Excerpts from the author Emma Green:
Two years later, a pharmacy chain in Washington state, Stormans Inc., which operates a store in Olympia called Ralph’s Thriftway, has been denied a hearing before the Supreme Court. The pharmacy’s owners, along with two other pharmacists who are also plaintiffs in the case, Stormans, Inc. v. Wiesman, refused to stock emergency contraception, including Plan B and ella, for religious reasons—they believe the pills are effectively abortifacients. Long-standing state regulations require Washington pharmacies to stock a “representative assortment of drugs in order to meet the pharmaceutical needs of ... patients.” The requirements were updated in 2007, specifying that pharmacies must deliver all FDA-approved drugs to customers; they can’t refer people to get medication at a different location for any kind of religious or moral reasons.
Many people saw this as major religious-liberty case. Five national pharmacists’ associations, along with state pharmacists’ associations from 33 states, filed a brief calling on the Supreme Court to take the case. “The Ninth Circuit’s decision effectively eliminated pharmacists’ right not to participate in actions they conscientiously oppose, even though a ‘right of conscience’ has always been integral to the ethical practice of pharmacy,” they wrote. They argued that while state regulations allow individual pharmacists to refuse to dispense certain drugs, small pharmacies might be unable to afford to keep multiple pharmacists on staff to accommodate these objectors. The associations also argued that the decision impedes on pharmacy owners’ ability to make ethical and business decisions about what they sell.
In his dissent to the Court’s denial of cert, Alito said it was “ominous” that the Court did not “deem the case worthy of our time.” Advocacy groups have specifically sought out pharmacies that have religious objections to Plan B in order to file complaints, he said, citing evidence from the district-court filings; Ralph’s Thriftway alone was the subject of some two dozen complaints between 2006 and 2015. “If this is a sign of how religious-liberty claims will be treated in the years ahead,” Alito wrote, “those who value religious freedom have cause for great concern.”
On the other side, groups like the American Civil Liberties Union celebrated the Supreme Court’s decision not to hear the case. “When a woman walks into a pharmacy, she should not fear being turned away because of the religious beliefs of the owner or the person behind the counter,” the organization’s deputy legal director, Louise Melling, said in an emailed statement. “Open for business means opens for all. Refusing someone service because of who they are … amounts to discrimination, plain and simple.”
At its conceptual core, that’s what this case is about: whether religious business owners and employees should be able to refuse to provide contraceptives to women, even when state regulations require them to do so. Legally speaking, though, the case also tees up a number of complicated questions that could have potentially informed future lower-court cases on religious freedom, had the Supreme Court taken it on. The most important issue is this: In the case of a law or regulation like Washington’s, does the free-exercise clause of the First Amendment require the government to make exceptions for religious objectors?