Gov. Gregoire vs. Religious Liberty America's struggling economy can't afford more boarded up businesses, just because some in government power find conscience protections unsavory.

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Ryan Colby 202-349-7219 media@becketlaw.org

By WILLIAM P. MUMMA, Wall Street Journal Online

With unemployment above 9 percent Washington governor Christine Gregoire is working hard to shutter small businesses and force workers from their profession. The reason? Some pharmacists and pharmacy owners have religious beliefs that conflict with Gregoire’s agenda, and she would rather put them out of business than accommodate their consciences.

A federal trial that started earlier this week in Washington State is the culmination of a four year battle over this issue. The controversy centers on Plan B and ella, emergency contraceptives that can destroy fertilized eggs, the stage of fetal life that DNA is determined and pro-life ethicists consider to be the beginning of human life. U.S. law and the U.S. medical community have long respected the right of medical professionals, including pharmacists, to refer patients elsewhere when providing certain treatments would violate their conscience. In 2006, the Washington State Board of Pharmacy continued this tolerant tradition when it unanimously confirmed the right of pharmacists to refrain from dispensing medications, such as Plan B, that violated their religious beliefs, and instead to refer patients to a nearby provider.

Letting businesses send customers to a nearby competitor doesn’t sound like much to ask, but it was too much for Gov. Gregoire. Without any evidence that any patient had ever lacked timely access to any drug because of conscientious objectors, or for any reason, the governor insisted that every pharmacy needed to dispense emergency contraception on demand. She publicly reprimanded Board members for their “mistake” and promised “to help them get the right answer”—and threatened to replace them if they didn’t. She then appointed local Planned Parenthood and NARAL leaders to the Board during the rulemaking process, and took the unprecedented step of having Planned Parenthood and NARAL screen new candidates. Unsurprisingly, the Board buckled and—over the objection of the State Pharmacy Association—eliminated the conscience protections.

The new regulations quickly hurt Washington state pharmacists and small business owners with conscientious objections to dispensing Plan B.

Margo Thelen has worked as a licensed pharmacist for more than 35 years. She cannot in good conscience dispense Plan B due to the drug’s abortifiacient potential. Now her employer can no longer afford to accommodate her, and she lost her job. Rhonda Mesler manages a pharmacy; she will likely lose her job if the regulations stand. Stormans, Inc., is a family-owned businesses that operates a pharmacy in Olympia. The Stormans believe that human life begins at fertilization, and they cannot in good conscience allow their store to dispense Plan B, though they’re willing to refer customers to any of the 33 nearby pharmacies that do. Their business soon became the target of a state investigation. The governor’s mansion piled on to the boycott that ensued, setting a powerful example by cancelling its own account with another Stormans store. After years of litigation and false promises by the state, the case will go to trial in late November.

Unfortunately, attacks on freedom of conscience in the healthcare industry are becoming more frequent. The U.S. Department of Health and Human Services (HHS) recently issued new guidelines listing “preventative care” benefits for women that all insurance plans must cover, without copay or deductible. Some of the requirements are benign, like requiring that cancer screenings be covered. However, the guidelines also demand that employers cover every FDA-form of sterilization and contraception that FDA has ever approved, including controversial emergency contraceptives like ella and Plan B.

Many employers have religious objections to providing coverage for “treatments” they view as immoral, and some religious groups asked for robust religious exemptions. Instead, HHS offered what some might call “abstinence only” conscience protection: a narrow exemption that protects only churches and religious orders that abstain from hiring or helping people outside their own religion. Religious schools, hospitals and charities, and even churches that dare to reach beyond the boundaries of their own faith, wouldn’t be protected. Ironically, seminaries and monasteries appear to be about the only institutions that clearly are protected.

The Obama administration has already signaled its enthusiasm for forcing religious institutions to cover contraception. In 2009, the Equal Employment Opportunity Commission (EEOC) accused Belmont Abbey College, a Catholic college run by Benedictine monks, of “gender discrimination” because it refused to include birth control in its employees’ health-care plan. Cases like this are popping up around the country, and forcing religious freedom groups like the Becket Fund for Religious Liberty to come to the rescue. While they may have won for the Benedictine monks, the hydra threat will grow ever harder to defeat. And the new regulations are just another tool for the government to use in clamping down on conscience rights.

Federal and state lawmakers have long used religious exemptions to advance their policy agendas while respecting “the conscientious scruples” of dissenters, as George Washington put it. So why the change? What motivation could Governor Gregoire and friends have for forcing people to do something they object to on religious grounds?

America’s struggling economy can’t afford more boarded up businesses, just because some in government power find conscience protections unsavory. More fundamentally, neither can the First Amendment of the Constitution.

Mr. Mumma is the President of the Becket Fund for Religious Liberty.


Posted on Wall Street Journal Online.

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