A Thought Experiment: RFRA and Lethal Injection

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. 

Many companies have decided not to manufacture drugs for executions, both for moral and public relations reasons after being targeted by death penalty opponents. This refusal has the perverse effect of increasing the likelihood that executions will go awry because states then turn to new drugs with less of a track record.

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.

Note that the existence of the defense doesn’t mean it would succeed. A state interest in humane executions for example seems to me much more compelling than the interest in forcing a third party to pay for contraceptives. But it’s a good litmus test for people on both sides to make sure their discussion of this issue is about principles, not politics.

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

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