Birth Control and Freedom of Religion

Mar 12, 2012

By Ken Blanchard

South Dakota is one of a small number of states that has a conscience clause in its codified laws protecting pharmacists. See 36-11-70: “No pharmacist may be required to dispense medication if there is reason to believe that the medication would be used to: (1) Cause an abortion; or (2) Destroy an unborn child… or (3) Cause the death of any person by means of an assisted suicide, euthanasia, or mercy killing.”

This is a good idea. It would be abhorrent to compel a doctor to perform an abortion or euthanize a patient or administer a lethal injection to a condemned man. Compelling a pharmacist to supply the drugs for any of these procedures is much the same.

Does a pharmacist have a similar right to refuse to dispense contraceptives in violation of his or her religious scruples? This isn’t clear from the above mentioned law. Nor is it obvious that such a right is implicit in the Free Exercise of Clause of the First Amendment, according to which neither Congress nor the states can prohibit the free exercise of religion.

In Employment Division of Oregon v. Smith (1989), the US Supreme Court decided that the Free Exercise Clause is not a get out of jail free card. If a law is neutral with regard to religion and applies the same to everyone regardless of religious identity or motives, then it is constitutional even if it interferes with some religious practice. For example, anyone can be prohibited from lighting a bonfire in a national forest or possessing and ingesting a hallucinogenic drug. It doesn’t matter if your motives are religious or merely recreational.

On the other hand, if an apparently neutral law is in fact specifically designed to target a religious practice, then it violates free exercise. In Church of Lukumi v. Hialeah (1992), the high court struck down a municipal ordinance that targeted the Santeria religion. The law allowed the killing of animals for almost any purpose except as a religious sacrifice.

In 2007, the Washington State Board of Pharmacy issued a rule compelling “pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious beliefs.” In Stormans v. Selecky (2012), a federal district court in Tacoma, Washington struck down this anti-conscience clause.

It is often said that a pharmacist who is unwilling to fill a legal prescription should get out of the business. In fact, pharmacists can refuse to stock a drug for fear of robbery (oxycodone), or because it is too expensive or involves too much paperwork, or because the pharmacy has an agreement with a manufacturer. The pharmacy can refuse to deliver medicine because it does not accept a patient’s particular insurance or because it does not accept Medicare or Medicaid.

Under the Washington Board’s rule, a pharmacy could be penalized for refusing to dispense a lawfully proscribed medicine only if the refusal were religiously motived. To prohibit an action precisely because of its religious motivation is a clear violation of free exercise. 

 

Dr. Ken Blanchard is a professor of Political Science at Northern State University and writes for the Aberdeen American News and the blog South Dakota Politics.