Even Christian Pharmacists Have to Stock Plan B

Two years ago, the U.S. Supreme Court handed down a controversial 5-4 ruling about birth control and religion, Burwell v. Hobby Lobby Stores, Inc. Because of the ruling, private companies owned by religious people, including the craft-supply chain Hobby Lobby, can now refuse to cover certain kinds of birth control in their employee insurance plans, a requirement that was put in place by the 2010 Affordable Care Act. Supporters of the ruling claimed it as a triumph for religious freedom and an important precedent for cases about conscience-based objections to contraception.

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.

The owners of Stormans, along with two other pharmacists, challenged this update; they don’t want to carry or sell these products. Their complaints eventually made it to the Ninth Circuit Court of Appeals, which denied their claims. By refusing to hear the case, the U.S. Supreme Court has effectively done the same.

On the surface, the Hobby Lobby and Stormans cases seem similar: Both involve private businesses whose religious owners object to laws requiring them to deal with contraception. What happened in those two years that made the Supreme Court change course so much since Hobby Lobby?

For one thing, the make up of the Court has changed: This is one of those cases in which Antonin Scalia’s death really matters. The Court needs four justices to grant a writ of certiorari; only three were willing to hear this case. Samuel Alito, John Roberts, and Clarence Thomas all dissented from the denial of cert, with Alito writing a 15-page explanation of their objections. If Scalia were still on the bench, he almost certainly would have joined them. That means the case would have come before the Court, and the Ninth Circuit’s decision may or may not have been upheld. Now, because of the timing of the case, the Ninth Circuit’s decision will stand by default.

Something else has changed, too. Two years ago, Anthony Kennedy joined the conservative wing of the Court to affirm Hobby Lobby’s religious rights. It’s clear that Kennedy declined to vote to grant the petition, but it’s less clear why. The Court’s perpetual swing voter may have made a strategic move in dooming the case: He may not have believed the ruling could have ever been reversed given the Court’s current ideological makeup, for example.

But this case is also complicated and somewhat idiosyncratic, according to Marty Lederman, a Georgetown Law Center professor. While it resembles a blockbuster case like Hobby Lobby in superficial ways, the facts of the suit would have made this a difficult case for the Supreme Court to offer constructive guidance on, he said.

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.”

In its decision, the Ninth Circuit argued that there are good reasons for Washington not to make religious exemptions to its drug-delivery rules. While the  owners of Storman’s argued that they would have been happy to refer customers to other pharmacies, “Speed is particularly important considering the time-sensitive nature of emergency contraception and of many other medications,” the Ninth Circuit said. “The time taken to travel to another pharmacy, especially in rural areas where pharmacies are sparse, may reduce the efficacy of those drugs.” Customers also shouldn’t get sent somewhere else when they ask for medication, the decision said, because “referrals could lead to feelings of shame in the patient that could dissuade her from obtaining emergency contraception altogether.”

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?

The reason why that question is relevant in this case has to do with Washington’s state laws and the way the case was litigated. In comparing Stormans with Hobby Lobby, said James Oleske, a law professor at Lewis and Clark College, “once you look at the actual legal claims being brought in the case, they differ in important ways,” he said. “The Hobby Lobby case was brought under RFRA, the Religious Freedom Restoration Act, which provides a right to religious exemptions.”

For those interested in the legal technicalities: Since Stormans concerns a state regulation, it couldn’t have been litigated under the federal RFRA, which only applies to federal laws. Washington state does not have its own state version of RFRA, although it does have a constitutional amendment that provides special protections for religious objectors. Nonetheless, “the Stormans case was brought under the free-exercise clause of the First Amendment, which the Supreme Court has held does not provide a right to religious exemptions,” Oleske said.

That Supreme Court decision was in the 1990 case Employment Division v. Smith, a controversial opinion written by none other than Antonin Scalia. “It’s clear from the Employment Division vs. Smith case that if the government has an across-the-board rule that applies to everybody equally, it can be applied to the religious person and burden their religious practice,” Oleske said. On the other hand, the Supreme Court found in a later decision that the government can’t make laws that specifically target the practices of religious groups.

That leaves a question: “What about the many, many, many cases in between?” Oleske said. “The government often passes laws that have some exemptions.” That’s true of the Stormans case: As Alito pointed out in his dissent to the denial of cert, the Washington regulations allow pharmacies to refuse to sell drugs to customers who don’t have “customary” payment, which might bar customers on Medicaid or Medicare, or with certain types of insurance. Does that exemption, created for secular reasons, mean the state has to make religious exemptions as well? “That issue, the Supreme Court has never cleanly resolved,” Oleske said.

This would have been an opportunity for the Court to take up that question. But a number of facts about the case may have made that complicated. In order to successfully make their case, the owners of Storman’s would have had to persuade the Court that the pharmacy regulations were discriminatory, Oleske said. That may have been difficult to do. According to the brief filed by Washington’s health department, the state never enforced these rules against any pharmacy or pharmacist, religious or otherwise; while it investigated claims, it never penalized Ralph’s or other religiously owned stores for their practices. That, and other factors, made the case “a poor vehicle for resolving questions about the free-exercise clause,” the state health department argued.

Call up any religion-law scholar and they might give you a different opinion on whether this case was indeed a “poor vehicle” for First Amendment questions. For now, the Supreme Court has decided to punt: Stormans will not be the challenge that broadens religious exemptions in the law, as some groups would have liked.

A few months might have changed the case’s fate, though. It’s not clear what would have happened if Scalia had been alive when this petition came across the Supreme Court’s docket, Oleske said, although it seems likely he would have at least voted to hear it. The justice joined a number of decisions that protected religious freedom, yet he was also the author of Smith, which denies that the government has a broad, First Amendment-based responsibility to accommodate religious individuals who object to specific laws. What is certain, though, is that this kind of challenge is not going away. Stormans spent nearly 10 years winding its way from the West Coast to reach the Supreme Court. The next challenge is out there, somewhere. The question is not whether the Supreme Court will face these issues again, but when.