BY Gerald J. Russello
January 29-February 11, 2012 Issue | Posted 1/23/12 at 6:52 PM
In a federal court in Seattle, the fight for religious liberty is entering a new phase.
As we have written before (“Conscience Claws,” Register, May 31, 2010), the case, called Storman’s, Inc. v. Selecky, shows in stark relief the role of the state in infringing religious liberty in favor of secular values.
Christian pharmacists are protesting a law that would require them to stock and provide “Plan B” in violation of their religious beliefs.
The state’s view is that consumer demand should drive religious accommodation; that is, that consumers’ desire to receive whatever drugs or products they would like should trump the values of those who do not wish to stock those products for reasons of conscience, including religious belief.
In a pluralist society, accommodations need to be made among citizens who believe different things. In the pharmacy wars, flexible standards could be adopted that would enable religious pharmacists and their customers such a reasonable accommodation.
For example, there may be questions of access to certain drugs in less populous areas, which may require pharmacists to thoughtfully be able to abide by their consciences and still provide access. And, indeed, in most cases, this is what happens today.
As the pharmacists’ brief (co-written by the admirable lawyers at the Becket Fund for Religious Liberty) states, pharmacists refer customers to other pharmacies, every day, for a variety of reasons.
Despite months of litigation, to date the state of Washington has been unable to identify any case where a person who wanted Plan B, or any other drug, was unable to get it because of a pharmacist’s religious objections.
The plaintiffs here had a practice of referring customers to other nearby pharmacies. There is no valid reason, according to the plaintiffs, why this practice should not continue, as it does today for other reasons.
As Luke Goodrich, the Becket Fund’s deputy national litigation director, stated, “If pharmacies can refer patients elsewhere when a drug is unprofitable or out of stock, they should be allowed to do the same thing when the drugs violate their deepest religious convictions.”
But such reasonable compromise is not the source of the requirements; here, Washington is not acting as an umpire, making reasonable calls among competing beliefs, but as a participant, placing the weight of the law in favor of one set of beliefs against another.
As the plaintiffs are showing, the regulations were passed with a clear animus against religious believers.
Indeed, the requirement to stock Plan B and the prohibition on pharmacists from refusing to stock it or any other drug on religious grounds have been selectively enforced only against religious believers.
That is, the state’s regulations “create categorical exemptions for secular conduct but not religious conduct.” So, for example, a pharmacy can refuse to stock drugs because doing so would be uneconomical or burdensome, but not because they have a religiously based objection.
That is, Washington allows pharmacists to bow before the market and do its will, but not their God. Although Washington requires pharmacies to stock a “representative selection” of drugs, no pharmacy, other than the ones suing here, has ever been sanctioned for failing to do so. This inversion of the traditional priority of religious liberty above others makes no sense.
Further, the facts the litigation has unearthed are disturbing in what they say about what happened in the Washington state Legislature and governor’s mansion and what is happening in similar places all across the nation. These regulations were not passed with a neutral intent or with the purpose of remedying some actual lack of access to drugs. Rather, the legislative history shows that the regulations were lobbied for specifically to burden religious objectors. And when the state Board of Pharmacy began its deliberations over the new regulations, the state human-rights commissions sent a threatening letter to the pharmacists arguing that allowing religiously based objections would be considered a form of discrimination. And throughout the entire time period the governor’s senior health advisor had been in open and obvious collaboration with pro-regulation lobbyists. What can only be called a strategy of intimidation worked: The board ultimately reversed the practice of referrals based on conscience and prohibited pharmacies from refusing to stock Plan B on religious grounds.
Given this background, the regulations fall under what the Supreme Court has called “strict scrutiny.” That is, only the most critical state motives can justify such regulations, and only in the least intrusive manner possible. Washington fails both of those tests. Among the eight states that have passed similar regulations, only Washington and Illinois have passed such far-reaching laws; and a federal court struck down the law in Illinois as a violation of the Free-Exercise Clause.
The trial is now proceeding, and closing arguments were expected Jan. 18, with the judge announcing the decision the next day. The results of this trial will have far-reaching effects, as the battle for religious liberty shifts from the federal arena to state regulations such as these.
Gerald J. Russello is editor of The University Bookman (KirkCenter.org).
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