An Ominous Sign: SCOTUS Turns Down Religious Freedom Case

“This case is an ominous sign.” 

So wrote Justice Alito about the Supreme Court’s decision yesterday not to hear a critical religious freedom case out of the State of Washington – and it’s a sign we cannot ignore.

For over seventy years, the Stormans family has owned and operated Ralph’s Thriftway, a grocery store in Olympia, Washington that includes a small retail pharmacy.  The Stormans are Christians and believe that all human life is sacred from the moment of conception.  Based on that religious belief, the Stormans have consistently refused to stock or sell drugs that result in the termination of a human life, such as Plan B (aka, the morning after pill).  Directly dispensing such drugs, according to the Stormans, would violate their religious conscience.

It’s important to note, however, that when on the rare occasion a customer would go to Ralph’s seeking the morning after pill, the customer would not be turned away completely.  Ralph’s employees would refer the customer to one of thirty stores within only five miles of Ralph’s, where Plan B was regularly stocked.

Such referrals by pharmacists are not just common, they do not undermine standards of health and safety.  According to an amicus brief filed with the Court by five national and thirty-three state pharmacist associations, “facilitated referral supports pharmacists’ professionally recognized right of conscience,” and do so “without compromising patient care.” 

In 2007, the State of Washington decided it could no longer tolerate pharmacies acting according to religious and pro-life principles, even when those pharmacies would refer the customer directly to another pharmacy where abortion-inducing drugs could be obtained.

Kowtowing to pressure by abortion advocacy groups like Planned Parenthood, the Washington State Board of Pharmacy, issued regulations requiring pharmacies to stock and sell all lawful drugs, including drugs with an abortifacient mechanism of action.

The real purpose behind these regulations was crystal clear: to prohibit pharmacies, like the one owned by the Stormans family, from acting in furtherance of their moral and religious beliefs.  According to the spokesperson for the Board, “the public, legislators and governor are telling us loud and clear that they expect the rule to protect the public from unwanted intervention based on the moral beliefs . . . of a pharmacist.”  Guidance from the Board accompanying the regulations stated unequivocally that “the rule does not allow a pharmacy to refer a patient to another pharmacy to avoid filling the prescription due to moral or ethical objections.”

Not only were the 2007 rules anti-religious in motivation and intent, they are anti-religious in effect.  While a pharmacy could not “refuse to deliver a drug or device to a patient because its owner objects to delivery on religious, moral, or other personal grounds,” it could refuse to stock and sell drugs for a variety of non-religious reasons, including whether the customer was able to pay the pharmacy’s “usual and customary” charge.  In other words, though a pharmacy could refuse to stock or sell drugs for reasons related to business, economics, or convenience, it could not do so for religious, moral, or ethical ones.

(As Justice Alito wrote: “Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives.”)

The Stormans had no choice but to seek relief in federal court.  And though the family prevailed at the district court -- which held that the regulations were adopted with “the predominant purpose” to “stamp out the right to refuse” to dispense emergency contraceptives for religious reasons -- the Ninth Circuit Court of Appeals reversed that decision, holding that the rules did not violate the First Amendment’s Free Exercise Clause. 

The Stormans family were left with only one other legal option: seek intervention by the United States Supreme Court.  Such a case not only had the potential of vindicating the right of the Stormans to run their family business according to their conscientious and religious beliefs, it could have clarified important free exercise of religion principles over which lower federal courts disagree.  Indeed, one of the most important jobs of the Supreme Court is to resolve such differences.

Just yesterday, however, after weeks of conferencing and re-conferencing the Stormans’ petition, the Supreme Court declined to hear the case.  In a strongly worded dissent, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, stated:

At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications . . . Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time.  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.

There can be no doubting the truth of Justice Alito’s observation, and for at least two reasons. 

First, while the Supreme Court’s decision not to take the case has no precedential authority, many states, hounded by groups like NARAL and Planned Parenthood, will be emboldened to follow in Washington’s footsteps, thereby suppressing the religious liberties of individuals like the Stormans family.  That does not bode well for the future of freedom of conscience in this country.

Second, by refusing to hear the Stormans’ case, we are seeing yet another concrete example of how “abortion distortion” is infecting decisions of the Court -- where, to borrow from Justice Thomas’s dissent from Monday’s tragic abortion decision, “some constitutional rights are more equal than others.” 

Indeed, taken together with what the Court did on Monday and Tuesday of this week, that distortion is most palpable.

On Monday, in Whole Women’s Health, the Supreme Court struck down a Texas law aimed at ensuring the health and safety of women seeking an abortion.  Why?  Because that law allegedly interfered with a “right” to abortion – a “right,” mind you, nowhere guaranteed by, let alone mentioned in, the text of the Constitution itself, but concocted by the Supreme Court out of whole cloth.

On Tuesday, in Stormans, the Supreme Court turned away a case involving a right actually and expressly set forth in the Constitution – the free exercise of religion – and allowed to stand a lower court decision upholding government regulations that directly interfere with that right.

If what Thomas Jefferson famously wrote in 1809 is correct, that “no provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority,” then what Justice Alito wrote about yesterday’s decision is equally true: “This case is an ominous sign.” 

If we are not vigilant in preserving the right of religious freedom and liberty of conscience in this country, there will be precious little left worthy of preservation.