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


Ah, 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 and minister, Alan Reinoch. Well today We're looking at a very troubling decision for religious freedom out of the Ninth Circuit U.S. 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 Tedesco. 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 Stormans. What is it that the pharmacists objected to doing and what is it that they're going to be forced to do?

Well, 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. 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 want to 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 conestoga would special people were involved in the day jess many cases but I think the court 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 other kinds of drugs.

There is no imposition on access for folks who are seeking to get these drugs. Many times referrals are specifically allowed within the rules of the governed pharmacies in each state. Okay, 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 stop those against their conscience and dispense them when people come in for them they have no right to refer those folks to someplace else that no rate to to decline to stop those things even though a violent religious belief to do so and so you know it putting them in a position of having to choose between following their religious beliefs or violating the law.

And that's a certain area that... Now, as I understand it, 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 than this customer needs, and then they're gonna 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 that's the hard thing for the state in this case. 1 of the arguments we make is that there's tons of exceptions to the stocking rule, the prescription rules. And so once you allow for those exceptions, those secular-based exceptions, that being 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 I think 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 1 time or another and probably multiple times you've called your pharmacy after the prescription gets called in the pharmacy says sorry we don't have any in stock But I can call this pharmacy right down the road and I'm sure they have it and then that kind of referral happens all the time.

And so why can't it happen under these circumstances? Because this is a politically motivated attempt to force 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 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 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 Every 1 of those that we raised, it discussed and rejected and said, we don't find these to be sufficient exemptions to allow our clients to invoke their religious free exercise rights to refer. 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.

Because 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 1 of those 2 things, are you permitted to have a free exercise claim that has some teeth where 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 is 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 explain, as I've been doing 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.

I also use an illustration that is very familiar to most Americans from the old Roadrunner cartoons where you see the coyote, Wile E. Coyote, chasing the roadrunner and the roadrunner stops at the edge of the cliff and the coyote goes sailing on out over the edge of the cliff, his little feet 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 and you know falls down, way down down down. And what I've said to folks is, you know, with religious freedom we have sailed out 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.

It's 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 your church or maybe your home 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 Stormont's but in all these cases.

I think we also need to proactively resuscitate free exercise of religion as a constitutional doctrine. We are committed at ADF to doing that, 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 it could concern anyone who's deeply serious about their faith, because that threatens everybody, whether you're Christian or not, it 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 happens. I think this case also, like the cases we discussed earlier about the bakers 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 that's what you see. And again it goes back to 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 culture so you know that's kind of double standard I think ultimately doesn't fit well with people when they when they understand that that when we're willing to pin it punish 1 person because of them the views and beliefs they hold there's nothing that stops the government and from people getting in power that want to punish you next.

Even if your beliefs are different, there's no guarantees of what's going to be politically popular from 1 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 conformist culture where whatever the popular opinion is the 1 that you have to agree with you risk what losing your business losing your job losing the ability even active services businesses info you know We need to obviously be vigorously fighting for these principles Or we're gonna wake up 1 day and we're not going to recognize America at all, right? Well, I was raised in the 60s and early 70s at a time when nonconformity was a popular value For my generation, So I still say amen to that.

I hear the music. We're going to be closing momentarily. 1 last question. Any plans to appeal this case to the Supreme Court? Yes, we were drafting a petition for rehearing on Bach before the 9th Circuit first, and then, yes, we'll most likely appeal 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 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 Stormans, a Ninth Circuit decision involving restricting the rights of pharmacists and pharmacies to refuse to stock and dispense the Plan B and Ella contraceptive pills. Our guest today, Jeremy Tedesco from Alliance Defending Freedom.

Listeners, don't forget, freedom is not free. Be informed, get involved, join the North American Religious Liberty Association today. Produce your Freedom's Ring on the web at religiousliberty.info. This has been Freedom's Ring. I'm your host, Alan Reinach.

Until next week, let freedom ring.

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Appellate Decision Restricts Christian Pharmacy/Pharmacists

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