But Sometimes We Need the Court

There’s never been more Warrior-Evangelical screaming about the courts, and it’s easy to see why. With the U.S. Supreme Court having long ago taken abortion away from from state legislatures and, more recently, with judicial rulings against California’s heterosexual-only marriage law, the Courts are an easy target. There’s increasing talk of the legislative and executive branches rejecting court decisions (as mere advice) and Newt Gingrich has proposed taking away swathes of federal court jurisdiction. It might be good politics to talk that way to Tea Partiers and the like, but there’s one big problem: sometimes we need the courts to protect us from the legislative and executive branches.

One person who needed the protection of the Courts was Ken Stormans.  He and his family own a grocery store in the state of Washington, and a pharmacy within his store is vital to his business. Mr. Stormans, who is apparently a non-denominational Protestant, believes that distributing a certain form of contraceptive is akin to abetting murder. Accordingly, when a customer asks the Stormans’ pharmacy to fill that prescription, the pharmacy makes a referral to another pharmacy. Mr. Stormans’ practice of referring – rather than filling –  such prescriptions came to the attention of the Board of Pharmacy, and Stormans’ grocery faced the possibility of losing its pharmacy license.

But there didn’t have to be a clash with the State. The Board of Pharmacy initially wanted to allow conscientious objections to disbursing the contraceptive; the Governor was not so tolerant.  Actually, that would be an understatement.  The Court found:

…these Regulations were not the product of a neutral, bureaucratic process based solely on pharmaceutical expertise. Rather, they were a highly political affair, driven largely by the Governor and Planned Parenthood—both outspoken opponents of conscientious objections to Plan B:

a. In accordance with both the National and State Pharmacy Association, the Board originally voted in favor of accommodating conscientious objections.

b. Within hours of the Board’s pro-conscience vote, the Governor and Planned Parenthood set in motion a plan to reverse the Board’s decision. The Governor publicly threatened to replace members of the Board, and the Governor, based on the unprecedented participation of Planned Parenthood and other pro-choice advocates in the Board interview process, did, in fact, refuse to reappoint Board Chair Awan.

c. The Governor’s own handwritten notes indicate her primary concern was ensuring the Regulations were “clean enough for the advocates [i.e., Planned Parenthood] re: conscious/moral issues.”

d. The Governor ultimately advocated a draft regulation that prohibited conscience based referrals.

e. To ensure her victory, the Governor personally called the Board Chair to pressure him to pass her Regulations, after she had advised her staff that calling Board members was unlawful.

f. When the Chair resisted, the Governor replaced him with appointees recommended by Planned Parenthood.

g. Neither the Board nor the Governor ever researched access to Plan B (or any other drug) before passing the Regulations. The Board never identified a single incident in which a patient was unable to gain timely access to Plan B. And its post hoc survey of access to Plan B showed that there was no problem of access.

But wait, there’s more.  Given the current clash between Roman Catholics and Obamacare contraceptives, you might be wondering why the fight was not between the State and a Catholic hospital’s pharmacy. The Court explains:

The more plausible explanation is that the Board does not object to shutting down a small, independent pharmacy like Ralph’s, which was the object of a boycott honored by the Governor and was picketed and demonized by the local media. But the Board recognizes that shutting down Catholic pharmacies would have a devastating impact on access to health care. Thus, in practice, the Regulations are enforced against small, independent conscientious objectors “lacking in a constituency,” but not against “well-established churches” that are a pillar of health care within the state.. . .

In other words, the Governor was not just intolerant, but an intolerant bully.

As for the decision itself, the United States District Court found that there was a violation of religious rights and issued an injunction prohibiting the Board of Pharmacy from imposing any sanctions for Stormans’ practice of referring prescriptions for the contraceptive. It did so following the analysis we recently reviewed: the regulations were not neutral, so strict scrutiny applied. Then, under strict scrutiny, the regulations were not “narrowly tailored in pursuit of those interests” because

they are “overbroad,” prohibiting significantly more religious conduct than necessary to achieve the government’s stated end.. . . Here, the stated end is timely access to medication; but by the government’s own stipulation, Plaintiffs’ conscientious objections to Plan B do not undermine that interest. [i.e., no one is actually unable to get the contraceptive locally]

So there you go – a court protecting religious rights from an intolerant executive branch, just like they drew it up in the Constitution.  So let’s think about this whole area very carefully, because sometimes we need the Court.


Filed under Courts, Religious rights

6 responses to “But Sometimes We Need the Court

  1. Lily

    Absolutely. I love ya’ll.

  2. Lily

    Don’t miss this one, MM. This link is another rich example of why ya’ll are absolutely indispensable:

    …the implications of ObamaCare requiring individuals to sign contracts for insurance coverage. In any other context, signing a contract under threat of force constitutes duress, which negates the contract under centuries-old legal standards.

    The video is great in addressing the commerce clause issues too. I love it! Somebody needs to buy each and every one of ya’ll a white hat! 😉


    • Lily, one of the easiest rules of thumb in constitutional law was “if it comes down to the Commerce Clause, the government wins.” But if the federal government hasn’t exceeded the limits if the CC in Obamacare, one wonders if there is a limit. And that has to be in the mind of any judge hearing it: there has to be a limit somewhere. If not here, where?

  3. Lily

    Thanks, MM. You are so right about the limits needing to be set. Do you think the Justice Institute’s case (or whatever it is called) will force the court to finally say no to the government? Nothing like being asked to get your crystal ball out – huh? 😉

    It is scary to think how the misuse of the commerce clause began with a man growing wheat for his family’s consumption and continued to be used as justification to increasingly regulate our lives (if I understand it correctly). When the government gave themselves the right to take private property and sell it to developers not too many years back, that really blew my mind. What’s even more surprising to me is how few people seem to be aware of it. Sometimes I wonder if the government counts on that. People are busy taking care of their lives and don’t have the time or inclination to follow what the government it doing. It doesn’t help that the mainstream media isn’t reporting much about the huge overreach through agencies like the EPA these last few years either.

    • Lily, from a distance and based on the idea that there must be some limit to the Commerce Clause, I tend to be optimistic that the SCOTUS will say there is. But, really, I need to catch up on the specifics of the arguments and then do some plausible vote-counting of the individual Justices to give you an informed answer.

  4. Lily

    Many thanks, MM. I hope SCOTUS will make a number of decisions that will dismantle and/or block the implementation of ObamaCare. I hope we elect a president with the backbone to see that it is repealed from a-z. From my perspective, ObamaCare needs to be repealed in toto because of the 1000+ fill in the blank regulations to be written by Secretary Sebelius. As far as I can tell, it will increasingly be anti-sanctity of life from conception to natural death. The implications are more than frightening.

    I think it was during this last year that I first read a news story of a man in Oregon that was a shocking preview or where we could be heading. He was on medicaid and had been diagnosed with pancreatic cancer. Oregon refused to cover medical treatment expenses, but offered to pay for his euthanization since it is covered in their state’s medical coverage. He fought for treatment, they finally agreed to cover his expenses, and he died several weeks later.

    News stories over the last few days are covering a paper published in a respected medical journal where ethicists argue we should be able to kill newborns… not too many months ago, it was arguments for pedophilia. I may completely and permanently lose my mind this year. The eugenist movement which was a core part of the historic progressive political movement back in the early 20th century (if I have my story straight) are coming back in force not only politically but through academia. If I understand things correctly, the foundation is laid for new things in academia and then moved to the mainstream. That they are now getting their filth published is beyond my understanding.

    If interested, here is a link to the best article connecting the dots that I’ve read to date on the subject: http://touchstonemag.com/merecomments/2012/03/santayanas-warning-and-trends-in-modern-bioethics I wish the warnings and lessons learned from the 1930’s – ’40s had not lost their currency. It’s deja vu in too many ways.

    Lily aka Chicken Little ;(

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