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.”