The US Supreme Court rejected Monday a bid by Roman Catholic and Baptist groups to stop offering their employees birth-control benefits as part of their health insurance.
The case hinged on the organizations’ right to place their own beliefs at the center of their employment practices, offering a new battle ground over the age-old state versus religion debate at the start of the court’s new year.
The top court rejected a petition by the groups arguing that by being forced to offer contraception pills and equipment on their employee health-insurance plans, their First Amendment rights to free speech were violated.
The petition sought to overturn a New York state law that mandated that all employees of religious groups must have access to birth-control measures as part of their employer-provided health insurance.
I’m no lawyer, and the court has not published an explanation of its decision, but… if religious organizations have no First Amendment right to deny employees birth control benefits in violation of NY state law, how could a pharmacist claim a similar First Amendment right here in WA? Plan B — “the morning after pill” — is birth control. If a state-licensed pharmacist is required by law to stock and sell this pill, there doesn’t appear to be an inherent First Amendment right to refuse.
I’m a lawyer, and I don’t read that into it, Goldy. All SCOTUS did was not take the case. Judges and lawyers don’t interpret that as expressing an opinion on the lower court ruling they allowed to stand. All it means is SCOTUS receives far more petitions than they can hear, and this case didn’t get selected for review.
I’m going to get the First Comment with my seat-of-the-pants interpretation, instead of carefully researching and crafting a precise answer.
In short, the case will be highly persuasive to the court hearing the case here in WA, but, it’s not binding.
First thing is, denials of certiorari (the Supreme Court’s discretionary review) are not decisions on the merits. So, the decision on the merits only stands as binding law in the state (if a state supreme court) or federal circuit (NY is in the 2nd Cir, WA in the 9th) that issued the decision below.
Second thing is, employment law as it relates to free speech law is related to, but at the same time a bit different than, the First Amendment free exercise of religion case that AFAIK the WA plaintiffs are bringing. But even if I’m mistaken and they are bringing exactly the same kind of constitutional challenge, see above.
Not _only_ did I not get the first comment, but RR said the same thing. Tortoise and the hare, I guess.
Well, can either of you two fine gentlemen (assuming you’re both male, of course) tell me if any other profession licensed by the state is allowed to refuse services on the basis of personal/religious belief, e.g., can a Christian physician refuse to treat a Hindu pateint based on religious grounds?
Chadt,
Professional ethics (the Hippocratic Oath, for instance), and maybe statutory requirements, would likely come into play with regard to a physician’s refusing treatment to a patient based on religious considerations, but I don’t see any constitutional prohibitions with regard to such refusal.
Comments @1, 2, & 3 are correct…
What SCOTUS decided…was to not decide. Writs of Cert ask SCOTUS to use its discretionary authority to take and consider a point of law. When they’re denied, SCOTUS simply is saying, “Thank you, no…we’ll pass.”
@2 also offers an important cautionary reminder not to use too broad of a brush when it comes to the application of court opinions and precedent. SCOTUS is loathe to make sweeping generalizations when extremely narrow statutory interpretations can resolve a legal issue.
The Piper
@4…Chadt…
First, any physician who claims to be a Christian and does such a thing isn’t a Christian.
And the issue would be about the nature of the procedure, not the status of the patient. I’m sure there are many physicians who, as a matter of conscience, refuse to perform abortions or other procedures they find personally abhorent.
The Piper
@4 I’ll go out on a limb and suggest that if a pharmacist’s challenge to a state regulation requiring pharmacies to provide contraceptives to customers who request them does get appealed to SCOTUS, the Court will deny certiorari; but if SCOTUS does hear the case, I think it will not see the state’s power to regulate professions as infringing upon the First Amendment religious freedoms of one who voluntarily chooses to practice the pharmcy profession.
7 That’s a point….and in fact, has something to do with a number of Catholic hospitals closing their OB/gyn departments some years ago.
Similarly, one wouldn’t likely see a Jehovah’s Witness applying for a job at a blood bank, or a Mormon going to work as a bartender.
Mr. Cynical, I sure hope (for your sake) that you bought NOV at $58 a share like I told you to, because it’s up $90 a share since then. If you didn’t, all I can say is, you should have listened to the rabbit.
@10 Of course, if Mrs. Cynical killed you, dismembered you in the bathtub, and fed your pieces to the sand sharks in Puget Sound — we haven’t heard from you for a while, so I suspect you may no longer be with us — then it doesn’t matter.
@8…RR…
Reasonable prediction…But what if it’s the pharmacist’s own store? Can the pharmacist not argue that the plaintiff has a myriad of alternative sources for the product, so there’s no infringement upon her rights, while the pharmacist only has his store, and he should be entitled to stock or not stock products as he sees fit?
How would you respond to a pharmacist who refuses to stock, say, a vaccine that contains mercury as a preservative because he’s convinced that it causes autism in very young children?
Simply curious…
The Piper
@9…AF…
You haven’t been watching this season’s Big Love on HBO, have you?
The Piper
@9 It’s been my experience as a lawyer that religious scruples never kept anyone from applying for a job. For example, a court upheld an employer’s right to fire a truck driver for refusing to travel with a female employee because his religion (Jehovah’s Witnesses) prohibited him from spending overnights with a female not his wife. Since he had a problem with that, he shouldn’t have applied for that particular job in the first place.
Well, you can make the same argument about pharmacists. If they have a problem with dispensing contraceptives, they shouldn’t be pharmacists. They should choose another profession.
@15…RR…
The Washington case cited by Goldy isn’t about contraceptives, it’s about the so-called “morning after” pill, which is a form of do-it-your-self abortion.
The Piper
WAC 246-869-150(1) says “The pharmacy must maintain at all times a representative assortment of drugs in order to meet the pharmaceutical needs of its patients.” It doesn’t say that every pharmacy must have every drug on hand all the time. Where do you see in statute or rule, Goldy, that a “licensed pharmacist is required by law to stock and sell this pill” or any specific pill? [emphasis added]
It’ll be interesting to see if this decision backfires and results in these groups refusing to provide health insurance at all if the coverage is required to provide specific benefits that violate their principles. Perhaps they’ll switch to simply providing cash compensation that employees can use to pick the health coverage of their choice (such as an HSA).
@14…RR…
Still…federal law requires an employer to make a “reasonable accomodation” in such cases.
And a lot of times, the complained-of requirement wasn’t a job requirement at time of hire, but, rather, some new condition of employment or duty imposed at a later date.
The Piper
@12 What if the pharmacy is in a small town, and is the only pharmacy for miles around? Should that pharmacist be regulated differently than one in a large city where there’s a dozen more pharmacies within a 3-mile radius? But even in the city, what if all those pharmacists are Catholics, and refuse to dispense contraceptives? Must state regulators determine whether there’s another pharmacy within a reasonable distance willing to dispense contraceptives before they can enforce the regulation? That’s what this argument asks the courts to do, and I don’t think courts are going to do it.
In response to your second question, that’s a scientific issue, not a religious one. As a practical matter, the issue would come up only if prevailing scientific opinion held such vaccines to be safe, and an individual pharmacist asserted that prevailing scientific opinion was wrong. In this scenario, I’m inclined to think most courts would uphold the groupthink and ratify the disciplinary board’s authority over the pharmacist, because that’s how courts usually operate. I simply don’t see a constitutional issue in this hypothetical.
@16 Does the Catholic Church (or any other religion) distinguish between contraception and abortion? Is one permissible, and the other not? I’m under the impression that some religions, at least, consider both a sin. In that case, the legal analysis of whether a state regulation constitutes an infringement on religious freedom would be the same in both cases.
@17 Your second paragraph makes no sense. What does insurance have to do with the issue of requiring pharmacists to dispense a controversial prescription? As for the pharmacist who refuses to sell a contraceptive or a morning-after pill on religious grounds, the WAC you cited isn’t going to save him. No court will read that WAC the way you do. I also see in the WSBA Lawyer Directory that you’re not a lawyer (at least not in WA). It shows in this comment.
With people like Toby in the legislature, no wonder some of our statutes read like gobbledygook.
The legislative staff lawyers are supposed to clean that stuff up.
@18 The term “reasonable accomodation” is so broad as to be virtually meaningless until placed into the context of a specific case and fact pattern; and state regulators are not “employers.”
Fuck those guys. The state should pull the license of any pharmacist who refuses to dispense. Period.
@19…RR…
The small town fact pattern isn’t at issue here; as I recall, the pharmacist owns and operates his store in the Seattle-Tacoma area.
Again…contraceptives, some forms of which can be had over-the-counter or through a vending machine, aren’t at issue here. This is the “morning after” pill, a form of terminating what could be a pregnancy (not certain how it works).
What if the pharmacist, for religious reasons, elects not to open on a Friday, Saturday, or Sunday? And one of these days is the only day the plaintif can go to the pharmacy? What’s the net, net, net difference in the availability of the product? Can the state then order the pharmacist to be open on a certain day? Or at a certain hour?
Couldn’t you argue that a pharmacist, for free exercise reasons, is entitled to refuse to sell a particular product to everyone?
I’m constantly amazed how 1st Amendment absolutists are willing to restrict the free exercise clause in favor of “emanating penumbra” types who’ve cobbled together “rights” out of everything in the constitution save the 2nd Amendment.
The ultimate 1st Amendment absolutist, Hugo Black, who dissented in Griswold v. Connecticut, a critical Roe v. Wade predecessor, and who probably would have been a vigorous Roe dissenter as well, is, I’m sure, spinning in his grave.
The Piper
16 PS
No. Wrong. Nope.
The Washington case cited by Goldy isn’t about contraceptives, it’s about the so-called “morning after” pill, which is a form of do-it-your-self abortion.
Repeat after me: RU-486 is an abortion pill (or pills, really). Plan B is a contraceptive medication.
Confusing the public about the difference between these two is a standard conservative propaganda ploy, and is part of the conservative war on all contraception that would keep not only responsible adults from making their own choices but also deny rape victims emergency contraception. Bullshit, I say.
26 PS
“not certain how it works”
Hmmm, yet you are perfectly comfortable labeling it abortion. Glad to see your standards are so high.
You see, to a conservative, when the rubber breaks it’s your fault so you should be forced to bear a child.
I don’t understand the glee they take in forcing childbirth on women who don’t want it.
Toby @17,
The purpose of the rule was to require pharmacists to stock drugs required by their customers. The fact that multiple customers have come in asking for Plan B, and Ralph’s refuses to carry it, shows that Ralph’s is not complying with the spirit of the rules.
Dollars to donuts what we’ll see is these rules spelled out more definitively by the legislature now that the pharmacy board has proven to have failed via the rule making process. I don’t think most Democrats would be comfortable leaving such rules in the hands of a pharmacy board appointed by Dino Rossi, so why should they leave it to a pharmacy board appointed by Chris Gregoire?
But of course, this is tangential to the larger question. If the state mandates that a state licensed pharmacist stock and sell a particular drug, does the pharmacist have a First Amendment right to fail to comply with law? I think in that sense, the NY case is quite analogous to the WA dispute.
@21…RR…
Toby Nixon is one of the most astute minds on the local political scene, and there are a lot of people in Olympia on both sides of the aisle who rue the day he was lied out of a seat in the state senate.
His query in re health insurance harkened back to the original case cited by Goldy, and he simply asked whether the now inability of Catholic or Baptist entities to refuse to offer health insurance benefits for certain procedures may result in those entities ceasing coverage completely offering, instead, a cash benefit, which could then be deposited into a Health/Medical Savings Account to be used for health care expenses as the employee chooses.
And don’t blame him if you find a WAC regulation to be obtuse or inartfully drafted; legislators don’t write WAC reg’s, bureaucrats do.
The Piper
The top five myths about Plan B contraception.
Myth #1: Plan B® is the same as the abortion pill (RU 486, Mifeprex®).
Plan B® and the abortion pill are not the same. Plan B prevents pregnancy after sex while the abortion pill terminates a pregnancy. Plan B is a concentrated dose of the hormone found in regular birth-control pills and cannot interrupt an existing pregnancy.
Myth #2: Plan B is dangerous.
The Food and Drug Administration (FDA) has approved Plan B® as safe and effective for pregnancy prevention after sex. The product is so safe and easy to use that the FDA has approved its availability without a prescription for adults 18 and older.
Myth #3: Plan B has to be taken the morning after sex.
The FDA-approved label for Plan B indicates that it can be effective up to 72 hours after sex. However, Plan B is most effective if taken within 24 hours after sex. That is why it is often called the “morning-after” pill.
Myth #4: Plan B is not effective.
Plan B is very effective at preventing pregnancy. Independent studies confirm that Plan B can substantially reduce a woman’s chance of becoming pregnant. However, Plan B is a back-up birth control method and is not as consistently effective as other types of birth control,
like the birth-control pill. Plan B should be used as a back up birth control method.
Myth #5: Plan B will harm a pregnancy.
There is no evidence that Plan B harms an existing pregnancy. You should not take Plan B
if you know you are pregnant because it will not work.
@27…DL…
That’s an OPINION not shared by all…There are some – indeed, many – who view the “morning after” pill as simply another form of not preventing a pregnancy, but terminating one.
Irrespective of whether it’s held that the pharmacist at issue may or may not refuse to sell it, his right to believe what he believes isn’t for anyone to regulate.
@30…
As a father of five, I simply would say to you, “Don’t want kids? Don’t have sex. Any confusion?”
The Piper
There are some – indeed, many – who view the “morning after” pill as simply another form of not preventing a pregnancy, but terminating one.
There are some – indeed, many – who are too fucking stupid to listen to. It seems you’ve been listening to them.
Not that you are certain of how it works or anything.
And as for, “Don’t want kids? Don’t have sex….” Fuck you. First, as an adult American, I can have or not have however much and whatever kind of sex I want that is legal and consensual, and you can shut the fuck up about what you think about it. Second, if an adult female is using a form of contraception to have legal, consensual sex with another adult and their contraception fails, people who try to keep said woman from using a safe, lefal, FDA-approved contraceptive method are going to catch some holy fucking hell, your opinion about such methods based on your utter lack of knowledge of same notwithstanding.
Piper @34
You can have your own opinion on whether or not we should allow contraception in this country. Personally, I am for people making their own decisions on this on.
You are not entitled to your own facts. Plan B is not and can not stop an existing pregnancy. It can only stop one from happening. This is not opinion, but simply how the drug works.
If an understanding of the facts is the real problem here we can try and spell out the biology and pharmacology at play for you.
You see, this is the bottom line of the anti-abortion, anti-contraception idiot conga line. It’s really anti-sex. Particularly anti-sex-for-women. Yes, God forbid (wow, what a phrase) that adult women should have sex, and maybe even enjoy it, without being properly punished for it.
@35 & 37…DL…and @36…Nindid…
The issue isn’t your opinion or my opinion, but, rather, whether the pharmacist’s opinion expressed through the First Amendment trumps the plaintiff’s “right” to buy that drug at that pharmacy.
That there’s a disagreement over the nature of the “morning after” pill (see, for example, a point of view other than DL’s uncited one at http://www.prolife.com/MorningAfterPill.html) only serves to underscore the fact that, to an incredibly large extent, what we’re dealing with here is people’s beliefs and opinions, not absolutely settled facts. The question isn’t whether the earth revolves around the sun.
Go back to the legal question at hand, stop substituting your personal POV for the law, and look at it from the pharmacist’s perspective, from his good-faith and Constitutionally protected First Amendment free exercise of religion belief.
Or would you just as soon have that portion of the First Amendment repealed?
The Piper
Did anyone see the interview with Clarence Thomas on 60 Minutes last night? The man is an angry, arrogant, self-absorbed prune of a man, who has no business on the Supreme Court. He talks of how his Christian faith has guided him, yet he has no clue what forgiveness is all about. He also showed no acquaintance with the truth, even denying that getting on the Supreme Court was important to him. Remarkably, the interviewer suggested Thomas has been unfairly maligned by others and is actually a warm and fuzzy guy. Further proof of the rightward tilt of the MSM.
Question and comment
Unless the “pharmacist” owns the “pharmacy”, isn’t the pharmacist, as an employee, to follow the policy of the pharmacy?
If the pharmacist refuses to sell something, based on (insert reason here)and it is something the pharmacy actively sells…That person is not long for their job in that pharmacy. I’m pretty certain ownership would halt that practice ASAP.
If a pharmacist, for whatever reason, opposes b-control then they have the right to find a pharmacy that follows that ideology, and work there, or open one for themselves.
Also, a pharmacy, as a private business should have the right to stock or not stock whatever medications it choose, based upon the owners policies.
In my opinion, a pharmacist can only deny selling b-control if that is the stated policy of the pharmacy.
Oh, well, if prolife.com says it’s an abortifacient, then who are we to second guess such remowned scientists?
Then again, the FDA said (http://www.fda.gov/cder/drug/i.....BQandA.htm):
But, you know, what do they know?
When they say this: “a fertilized egg is implanted prior to taking Plan B, Plan B will not work.”
what they are saying is that it DOES NOT ABORT!
ANd don’t give the the bull about the holy little fertilized egg. Fertilized eggs fail to implant all the time. Are the women whose eggs fail to implant guilty of murder?
From http://www.fitpregnancy.com/yourpregnancy/1040
“blah blah blah…the fertilized egg may begin to divide and grow but fails to implant itself in the uterus. In fact, it’s estimated that as many as half of clinical pregnancies–those in which fertilization does take place–never make it. “
From http://discovermagazine.com/20.....2&-C=
“Although the statistics on the failure rate of human fertilization are not entirely robust, given the biological and ethical delicacy of conducting research in this area, the numbers consistently suggest that, at minimum, two-thirds of all human eggs fertilized during normal conception either fail to implant at the end of the first week or later spontaneously abort. Some experts suggest that the numbers are even more dramatic.”
All of those women and their doctors, of course, have committed murder. A pharmacist would be justified in refusing them antibiotics.
Proud Leftist: You upset that Clarence Thomas’ grandfather instilled in him conservative ideals which are an anathema to your laissez-faire lifestyle? You see Proud Leftist, in the black family, the elder statesperson, usually the grandmother or grandfather, in the south in the 40s usually had a very conservative life view. In the south their view was queen or king. You can choose to live with those ideals throughout your life or you can become someone like you.
He chose not to become like you!
BTW, it was a high-tech lynching. It was white guys in the full Senate, the upper crust of the liberal elite, who tried to get a black man (in their view uppity) who in any way deign to think for himself. They tried to send a message that unless you kowtow to an old order you will be lynched, destroyed, caricatured rather than just lynched from a tree with new rope. Kind of like Jed in High Plains Drifter.
Awww poor proud leftist, the latest of the fourth grader whiners.
“You upset that Clarence Thomas’ grandfather instilled in him conservative ideals which are an anathema to your laissez-faire lifestyle?” Puddy @ 45
Clarence Thomas claims falsely to have inherited his grandfather’s values. His grandfather was an active member of the NAACP. He worked hard. He earned his living. Thomas’s claim to follow in his grandfather’s footsteps is revisionist history, but that is hardly surprising given that all of Thomas’s historical claims are revisionist. I don’t give a rat’s ass if he thinks for himself. The problem with Thomas is that he doesn’t much think–as he said in the interview, he knows what’s right and he’s comfortable with himself and his worldview. I’m uncomfortable with anyone who is so arrogant. Thomas’s jurisprudence has been very harmful to this nation. History will not treat him well.
Oh, and Puddy, you don’t know a damned thing about my lifestyle, so you might refrain from the idle speculation that so characterizes ideologues of your ilk. Most leftists I know have earned their way. I won’t say that about your heroes on the right.
WTF@47. I earned all I got moe-ron. I got no hand me downs like your friends the Kennedys’.
It’s your side who uses idle speculation. Because you reacted so negatively I must have correctly stroked the pen.
Proud LEftist: Did you live in Clarence Thomas’ life. So how do you know anything about him EXCEPT YOUR HATRED?
Yes, your lifestyle is very apparent! With your mindset, I’d say you are the arrogant one!
Puddy @ 49: “Proud LEftist: Did you live in Clarence Thomas’ life. So how do you know anything about him EXCEPT YOUR HATRED?
Yes, your lifestyle is very apparent! With your mindset, I’d say you are the arrogant one!”
I know a helluva lota more about Clarence Thomas and his lifestyle than you do about me and mine. Why? Because he’s a public figure. I, on the other hand, am nothing more than an anonymous poster on a blog, yet you are willing to state what I’m all about. Tell you what, Puddy. I don’t know a thing about you except what you post here. So, I don’t know enough to give a lifestyle profile. I will say that I think your heart, if I were to guess, is in the right place, even if your mind is not. I suspect you are not as coldhearted as most of your friends on the right, who do not believe there is something called the social compact. With regard to me, the most important thing I got from my parents is an open mind and a notion that I’m not the only one that counts on this planet. Not much money, though, not much at all. Indeed, as I pay for my son’s college education, I’m just paying off my own school loans. So, don’t tell me anything about having anything handed to me. By the way, I’ll tell you one more thing about me. I’m not a hater, unlike your hero, Clarence Thomas.
Why do Christians need to force people to follow their beliefs by law? They claim it’s about religion “freedom”, but no one is telling THEM what they can do with their individual lives. Like with gay marriage, I don’t think they understand the concept of ‘freedom’. Freedom means you can CHOOSE to do something or NOT. Being FORCED into only one choice isn’t freedom. Don’t like gay marriage? Don’t marry someone of the same sex. Problem solved. You are free to do either. Here with birth control, if every single one of their employees thinks birth control is wrong, they are FREE to not take it. No government or private entity is forcing anyone to marry someone of the same sex or take birth control. But these idiots want to force their vision of life onto others and leave them no choice.
David,
I’m a Christian; I go to church more often than not. I do not believe my beliefs should become law. Indeed, putting prayer in the classroom makes prayer meaningless. The separation between church and state not only protects the state from religion, but protects religion from the state. When the state absorbs religion and tells us all what we should believe, religion becomes empty. By the way, I support gay marriage. I also agree with Stephen Stills when he said, “Jesus Christ was the first nonviolent revolutionary.” Don’t put all Christians in the camp in which you want to put them.
Puddy says:
“Waaaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa haaaa haaaa haaa haaa haaa”
This brilliant missive clearly shows how Puddybud, conscientious critic of lesser minds and destroyer of false philosophies, demonstrates his wit and superiority, thus rendering us inferiors mute with admiration
Proud Leftist. Now that’s interesting. You do have comapassion in your soul.