Wednesday, November 14, 2007

Big Week for Healthcare Rights of Conscience

Last week was a significant one on the healthcare rights of conscience front. A federal court in Washington state issued a preliminary injunction prohibiting the enforcement of Washington regulations to force pharmacies and pharmacists to stock and dispense the morning after pill (Plan B). In Stormans v. Selecky, the Court addressed a Washington pharmacy rule that the pharmacy board adopted only after pressure by Planned Parenthood and the governor in response to its previous decision that - comparatively speaking - protected conscience rights. A pharmacy and two individual pharmacists who object to stocking and filling prescriptions for the drug challenged the rule on Free Exercise and Title VII grounds.

The Court held that the Washington rule was not a neutral and generally applicable rule that happened to burden religious persons, but was in fact "targeted at the religious practices of some citizens," and that the "burden [the regulations imposed] on the practices of plaintiffs is intentional not incidental, and substantial not minimal." Indeed, the Court cited "the prominent role played by Planned Parenthood and the Northwest Women's Law Center" as further proff "that Plan B and religious objection were the focus of the rulemaking process." "The regulations appear designed," the Court observed, "to impose a Hobson's choice for the majority of pharmacists who object to Plan B: dispense a drug that ends a life as defined by their religious teachings, or leave their present position in the State of Washington."

Having determined that the rule was targeted at religious objectors, the Court applied strict scrutiny and had no problem concluding that the state had no compelling interest to justify this imposition on objecting pharmacies and pharmacists.

Finally, a Court that understands exactly what is at stake in this fight. Not "access" to the morning after pill (the Court notes that even the state's pharmacy association recognizes that access is not a problematic in Washington state), but the pro-abortion lobby's desire to drive out any vestiges of pro-life sentiment from the medical profession. In the view of those on the radical side of "Choice," dissenting voices cannot be tolerated. Even the few pharmacists who for reasons of conscience and personal religious beliefs do not wish to stock or personally fill prescriptions for a drug that operates in many cases to stop an already fertilized egg from attaching to the womb and developing into a child cannot be permitted to remain in the profession.

The Court had no problem disposing of the argument that the regulations were justified by a concern that pharmacist objections amounted to gender discrimination. Noting that federal and state law both provide a clear right to health care providers not to participate in an abortion, the court held "refusal to participate in an act that one believes terminates a life has nothing to do with gender or gender discrimination." Again, pointing to the apparent lack of a problem of access to Plan B in Washington state, the Court held that "the interests promoted by the regulations have more to do with convenience and heartfelt feelings than with actual access to certain medications."

Exactly. One could hardly hope for better understanding by a court of the true dynamics of this debate than is evidenced in this opinion. Kudos to lead counsel Kristen Waggoner (who were proud to claim as a CLS member), the team at Ellis, Li & McKinstry, and the Alliance Defense Fund for this win.

The importance of the decision is demonstrated by the other big development last week, an Ethics Opinion by the American College of Obstetricians and Gynecologists that belittles the role of conscience and repeats many of the misguided arguments for setting aside the role of the conscience of the individual medical professional that the Washington defendants relied upon in Stormans. Relying only a caricaturized view of conscience as simple subjective feelings of distaste for abortion and buying the Planned Parenthood media spin that persons with conscientious objections typically seek to lecture others about their sinfulness, ACOG would effectively rule out conscience rights in the abortion context. More on this ACOG opinion and its serious flaws in the coming days.