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Bush-Appointed Judge Strikes Down Washington Law Protecting Access To Birth Control

By Ian Millhiser on February 24, 2012 at 12:00 pm

"Bush-Appointed Judge Strikes Down Washington Law Protecting Access To Birth Control"

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Yesterday, a George W. Bush appointed judge declared unconstitutional a Washington state law that, among other things, requires pharmacies to dispense birth control and emergency contraception. While it’s not impossible that the law should be blocked on very narrow grounds, Judge Ronald Leighton’s opinion overreaches in ways that could undermine many efforts to protect women’s health and potentially render religious objectors immune to the rule of law.

This lawsuit was brought by pharmacies and pharmacists who objected to dispensing emergency contraception on religious grounds. Yet, as conservative Justice Antonin Scalia explained in a Supreme Court opinion more than twenty years ago, a law does not suddenly become unconstitutional because someone raises a religious objection to it. Scalia explained that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” In other words, so long as a law does not single out people of faith for inferior treatment, they have to follow they same laws as everyone else.

Leighton, however, suggests that a law must also exempt religious objectors if it also contains exemptions that are unrelated to religion:

[A] pharmacy can decline to stock a drug for a host of secular reasons: because the drug falls outside the pharmacies’ chosen business niche (i.e, it is a pediatric, diabetic, or fertility pharmacy); the drug has a short shelf life; the drug is expensive; the drug requires specialized training or equipment; the drug requires compounding; the drug is difficult to store; the drug requires the pharmacy to monitor the patient or register with the manufacturer; the drug has an additional paperwork burden; or simply that the pharmacy has a contract with the supplier of a competing drug. … A pharmacy is permitted to refuse to stock oxycodone because it fears robbery, but the same pharmacy cannot refuse to stock Plan B because it objects on religious grounds. Why are these reasons treated differently under the rules? Both pharmacies refuse and refer, both refusals inhibit patient access, yet the secular refusal is permitted and the religious refusal is not.

If were actually true that a law is unconstitutional because it contains some exemptions but none for religious objectors, than the entire federal tax code is unconstitutional. Federal law allows people to exempt themselves from part of their tax burden if they pay mortgage interest or donate to Planned Parenthood or have a child, but not if they have a religious objection to paying taxes. Indeed, even something as simple as basic traffic laws could be unconstitutional because the state allows emergency vehicles to drive over the speed limit but does not permit people who have religious objections to driving slowly to ignore traffic laws.

The tone of the opinion leaves little doubt where Leighton’s personal sympathies lie. At one point, he spends seven pages suggesting that the Washington law violates a doctrine known as “substantive due process.” It’s probably not a coincidence that this doctrine, which is widely panned by conservatives, also formed the backbone of Roe v. Wade. Indeed, it is difficult to escape the conclusion that Leighton included these rather unconvincing seven pages a part of a subtle dig at Roe‘s defenders — especially because he claims that a law protecting emergency contraception could “compel medical providers to participate in taking a life.”

Towards the end of his opinion, Leighton does touch upon a plausible reason to rule against the law. He presents evidence that Washington did not require Catholic pharmacies to comply with its contraceptive access rule, but it did require persons with other religious objections. If this is actually true than Washington did violate the Constitution because giving special treatment to the members of one faith is unconstitutional. Leighton’s conclusion, however, is somewhat doubtful as the state offered the perfectly plausible explanation that it only enforces the law when someone files a complaint, and no complaints were ever filed against Catholic pharmacies.

In other words, Leighton took a case that, at worst, could have been decided on the narrow grounds that Washington might treat Catholic pharmacies differently than others, and blew it up into a sweeping attempt to give religious objectors sweeping immunity to the law. If the Supreme Court should someday follow his lead, it could give anyone sweeping power to immunize themselves from the law simply by objecting to it on religious grounds.

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