There is some good news for religious liberty, for once. A federal judge in Seattle ruled that state regulations requiring pharmacists to stock and supply contraceptives (including the Plan B “emergency contraceptive” pill), even when contrary to their religious beliefs, were unconstitutional.
The case involved two pharmacists from the family-owned business Stormans Inc., who brought a case against the Washington Department of Health.
Washington had adopted regulations that penalized pharmacists who refused to fill prescriptions on moral or religious grounds. No exceptions to the regulations were permitted, except where there was another pharmacist on duty who could fill the prescriptions.
The pharmacists claimed that these regulations were unconstitutional; among other reasons, because some pharmacies are too small to have more than one pharmacist on staff at the same time. Therefore, some pharmacists may be put into the untenable position of either filling the prescription contrary to their faith or facing sanctions for unprofessional conduct.
After reviewing the history of the regulations, the court found that the regulations were designed to ensure access to Plan B and related contraceptives, and not other drugs or to establish more general pharmacist practices.
Accordingly, “the overriding objective of the subject regulations was, to the degree possible, to eliminate moral and religious objections from the business of dispensing medication. … In actual operation, however, the regulations appear designed to impose a ‘Hobson’s choice’ for the majority of pharmacists who object to Plan B: Dispense a drug that ends a life as defined by their religious teachings or leave their present position in the state of Washington.”
Given this history, the court held that the regulations were not “neutral,” and in fact targeted the religious beliefs of some citizens.
Under First Amendment jurisprudence, the court held, such targeted regulations are unconstitutional. The case is still pending, however, so it is unclear whether the judge’s ruling will stand.
The case, however, exemplifies a larger argument about the future of religious liberty.
Liberty, and especially religious liberty, is becoming less of a protection against government interference, and more of a right to get the government to help you get what you want.
Isaiah Berlin, a British political theorist, famously characterized these kinds of liberty, respectively, as negative and positive liberty. Religious freedom is a classic negative liberty. The state cannot interfere with how one chooses to worship God, and everyone has the right not to be forced to worship contrary to one’s beliefs.
Positive liberty is the right to achieve one’s potential or to exercise our own autonomy. The problem arises when the state intervenes to guarantee a positive liberty, which in America is usually described under the rubric of “choice.”
The pharmacy regulations provide a perfect example. The state uses its regulatory power to guarantee consumers their right to purchase any legal drugs they want, as an exercise of choice. To do that, however, it tramples on those who want to be protected in the exercise of their religious liberty.
Robert Vischer, a law professor at St. Thomas University who has written widely on the rights of conscience and regulations such as those imposed in Washington, has stated that “What bothers me most about the [Washington] regulations is that they preclude pharmacies from staking out any distinctive claim on the propriety of offering morally contested products and services, short-circuiting any possibility that pharmacies can function as venues for conscience.”
In other words, state regulations such as those in Washington — which have been adopted in a number of other states — flatten the moral landscape. In most cases, the market should determine this sort of controversy: The religious objectors should be permitted to compete on equal terms with everyone else, which includes being allowed to conduct their business in line with their religious beliefs.
As in other areas, such as health insurance requiring contraceptive coverage or the recent controversy over Catholic adoption agencies in Massachusetts, the law of religious liberty is changing rapidly.
The disputes have shifted from protecting people’s ability to worship as informed by their faith — on issues such as religious expression, internal church governance, hiring policies and similar issues — to something else: a desire to use state power to support individual choice. In such conflicts, too often, religious liberty loses.
Gerald J. Russello is a fellow
at the Chesterton Institute
at Seton Hall University.