The Supreme Court announced Tuesday morning it would refuse to hear Stormans v. Wiesman, a case from the state of Washington where a family-owned pharmacy was objecting to a state regulation that forced them to prescribe the morning after pill, also known as “Plan B.” Unlike traditional contraceptive methods, Plan B is an abortifacient and can result in the termination of a child that has already been conceived. Pro-life pharmacists who prescribe the drug could consider themselves complicit in an abortion.
The decision not to take up the case exposes some hypocritical reasoning with regard to Monday’s Court decision striking down Texas’s safety regulations for abortion clinics. And the facts of this case make it hard to deny the state is specifically targeting religious believers and singling them out for undue persecution. In a strongly worded dissent, Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Clarence Thomas, said as much:
When pharmacists at the Stormans family grocery business had personal and religious objections to prescribing Plan B, they began referring customers seeking the drug to other pharmacies. There are over 30 pharmacies within five miles that do prescribe the drug, so that didn’t seem like the Stormans were inflicting any sort of burden on anybody.
Unfortunately for the Stormans, Planned Parenthood has been involved in a nationwide campaign to force pharmacists to sell the drug. In fact, Planned Parenthood was actually brought in to help craft a new state regulation in Washington to force pharmacists in the state, such as the Stormans, to sell the drug.
What’s interesting about Washington’s regulation, however, is that for a variety of reasons relating to health and other factors, pharmacists are normally given significant amounts of latitude in determining how and why they prescribe certain drugs. So it’s perfectly legal in Washington for a pharmacist to decline to stock and prescribe a drug for reasons as simple as they don’t want to pay for it. But under Washington’s Planned Parenthood-written pharmacy regulations, the only real discernible reason where it is not permitted to decline prescribing a drug is if the pharmacist has a religious objection.
“As the trial court found, the government designed its law for the ‘primary—if not sole—purpose’ of targeting religious health care providers,” said Kristen Waggoner, a lawyer representing the Stormans with the Alliance Defending Freedom. “We are disappointed that the high court didn’t take this case and uphold the trial court’s finding.”
Justices Roberts, Alito, and Thomas are correct to point out that this law is simply targeting pharmacists with religious objections. Notably, every other state allows conscience-based referrals. And conscience-based objections are supported by just about every pharmacist trade organization, including the American Pharmacists Association, the Washington Pharmacy Association, and 36 other pharmacy associations.
Finally, do note the Supreme Court’s majority reasoning in striking down Texas’s abortion safety regulations Monday. At the risk of oversimplifying it, the decision essentially treated abortion as a right, and the regulatory burden imposed by Texas interferes with that right. Specifically, the majority said this:
P. 27 of the SCOTUS opinion striking down Texas’ abortion law, a repudiation of nearly all govt regulatory schemes. pic.twitter.com/ikBeGaIIjh
— John D Davidson (@johnddavidson) June 27, 2016
Given that extra safety regulations imposed on surgical clinics—and there have been a number of serious complications and deaths at abortion clinics in recent years—were deemed too burdensome, how is it that the state of Washington can tell the Stormans what to sell without burdening their constitutionally enumerated rights of religious expression? Conversely, how could they argue the Stormans were burdening anyone else when there are over 30 places to get Plan B within five miles? (Never mind that the liberal majority is unlikely to apply this regulatory standard to anything else. By these lights, 2,700 pages of Obamacare regulation are certainly impeding the access to affordable health care for tens of millions of Americans.)
Whether abortion is a right, of course, is a highly disputable matter of constitutional penumbras and rather tortured and recent jurisprudence. The right of religious expression is the very first amendment to the Constitution, and specifically the right of conscience has long been understood as foundational to every American concept of free expression going back to the John Peter Zenger case. Think about it—if the government doesn’t protect your personal beliefs about how you ascertain truth and your right to act on them, your right to expression is very much endangered.
The temptation here for secular liberals is to believe that laws specifically targeting pro-lifers and religious conservatives won’t affect them. But the Supreme Court is setting an extremely dangerous precedent, and if they continue down this path the state will soon find lots of other conscience objections and forms of expression that it wants to kill for reasons of political expediency. It would be nice if honest liberals recognized the threat here.
