A federal appeals court has struck down a lower-court ruling that allowed pharmacies in the state of Washington not to sell the Plan B "morning after" drug for reasons of conscience. Prodded by the governor, Planned Parenthood and the state's Human Rights Commission, state pharmacy regulators had passed a rule in 2007 that required pharmacies to sell the pills. Later, Judge Ronald B. Leighton of U.S. District Court in Tacoma issued an injunction against the new rule.In an opinion [.PDF] issued this week, the 9th U.S. Circuit Court of Appeals used some curious reasoning to nullify Judge Leighton's ruling. The cutting-edge issue was whether the Washington rule violated the constitutional right to "free exercise" of religion. As the court pointed out, it's not an unlimited right - polygamy can be outlawed, for example, even for those whose religion encourages it. A law of "valid and neutral general applicability" can still require conduct that a religion happens to forbid.Did the Washington rule meet that standard? The appeals court said it did. But here is where the curious reasoning comes in. In deciding whether the law was "neutral" - that it didn't target any particular religious belief - the court analyzed only the wording of the law, and refused to consider the history leading to its passage. Of course, the Washington authorities were not so foolish as to write a rule saying that "we need to protect women from those fanatical Christians who oppose the right to abortion." The rule simply requires pharmacists "to deliver lawfully prescribed drugs." The wording of the law, on its face, is neutral - and so the appeals court ruled against a pharmacy and pharmacists who contended that the law sought to coerce them into violating their religious beliefs concerning the sanctity of human life.Two of the three judges on the appeals court said Judge Leighton had erred by considering the legislative history of the rule (the third judge disagreed on this point, but joined the other two in their ruling).I'm not a lawyer, so I can't speak to the legal precedents involved in considering a contested law's "legislative history." But in common-sense terms, how else would one determine if a law was "neutral" or selective other than by examining how and why it was passed? The appeals court simply avoided the allegations raised in the lawsuit [PDF] of how this rule came to be. According to the suit, the Washington State Board of Pharmacy had actually voted unanimously for a new draft rule that affirmed the right of conscience, as the state pharmacists' association requested. On the same day, Gov. Christine Gregoire (a Catholic) issued a letter saying she strongly opposed the board's draft rule. And so a much different rule was adopted - and Gregoire went on to clobber a political opponent with this issue in her campaign advertising. According to the suit, the governor had said publicly that she would consider removing pharmacy board members who opposed her on this.So much for conscience.
Paul Moses, a contributing writer at Commonweal, is the author of The Saint and the Sultan: The Crusades, Islam and Francis of Assisi's Mission of Peace (Doubleday, 2009) and An Unlikely Union: The Love-Hate Story of New York's Irish and Italians (NYU Press, 2015). Follow him on Twitter @PaulBMoses.