“This case is an ominous sign,” Justice Samuel Alito begins one of the final opinions released on this last day of the Supreme Court term. He then proceeds to complain for 15 pages that pharmacy owners do not have enough control over whether women can fill their birth control prescriptions. Along the way, he manages to imply that anyone who does not believe in a god or gods is inherently immoral.
The political issue underlying Stormans v. Wiesman is familiar to anyone who has paid attention to the Supreme Court’s involvement in the birth control wars. The owners of a pharmacy in Olympia, Washington object to certain forms of contraception on religious grounds, but a state regulation requires pharmacies to “deliver lawfully prescribed drugs or devices to patients.”
So people with religious objections to birth control want an exemption from the law. We’ve heard this story before.
Stormans differs from Burwell v. Hobby Lobby and many other cases brought by religious objectors seeking similar exemptions, however, because it seeks immunity from state regulation as opposed to a federal rule. Cases involving federal law are controlled by the Religious Freedom Restoration Act (RFRA), which offers fairly robust protection for religious objectors above and beyond the protections afforded by the Constitution. State laws, however, must only comply with the standard announced by the late Justice Antonin Scalia in Employment Division v. Smith.
The Constitution, Scalia explained in Smith, “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Thus, a federal appeals court held, the Stormans aren’t entitled to an exemption because the Washington state law “applies to all objections to delivery that do not fall within an exemption, regardless” of whether that objection is rooted in religious faith or a different reason.
Alito attempts to get around Smith through a kind of bait and switch. “A law that discriminates against religiously motivated conduct is not ‘neutral,’” Alito writes, and he tries to paint this law as one that singles out religious conduct — and religious conduct alone — for inferior treatment. “The [Washington State Board of Pharmacy] has specifically targeted religious objections,” Alito claims. “Upon issuing the regulations, the Board sent a guidance document to pharmacies warning that ‘[t]he rule does not allow a pharmacy to refer a patient to another pharmacy to avoid filling the prescription due to moral or ethical objections.’”
Did you catch what Alito did there? First, he complains that the state “specifically targeted religious objections.” Then he supports this claim by noting the Board’s warning that “the rule does not allow a pharmacy to refer a patient to another pharmacy to avoid filling the prescription due to moral or ethical objections.” But “moral and ethical” objections are an entirely different concept than “religious” objections. The implication of Alito’s opinion is that the only basis for a moral or ethical viewpoint is religious faith. But that is an offensive suggestion that redefines the words “moral” and “ethical” in an idiosyncratic way.
Beyond this attempt to conflate religion with morality, Alito also complains that the state rule contains various secular exemptions without also including a special exemption for religious objectors. The rule, for example, permits pharmacists to turn away prescriptions “containing an obvious or known error,” or refuse to fill “potentially fraudulent prescriptions.” A pharmacy may also require customers to pay for their prescriptions before they are delivered, and they may turn away a customer if they don’t accept that customer’s insurance.
Because of these and similar exemptions, Alito claims that the state must also provide an exception for religious objectors or else it is unconstitutionally singling out religion for inferior treatment. “Allowing secular but not religious refusals is flatly inconsistent with” a 1993 Supreme Court decision, Alito claims. “It ‘devalues religious reasons’ for declining to dispense medications ‘by judging them to be of lesser import than nonreligious reasons,’ thereby ‘singl[ing] out’ religious practice ‘for discriminatory treatment.’”
In essence, Alito claims that if a state wants to allow pharmacists to refuse to fill erroneous or fraudulent prescriptions, they must also give special rights to religious objectors. It’s an extraordinary kind of extortion. Give religious objectors what they want, or else you are required to have laws that could endanger your citizens — or, at the very least, laws that could make it very difficult for pharmacies to operate their business.
It’s worth noting that Alito’s opinion dissenting from the Court’s decision not to hear Stormans was joined by Chief Justice John Roberts and Justice Clarence Thomas. It only takes four votes for the Court to hear a case. So if Justice Scalia were still alive, it is likely that this case would be heard by the justices’ next term.