Jeremy Tedesco, Senior Legal Counsel, Alliance Defending Freedom, www.Adflegal.org, discussing a Washington State case upholding state law requiring pharmacists to dispense the “morning after” birth control pills. 

<p>Jeremy Tedesco, Senior Legal Counsel, Alliance Defending Freedom, www.Adflegal.org, discussing a Washington State case upholding state law requiring pharmacists to dispense the “morning after” birth control pills. </p>

<p>Free sharing permitted under the Creative Commons <a rel="license" href="http://creativecommons.org/licenses/by-nc-nd/3.0/us/">BY-NC-ND 3.0 (US)</a> license.</p>

Church State Council

Alan Reinach

Appellate Decision Restricts Christian Pharmacy/Pharmacists

A sweet land of liberty. Our founding fathers not only pledged, but gave their lives, their fortunes and their sacred honor to obtain our God-given liberty. Now it's our turn. Liberty can only thrive if it's alive in the hearts of a freedom loving people. I'm Dan Matthews and I'm pleased to welcome you to Freedom's Ring. Here's our host and constitutional lawyer, minister Alan Re. Well, today we're looking at a very troubling decision for religious freedom out of the Ninth Circuit, US Court of Appeals governing a whole bunch of Western states dealing with the rights of a Catholic pharmacist. Our guest today, senior legal counsel with Alliance Defending Freedom, Jeremy Esco. Welcome back to Freedom's Ring Jeremy. Thanks Alan, appreciate you having me on. So, you know, I thought this case was over a long time ago. I was surprised to see a decision Now out of the ninth Circuit cases called Storm, what is it that the pharmacists objected to doing and and what is it that they're gonna be forced to do? Well, there's, there's pharmacists and there's pharmacies involved in the case. And I think that's important to understand because what the Ninth Circuit is saying is that pharmacies don't have the first amendment right to object to fill prescriptions for abortion inducing drugs like Plan B and Ella. It's the same drugs we see involved in the HHS mandate cases with Obamacare, where the Supreme Court ultimately ruled in favor of Christian owned companies that didn't wanna provide access to those drugs through their employee health insurance plan. Now are we talking about pharmacies like at CVS or Walgreens or Walmart or, you know, big corporate owned pharmacies? I can understand where they might not have rights of conscience or, you know, in the Hobby Lobby case and its progeny, the court said that, you know, small businesses, family owned businesses clearly are the alter ego of the owners who do have First Amendment rights. So what are we talking about? Well, I think obviously, and that's the kind of case we have here, we have a Christian owned family business, very much like Hobby Lobby and kind of still the wood specialties who are involved in those HHS mandate cases. But, you know, I think the important thing to understand about this whole situation is that the pharmacist rules in pretty much every state in the country allow for conscience based referrals when it comes to pharmaceuticals and the dispensing of these kinds of drugs and, and other kinds of drugs, there is no imposition on access for folks who are seeking to get these drugs. In many times referrals are specifically allowed within the rules of, you know, the governed pharmacies in each state. Okay, Let's back up a second. Let's first explain to our listeners what exactly the Ninth Circuit decided in this case. Well, what they decided is that a family owned pharmacy in Washington could not refer clients who wanted Plan B and Ella these abortion inducing drugs and that they must actually stock those against their conscience and dispense them. When people come in for them, they have no right to refer those folks to someplace else. They have no right to, to decline to stock those things even though it violates the religious belief to do so. And so, you know, it's putting them in a position of having to choose between following their religious beliefs or violating the law. And that's, As I, as I just scared it, in, in the pharmaceutical industry, there are just thousands of drugs and there are lots of practical business reasons, economic reasons pharmacists cannot stock every drug and they have to be very selective in what they actually stock. And it's not uncommon for someone to come in for a drug and the pharmacy not to have it and it may not be economical for them to order it because they'd have to order it in much larger quantities. Then this customer needs and then they're gonna, you know, expire on the shelf and the pharmacy's gonna lose money and they refer to another pharmacy that does stock the drug. Right? Sure. And that's, you're right. And, and that's the hard thing for the state in this case. One of the arguments we make is that there's, there's tons of exceptions to the, the stocking rule, the prescription rules. And so once you allow for those exceptions, those secular based exceptions that being re you know, required to have these items on hand and be able to prescribe them is that you can't punish people who can't do it for religious reasons when you have all these secular exceptions to the exact same rule. And so, and I think, you know, what you're pointing out is also so true and pretty much everybody in America who's ever needed a prescription can relate to this at one time or another. And probably multiple times you've called your pharmacy after the prescription gets called in and the pharmacy says, sorry, we don't have any in stock, but I can call this pharmacy wrote down the road and, and I'm sure they have it. And then you're, that that kind of referral happens all the time. Sure. And so why can't it happen under these circumstances? Because this is a politically motivated attempt to force, you know, religious owned businesses to give up their faith to operate in the state. And that's something we shouldn't tolerate as a free country. So you have business owners, pharmacy owners who have an objection to prescribing plan B, the, the pill that people take after they've had sex to prevent pregnancy. Right? Correct. And, And Ella as well, another drug that does it the same thing. Okay. And so I'm curious to know what the court's reasoning was as to why it was okay for the state to force these people to carry this drug and to make it available to customers against their religious beliefs. In essence, it said that the law in question does not target religion for any kind of special disability or, or or anything else. And they rejected some of the things you raised that there's exceptions, secular based exceptions to these stocking rules and prescription rules and referrals. The court just, you know, every one of those that we raised it, it discussed and, and rejected and said, we don't find these to be sufficient exemptions to allow our clients to invoke their religious free exercise rates to refer. And and part of the problem with this, what this case shows to some extent is the problem with the Supreme Court ballot back in 1990, changing the legal standard for free exercise claims cuz this is a free exercise case primarily. And the Supreme Court rejected the old test, which was much more favorable to free exercise claims and gave you a much more narrow avenue to raise these claims. And basically you have to show that the government is targeting religion or that they have a whole bunch of secular exemptions that undermine the very policy that they're trying to apply against you. And only if you can show those things or one of those two things are you permitted to have a free exercise claim that has some teeth or strict scrutiny would apply and the government would have to show a compelling interest to violate your rights. So the court basically said the law's neutral. There are no exceptions that trigger your First Amendment rights. So all you have to have is a rational basis for what you're doing. And we find that you do, You know, Jeremy, when I when I explain a as I've been doing for, you know, ever since 1990 explaining the impact of that decision to church groups, I've summarized it very simply. I've said, you know, government wins and religious freedom loses period. That's the new rule under the free exercise clause. It gives a great deal of authority Yes. To the government. There's no question. You know, I also use an illustration that is very familiar to most Americans from the old Roadrunner cartoons where, you know, you see the, the coyote Wiley coyote chasing the roadrunner and the roadrunner stops at the edge of the cliff and a coyote goes sailing on out over the edge of the cliff as little feet, you know, spinning. And then there's that pause before when the coyote realizes that he's out over the edge of the abyss and then he falls in, you know, falls down way down, down, down. And, and what I've said to folks is, you know, with religious freedom, we have sailed out the over the edge of the cliff, the constitutional foundations have been destroyed. We just don't realize yet, we haven't entirely fallen into the abyss like we're hanging out like that coyote over thin air waiting to fall. And I think this case is an indication of the fall and just how hard the fall can be. Well I certainly, you know, think that religious freedom is at a crossroads in our country. I think that, you know, the cultural societal hostility to the exercise of religious freedom in any place other than the your church or maybe your home is, is highly problematic and it's getting worse. But, you know, I don't, I think we've got great legal claims, not just in Storeman, but in all these cases I think we also need to, you know, proactively resuscitate free exercise of religion as a constitutional doctrine. And we, we are committed at ADF to doing that. And, and we certainly are doing that within the cases we're litigating now and looking for more opportunities to do so because this country was founded on more than anything the right to exercise religion freely to be free of government punishment and coercion because of what you believe and being able to freely exercise and act on those beliefs in your day-to-day life as well. And the fact that we see so much hostility to that today and we see these constraints by the government on our right to do that is something that should concern us as Christians, but, but could concern anyone who's, who's deeply, you know, serious about their faith because that threatens everybody, whether you're Christian or not, doesn't matter what faith you are. And so we certainly want to continue to see that commitment to religious freedom respected in our law, in our culture, and we're doing everything we can to make sure that that happened. I think this case also, like the cases we discussed earlier about the bakers and the, and the florist and the wedding photographer, these cases raise the question as to the meaning of diversity in America because I think that diversity has come to mean including everybody, but those with deeply held religious beliefs. Yeah. Diversity is really just code word for conformity with what's politically popular or politically correct. It really is. And and that's what you see. And again, it goes back to the, you know, what we talked about in our last segment where in Colorado you've got same-sex. If you decline to do a cake celebrating same-sex marriage, you get sued and prosecuted under the, you know, full force of the law. If you decline to create a cake expressing religious opposition to same-sex marriage, you're free and clear found not guilty of violating the very same law and you're cheered and commended in in, in our, our culture. So, you know, this kind of double standard, I think ultimately doesn't sit well with people when they, when they understand that, that when we're willing to pin punish one person because of the the views and beliefs they hold, there's nothing that stops the government and from people getting in power that wanna punish you next, even if your beliefs are different, there's no guarantees of what's gonna be politically popular from one moment to the next. I think our history has shown us that. And so that's why we defend those who have unpopular beliefs, whose beliefs are outside the mainstream because we don't want conformity, we don't want some kind of, you know, conformist culture where whatever the popular opinion is is the one that you have to agree with or you risk what losing your business, losing your job, losing the ability to even access services as at businesses. And so, you know, we need to obviously be vigorously fighting for these principles or we're gonna wake up one day and we're not gonna recognize America at All. Right. Well I was raised in the sixties and early seventies at a time when non-conformity was a popular value for my generation. So I still say amen to that. I hear the music. We're gonna be closing momentarily. One last question. Any plans to appeal this case to the Supreme Court? Yes, we we're drafting a petition for rehearing unbanked before the ninth Circuit first, and then yes, we'll most likely appeal it to the Supreme Court. I think the conventional wisdom is that the court is not likely to be interested in reversing the Smith case from 1990, but I gather in this case there's plenty of room for them to rule in, in favor of religious freedom even without reversing Smith, which I certainly hope they will eventually. Yes, absolutely. I think that's correct. Well, we've been discussing a case called Storman's, a ninth circuit decision involving restricting the rights of pharmacists and a pharmacies to refuse to stock and and dispense the plan B and and Ella contraceptive pills. Our guest today, Jeremy Esco from Alliance Defending Freedom Listeners, don't forget, freedom is not free. Be informed, get involved. Join the North American Religious Liberty Association today. Producer of Freedom's, ring on the web@religiousliberty.info. This has been Freedom's Ring. I'm your host, Alan Rek. Until next week, let Freedom Ring.

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Appellate Decision Restricts Christian Pharmacy/Pharmacists

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