I’m curious how newly minted opponents of RFRA would respond to a hypo regarding RFRA and lethal injection.
The pre-execution drama in Arizona this week revolved around identifying the manufacturer of the lethal-injection drugs and getting information about how those relatively new drugs were chosen.
Imagine that Arizona, concerned about its compelling interest in ensuring that its executions are carried out in the most humane manner possible, passes a law requiring pharmaceutical companies to provide those drugs to the state. Could a pharmaceutical company owned by religious opponents of the death penalty raise a RFRA defense?
It strikes me that the same objections raised against Hobby Lobby’s RFRA claim apply here. The pharmaceutical company is for-profit and a corporation, there is an intermediate actor who is the one actually using the drug itself, and there are third parties (the condemned prisoners) who are affected. But the defense ought to be just as valid as it was for Hobby Lobby.