Religious Conscience in the Scrap Heap
Who Pays the Piper? Everyone.
Debra Rae | 12 July 2016
A biblical imperative,[i] the exercise of religious conscience is likewise a constitutionally protected, legal right. The second clause of the First Amendment guarantees free exercise of deeply held religious convictions.[ii] Be
sure principled religionists who exercise right of conscience are driven, not
by superficial “feelings,” subject to changing winds. Nor is religious
conscience to be confused with feeling guilt for indulging a second scoop of
ice cream, or skipping a workout at the gym.[iii] Conscience
speaks to an internal witness to what God commands and forbids, or to what is
legitimately deduced from explicit biblical principle.[iv] This,
our Founders protected.[v]
Since 1997 the First Amendment Center has
conducted an annual national survey of American attitudes toward the First
Amendment.[vi]
Sadly, nearly one-third of those surveyed in 2014 could not name even one of five rights guaranteed by
the First Amendment.[vii] While
right to conscience matters little to the uninformed, principled pharmacists
and pharmacy owners in Washington State treasure this right[viii] not
only for themselves, but also for all lawful Americans. Mindful that human life
begins at the moment of fertilization, and that abortifacients operate by
destroying a fertilized egg, or embryo, these professionals cannot in good
conscience dispense Plan B or Ella.[ix] Nor
will they.
Arbitrary Stocking Rules
Rationally, pharmacies are not expected to
stock every FDA-approved drug.
In the industry, a repeat customer’s
prescription triggers the “stocking rule requirement,” but the rule has no
teeth and is never enforced. Moreover, the state establishes no stocking
standards for low-demand drugs, nor are pharmacies required to stock diabetics’
syringes, Schedules 2 and 5 nonprescription meds, or narcotics feared to invite
armed robberies.
Clearly, the stocking rule allows ample wriggle
room. For most, there’s no quantitative formula of patient demand signaling
need to stock a drug, nor are there rules for how long the pharmacy must carry
a given drug, once demand for it wanes. In
fact, niche pharmacies systematically limit drugs they stock to specified
healthcare categories such as pediatrics, cancer, or long-term care.
While Washington offers no definition for “good
faith compliance,” Federal Appellate Judge Susan Graber (9th Circuit
Court of Appeals) applies this overly permissive (and otherwise vague) rule sternly.
In her world, pharmacies with
religious objection must stock and dispense specific, time-sensitive abortifacients.
For no particular reason, she exempts equally time-sensitive diabetic
syringes.[x]
Arbitrary Referral Rules
A patient’s need
for timely delivery is met effectively by alternative, facilitated referral. For
most, referral to nearby pharmacies is but a minor inconvenience.[xi] If
pharmacists can refer patients elsewhere when a drug is unprofitable, or out of
stock, why not allow Plan B referrals to nearby pharmacies? It can’t be emphasized enough that, with or
without referrals, there’s no documented access problem for Plan B in our state,
nor any drug for that matter.
One, and only one,
category of drug is under fire. Special interest activists demand immediate product and service from a
targeted pharmacist with religious convictions against a specific drug’s safe,
ethical use. Strong-armed to forfeit right to conscience, career, or privately
owned business, a conscience-sensitive pharmacist is bullied to forgo his First
Amendment right in deference to someone else’s perceived, but nonexistent
“right” to convenience.
What’s more, whenever special interest politics
shut down Christian businessmen and women—e.g., photographers, florists,
caterers, bakers, and pharmacists—timely access to specific goods and services
is limited all the more (at least in the short term). Jobs and services within
the community are needlessly lost; and, over time, principled gynecologists,
obstetricians, certificated master teachers, pharmacists, and more are forced
out of their professions for refusing to be bullied out of their religious
beliefs.
First
Amendment Rights Scrapped
Deputy National Litigation Director for the
Becket Fund for Religious Liberty, Luke Goodrich rightly argues, “No individual
should be forced out of her profession solely because of her religious beliefs.
For a pharmacist to maintain personally held, religiously motivated moral
objections is fully within her constitutional rights; however, the United
States Supreme Court recently declined to address a critical First Amendment
rights case.[xii]
Plaintiffs are Christian pharmacists and
pharmacy owners being coerced to fill prescriptions to which they object on the
basis of religious conscience. In this singular case, the standard practice of
referral (unless within the same store) is deemed unacceptable. Washington
state Attorney General Bob Ferguson lauds the high court’s decision that,
despite a pharmacist’s moral convictions, or better judgment, a patient cannot
be refused.[xiii] So what’s to stop an activist
from storming a church-affiliated senior care facility demanding Plan B? Must
she be served—here and now, no excuses—even when said demand violates the
pharmacist’s conscience while, at the same time, it sidesteps the clientele’s pharmacological
needs? Think, people.
My Way
or the Highway
Syndicated columnist
Joel Mathis argues that pharmacists provide a highly regulated public service
that cannot be denied.[xiv] Really? Everyday Washington pharmacies
make choices about which of more than six thousand FDA-approved drugs they’ll
stock (or decline from stocking, as the case may be). Should a patient violate
pharmacy dress- and/or behavior- codes—e.g., no shirt or shoes—or should he be
identified as a known shoplifter, he need not be served. To the contrary, crows Mathis, “If you don’t want to be a
pharmacist who dispenses birth control, perhaps you shouldn’t be a pharmacist.”
Huh?
Goose
v Gander Inequities[xv]
What’s
good for the goose should be equally good for the gander, but secular
pharmacists may do with impunity what religious pharmacists may not.
Incredibly, pharmacists may refuse medications for all sorts of secular
reasons—i.e., if a pharmacy doesn’t accept a patient’s insurance, Medicaid, or
Medicare or if shelf space is limited and a medication has a short life. If
it’s exceptionally expensive (and the patient can’t afford it)—or if stocking
it requires additional, burdensome paperwork or unit dosages—no worries. When bulk
purchase is necessary (beyond what the patient can consume), or if a drug
requires monitoring or special preparation (e.g., compounding processes that
require related equipment)—again, not to worry. No need to stock.
But an
abortifacient is somehow different. The adequate, though not ideal compromise
is for a pharmacist to “step away,” but not “in the way.” That policy no longer
flies (in this one case only). A secular
pharmacist may refer a client elsewhere for any number of reasons, but a
pharmacist who objects on the basis of conscience may not.[xvi]
Conclusion
I am reminded of a prominent Protestant pastor,
best remembered for this quotation as it reads in the United States Holocaust
Museum:
First
they came for the Socialists, and I did not speak out—Because I was not a
Socialist.
Then
they came for the Trade Unionists, and I did not speak out—Because I was not a
Trade Unionist.
Then
they came for the Jews, and I did not speak out—Because I was not a Jew.
Then
they came for me—and there was no one left to speak for me.
To their credit, our
Founders honored equal-handedness. As the Free Exercise Clause protects my
right to conscience as a Christian, the Establishment Clause protects secularists
from forced compliance to my religious convictions. Respecting the
Supreme Court’s recent laissez-faire
decision,[xvii]Justice
Samuel Alito warned, “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.”
My rights as a believer are at stake, true; but
so are yours as a secularist. For whatever reason, self-appointed
elitists may come snarling and yapping at your heels next.[xviii] Whenever
special interest politics prevail over one’s constitutional right to “free
exercise of religion,” then all core
rights (including speech, press, assembling, petitioning) are “up for grabs.” Make
no mistake. Everyone pays the piper.
Won’t you please join me in prayerfully
speaking out for protection of our inalienable, God-given rights?
[i] Acts 24:16—"And herein do I exercise myself, to have always a
conscience void of offence toward God and toward
[ii] “Nothing is politically right which is morally
wrong.” (O’Connell) Albert Einstein likewise cautioned, “Never do anything
against conscience even if the state demands it.”
[iii] Sexual health and
wellbeing of young women are not at issue. For many principled Christians,
birth control practices constitute personal choices decided between marriage
partners, their God, and a physician. In their view, abortifacient drugs cross the line.
[iv] In free society, each
citizen gives account to God, fair law, societal norms, family, etc. Christians
may not demand universal compliance with the Bible. Nor may secularists
stiff-arm religionists to conform to their ethical grid.
[v] Congress shall make no
law respecting an establishment of religion or prohibiting the free exercise
thereof. Government has a responsibility under the First Amendment to take
claims of conscience seriously when laws place a substantial burden on
religious practice.
[vii] The First Amendment of the Constitution of the United States of
America, ratified effective 15 December 1791, follows: “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress
of grievances.”
[viii]
Stormans v. Selecky, a landmark case handled by
the Becket Fund, a non-profit, non-partisan law firm that protects the
religious liberty of all faiths. Also on the legal team are lawyers Kristen
Waggoner and Steve O’Ban with Seattle-based law firm Ellis, Li & McKinstry.
Plaintiffs challenge the Washington State Pharmacy Board ruling that, despite
religious objections, pharmacies must forfeit their prerogative to facilitated
referral and stock/dispense early abortifacient drugs, as Plan B and Ella.
Read: http://www.newswithviews.com/Rae/debra211.htm & http://www.newswithviews.com/Rae/debra215.htm (Accessed 11 July 2016)
[ix] Stormans Inc. v. Wiesman, 15-862.
[x] If all are not enforced, it’s only fair that none should be (Judge
Ronald Leighton, December 9, 2011).
[xi] A survey initiated by the Washington State Pharmacy Board revealed
that 85% of the responding pharmacies knew of others within a five-mile radius
of their own. Were hospitals and other delivery options listed on that survey,
the percentage would be even higher.
[xii] Chief Justice John
Roberts and Justices Samuel Alito and Clarence Thomas would have heard the
appeal.
[xiii]
Title VII
protection from discrimination is trumped by a woman’s demand for emergency
contraception.
[xiv] Ben Boychuk (Syndicated
Columnist). “Should Pharmacists Have Religious Freedom in America?” (Seattle: The Seattle Times, July 1, 2016) A13.
[xv] This Court’s unanimous
decision in Church of the Lukumi Babalu Aye v. Hialeah was crystal
clear. Laws may not exempt nonreligious conduct while targeting religious
conduct for negative treatment. Secular pharmacists are free to refer. But now,
the Supreme Court upheld the 9th U.S. Circuit Court of Appeals
ruling last year, which found that a pharmacist may not refer a woman elsewhere
to procure abortifacients to which that pharmacist morally objects.
[xvi] Discrimination includes
demotion, layoff, transfer, failure to promote, discharge, harassment,
intimidation, or threat of the same. Gregory S. Sarno, Harassment or Termination of Employee Due to Religious Beliefs or
Practices, 35 P.O.F.2d 209, 222 (1983) (hereinafter “Harassment”); EEOC v. Townley Eng’g and Mfg., 859F.2d
610, 614n.5 (4th Cir. 1988), cert
den., 489 U.S. 1077 (1989).
[xvii]
Rachael Corte (The Associated
Press). “High Court Rejects Pharmacists’ Religious-Rights Appeal” (Seattle: The Seattle Times, June 29, 2016) B5.
Chris Edwards is the director of tax policy studies at Cato and editor of DownsizingGovernment.org.
