WASHINGTON — During a recent speech in Washington for the national lawyer’s convention of the Federalist Society, U.S. Supreme Court Justice Samuel Alito opined that religious freedom might be “in greater danger” than the right to free speech.
“I am reminded of a song by the latest recipient of the Nobel Prize for Literature: It’s not dark yet, but it’s getting there,” he said.
Alito pointed to a case out of Washington State that was appealed to the U.S. Supreme Court, in which the owner of a pharmacy was required to stock the morning-after pill despite his religious convictions regarding abortifacients.
As previously reported, in 2006, Ralph’s Thriftway owner, Kevin Stormans, received a call inquiring whether the location sold the morning-after pill. After replying that the pharmacy did not carry it, he began to receive anonymous complaints via phone and email. Ralph’s Thriftway was soon also picketed and complaints were filed with the Washington Board of Pharmacy, which launched an investigation.
The following year, the state passed regulations requiring that pharmacies stock and dispense the morning-after pill, and the legal organization Alliance Defending Freedom (ADF) filed suit on behalf of Stormans and two of his pharmacists, Rhonda Mesler and Margo Thelen, who objected to the requirement because of their Christian faith.
The pharmacy had asked for the right to provide referrals rather than provide Plan B and Ella themselves, but while the regulations allowed for referrals for a number of reasons, religious protections were not included.
“It violates their religious beliefs to sell these drugs,” Alito outlined. “Instead of selling them, the pharmacy referred customers to one of more than 30 other pharmacies located within a five-mile radius.”
In 2012, a federal court ruled in favor of Ralph’s Thriftway, stating that the new regulations “appear to intentionally place a significant burden on the free exercise of religion for those who believe life begins at conception.” But the case was appealed to the 9th Circuit Court of Appeals, which unanimously ruled that Ralph’s Thriftway must stock the drugs despite the pharmacy’s religious objections.
The battle consequently went to the U.S. Supreme Court, but the majority of justices declined to take the case, allowing the lower court ruling on the matter to stand. Only Justices, Alito, Thomas and Roberts desired to hear the matter.
“[N]ational and local pharmacist’s associations submitted an amicus brief telling us that this practice of referring customers to other pharmacies is standard, because no pharmacy can possibly stock every single drug that is approved by the Food and Drug Administration,” Alito noted in his speech to the Federalist Society this month.
“In this case, there is strong evidence that the law was enacted to rid the state of those troublesome pharmacists who objected to these drugs on religious grounds,” he told those gathered, “but the Ninth Circuit sustained the law, and the Supreme Court did not even think that case deserved review.”
Alito, a Roman Catholic, lamented that “Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives.”
“This case is an ominous sign. At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications,” Alito wrote in his dissent from the court in June. “[T]here 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.”
“Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time,” he bemoaned. “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.”