Bench Memos

Pharmacists’ Conscience Rights on Trial—Violation of Free Exercise Rights

As I’ve outlined, in an important case for the cause of religious liberty, the owners of a family pharmacy and two individual pharmacists are challenging Washington state regulations that require them to dispense the drug Plan B. That requirement contravenes their religiously informed conscientious convictions not to participate in the destruction of the life of an unborn human being.

The testimony in the federal-court trial is now complete, and the judge intends to announce his decision on January 19. [Update (1/19): Closing arguments have been rescheduled for Feb. 1.] In this post, I will explain how the state regulations violate the plaintiffs’ Free Exercise rights under the First Amendment of the federal Constitution.

In Employment Division v. Smith (1990), the Court ruled that the Free Exercise Clause does not give an individual the right to engage in religiously motivated action that violates a “valid and neutral law of general applicability.” Because Oregon law generally prohibited use of the drug peyote, it could apply that general prohibition to individuals who ingested peyote for sacramental purposes at a ceremony of the native American church to which they belonged.

Three years later, in Church of Lukumi Babalu Aye v. City of Hialeah(1993), the Court ruled that a city’s ban on religious animal sacrifice was not “neutral” or “of general applicability.” Among other things, the Court determined that “suppression of the central element of the Santeria worship service was the object” of the city’s ban, and that “almost the only conduct subject to [the ban] is the religious exercise of Santeria church members.” Further, while the ban was asserted to advance the interests of protecting the public health and preventing cruelty to animals, it “fail[ed] to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does.” The ban was therefore subject to “the most rigorous of scrutiny”: it would survive only if it advanced “compelling” governmental interests and was “narrowly tailored in pursuit of those interests.” But the fact that the ban did not apply to nonreligious conduct “producing substantial harm” to the asserted governmental interests showed that those interests were not in fact compelling.

It is clear that the Washington state regulations at issue are not neutral and generally applicable. Washington’s alleged interest in its regulations is to promote its residents’ health by ensuring timely access to lawful medications.But, as I detailed in my post exploring those regulations, the regulations expressly set forth various secular exceptions to the general duty to dispense drugs. Some of these exceptions, as plaintiffs readily acknowledge, are consistent with Washington’s alleged interest, as they protect patients’ health and prevent fraud. But other exceptions affirmatively undermine that alleged interest just as much as, or more than, conscientious objections would.

For example, the state allows pharmacies to refer customers elsewhere when, for various secular reasons, it doesn’t have a drug in stock—for example, when the drug falls outside the pharmacy’s chosen business niche, when the pharmacy determines that the drug is too expensive or has too short a shelf life, or when its restocking practices have left it temporarily out of stock. The state also allows pharmacies to accept payments only from certain insurance plans, to refuse to serve Medicare or Medicaid patients, and to require payment in cash. And the state allows pharmacies to refer customers elsewhere when dispensing a drug would take extra time—such as when a drug requires simple compounding, extra patient monitoring, or additional paperwork.

In all of these cases, a customer who is referred elsewhere for Plan B (or any other drug) is in the same situation, and faces the same delay, as a customer who is referred elsewhere because a pharmacist has a conscientious objection to dispensing the drug. Yet the state bans only referrals for reasons of conscience and not referrals for these various business reasons. That shows that the regulations are not neutral and generally applicable.

The state defendants claim that the regulations are neutral and generally applicable because they forbid conscientious objections that are not religiously based along with those that are. But that claim misses the point. When considering whether a law is neutral and generally applicable, the question is not whether some secular conduct is banned together with religious conduct; the question is whether the law applies equally to all relevant conduct, both secular and religious.  Here, the regulations ban referrals for reasons of conscience but permit analogous referrals for a wide variety of secular reasons—thus belying the asserted urgency of the state’s interest in ensuring timely access. (Further, there is no evidence in the record of any pharmacist who has non-religious “moral” objections to dispensing drugs, and any such moral objections might well qualify as religious for purposes of Free Exercise protection.)

The state defendants also argue that the regulations are permissible because they are not as bad as the ordinances struck down in Lukumi. But as the lower courts have recognized, laws that fall well short of the extreme situation in Lukumi may still violate the Free Exercise Clause. (The unanimous Court in Lukumi stated that the ordinances there “fall well below the minimum standard necessary to protect First Amendment rights” (emphasis added).) Thus, for example, in Fraternal Order of Police v. City of Newark, the Third Circuit addressed a police-department policy that required male officers to shave their beards unless they had medical reasons for not doing so. Officers whose religious beliefs required them not to shave challenged the policy on Free Exercise Clause grounds. The Third Circuit, in an opinion by then-Judge Alito, ruled in their favor, as it declared itself “at a loss to understand why religious exemptions threaten important city interests but medical exemptions do not.” The fact that the policy prohibited numerous non-medical secular reasons for not shaving—e.g., fashion, convenience, paying the price of a lost bet—along with religious reasons did not make it neutral and generally applicable because the exemption for medical reasons undermined the city’s alleged interests just as much as an exemption for religious reasons would have.  

For the same reasons that the state regulations aren’t neutral and generally applicable, they also can’t satisfy the “compelling interest” test: Washington can’t maintain that it has a compelling interest in ensuring timely access to drugs when it permits pharmacies not to dispense drugs for various secular reasons that have nothing to do with health. Further, the state defendants themselves have conceded that facilitated referrals do not pose a threat to timely access, so they have no compelling interest in forbidding facilitated referrals in the case of conscientious objection to Plan B while allowing it in other cases.

Therefore, application of the state regulations to plaintiffs violates their Free Exercise rights.


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