Bench Memos

Law & the Courts

A Prescription for Religious Liberty

In two weeks, the Supreme Court is scheduled to decide whether to hear one of the most important Free Exercise cases in decades.

The question in Stormans, Inc. v. Wiesman (formerly Stormans, Inc. v. Selecky) is whether Washington state regulations can force a family-owned pharmacy and two pharmacists, Rhonda Mesler and Margo Thelen, to dispense the potentially abortifacient* drugs Plan B and ella in violation of their religiously informed, conscientious convictions not to participate in the destruction of the life of an unborn human being. (I wrote about this case—e.g., here and here— at the district-court stage some four years ago.)

As the certiorari petition filed by religion scholar Michael W. McConnell, the Alliance Defending Freedom, and the Becket Fund explains, this case presents a compelling opportunity for the Court to resolve important conflicts over its Free Exercise jurisprudence—and to rein in the Ninth Circuit ruling below that threatens our longstanding national consensus on the right of conscience in health care:

1. It has been twenty years since the Supreme Court addressed the core legal principles underlying the Free Exercise Clause. In the two leading cases—Employment Division v. Smith (1990) and Church of Lukumi Babalu Aye v. City of Hialeah (1993)—the Court held that a law restricting religious conduct is subject to strict scrutiny under the Free Exercise Clause only if it is not “neutral” and “generally applicable.” Since then, federal lower courts have divided over how to determine whether a law is “neutral” or “generally applicable.” Some circuits require a challenger to show that a law was motivated by anti-religious animus or that the law applies only to religious conduct. Other circuits allow a free-exercise plaintiff to show that the law simply treats religious conduct worse than similar nonreligious conduct. The leading case on this side of the split is Fraternal Order of Police v. Newark (3d Cir. 1999), written by then-Judge Alito, which held that a police department regulation that allowed officers to grow beards for medical reasons, but not religious reasons, was not neutral or generally applicable.

In the ruling below, the Ninth Circuit held that the government can give preference to nonreligious conduct because such conduct is “necessary” to “allow pharmacies to operate in the normal course of business.” That result is directly contrary to then-Judge Alito’s holding in Fraternal Order—and to the holdings of several other circuits—and thus makes this case a prime candidate for Supreme Court review.

2. Besides deepening a circuit split over a critical issue of Free Exercise doctrine, the Ninth Circuit’s ruling also poses a serious threat to the longstanding national consensus on the right of conscience in health care. Ever since Roe v. Wade, all fifty states have protected the right of health-care professionals—including not just doctors and nurses, but also pharmacists—to decline to assist in an abortion. Washington’s regulations destroy this balance. They require both pharmacy owners and individual pharmacists, on pain of losing their livelihoods, to dispense Plan B and ella. No other state compels health-care professionals to be complicit in abortion or in actions that they reasonably fear to be abortifacient.

Washington’s regulations are so extreme that they have drawn condemnation from the American Pharmacists Association and 37 other national and state pharmacy associations. In a rare move, those groups have called on the Supreme Court to hear the case, calling Washington’s regulations “a radical departure from past regulation of the pharmacy industry.”

The Ninth Circuit’s decision also threatens the availability of health-care services throughout the states in that circuit—namely, Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. As explained in a brief from the US Conference of Catholic Bishops, half of all hospital beds in Washington are provided by Catholic hospitals. By law, these hospitals must have an in-house pharmacy; and by Catholic Church teaching, they cannot dispense Plan B or ella in accordance with the regulations. Thus, the Ninth Circuit’s decision puts Catholic hospitals to a stark choice: They must either end their healing ministries or violate their religious beliefs. And since Planned Parenthood has vowed to seek similar laws in other states, the Ninth Circuit’s decision will cause similar problems throughout the states in that circuit.

Finally, the Ninth Circuit’s decision threatens all religious believers. That is the dominant theme of the fourteen amicus briefs in support of certiorari, filed by thirteen states, some 30 constitutional law scholars, 43 Members of Congress, over 4,600 healthcare practitioners, and a host of religious denominations. As petitioners’ reply brief puts it: “It is no accident that in the quarter century since Employment Division v. Smith, with only one exception that was later reversed, the nation’s largest circuit has never held a law subject to strict scrutiny under the Free Exercise Clause. Absent this Court’s review, the Free Exercise Clause will remain a dead letter in the Ninth Circuit.”

The Supreme Court should grant certiorari in this case to resolve the circuit split and resurrect religious rights under the Free Exercise Clause in the Ninth Circuit.

* Although scientific knowledge about the various ways Plan B (aka levonorgestrel) operates is not definitively settled, the FDA recognizes that in some instances it may work by “preventing attachment (implantation) [of the early embryo] to the womb (uterus).” The FDA recognizes that ella (aka ulipristal acetate) may work similarly (“by changing the lining of the womb (uterus) that may affect attachment (implantation)”).

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