Reasonable Action: Reproductive Rights, the Free Exercise Clause, and Religious Freedom in the United States and the Republic of Ireland

By Ray, Liam | St. John's Law Review, Spring 2018 | Go to article overview

Reasonable Action: Reproductive Rights, the Free Exercise Clause, and Religious Freedom in the United States and the Republic of Ireland


Ray, Liam, St. John's Law Review


Introduction

Each year, the United States Supreme Court denies thousands of petitions for certiorari.1 For the vast majority of these petitions, the final words spoken on the case are terse. The denied petitions are listed underneath a bolded, fully-capitalized CERTIORARI DENIED heading and that is the last anyone hears of them.2 Occasionally, however, one or more of the members of the Court feel strongly enough that a case should have been heard that they compose a dissent. Stormans v. Wiesman was one such case.

The Stormans dissent began dramatically: "This case is an ominous sign," wrote Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Clarence Thomas.3 Justice Alito went on to argue that denying certiorari imperiled the viability of future cases asserting rights to the free exercise of religion under the Constitution's Free Exercise Clause.4

Stormans involved an ongoing problem not unique to Washington State, where the case arose, or even to the United States generally. The Stormans family, through their closely held corporation, Stormans, inc., owned a grocery store in Olympia, Washington.5 Within this grocery store was a general pharmacy.6 The Stormans family are devout Christians and ran their company in accordance with their beliefs.7 They faced no issues in doing so until 2005, when the State of Washington passed new regulations that required pharmacies to stock and dispense the so-called "morning-after" and "week-after" pills.8 The Stormans believe that these emergency contraceptives have the potential to cause an abortion, and since participating in an abortion would violate their religious beliefs, the Stormans declined to carry such drugs in their pharmacy.9

For its part, in passing these new regulations, the State of Washington was reacting to a nationwide movement in favor of broadening access to these drugs as part of a commitment to ensure citizens' full protection of their reproductive rights.10 Critics have complained that it is unethical for pharmacists, medical professionals, to employ their individual moral beliefs on the job by refusing to provide emergency contraceptives.11 The stage was set for a conflict involving sensitive issues and fundamental Constitutional rights. After the State of Washington issued the Stormans several citations for violating the new stocking and dispensing rules, the Stormans sued in federal court for an injunction preventing the State from enforcing the rules against them.12

The trial court found in favor of the Stormans on their Free Exercise Clause claim, but the United States Court of Appeals for the Ninth Circuit reversed.13 By denying certiorari in the case, the Supreme Court missed an important opportunity to clarify the scope of the Free Exercise Clause, and to provide guidance to the states on how best to ensure that both free exercise rights and reproductive rights are respected.

This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland ("ROI") presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with the reproductive rights of the general public. In Part I, this Note will survey the history of the Supreme Court's Free Exercise Clause jurisprudence, with particular emphasis placed on Employment Division v. Smith and the dramatic changes it made to existing jurisprudence at the time it was decided. In Part II, this Note will consider the Stormans case in detail from the decision of the trial court, through the Ninth Circuit's reversal, and the ultimate denial of certiorari over the dissent of three justices. …

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