Stanley Carlson-Thies, July 8, 2016

The US Supreme Court on June 28, 2016, decided not to accept the Stormans case concerning the Washington State prohibition of a religious refusal by pharmacies to sell emergency contraceptives such as Plan B. Washington regulators routinely allow pharmacies not to sell various items for many different secular reasons, prohibiting by specific regulation only religious and moral objections. And in this case, the regulators not only conceded that the religious objectors’ refusal to sell emergency contraceptives does not stand in the way of anyone obtaining these drugs but even affirmed that the general practice of allowing pharmacies to specialize while referring customers elsewhere ‘help[s] assure timely access to lawfully prescribed medications . . . includ[ing] Plan B.” The refusal to hear the case and to rule against Washington is, as Justice Samuel Alito wrote in his dissent, an “ominous sign” that the Supreme Court increasingly does not value religious freedom.

Ours is a society increasingly diverse in religious and moral convictions and practices. Fortunately, our system is very accommodating of those different convictions and actions, in significant part because, while enforcing equality before the law, we allow organizations in civil society and the free market to be very diverse, to offer different styles of service and to embody different values. Having diverse service providers is essential when customers and employees are also very diverse, desiring different products, types of services, workplace environments.

However, that valuable—indispensable—diversity is being driven out, just as it is even more needed, by the growing number of laws and regulations that impose the majority’s choices about various disputed values on everyone, with only narrow, or no, accommodations. It is not always easy to devise workable accommodations—for example, as the armed services have become more diverse, it is not possible to have one chaplain per faith in each location, so each chaplain has to become more or less multi-faith. But the Stormans case, it seems, is not one of the difficult instances. No pharmacy stocks every legal drug anyway, so referrals are routine. And pharmacies, in all but the most rural places, are hardly scarce establishments.

Letting the existence of many and diverse outlets, and the well-developed practice of referrals, ensure easy access to morally controversial emergency contraceptives was the easy and positive regulatory approach for the State of Washington to maintain. Instead, it decided to prohibit just the reasons—religious and moral–not to stock these drugs that most needed to be protected in our pluralist society. It is doubly sad that the US Supreme Court has declined to step in and instruct the State of Washington of its duty to protect, not curtail, religious freedom.