Much has been reported in recent days regarding the Obamacare mandate that would require religious institutions to provide health insurance whose services include contraception, including "Plan B" or the "morning after pill." But few realize that a case with essentially the same underlying principle and challenge has been working its way through the federal court system for a couple years already.
The L.A. Times reported in 2009:
Pharmacists are obliged to dispense the Plan B pill, even if they are personally opposed to the 'morning after' contraceptive on religious grounds, a federal appeals court ruled Wednesday. In a case that could affect policy across the western U.S., a supermarket pharmacy owner in Olympia, Wash., failed in a bid to block 2007 regulations that required all Washington pharmacies to stock and dispense the pills. Family-owned Ralph's Thriftway and two pharmacists employed elsewhere sued Washington state officials over the requirement. The plaintiffs asserted that their Christian beliefs prevented them from dispensing the pills, which can prevent implantation of a recently fertilized egg. They said that the new regulations would force them to choose between keeping their jobs and heeding their religious objections to a medication they regard as a form of abortion. Ralph's owners, Stormans Inc., and pharmacists Rhonda Mesler and Margo Thelen sought protection under the First Amendment right to free exercise of religion and won a temporary injunction from the U.S. District Court in Seattle pending trial on the constitutionality of the regulations. That order prevented state officials from penalizing pharmacists who refused to dispense Plan B as long as they referred consumers to a nearby pharmacy where it was available. On Wednesday, a three-judge panel of the U.S. Ninth Circuit Court of Appeals lifted the injunction. Other constitutional challenges are pending with the district court, which had been waiting for the Ninth Circuit ruling on the injunction, said Chad Allred, a Seattle lawyer whose firm represents Stormans and the pharmacists. In anticipation of the injunction being vacated, Stormans and the two pharmacists secured an agreement with the state that it would not pursue sanctions against them until the other issues were decided at trial, Allred said.The Ninth Circuit in 2009 indicated that they think Washington's law is Constitutional. Fox News reported in 2012 that in light of the Ninth Circuit decision the federal District Court is once again:
Considering whether Washington state can require pharmacies to stock and sell Plan B or other emergency contraceptives, even in the face of religious objections by druggists who believe they destroy human life. U.S. District Judge Ronald Leighton heard closing arguments Wednesday in a lawsuit that claims state rules violate the constitutional rights of pharmacists by requiring them to dispense such medicine. The state requires pharmacies to dispense any medication for which there is a community need and to stock a representative assortment of drugs needed by their patients... The judge blocked the state dispensing rule in 2007, finding that it would violate the plaintiffs' freedom of religion. But a Ninth U.S. Circuit Court of Appeals panel overruled him, saying that he applied the wrong legal standard and that the rule appeared constitutional because it was neutral and did not directly target religious views. The appellate court sent the case back to Leighton, telling him to apply the correct standard. He held an 11-day trial to flesh out the matter, and in court Wednesday, he expressed little patience for the state's enforcement of the rules, which he said reminded him of the federal government's arbitrary enforcement of the now-repealed rule against gays serving openly in the military. The issue is more important than many other freedom-of-religion cases, such as those concerning religious dress or other ceremonial matters, he said.
Fox News continues:
By the tone this judge is taking with State attorneys, it is likely he will defy the Ninth Circuit ruling. What exactly did the Ninth Circuit say? The Ninth Circuit held that Washington's Pharmacy Board rules are neutral regulations of general applicability that need only meet a rational basis test rather than the strict scrutiny standard used by the district court. The Supreme Court had essentially ruled in the case of Employment Division v. Smith in 1988 that neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment. Strict judicial scrutiny almost always results in the overturning of a law, while typically the judiciary applying a rational basis test results in the law being upheld. But within the very opinion itself the judges seem to contradict themselves on this very point.
The Ninth Circuit stated that the new pharmacy rules are neutral because they "do not aim to suppress, target, or single out in any way the practice of any religion because of its religious content." The Court said that the regulations are generally applicable because there was "no evidence" that the State "pursued their interests only against conduct with a religious motivation. Under the rules, all pharmacies have a 'duty to deliver' all medications 'in a timely manner'" and the challenged regulations in the case do not apply "to refusals only for religious reasons." Yet the opinion also included the following not long thereafter: "How much the new rules actually increase access to medications depends on how many people are able to get medication that they might previously have been denied based on religious or general moral opposition by a pharmacist or pharmacy to the given medication." In other words, the entire success of the law they declare "nuetral" and "generally applicable" will be determined by its effect on religious people.
The Ninth Circuit itself quotes Supreme Court precedent to support the idea that the district court should not have looked to legislative history to determine whether a law is nuetral. The Ninth Circuit writes that "Justice Scalia, the author of the [Employment Division v.] Smith [(1988)] opinion," one of the main cases the Ninth Circuit relies upon, "explained that the Free Exercise Clause 'does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted.'” How does that then square with the apellate court's own declaration that the increase in the avaliability of medication "depends on how many people are able to get medication that they might previously have been denied based on religious or general moral opposition by a pharmacist or pharmacy to the given medication"?
Business owners, including pharmacies, should be able to sell what they wish without government intervention forcing them to sell a product they find morally repulsive. The same should hold true for health insurance provided by religious employers or organizations that morally object to various forms of contraception. I obviously find these cases to be very similar in principle. That is because they clearly are. One of the key differences between this regulation and the new controversy surrounding the Obamacare mandate is that one can get lawsuits throughout the federal circuit courts if it is a challenge to a national Obamacare regulation, eventually creating possible splits in the courts thereby putting federal law in question, and therefore a much higher chance that it could end up with the Supreme Court.
When the government forces a religious person in a specific business to sell a specific product or provide a specific service, in violation of his legitimate and deeply held religious and moral convictions, then common sense dictates that there may in fact be a serious conflict with the First Amendment's ban on government laws that prohibit "the free exercise of religion." The Ninth Circuit has proven itself to lack this common sense. Other federal courts will soon hear the newer permutation of the very same issue with Obamacare and hopefully will not follow in the Ninth Circuit's footsteps. If "free exercise of religion" is to mean anything, then let us hope that the Ninth Circuit has not already been preaching to the judicial choir.
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"The question of life and death is serious," [Judge Leighton] thundered at an attorney for the state. "It's not facial hair, it's not a burka. ... I do not know when life begins, but I will not denigrate somebody's view of when life begins."
By the tone this judge is taking with State attorneys, it is likely he will defy the Ninth Circuit ruling. What exactly did the Ninth Circuit say? The Ninth Circuit held that Washington's Pharmacy Board rules are neutral regulations of general applicability that need only meet a rational basis test rather than the strict scrutiny standard used by the district court. The Supreme Court had essentially ruled in the case of Employment Division v. Smith in 1988 that neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment. Strict judicial scrutiny almost always results in the overturning of a law, while typically the judiciary applying a rational basis test results in the law being upheld. But within the very opinion itself the judges seem to contradict themselves on this very point.
The Ninth Circuit stated that the new pharmacy rules are neutral because they "do not aim to suppress, target, or single out in any way the practice of any religion because of its religious content." The Court said that the regulations are generally applicable because there was "no evidence" that the State "pursued their interests only against conduct with a religious motivation. Under the rules, all pharmacies have a 'duty to deliver' all medications 'in a timely manner'" and the challenged regulations in the case do not apply "to refusals only for religious reasons." Yet the opinion also included the following not long thereafter: "How much the new rules actually increase access to medications depends on how many people are able to get medication that they might previously have been denied based on religious or general moral opposition by a pharmacist or pharmacy to the given medication." In other words, the entire success of the law they declare "nuetral" and "generally applicable" will be determined by its effect on religious people.
The Ninth Circuit itself quotes Supreme Court precedent to support the idea that the district court should not have looked to legislative history to determine whether a law is nuetral. The Ninth Circuit writes that "Justice Scalia, the author of the [Employment Division v.] Smith [(1988)] opinion," one of the main cases the Ninth Circuit relies upon, "explained that the Free Exercise Clause 'does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted.'” How does that then square with the apellate court's own declaration that the increase in the avaliability of medication "depends on how many people are able to get medication that they might previously have been denied based on religious or general moral opposition by a pharmacist or pharmacy to the given medication"?
Business owners, including pharmacies, should be able to sell what they wish without government intervention forcing them to sell a product they find morally repulsive. The same should hold true for health insurance provided by religious employers or organizations that morally object to various forms of contraception. I obviously find these cases to be very similar in principle. That is because they clearly are. One of the key differences between this regulation and the new controversy surrounding the Obamacare mandate is that one can get lawsuits throughout the federal circuit courts if it is a challenge to a national Obamacare regulation, eventually creating possible splits in the courts thereby putting federal law in question, and therefore a much higher chance that it could end up with the Supreme Court.
When the government forces a religious person in a specific business to sell a specific product or provide a specific service, in violation of his legitimate and deeply held religious and moral convictions, then common sense dictates that there may in fact be a serious conflict with the First Amendment's ban on government laws that prohibit "the free exercise of religion." The Ninth Circuit has proven itself to lack this common sense. Other federal courts will soon hear the newer permutation of the very same issue with Obamacare and hopefully will not follow in the Ninth Circuit's footsteps. If "free exercise of religion" is to mean anything, then let us hope that the Ninth Circuit has not already been preaching to the judicial choir.
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The ninth is not held in high regard in judicial circles as a source of precedent. They are the crazy uncle in the closet.
ReplyDeleteThey haven't been taken seriously for decades.
Cheers,
Law Nerd
Employment Division v. Smith (1988) case does indeed stand for the basic principle that "neutral laws of general applicability" do not violate the Free Exercise Clause. That case can obviously be interpreted differently, but the Ninth Circuit's application of that Supreme Court ruling is not actually absurd. It predictably led to nonsensical rulings exactly like that which the Ninth Circuit delivered in this case.
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