This case presents a novel question: can the State compel licensed pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious belief that doing so terminates a human life? In 2007, under pressure from the Governor, Planned Parenthood, and the Northwest Women's Law Center, the Washington State Board of Pharmacy enacted regulations designed to do just that.
The District Court concluded that
Based on the evidence presented at trial, the Board's regulations, while facially acceptable, are in practice unconstitutional.
I was at first inclined to be skeptical of the District Court's holding. I think that the law should not force pharmacists or doctors to participate in abortions (or what they consider to be abortions) or to dispense or proscribe contraceptives in violation of their religious beliefs. However, I am not convinced that such a law necessarily violates the Free Exercise Clause. I hold, with the Court in Employment Division v. Smith (1990), that religious motives do not confer any immunity to otherwise permissible laws.
After a quick reading of the Stormans case, I think the District Court has a serious argument. In Smith, the U.S. Supreme Court found that a law that burdens a religious practice does not collide with the Free Exercise Clause if:
- The law is generally applicable (applies to everyone the same regardless of religious identity or motive) and
- Is neutral with regard to religion (does not take sides with one faith against another or faith against absence of faith).
I think that that is the right test and when the Tacoma court says that the Washington State Board of Pharmacy's rule is "facially acceptable," that is apparently what the court meant. All pharmacists, regardless of their moral and religious views, would be legally compelled to dispense contraceptives including "Plan B."
In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), however, the high court struck down a law that pretended to be a public health ordnance but was in fact an attempt to run a disfavored religious community out of town. The law prohibited the slaughter of animals for specifically religious purposes while allowing the slaughter of animals for a wide range of other purposes. It was clearly aimed at the Santeria religion. The Tacoma Court found that the Washington Pharmacy Board's 2007 regulation was much the same.
Critics of conscience clause exemptions for pharmacists will frequently say that anyone who is not prepared to dispense all legal products to their customers should choose another line of work. In fact, pharmacies decide all the time not to stock certain legal products. They may do so because they judge that there is no market for them, or because they are not covered by Medicare, or for a host of other reasons. Here is a telling quote from Stormans:
Mr. Saxe was asking, rightfully, why the Board did not simply draft clear language to do exactly what it was attempting to do with vague language—bar pharmacists and pharmacies from conscientiously objecting, while at the same time allowing pharmacies and pharmacists to refuse to dispense for practically any other reason. Doing so would be easier, of course, than "trying to draft language to allow facilitating a referral for only . . . non-moral or non-religious reasons," the ultimate goal of the proposed draft. Pl.'s Ex. 157 (email from Mr. Saxe to Ms. Hulet). Indeed, Mr. Saxe's division of reasons not to dispense into illegitimate (i.e., moral reasons) and legitimate (i.e., any other reason) highlights the goal of the Board, the Governor, and the advocacy groups: to eliminate conscientious objection.
There we have the problem. The Board, the Governor, and the advocacy groups were specifically targeting religious objectors. The rule would allow a pharmacist to refuse to dispense a product for almost any secular reason. It would require the pharmacist to dispense the product only if his objections were motived by religious conscience.
That looks like a free exercise violation to me. If the District Court's account of the facts is accurate, the State of Washington was trying to do to conscientiously objecting pharmacists what the City of Hialeah tried to do to the Church of Lukumi Babalu Aye, Inc., run them out of town. That is precisely what the Free Exercise Clause was designed to forbid.