The Supreme Court on Tuesday shunned a religious challenge to Washington state regulations requiring all licensed pharmacists to dispense emergency contraceptives when presented with a valid prescription.
In a one-line order, the court declined to review the rules, which also allow pharmacies to deny delivery of the drugs if a pharmacist has a religious objection, but permit another pharmacist to step in and provide the medication.
An appeals court ruled last summer that the regulations did not violate religious beliefs of pharmacy owners and individual pharmacists under the First Amendment’s free exercise clause. The court noted the regulations were written neutrally and didn’t single out pharmacists who had a specific belief.
The Supreme Court on Tuesday agreed to leave that ruling in place, but Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Clarence Thomas, protested that the high court’s position sends “an ominous sign” for religious liberty.
“There are strong reasons to doubt whether the regulations were adopted for — or that they actually serve — any legitimate purpose,” Alito wrote. “And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State.”
Under longstanding practice, it takes four votes at the Supreme Court to agree to hear a case, so it’s likely Alito’s darts were aimed at fellow conservative Justice Anthony Kennedy, who occasionally sides with the liberal wing, as in Monday’s watershed ruling in favor of abortion rights.
But religious challenges to contraception access may be a different ballgame, as evidenced by a recent non-ruling in which the eight members of the court couldn’t make up their minds on how to decide a case involving a religious accommodation for contraceptive coverage under the Affordable Care Act.
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.
“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,” Alito warned in his 15-page retort.
The Washington case had all the elements of a potential blockbuster: It was brought by Ralph’s Thriftway, a religiously owned mom-and-pop pharmacy and grocery store that claimed complying with the contraception regulations goes against their belief “that life begins at conception and that preventing the uterine implantation of a fertilized egg is tantamount to abortion.”
There was evidence gathered by a lower court that the Washington governor had lobbied hard to get the regulation passed without exceptions for a pharmacist to object for moral or religious reasons, and that only secular or business objections — such as a person’s inability to pay — were allowed.
This, in Alito’s view, suggested that the regulations were “improperly designed to stamp out religious objectors.”
“The dilemma this creates for the Stormans family and others like them is plain: Violate your sincerely held religious beliefs or get out of the pharmacy business,” Alito wrote, adding the pharmacy’s petition was supported by several dozen pharmacist organizations that urged the Supreme Court to take up the case.
“Ralph’s has raised more than slight suspicion that the rules challenged here reflect antipathy toward religious beliefs that do not accord with the views of those holding the levers of government power,” Alito concluded.
As the Supreme Court’s historic term draws to a close and the justices get used to an immediate future without a ninth benchmate, there’s no telling if Alito’s concern for religion will weigh on the nation’s conscience and his colleagues’ future decision-making.
But as Alito and Thomas grow in prominence as conservative allies, one thing’s for sure: This court is not the same as when Justice Antonin Scalia was still on it.