We don’t usually discuss denials of cert here at Bench Memos, but two in today’s cleanup orders are sufficiently important to disrupt the normal pattern. The first is Stormans v. Wiesman, a case challenging Washington’s explicit prohibition on religiously motivated pharmacy referrals for abortion-causing drugs. Washington’s law allowed referrals for numerous other reasons, but not “religious, moral, or other personal grounds.” Washington lost in the trial court, with the district court finding that the predominant purpose of the legislation was to forbid exemptions for religious reasons. The Ninth Circuit, though, reversed the trial court’s factual findings with a dubious assertion of “clear error.”
Justice Alito’s dissent from the denial of cert is chilling. As he says, “[i]f this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.” Furthermore, “The bottom line is clear: Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives. Particularly given the State’s stipulation that ‘facilitated referrals do not pose a threat to timely access’ to such drugs, it is hard not to view its actions as exhibiting hostility toward religious objections.”
The case is particularly ironic given the majority’s reasoning in yesterday’s abortion case. The Court held that the health effect of Texas’ law wasn’t enough to justify any burden on abortion access. But in the Stormans case even defenders of the regulation agreed it would not improve women’s health or be necessary for timely access to drugs. And the Court was content to let that regulation force a family-run pharmacy out of business because of their constitutionally-protected religious beliefs. If the regulation targeted abortion clinics rather than religious believers, I can’t imagine it would have been allowed to stand.
All may not be lost for the Stormans family, at least not yet. As Alito points out in footnote 6 of his dissent, “[t]he Court’s denial of certiorari does not, of course, preclude petitioners from bringing a future as-applied challenge to the Board’s regulations.” Let’s hope so. These issues are too important to let the Court off the hook.
The other denial was in Delaware Strong Families v. Denn, a case about anonymous political speech. Justices Thomas and Alito dissented, with Justice Thomas writing a dissenting opinion demonstrating that “if the Court is determined to stand by its ‘exacting scrutiny’ test [for mandatory disclosure requirements], then this case is its proving ground. By refusing to review the constitutionality of the Delaware law, the Court sends a strong message that ‘exacting scrutiny’ means no scrutiny at all.”
If you have been tempted to think that the Garland nomination and future Supreme Court nominations don’t really matter, these two cases should convince you otherwise.