High court rejects pharmacists’ religious liberty appeal

Supreme Court | Washington drug dispensers must stock abortifacients, despite faith-based objections
by Emily Belz
Posted 6/28/16, 02:16 pm

The Stormans family owns the pharmacy Ralph’s Thriftway, and they object to selling Plan B and ella—two potential abortifacients—because they believe life begins at conception. If customers ask for either of those drugs, Ralph’s staffers refer them to other nearby pharmacies. Ralph’s reports 30 pharmacies within five miles stock the drugs.

That was not satisfactory to the state of Washington, where the governor and abortion groups lobbied to change pharmacy rules to require the sale of abortifacient drugs over conscience objections. The Stormans and two other pharmacists objected to the new rules on First Amendment grounds, winning their case at the district court level, then losing at the 9th U.S. Circuit Court of Appeals.

Today the Supreme Court told the pharmacists they do not have a case, rejecting their appeal. 

“If 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,” wrote Justice Samuel Alito in a lengthy dissent from the decision not to hear the case. Chief Justice John Roberts and Justice Clarence Thomas joined his dissent, which means Justice Anthony Kennedy provided the decisive fifth vote to reject the case. The court requires four votes to take a case.

Throughout Alito’s dissent, he quoted Kennedy’s own words in Church of Lukumi Babalu Aye v. City of Hialeah, a 1993 case in which Kennedy ruled a city ordinance against animal sacrifice unconstitutionally targeted the religious exercise of the Church of Lukumi Babalu Aye.

If a law is designed to target an exercise of religion, it isn’t considered “neutral,” and must meet a higher constitutional standard to survive. In this case, the 9th Circuit considered the law “neutral” and never applied that higher standard to the case. Alito, citing evidence gathered in the district court, said the rule clearly targeted pharmacists who object to dispensing Plan B and ella on conscience grounds. 

He also noted pharmacies can refuse to dispense medications for all kinds of “secular” reasons; pharmacies only come under condemnation if they do not dispense based on religious grounds. Washington state allows pharmacies to refuse prescriptions if they don’t accept a patient’s insurance or if it doesn’t accept Medicaid or Medicare.

“A pharmacy accordingly may deny all prescriptions to certain patients, many of whom (those on Medicaid) are particularly likely to lack ready means of traveling to another pharmacy,” Alito wrote. He said pharmacies refer patients to other pharmacies regularly because they may not stock every FDA-approved drug at any one time.

“The dilemma this creates for the Stormans family and others like them is plain: Violate your sincerely held religious beliefs or get out of the pharmacy business,” Alito wrote.

Washington officials, in announcing the rule, acknowledged some pharmacies may close in order not to violate their beliefs but claimed other pharmacies would take their place. The dissenters argued even if a pharmacy did replace the closing pharmacy eventually, closures would reduce access to all medications, not just plan B and ella. 

“The bottom line is clear: Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives,” Alito wrote. 

Kennedy’s vote here is confusing, given his pretty good record on religious liberty. For example, he joined the majority in Hobby Lobby in providing religious accommodation for business owners under the Religious Freedom Restoration Act.

A generous reading of Kennedy’s vote not to hear the case is that he foresaw a tie, which would have left the 9th Circuit ruling in place anyway. If the court granted the case for its next term, and a Democratic president appointed a ninth justice this fall or next year, that could have resulted in a bad national precedent on religious liberty. As it is, the 9th Circuit ruling is limited to Washington state.

Emily Belz

Emily is a senior reporter for WORLD Magazine based in New York City. Follow Emily on Twitter @emlybelz.

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  •  William Peck 1958's picture
    William Peck 1958
    Posted: Tue, 06/28/2016 08:26 pm

    why is a pharmacy required to carry any product ? what if they didn't want carry soda, because they thought it would make people fat ?  We have state sponsored coercian at every turn. 

  • Jeff Jentgen's picture
    Jeff Jentgen
    Posted: Tue, 06/28/2016 10:23 pm

    Exactly William. It´s mind boggling.  The United States is a dangerous place for persons of conscience. 

    The late Cardinal Francis George of Chicago nailed it when he stated (I paraphrase): " I will die in my bed.  My successor will die in prison, and his succesor will die a martyr in the public square ".

    He is looking more like a prophet every day.

    We need a revolution, hopefully peaceful and through the democratic process, but a revolution for sure to get us back to our (classical) liberal foundation.



  • MTJanet
    Posted: Tue, 06/28/2016 10:05 pm

    Can they post a sign with the drugs stating their opposition to use of the drugs as well as being opposed to the government's coercion?  I'm not saying this would make up for those who go ahead and purchase it, but it does seem that freedom of speech could at least be utilized.  Not only that, but I would be constantly "out" of said drugs - i.e. perpetual back order.  

  • Nanamiro
    Posted: Wed, 06/29/2016 10:09 pm

    That's an idea, and maybe spend more time detailing the short and long term risks to using the drug...

  • PaulC
    Posted: Tue, 06/28/2016 10:49 pm

    Thank you Emily for putting the best construction on Kennedy's position.  Although the problem is very serious, I am wondering if people like the Stormans would be able to wait this out a while.  While they are required to carry the drugs that violate their conscience, could they 1)Carry them with a price that is much higher than their competition? 2)Do as another suggests with the label showing they are forced to carry it by government if they choose to remain open 3)Run out and be slow about restocking 4)Give a link to a liberty lobby 5)Give a clear explanation on the shelf why this violates their conscience, carry gospel tracts along side the products. 6)Us and them:  Keep praying for God's way for his people to serve.  Just some ideas.  

  • Laura W
    Posted: Wed, 06/29/2016 06:53 pm

    Interesting thoughts. I wonder how they would feel about doing things like this. And I wonder what the reaction would be if they did stock them at a higher price? Are there any legal restrictions on what price these drugs can be sold at? Perpetually "running out" seems like it would just draw another legal challenge, though, since it's a transparent attempt to avoid actually stocking them for long periods at a time. But if they stocked them under a high price, with signs explaining why they don't actually want anyone to buy them (and maybe including literature for local crisis pregnancy centers and such), I wonder what would come of that? Since they are so readily available elsewhere, I think a strategy like that would be fairly certain to result in lives saved, on balance.

  • DCal3000
    Posted: Tue, 06/28/2016 10:58 pm

    Barring a miracle, we can expect many, many more such decisions by the U.S. Supreme Court over the next few years.  With Hillary Clinton nearly certain to be the next U.S. President, she will tip the balance of the Supreme Court entirely against Christian stances on abortion, homosexuality, and religious liberty.  Not only will this effect us at the national level, but it will potentially affect us at the local level--thrusting aside the political efforts of many state-based, conservative think tanks and activist groups.  Even our ability to teach our faith to our children may be affected.  I think many American evangelicals don't fully recognize the extent of the political and cultural change that is already upon us, for when Mississippi passed a recent freedom of conscience bill related to the ability to refuse to participate in homosexual weddings, some even from conservative denominations denounced the state legislators as bigots.  They assumed such bills were unnecessary and were mere grandstanding.  Whether or not that bill was well-written or not, we evangelicals need to start making sure we know where we stand on controversial issues, for attempts to be faithful to God's Word may soon result in genuine harm to our livelihoods. 

  • JerryM
    Posted: Wed, 06/29/2016 05:28 am

    The more stories like these you read, the more you perceive the sound of militias arming to defend citizens rights.


  • servant
    Posted: Wed, 06/29/2016 09:39 am

    When I first read this article, I too was outraged at the dismissive attitude these "justices" displayed towards a right explicitly protected by our constitution.  After thinking about it though, it occurred to me that we as believers in Christ should take His advice about being shrewd. Instead of posting signs about being forced to dispense the abortifacient drug, these pharmacies should instead lovingly implore every person with a prescription for the drug to not take it after all and that they would have so many days to return it unopened for a refund. We should start turning these wrongly decided cases into opportunities to share the Gospel with people who desparately need to know our Savior. Keep fighting in the courts, but we can't forget the war we are supposed to fight where we live every day.

  • Nanamiro
    Posted: Wed, 06/29/2016 10:14 pm

    I like that. Remembering each of these women has a story and the pharmacist speaking truth into their lives when they may have gone to a pharmacy that wouldn't have. A more heavenly perspective on the situation. Thanks!

  • Slava Tebje Gospodi
    Posted: Wed, 06/29/2016 02:25 pm

    Jeff Jentgen wrote:

    The late Cardinal Francis George of Chicago nailed it when he stated (I paraphrase): " I will die in my bed.  My successor will die in prison, and his succesor will die a martyr in the public square ".

    He is looking more like a prophet every day.

    Alas, Jeff, his successor, the current archbishop of Chicago will probably die quite comfortably as he (and the Pope) seem to become more and more accommodating of secular threats to the family, life, and the church. He is not at all like Cardinal George who was a strong advocate of family and life issues and not afraid to call sin "sin".


  • Nanamiro
    Posted: Wed, 06/29/2016 10:07 pm

    I can't believe our leaders believe it is ok for the governement to force an individual or organization to do something that goes against their consciences! It's mind boggling that a supposed free country like ours allows fascist-like laws to pass. I am at a loss for words. I wish there were something I could do. God's will be done.

  • Marc Mertens
    Posted: Fri, 07/01/2016 03:17 pm

    I thought the E U was bad, but the governement of the US is even worse. If you call sin allright (and murder is sin), It's obvious you want to force all the others to approve your sin and even to sin with you. Persecution has started in the States; May God give these pharmacists the courage to practice civil disobediance (you will obey God more than man).

    By the way; isn't it prove of a croocked mind if you want to force peolple to sell deadly muti and prohibit the production of products to execute guilty murderers in a compassionate way. It amazes me that one can be so completely blind or evil hearted.


  •  Paul B. Taylor's picture
    Paul B. Taylor
    Posted: Mon, 07/04/2016 06:56 pm

    President Obama claimed that he would fundamentally change America, and he has.  The question is: how was he planning to accomplish this grand scheme? At this point we can see that through executive fiat he has brought many changes by circumventing the proper consitutionally established checks and balances.  It is obvious that one of these strategems is using the Supreme Court to legislate out religious liberty with the goal of giving the executive branch greater secular power.  The problem here is that the First Amendment states: "Congress shall make no law..."  By using the high courts to legislate instead of congress, he is making a mockery of our constitution.  Now the frightening question that we must answer is:  Is this his very plan hatched when he with confidence claimed to fundamentally change America?  My response to this is to be neutral because this is a democracy and we voted in Obama for president.  The way to counter what has happened is to show that we have faith in our constitution and in our Republic by putting a conservative billionaire in the Oval Office.