The Southern Baptist Ethics & Religious Liberty Commission (ERLC) has joined other organizations in urging the U.S. Supreme Court to clarify whether the free exercise of religion protects the conscience rights of pharmacists.
The ERLC and 10 other religious groups filed a friend-of-the-court brief Feb. 8 asking the high court to review a lower court decision that found a Washington state regulation that prohibits conscience-based pharmacy referrals does not violate the First Amendment’s free exercise clause. The brief – along with 13 others filed Feb. 8 – requests the justices to grant review in the 2016 term, which begins in October.
A family owned pharmacy in Olympia, Wash., and two pharmacists who work at other stores challenged a 2007 Washington rule that requires them to provide drugs that potentially can cause abortions. The Stormans family and pharmacists Margo Thelen and Rhonda Mesler challenged the regulation as a violation of their religious beliefs.
A federal judge ruled in their favor in 2012, saying the rule was not neutral. The Ninth Circuit Court of Appeals in San Francisco overturned that opinion last year, finding the regulation was neutral and “rationally related” to a legitimate government interest.
ERLC President Russell Moore said the Washington rule “is a clear case of overreach when it comes to religious liberty.”
“The right to follow conscience applies to all Americans, in or out of the public square, or it doesn’t apply to anyone at all,” Moore said. “My prayer is that the Supreme Court will repudiate this assault on religious freedom and uphold the rights of pharmacists to operate within the boundaries of their convictions.”
The Washington regulation allows pharmacists to make referrals for drugs they do not stock or dispense based on secular reasons but not based on religious conscience. The Stormans, who own Ralph’s Thriftway grocery store and its pharmacy, and the two pharmacists will refer patients who seek such drugs as Plan B or “ella” to other pharmacists. More than 30 pharmacies within five miles of Ralph’s Thriftway stock the drugs, the Stormans family says.
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.
Lawyers for two organizations representing the pharmacy and pharmacists decried the rule’s violation of religious freedom.
“No one should be forced to choose between following their deepest religious beliefs and following an unjust, unneeded government mandate that targets only people of faith,” said Kristen Waggoner, senior vice president of legal services for Alliance Defending Freedom (ADF), in a written statement. “The state of Washington allows referrals for nearly any reason but does not allow referrals motivated by faith.”
In written comments, Luke Goodrich, deputy general counsel of the Becket Fund for Religious Liberty, called it “absurd to force a pharmacy to sell drugs against their conscience” when 30 nearby pharmacies sell the same drugs.
In their brief, the ERLC and others point out that the regulation, if it stands, will force the Stormans to close their store and the pharmacists to leave their profession or the state. If the Ninth Circuit decision is not overruled, it could affect religious freedom more widely, they contend.
The Ninth Circuit ruling “effectively invites other courts to sustain laws and regulations that target religious believers and religious communities for unusual penalties, so long as the law has the appearance of formal neutrality,” according to the ERLC-endorsed brief. The Supreme Court needs to review the appeals court opinion to prevent it “from becoming the model for other courts to deny the First Amendment right to exercise religion,” the brief says.
The Supreme Court should take the case to settle the conflicts among appeals courts and to affirm the views found in the Constitution, history and previous high court decisions that the free exercise of religion is “a fundamental liberty,” the brief says.
The justices also should review the Ninth Circuit decision because of the harm it will cause religious adherents if not overturned, according to the brief signed onto by the ERLC.
If the high court does not grant review, the Ninth Circuit ruling “could pave the way for a legal regime that permits official hostility toward religion – especially toward people of faith with traditional moral views,” the brief says.
In addition to the ERLC, others signing onto the brief were the National Association of Evangelicals, Church of Jesus Christ of Latter-day Saints, Lutheran Church-Missouri Synod, Union of Orthodox Jewish Congregations of America, Anglican Church in North America, General Conference of Seventh-day Adventists, Evangelical Presbyterian Church, American Bible Society, Northwest Ministry Network of the Assemblies of God and Queens Federation of Churches.
Also among those filing friend-of-the-court briefs Feb. 8 in support of the pharmacy and pharmacists, according to ADF, were the American Pharmacists Association and 37 other national and state pharmacy associations, more than 4,600 health-care professionals, 13 states, 43 members of Congress, nearly 30 religious liberty scholars and five pro-life medical associations.
The case is Stormans v. Wiesman.
(EDITOR’S NOTE – Tom Strode is the Washington bureau chief for Baptist Press, news service of the Southern Baptist Convention.)