Protecting rights of conscience

By Hannah C. Smith

Published: Sunday, Feb. 5 2012 12:00 a.m. MST

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On Feb. 1, a federal court near Seattle, Wash., heard closing arguments in a case about the right of conscience, a fundamental American principle (Stormans, Inc. v. Selecky). That right is the freedom from governmental coercion to violate one's religious convictions. A pharmacy owned for four generations by the Stormans family (Ralph's Thriftway) and two individuals — Margo Thelen and Rhonda Mesler, pharmacists for 40 and 20 years, respectively — are in jeopardy because new oppressive Washington state regulations are forcing them to choose between following their conscience and losing their livelihood.

As part of their Christian faith, the plaintiffs believe that all human life is precious and thus that dispensing "emergency contraception" drugs — Plan B (the "morning after pill") and ella (the "week after pill") — would mean directly participating in destroying a human life. To avoid such participation, when the plaintiffs receive prescriptions for these drugs, they facilitate referrals to nearby pharmacies instead.

As a direct result of new rules that force them to stock and dispense these drugs, Thelen has already been discharged from her job, and Mesler has been told that she will lose hers. The Stormans family has suffered financial hardship due to the boycotts and protests of pro-choice groups and faced repeated investigations by the state pharmacy board. All this because they will not dispense two of the 6,000 plus drugs on the market approved by the FDA.

The forces arrayed against these conscience-driven pharmacists have been gathering for awhile. The conflict began in 2005 when a leading pro-choice group (Planned Parenthood) launched a campaign against conscience rights for pharmacists in Washington. The state's Human Rights Commission got involved, threatening members of the Board of Pharmacy with personal liability if they continued to allow conscientious objections. Despite this pressure, the board unanimously upheld a policy that protected pharmacists' right of conscience in 2006.

Then Washington's governor, Chris Gregoire, heavy-handedly pushed board members to adopt Planned Parenthood's arguments, threatening to replace board members who would not. Unsurprisingly, Gregoire finally got her way. In 2007, she appointed two new board members (recommended by Planned Parenthood), and the board swiftly eliminated protections for the right of conscience.

This brings us to the most troubling aspect of this campaign: That conscience protections are being stripped from pharmacists to strike an ideological blow against the right of conscience and not to solve any demonstrated problem of consumer access. Remarkably, when the new rule was introduced, the board had not received a single complaint nor otherwise identified a single incident in which a patient was unable to gain timely access to these controversial drugs.

There was no evidence of a public policy problem to solve — just an anti-conscience campaign desiring to stamp out religious objections to a controversial drug. It seems the rule was imposed not ignorant of the hardships it imposes on pharmacists' conscience objections but because of them. In essence, a government licensing board decided to prohibit an expression of conscience that the government happens not to prefer.

The Stormans family, Thelen and Mesler sued in federal court to protect their right of conscience under the U.S. Constitution. They argue that the new rules violate the First Amendment's Free Exercise Clause by, among other things, permitting all sorts of exemptions for secular business reasons but none for religious/conscience reasons. For example, a pharmacy may decline to carry a particular drug (and instead refer patients elsewhere) if that drug falls outside the pharmacy's "niche" market, has a short shelf-life, yields too small a profit margin or requires too much paperwork or patient monitoring. Pharmacists can protect their bottom line, but not their conscience.

Another constitutional flaw is selective enforcement of the rule to disfavor conscientious objectors. During trial, the evidence showed that Planned Parenthood operated a targeted campaign to drive the Stormans out of business because of their religious objections to these drugs.

The campaign lobbed "test-shoppers" repeatedly at Ralph's Pharmacy and others to request Plan B to manufacture a body of complaints to the board of consumers being turned down or referred elsewhere. The pharmacy board's original position in 2006 struck the appropriate balance, enabling both customers to receive timely access to these drugs and objecting pharmacists to maintain their integrity.

This balance has been struck by most other states as well. Only seven other states have restricted conscience-based referrals in some way. The only state to go as far as Washington was Illinois, which last year had its regulations struck down as unconstitutional.

Now the Washington rule is on trial in federal court. The court should strike it down as unconstitutional and recognize that conscience protections are integral to America's commitment to liberty and democratic pluralism.

Hannah C. Smith is a member of the Deseret News Editorial Advisory Board and Senior Counsel at The Becket Fund for Religious Liberty, a public interest law firm that defends religious liberty for people of all faiths. The Becket Fund serves as co-counsel with the Seattle-based law firm Ellis, Li, & McKinstry in Stormans v. Selecky.

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