Regulations issued by the Washington State Board of Pharmacy require all pharmacists to provide emergency contraceptives, specifically mandating that no one may refuse to do so based on religious grounds. In Stormans, Inc. v. Wiesman, No. 15-862 (June 28, 2016), the Supreme Court declined, over three dissents, to hear a local grocery store and pharmacy’s appeal, joined in by two other pharmacists, from a Ninth Circuit decision upholding the regulations against a First Amendment challenge. The appellants based their challenge on their religious belief that life begins at conception and that employing emergency contraceptives “is tantamount to abortion.”
In an opinion dissenting from the denial of certiorari on behalf of himself, Chief Justice Roberts, and Justice Thomas, Justice Alito observed that the case provided “an ominous sign,” reasoning that “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 were several key factors identified by Justice Alito which made the case a good candidate for Supreme Court review in the eyes of the dissenting justices. First, the importance of the case was underlined by the fact that some 38 national and state pharmacy associations urged the court to hear the case, contending that the regulations at issue constituted “a radical departure from past regulation of the pharmacy industry,” and might cause small, independent pharmacies to close, reducing patient access to medication. Second, the case placed “important First Amendment interests at stake.” Third, there was strong evidence of a discriminatory legislative intent aimed at religious believers. Thus, for example, the State Human Rights Commission made threats of personal liability against the board members if they passed a regulation permitting referral to another pharmacy for religious or moral reasons. In addition the Governor indicated that she could remove the Board members after the Board initially voted to permit a conscience exemption. This, plus additional evidence, persuaded the trial court after a 12 day hearing to issue an injunction against the enforcement of the regulations.
Justice Alito’s dissenting opinion provided additional reasons for the Supreme Court to review the case. He pointed to several factors indicating that women seeking emergency contraceptives could obtain them with ease, given the presence of more than 30 other pharmacies located within 5 miles of the appellant, and the widely-utilized and -accepted practice of “facilitated referral,” under which all types of pharmacies referred patients to other pharmacies to obtain a drug they did not stock. The record in the trial court indicated that other pharmacies not involved in the litigation used the facilitated referral option “at least several times a day.”
Finally, even though the authorities vigorously and successfully lobbied against providing a religious exemption recognizing the conscience rights of some pharmacists, the regulations did provide certain other, secular exemptions, including a pricing provision which would permit pharmacists to decline to provide drugs to Medicaid patients because of low reimbursement rates.
While Justice Alito therefore provided strong grounds for the court to hear the case, it is likely that such Supreme Court review would have resulted in an opinion upholding the Ninth Circuit. In all likelihood, the Supreme Court would, at this time, refuse to mandate a conscience exemption under the First Amendment, particularly where the liberal cause of providing contraceptives, at all times and under all circumstances, was implicated. Indeed, the cause of religious liberty may have been severely compromised based on several factors. These include the death of Justice Scalia, and his likely replacement at some future time by a more liberal justice, and the unpredictable views of Justice Kennedy, who stated in Obergefell that opposition to same-sex marriage might be limited to advocacy or teaching. The prior voting records of the four dependably liberal justices would further darken the prospects for a Supreme Court opinion upholding conscience rights. On this point, one need only read the Hobby Lobby dissenting opinions, which would have required closely-held corporations to provide contraceptives despite religious objections to doing so by their owners.
There is no doubt that this important issue of conscience rights will ultimately reach the court in a different case if, as, and when the Supreme Court again reaches its full complement of nine justices.