Law forcing sales of abortion pill struck down

Yes, Christians have often criticized the courts.  But as anti-religion laws proliferate, the courts may be a wall of defense.  The same judge that struck down the military’s “don’t ask, don’t tell” policy about gays has made a ruling that protects religious conscience:

A federal court in Tacoma, Washington, struck down a Washington law that requires pharmacists to dispense the morning-after pill even when doing so would violate their religious beliefs. The court held that the law violates the First Amendment right to free exercise of religion.

“Today’s decision sends a very clear message: No individual can be forced out of her profession solely because of her religious beliefs,” said Luke Goodrich, Deputy National Litigation Director at the Becket Fund for Religious Liberty. The Becket Fund, together with the Seattle-based law firm of Ellis, Li & McKinstry, represents the plaintiffs in the case. “If the state allows pharmacies to refer patients elsewhere for economic, business, and convenience reasons, it has to allow them to refer for reasons of conscience,” added Mr. Goodrich.

The plaintiffs in the case are a family-owned pharmacy (Ralph’s Thriftway) and two individual pharmacists (Margo Thelen and Rhonda Mesler) who cannot in good conscience dispense Plan B (“the morning-after pill”) or ella (“the week-after pill”). These individuals believe that human life begins at the moment of fertilization, and that these drugs destroy human life because they can operate by destroying a fertilized egg, or embryo. Rather than dispensing those drugs, they refer patients to one of dozens of nearby pharmacies that stock and dispense them.

In 2007, the Washington State Board of Pharmacy passed new regulations making it illegal to refer patients to neighboring pharmacies for reasons of conscience, despite allowing them to refer patients elsewhere for a wide variety of business, economic, or convenience reasons. Because of the regulations, Margo Thelen lost her job; Rhonda Mesler was told she would have to transfer to another state; and Kevin Stormans, the owner of Ralph’s Thriftway, faced repeated investigations and threats of punishment from the State Board of Pharmacy.

“The Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable,” the Court explained. “They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted.”

via Court Strikes Down Law Requiring Pharmacies to Dispense the Morning-After Pill | Becket Fund.

Maybe this will become a legal precedent when the Obamacare insurance mandate ends up in court.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • mikeb

    But as anti-religion laws proliferate, the courts may be a wall of defense.

    I can see the 9th Circuit overturning this, but with Hosana-Tabor’s 9-0 decision there’s hope that they will let the ruling stand. Wow–The Bill of Rights might actually still mean something? This past decade we’ve had all sorts of good rulings on freedom of speech (yes, even Westboro hate speech), freedom to exercise religion, an acknowledgement that the second amendment applies to individuals, etc. Now if they Justices would just read the tenth amendment we could make some real progress toward returning to limited government.

  • mikeb

    But as anti-religion laws proliferate, the courts may be a wall of defense.

    I can see the 9th Circuit overturning this, but with Hosana-Tabor’s 9-0 decision there’s hope that they will let the ruling stand. Wow–The Bill of Rights might actually still mean something? This past decade we’ve had all sorts of good rulings on freedom of speech (yes, even Westboro hate speech), freedom to exercise religion, an acknowledgement that the second amendment applies to individuals, etc. Now if they Justices would just read the tenth amendment we could make some real progress toward returning to limited government.

  • DonS

    This is a good and logical ruling, which clearly follows the existing Supreme Court interpretation of the Free Exercise Clause, applying intermediate scrutiny to Free Exercise cases and requiring that laws of general applicability (not specifically targeting the religious practices of one or more faith groups) impact those practices in the least intrusive way reasonably possible. In this case, the court found a) that the law was not generally applicable, because it allowed pharmacies to refer for reasons other than religious conscience and b) that the goal of ensuring that all women had access to abortifacients was not accomplished under this law in the least intrusive way reasonably possible. In other words, the court found no reason why a pharmacist couldn’t refer to another pharmacist who didn’t have the same religious conviction. I think even the 9th Circuit will uphold this reasonable decision.

    To your more general comments, Dr. Veith, Christians HAVE often criticized the courts, but not when they protect the clearly enumerated rights of citizens in the Constitution. The criticism comes when the courts are activist and invent new rights to push a particular social agenda. This is the case, for example, in the “Don’t Ask, Don’t Tell” controversy, where it is quite clear that the constitution does not enumerate a right to serve in the military.

    This case has no particular applicability to the Obamacare insurance mandate, because religious objections are not central to the issue of being forced to carry health insurance, except perhaps for a few fringe groups. That case rests on a different rationale, as to whether the Commerce Clause allows the federal government not only to regulate interstate commerce, but to coerce people to involuntarily engage in it.

  • DonS

    This is a good and logical ruling, which clearly follows the existing Supreme Court interpretation of the Free Exercise Clause, applying intermediate scrutiny to Free Exercise cases and requiring that laws of general applicability (not specifically targeting the religious practices of one or more faith groups) impact those practices in the least intrusive way reasonably possible. In this case, the court found a) that the law was not generally applicable, because it allowed pharmacies to refer for reasons other than religious conscience and b) that the goal of ensuring that all women had access to abortifacients was not accomplished under this law in the least intrusive way reasonably possible. In other words, the court found no reason why a pharmacist couldn’t refer to another pharmacist who didn’t have the same religious conviction. I think even the 9th Circuit will uphold this reasonable decision.

    To your more general comments, Dr. Veith, Christians HAVE often criticized the courts, but not when they protect the clearly enumerated rights of citizens in the Constitution. The criticism comes when the courts are activist and invent new rights to push a particular social agenda. This is the case, for example, in the “Don’t Ask, Don’t Tell” controversy, where it is quite clear that the constitution does not enumerate a right to serve in the military.

    This case has no particular applicability to the Obamacare insurance mandate, because religious objections are not central to the issue of being forced to carry health insurance, except perhaps for a few fringe groups. That case rests on a different rationale, as to whether the Commerce Clause allows the federal government not only to regulate interstate commerce, but to coerce people to involuntarily engage in it.

  • Helen K.

    Great seeing this and I haven’t even read through the entire article. I used to reside in Tacoma, WA and know the Storman family who owns Ralph’s Thriftway. Shopped there often whilest living in Olympia to the south. Good reason to pray for those who are in authority over us as is stated in Scripture.
    WA is a pretty liberal state in many ways, but this is heartening. And a nice touch for me today, bring back fond memories of my old home in the Pacific NW. I am such a silly sentimentalist. Thanks, Dr. Veith.

  • Helen K.

    Great seeing this and I haven’t even read through the entire article. I used to reside in Tacoma, WA and know the Storman family who owns Ralph’s Thriftway. Shopped there often whilest living in Olympia to the south. Good reason to pray for those who are in authority over us as is stated in Scripture.
    WA is a pretty liberal state in many ways, but this is heartening. And a nice touch for me today, bring back fond memories of my old home in the Pacific NW. I am such a silly sentimentalist. Thanks, Dr. Veith.

  • formerly just steve

    Obama and Co. will get around this by requiring that all pharmacies staff enough pharmacists to cater to all customers of any or no religious affiliation so that the religious rights of the customer is not infringed upon by the pharmacy. This extra staffing will be subsidized, of course. So it won’t cost anyone anything. It’s paid for with magic money.

  • formerly just steve

    Obama and Co. will get around this by requiring that all pharmacies staff enough pharmacists to cater to all customers of any or no religious affiliation so that the religious rights of the customer is not infringed upon by the pharmacy. This extra staffing will be subsidized, of course. So it won’t cost anyone anything. It’s paid for with magic money.

  • Michael B.

    “No individual can be forced out of her profession solely because of her religious beliefs”

    One has to ask, what if somebody were agnostic and refused to sell the morning after pill because he believed it causes the death of a person?

  • Michael B.

    “No individual can be forced out of her profession solely because of her religious beliefs”

    One has to ask, what if somebody were agnostic and refused to sell the morning after pill because he believed it causes the death of a person?

  • helen

    It would still be “a matter of conscience” , I think, however the conscience was formed.

    A grad student here asked me, “How can you limit this to religious organizations”? What if I had a business and did not want to pay for abortifacient drugs under my employees’ health insurance? Good question. The judge in Washington is halfway to an answer, since a pharmacy will not be required to stock them.

  • helen

    It would still be “a matter of conscience” , I think, however the conscience was formed.

    A grad student here asked me, “How can you limit this to religious organizations”? What if I had a business and did not want to pay for abortifacient drugs under my employees’ health insurance? Good question. The judge in Washington is halfway to an answer, since a pharmacy will not be required to stock them.

  • helen

    These days we’ve come to expect a pharmacy in every grocery store, besides the free standing “drugstores” (which have taken to selling groceries!) It would be financially impossible to have more than one registered Pharmacist on each shift in most stores. In many of them, the lone Pharmacist works without a Technician in the slower hours.

  • helen

    These days we’ve come to expect a pharmacy in every grocery store, besides the free standing “drugstores” (which have taken to selling groceries!) It would be financially impossible to have more than one registered Pharmacist on each shift in most stores. In many of them, the lone Pharmacist works without a Technician in the slower hours.

  • DonS

    Michael @ 5: You asked “One has to ask, what if somebody were agnostic and refused to sell the morning after pill because he believed it causes the death of a person?”

    The answer, of course, is that no one should be forced to sell anything they don’t want to sell, for any reason they may have. It’s a free country, isn’t it? Or….at least it used to be.

  • DonS

    Michael @ 5: You asked “One has to ask, what if somebody were agnostic and refused to sell the morning after pill because he believed it causes the death of a person?”

    The answer, of course, is that no one should be forced to sell anything they don’t want to sell, for any reason they may have. It’s a free country, isn’t it? Or….at least it used to be.

  • JunkerGeorg

    Had we all abided by the Constitution as the Supreme Law of the Land, along with what if affords and doesn’t afford the Federal Government to be and to do, then these things would never have become issues. But given that the Constitution has gradually been ignored/usurped on various issues over the years by both parties (albeig in often distinct ways), then we shouldn’t be suprised that more and more of these shenanigans will go on. Complain all we want about Federal mandates from Obama, but Republicans like Santorum, Romney, and Gingrich will be just as quick to resort to things like “executive orders” to push their own agenda’s. I think Ron Paul is right: We haggle over what is right/not right in some move one or more branches of the Federal Government is making at the time, without first asking the question if the Constitution (e.g., 10th Amendment) even affords the Federal Government the right/powers to oversee such and such aspect of our lives. Hence, we cry over things like “No Child Left Behind”, without first asking whether the Constitution affords the Federal Government to have ANY BUSINESS in the education of our children. HHS mandates are just another in what have been and will continue to be a long string of issues arising out of an unwillingness of both parties to truly abide by the Constitution in its entirety. If Repubs rightly cry that the Dems ignore the 1st amendment on HHS Mandates, would that they’d be consistent and recognize their own willingness to ignore the 4th Amendment on things like the Patriot Act/NDAA. I do not care how “well intentioned” a bill might be relative to what may appear to be expedient currently, and I don’t care how much I might agree with a certain social agenda of any politician, if it ignores/usurps the Constitution in terms of what it allows the Federal Government to be and do, then no thanks. I’m sorry, but until we actually address the bottom-line issue over what is constitutional and what is not constitutional, things will only get worse regardless of which party holds the Executive. Ich habe genug!

  • JunkerGeorg

    Had we all abided by the Constitution as the Supreme Law of the Land, along with what if affords and doesn’t afford the Federal Government to be and to do, then these things would never have become issues. But given that the Constitution has gradually been ignored/usurped on various issues over the years by both parties (albeig in often distinct ways), then we shouldn’t be suprised that more and more of these shenanigans will go on. Complain all we want about Federal mandates from Obama, but Republicans like Santorum, Romney, and Gingrich will be just as quick to resort to things like “executive orders” to push their own agenda’s. I think Ron Paul is right: We haggle over what is right/not right in some move one or more branches of the Federal Government is making at the time, without first asking the question if the Constitution (e.g., 10th Amendment) even affords the Federal Government the right/powers to oversee such and such aspect of our lives. Hence, we cry over things like “No Child Left Behind”, without first asking whether the Constitution affords the Federal Government to have ANY BUSINESS in the education of our children. HHS mandates are just another in what have been and will continue to be a long string of issues arising out of an unwillingness of both parties to truly abide by the Constitution in its entirety. If Repubs rightly cry that the Dems ignore the 1st amendment on HHS Mandates, would that they’d be consistent and recognize their own willingness to ignore the 4th Amendment on things like the Patriot Act/NDAA. I do not care how “well intentioned” a bill might be relative to what may appear to be expedient currently, and I don’t care how much I might agree with a certain social agenda of any politician, if it ignores/usurps the Constitution in terms of what it allows the Federal Government to be and do, then no thanks. I’m sorry, but until we actually address the bottom-line issue over what is constitutional and what is not constitutional, things will only get worse regardless of which party holds the Executive. Ich habe genug!

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