WASHINGTON — The Supreme Court’s refusal to hear a conscience rights case raised by pro-life pharmacy owners came with a stark warning from the three dissenting justices who voiced concerns about the future of religious liberty in the U.S.
“This case is an ominous sign,” said Justice Samuel Alito. “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.”
Alito wrote a dissent — joined by Justice Clarence Thomas and Chief Justice John Roberts — after the Supreme Court denied an appeal to hear a conscience rights case on June 28. The case challenged Washington state rules that required pharmacies to dispense abortion-causing drugs and prevented those who object to abortion from referring customers elsewhere.
Alito said the rules could make a pharmacist unemployable if he or she has religious objections to dispensing certain prescriptions. Alito said there are “strong reasons” to doubt the regulations were adopted for a legitimate purpose.
“(T)here 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,” he said.
In 2007, the Washington Pharmacy Commission began to require pharmacies to dispense the abortion-inducing drugs Plan B and ella. The commission made conscience-based referrals illegal.
The new rule had an impact on the owners of Ralph’s Thriftway, a grocery store and pharmacy in Olympia, Washington run by Greg Stormans and his family, who are Christians opposed to abortion.
They filed a lawsuit against the state to halt enforcement of the regulations. They argued that the regulations were a substantial violation of their right to freely exercise their religion.
In July 2015, the U.S. Court of Appeals for the Ninth Circuit reversed a district court’s decision to suspend the regulations. The 9th Circuit said that the rules are neutral and “rationally further the State’s interest in patient safety.”
The Stormans and two other plaintiffs, pharmacists Margo Thelen and Rhonda Mesler, appealed the decision to the U.S. Supreme Court.
“All we are asking is to be able to live consistently with the beliefs that we hold, as Americans have always been able to do, and to be able to refer patients for religious reasons, as the medical and pharmaceutical associations overwhelmingly recommend,” Stormans said.
Kristen Waggoner, senior counsel with the legal group Alliance Defending Freedom, said it violated federal law to single out people of faith.
“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,” she said. “We had hoped that the U.S. Supreme Court would take this opportunity to reaffirm these long-held principles.”
The rules make Washington the only state that does not allow conscience-based referrals. These referrals have the support of leading pharmacist associations.
The Washington state Attorney General Bob Ferguson had asked the Supreme Court to refuse the appeal.
“Patients should know that when they need medication, they won’t be refused based on the personal views of a particular pharmacy owner,” Ferguson said June 28. “The appeals court ruling upheld today protects that principle.”
Justice Alito’s dissent said that allowing conscience referrals serves both the rights of conscience and practical ends, given that pharmacies can only stock a small fraction of the more than 6,000 drugs approved by the FDA.
“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,” he said.
Justice Alito noted the district court’s finding that the regulations’ predominant purpose was to “stamp out” the right to refuse to dispense emergency contraceptives for religious reasons. He said the plaintiffs raised enough suspicions that the challenged rules “reflect antipathy toward religious beliefs that do not accord with the views of those holding the levers of government power.”
Alito said the case resembled a previous Supreme Court decision that protected practitioners of Santeria from a law intended to bar animal sacrifice. He said there is “similar evidence of discriminatory intent” in the Washington rules.
He agreed with the plaintiffs that the Washington regulations appeared to have been “gerrymandered” to restrict religious practice and moral objections, while also granting “broad” secular exceptions like allowing pharmacies to decline service for financial reasons.