Pharmacist Conscience Rights Under Attack

My organization, the Judicial Education Project, in conjunction with two leading Jewish Orthodox Groups, Agudath Israel of America and the National Council of Young Israel, has filed an amicus curiae brief in a Becket Fund case, Stormans Inc. v. Mary Selecky, et al., defending conscience rights for pharmacies and pharmacists.

Stormans challenges the constitutionality of Washington State’s Board of Pharmacy regulations that require pharmacists and pharmacies to dispense emergency contraceptives. Unfortunately, this regulatory burden falls—due to secular regulatory exemptions and the Board’s selective regulatory enforcement—exclusively on religious objections to emergency contraception, while passing over similarly situated non-religious objectors. In fact, the Board has actually never attempted to enforce the regulations against any non-religious objectors. This is in direct contravention of the First Amendment, which forbids the government from favorably treating secular objections to dispensing drugs, but not religious objections.

The Board claims to primarily enforce the regulations by following up with customer-generated complaints—despite having a much wider range of enforcement options available to them. As we argue in the brief, this “converts the rule of law into a tool of special interest groups, leaving groups free to capture the process and selectively enforce a law.” In Stormans, Planned Parenthood and other abortion rights groups took advantage of the complaints-only system and used test-shoppers to generate complaints against conscientious objectors to emergency contraception.

This case has high stakes for religious liberty. In the State of Washington, if this lawsuit fails, plaintiffs will pay a steep price for widely-held, mainstream religious beliefs. Washington pharmacies will shut down, and Washington pharmacists will have to leave their job, state, or profession. I would also fully expect emboldened pro-abortion activists to take their fight against religious liberty to other states.

This case is also a part of the broader philosophical battle that is currently raging over the nature of religious liberty. The left, led by the Obama administration and states like Washington, is advancing an increasingly narrow view of religious freedom—one that solely encompasses “freedom of worship.” Under this view, the Constitution should only protect a dead faith that is free of works, leaving the government free to choose which religious tenets are sufficiently secular enough to deserve First Amendment protection. This has animated the Holder-led Department of Justice, which took a litigating position in Hosanna-Tabor v. EEOC that could have subjected religious institutions, such as the Catholic Church, to liability for refusing to hire female priests. This underlying theme—that religious freedom ends when you enter the workplace—is also responsible for the pending $1.3 million daily fine against Hobby Lobby for their HHS mandate violation, and the bizarre idea that Christian colleges such as Wheaton and Christian publishers such as Tyndale House, are insufficiently devout to warrant religious protection.

Despite the high stakes, there is hope—in Illinois, the Becket Fund has already won a lower court victory, which struck down a similar state law. I remain hopeful that religious liberty will eventually prevail, and I wish the Becket Fund and their talented team of lawyers the best of luck in this case.

UPDATE: To clarify, the plaintiffs in the Stormans case won in the district court, with a solid decision that Ed Whelan has outlined in detail, in addition to his extensive discussion of the facts of the case.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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