Abortion Advocates Challenge Conscience Protection

According to the Washington Post, abortion advocates have filed three lawsuits challenging the newly final HHS rule protecting the consciences of health care providers.

Illinois Supreme Court: Pharmacies Can Challenge Governor Blagojevich's Anti-Conscience Rule

The Illinois Supreme Court ruled yesterday that pharmacies that do not wish to stock Plan B, a drug used as an "emergency contraceptive" but which can prevent the development of an already fertilized egg, may challenge a rule issued by Governor Rod Blagojevich mandating that they fill such prescriptions despite their conscientious objections.

The plaintiffs challenged the rule in state court under state and federal laws protecting conscience, including the Illinois Health Care Right of Conscience Act, the Illinois Religious Freedom Restoration Act, and the First Amendment. The Illinois trial court ruled against the plaintiffs, holding that the case was not yet ripe for adjudication.

The Center, on behalf of the Christian Legal Society and Christian Pharmacists Fellowship International, and with substantial assistance from attorneys with the Columbia, SC firm, Nelson, Mullins, Riley & Scarborough, filed an amicus brief arguing that the case was ripe. The Illinois Supreme Court reversed the trial court, holding that the claim was indeed ripe for adjudication.

The case will now return to the state trial court for a decision on the merits of the Plaintiffs' claims. While the State Supreme Court's opinion does not weigh in on the merits directly, language used in the opinion may indicate that the justices believe that the pharmacies have a strong case. The court noted, "In our opinion, this is largely a case involving a question of law–whether pharmacists and pharmacies can be compelled to violate their consciences and religious beliefs inviolation of two Illinois statutes and the first amendment."

Ninth Circuit protects conscience rights of pharmacists

In the case of Stormans v. Selecky, as reported on Religion Clause the Ninth Circuit kept in place the preliminary injunction barring enforcement of challenged pharmacy board rules thereby protecting the constitutional rights of pharmacists who, informed by their religious or moral beliefs, are bound by conscience to refrain from distributing the abortion-inducing Plan B contraceptive. The case continues with oral argument on June 3 in Seattle.

Yesterday the CLS Center filed an amicus brief supporting the pharmacists on behalf of Christian Legal Society, Christian Pharmacists Fellowship International, Christian Medical Association, American Association of Pro Life Obstetricians and Gynecologists, and Fellowship of Christian Physician Assistants.

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.

The Pro-Life Pharmacist Eradication Bill of 2007

This would be a better title for the recently introduced "Access to Birth Control Act." The bill would create a federal law for the purpose of punishing pharmacies for their moral objection to dispensing the "morning after pill" or "Plan B." Detailing all of the distortions, misconceptions, and terrible policy ideas in this bill would make for a very lengthy post for a Friday afternoon, so I'll just highlight two for now.

1. The Most Likely Effect of the Bill, Should it Become Law, Would be to DECREASE Access to Birth Control: This bill requires pharmacies that sell contraceptives to sell contraceptives. Sec. 249's provisions apply and require the pharmacy to fill a prescription only if a customer requests a contraceptive that is in stock or that the pharmacy does not have in stock IF "the pharmacy in the normal course of business stocks contraception." You're probably asking yourself, "O.K., then Mattox, what's your beef?" Here's the trick. "contraception" = "any drug or device approved by the Food and Drug Administration to prevent pregnancy." Sec. 249(f)(1). This includes both your standard birth control pills AND "Plan B." If a small family pharmacy has made the decision to sell regular birth control pills, but to draw the line at selling "Plan B" it would violate this Act.

Many pharmacies draw exactly this distinction. They do not have an ethical or religious objection to dispensing regular birth control pills since their primary means of action is to prevent the fertilization of the egg. But they DO object to dispensing "Plan B" because these medications are much more likely to act by stopping the already fertilized and growing embryo (which many believe is the beginning of life) from implanting in the womb and receiving the nutrients and oxygen it needs from the mother to survive.

By treating both Plan B and birth control pills together as "contraceptives" (because they're both FDA approved), the bill would require any pharmacy that has drawn this ethical line and therefore sells only birth control pills to also sell Plan B. But if a pharmacy does not sell birth control pills then it is not (on my reading) required by the bill to also sell Plan B. Many conscientious pro-life pharmacies presented with this compelled participation with the destruction of a human embryo can be expected to simply choose to eschew birth control pills altogether. Thus, the bill would not even accomplish its stated - and dubious - purpose of increasing access to birth control. Rather than increasing access to the "morning after pill," the far more likely result of this bill would be to diminish the number of pharmacies that sell standard birth control pills - or for the reasons below even the number of pharmacies and pharmacists altogether.

2. The Bill Would Permit Lawsuits for Civil and Punitive Damages by Women "Aggrieved" by a Single Pharmacist's Exercise of His Conscience -- The bill's "Enforcement" section provides civil penalties of up to a HALF MILLION dollars against pharmacies that do not carry Plan B. What's more, the bill would also authorize private rights of action (READ: Cases for the ACLU) to compel compliance - allowing for "actual and punitive damages, injunctive relief, and a reasonable attorney's fee and cost." Sec. 249(e)(2). There is a 5 year statute of limitations on such claims, much longer than the typical 2 year SOL on civil rights claims. Sec. 249(e)(3). It is not a stretch to think that if this bill were law, pro-life pharmacies could be dragged through inordinantly expensive litigation, forced to pay for a woman's surgical abortion or even for the "wrongful life" of her child. They could also be subject to punitive damages and required to pay the attorneys fees of ACLU lawyers because of their criminal exercise of their conscience and the decision they have made to not sell Plan B.

Again, facing this possibility, why would a pro-life individual want to enter the pharmacy profession at all? Let me suggest that this is exactly the real object of this bill and its chief supporters. In the economy of the ACLU and NARAL, there simply is no room for dissent and difference of opinion when it comes to abortion and matters of "reproductive choice." Anyone who does not agree with their views about the morality of abortion are simply unwelcome in the medical profession. The presence of pro-life individuals in the medical professions and their voices for the unborn are an unfortunate menace that the abortion lobby would prefer to eliminate. This bill is a tremendous step in that direction.