from the order, describing it as “an ominous sign.”
“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,” Associate Justice Samuel Alito wrote on behalf of the dissenters.
The Ninth Circuit Court of Appeals in San Francisco overturned last year a federal judge’s decision and upheld a Washington state rule that prohibits conscience-based pharmacy referrals. The appeals court – in affirming a regulation that permits pharmacists to make referrals for drugs they do not stock or dispense based on secular reasons but not based on religious conscience – ruled it does not violate the free-exercise clause.
Defenders of religious freedom strongly disagreed.
Southern Baptist ethicist Russell Moore called the order “a disappointing and senseless decision by the court, one that signals that pro-life pharmacists must check their convictions at the door.”
“This coercion of the conscience is a disaster for every American, though, not just pharmacists,” said Moore, president of the Ethics & Religious Liberty Commission (ERLC), in written comments for Baptist Press (BP). “Everyone has a stake in religious liberty and soul freedom, and this inaction by the Supreme Court shows how urgently we must advocate for the conscience rights of all.”
Kristen Waggoner, senior counsel for Alliance Defending Freedom (ADF), said, “All Americans should be free to peacefully live and work consistent with their faith without fear of unjust punishment, and no one should be forced to participate in the taking of human life. We had hoped that the U.S. Supreme Court would take this opportunity to reaffirm these long-held principles.”
ADF represented the pharmacists in their legal challenge, and the ERLC supported them in a friend-of-the-court brief.
“Singling out people of faith and denying them the same freedom to refer is a violation of federal law,” Waggoner said in a written release. “Not one customer in Washington has been denied timely access to any drug due to a religious objection. As the [federal court] found, the government designed its law for the ‘primary – if not sole – purpose’ of targeting religious health care providers.”
Alito echoed that finding in his dissent, writing, “There are strong reasons to doubt whether the regulations were adopted for – or that they actually serve – any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State.
“The bottom line is clear: Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives,” he said.
Chief Justice John Roberts and Associate Justice Clarence Thomas joined Alito in dissenting. The majority offered no explanation for its decision, which is typical in orders declining review.
The Stormans family, which owns a pharmacy in Olympia, Wash., and Margo Thelen and Rhonda Mesler, pharmacists who work at other stores, challenged the 2007 Washington rule that requires them to provide such drugs as Plan B and “ella.”
The Stormans, who own Ralph’s Thriftway grocery store and its pharmacy, and the two pharmacists were willing to refer patients who seek potentially abortion-causing drugs to other pharmacists. More than 30 pharmacies within five miles of Ralph’s Thriftway stock the drugs, according to ADF.
Plan B, also known as the “morning-after” pill, possesses a post-fertilization mechanism that potentially can cause abortions by preventing implantation of tiny embryos. In a fashion similar to the abortion drug RU 486, “ella” can act even after implantation to end the life of a child.
The ERLC and 10 other religious groups filed a friend-of-the-court brief in February that asked the high court to review the Ninth Circuit’s opinion.
The American Pharmacists Association and 37 other national and state pharmacy associations were among others who filed briefs in support of the pharmacy and pharmacists.
The case was Stormans v. Wiesman.