Conscience Claws

This coming July, a federal court in Washington state will begin a two-week trial to determine whether the state violated the constitutional rights of pharmacists when it enacted a regulation forcing all pharmacists to dispense drugs even when doing so violates their religious beliefs. This case should be closely watched by Catholics and others who take religious liberty seriously.

The plaintiffs — individual pharmacists Rhonda Mesler and Margo Thelen, along with a family-owned pharmacy named Ralph’s Thriftway — are Christians who believe that human life begins at conception. Because of their religious beliefs, they do not want to dispense Plan B, a contraceptive drug that can prevent a fertilized egg from implanting in the womb. In 2006, at the behest primarily of pro-choice groups, the state of Washington passed a regulation that requires pharmacies to dispense Plan B and other drugs even if doing so violates their religious beliefs and even if Plan B is easily available at nearby pharmacies. Although pharmacies can refuse to stock any number of drugs for commercial reasons (such as low demand), they cannot refuse to stock drugs for religious reasons.

This regulation lets government treat religion in a way directly opposed to our constitutional heritage. American constitutionalism sets out a place for religious action, known in the First Amendment as “exercise,” that is protected from government interference. This protection has had two major consequences. First, it has kept the state from favoring any one religion. Second, it has allowed individuals the freedom to act on their religious beliefs without any interference from the state. The growth of the modern state, with its reach into core areas of life traditionally considered private, has put religious belief and action on a collision course with the state.

Because of Washington’s regulation, the pharmacists have been threatened with the loss of their jobs, and Ralph’s Thriftway has been subject to a government investigation. State politicians have used this regulation as a means to promote their own agenda. Amazingly, Washington Gov. Christine Gregoire even joined in a boycott and picketing of Ralph’s Thriftway. When the state Board of Pharmacy initially proposed rules to protect the conscience rights of individual pharmacists, Gregoire proposed her own regulation eliminating the rights. She also threatened to replace any board members who would not support the regulation.

The trial will decide whether Washington, by suppressing religious objections to dispensing Plan B, has violated the constitutional protection of the free exercise of religion. If the state prevails, it is almost a certainty that these laws will be pressed in other states, and religious freedom will take a clear back seat to abstract or changing notions of “choice” or “consumer rights.” The secularist assumption is that action based in religious belief needs to give way to whatever considerations the legislature deems important at the moment — even when those considerations explicitly infringe on some citizens’ rights.

As the Becket Fund for Religious Liberty, which has represented the pharmacists, stated: “The government should accommodate and protect the fundamental rights of all members of the medical profession, not punish some members because of their religious beliefs.”

What is at issue here is not one particular set of pharmacies or one set of drugs, but rather how the American people see the relationship between religion and society. If religion can be trumped by the will of any passing majority — or, as is more usually the case, at the behest of well-organized interest groups — then Americans do not enjoy free exercise of religion.

Gerald J. Russello is a fellow of the Chesterton Institute at
Seton Hall University.