The Supreme Court declined to hear a major religious-freedom case on Tuesday, showing how much things have changed since Hobby Lobby.
Two years ago, the U.S. Supreme Court handed down a controversial 5-4 ruling about birth control and religion, Burwell v. Hobby Lobby Stores, Inc. Because of the ruling, private companies owned by religious people, including the craft-supply chain Hobby Lobby, can now refuse to cover certain kinds of birth control in their employee insurance plans, a requirement that was put in place by the 2010 Affordable Care Act. Supporters of the ruling claimed it as a triumph for religious freedom and an important precedent for cases about conscience-based objections to contraception.
Two years later, a pharmacy chain in Washington state, Stormans Inc., which operates a store in Olympia called Ralph’s Thriftway, has been denied a hearing before the Supreme Court. The pharmacy’s owners, along with two other pharmacists who are also plaintiffs in the case, Stormans, Inc. v. Wiesman, refused to stock emergency contraception, including Plan B and ella, for religious reasons—they believe the pills are effectively abortifacients. Long-standing state regulations require Washington pharmacies to stock a “representative assortment of drugs in order to meet the pharmaceutical needs of … patients.” The requirements were updated in 2007, specifying that pharmacies must deliver all FDA-approved drugs to customers; they can’t refer people to get medication at a different location for any kind of religious or moral reasons.
The owners of Stormans, along with two other pharmacists, challenged this update; they don’t want to carry or sell these products. Their complaints eventually made it to the Ninth Circuit Court of Appeals, which denied their claims. By refusing to hear the case, the U.S. Supreme Court has effectively done the same.
On the surface, the Hobby Lobby and Stormans cases seem similar: Both involve private businesses whose religious owners object to laws requiring them to deal with contraception. What happened in those two years that made the Supreme Court change course so much since Hobby Lobby?
For one thing, the make up of the Court has changed: This is one of those cases in which Antonin Scalia’s death really matters. The Court needs four justices to grant a writ of certiorari; only three were willing to hear this case. Samuel Alito, John Roberts, and Clarence Thomas all dissented from the denial of cert, with Alito writing a 15-page explanation of their objections. If Scalia were still on the bench, he almost certainly would have joined them. That means the case would have come before the Court, and the Ninth Circuit’s decision may or may not have been upheld. Now, because of the timing of the case, the Ninth Circuit’s decision will stand by default.
Something else has changed, too. Two years ago, Anthony Kennedy joined the conservative wing of the Court to affirm Hobby Lobby’s religious rights. It’s clear that Kennedy declined to vote to grant the petition, but it’s less clear why. The Court’s perpetual swing voter may have made a strategic move in dooming the case: He may not have believed the ruling could have ever been reversed given the Court’s current ideological makeup, for example.
But this case is also complicated and somewhat idiosyncratic, according to Marty Lederman, a Georgetown Law Center professor. While it resembles a blockbuster case like Hobby Lobby in superficial ways, the facts of the suit would have made this a difficult case for the Supreme Court to offer constructive guidance on, he said.
Many people saw this as major religious-liberty case. Five national pharmacists’ associations, along with state pharmacists’ associations from 33 states, filed a brief calling on the Supreme Court to take the case. “The Ninth Circuit’s decision effectively eliminated pharmacists’ right not to participate in actions they conscientiously oppose, even though a ‘right of conscience’ has always been integral to the ethical practice of pharmacy,” they wrote. They argued that while state regulations allow individual pharmacists to refuse to dispense certain drugs, small pharmacies might be unable to afford to keep multiple pharmacists on staff to accommodate these objectors. The associations also argued that the decision impedes on pharmacy owners’ ability to make ethical and business decisions about what they sell.
In his dissent to the Court’s denial of cert, Alito said it was “ominous” that the Court did not “deem the case worthy of our time.” Advocacy groups have specifically sought out pharmacies that have religious objections to Plan B in order to file complaints, he said, citing evidence from the district-court filings; Ralph’s Thriftway alone was the subject of some two dozen complaints between 2006 and 2015. “If this is a sign of how religious-liberty claims will be treated in the years ahead,” Alito wrote, “those who value religious freedom have cause for great concern.”
On the other side, groups like the American Civil Liberties Union celebrated the Supreme Court’s decision not to hear the case. “When a woman walks into a pharmacy, she should not fear being turned away because of the religious beliefs of the owner or the person behind the counter,” the organization’s deputy legal director, Louise Melling, said in an emailed statement. “Open for business means opens for all. Refusing someone service because of who they are … amounts to discrimination, plain and simple.”
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