Largely lost in the (understandable) hubbub about the Supreme Court’s historic Whole Woman’s Health v. Hellerstedt abortion decision was its action the following day that may recast the parameters of the religious liberty debate.
On Tuesday, the court declined to hear a challenge to a Washington State law that requires pharmacies to dispense emergency contraception even if the owners of the pharmacy have a religious objection to the medication because they believe (incorrectly, as far as science is concerned) that it is an abortifacient.
The decision not to hear the case engendered a blistering dissent from Justice Samuel Alito, who questioned the need for such laws and called it an “ominous” sign for religious liberty:
There are strong reasons to doubt whether the regulations were adopted for—or that they actually serve—any legitimate purpose. And there 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. … 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.
And he’s right. The court’s decision not to hear the case brought by Ralph’s Thriftway, a grocery store and pharmacy in Olympia, Washington that refuses to dispense the Plan B emergency contraceptive, does have broad implications for the future of such cases. Only the court’s hardline conservatives—Alito, Chief Justice John Roberts and Justice Clarence Thomas—voted to take the case, leaving it one vote short of the four needed to gain a full court review.
This means that a majority of the justices—including all-important “swing” justice Anthony Kennedy—agreed with Washington State’s contention that the law offers sufficient protection for religious freedom because it allows individual pharmacists to decline to dispense emergency contraceptives as long as the pharmacy has another pharmacist on hand who will. According to Washington State, the law:
… accommodate[s] individual pharmacists’ beliefs while fulfilling its mission of ensuring that patients timely receive needed medication.
This accommodation hews much more closely to the traditional understanding of religious liberty—the protection of individual conscience—than the broader interpretation offered by the court’s Hobby Lobby ruling, which made the employees of the owners of the Hobby Lobby craft store chain a conduit and proxy for their owners’ consciences.
Does this non-ruling mark a restoration of sanity—and some reasonable boundaries—on the religious liberty debate? Does this mean that the owners of for-profit enterprises like Hobby Lobby or Ralph’s Thriftway will no longer be able to assert broad religious liberty exemptions that reach into the private lives of their employees and customers?
Was the court’s recent bungled attempt to find some “compromise” on the Little Sisters of the Poor and related cases regarding the contraception mandate an outlier caused by the obviously mind-clouding effects of a case about the trampling of the rights of a group of elderly, self-sacrificing nuns by BIG GOVERNMENT? Will the court look more critically on claims that refusing to provide services to LGBT people is a protected form of religious liberty?
Only time will tell. But at least for the time being, it appears that religious liberty is no longer whatever conservatives say it is.
