Federal Judge Strikes a Blow Against Regulatory Fascism

Via the Becket Fund (.pdf) we are informed that a Federal Judge (the same judge who ruled in 2010 that DADT was unconstitutional and ordered an openly gay service member reinstated to the military) has struck down Washington state pharmacy regulations that can only accurately be described as fascistic. The regulations in question declared that no pharmacy in the State of Washington was permitted to refuse to dispense Plan B on conscience grounds. That’s it; no requirement that the pharmacy be state funded (pharmacies, unlike hospitals, generally manage just fine without nurturing from the government teat), just a blanket law that you cannot refuse to dispense Plan B on conscience grounds. Keep in mind, you can refuse to dispense it because of business reasons (it’s not profitable, no reliable source of supply), just not for conscience ones. The Becket Fund notes concerning the regulations:

  • The plaintiffs in the case are a family-owned pharmacy (Ralph’s Thriftway) and two individual pharmacists (Margo Thelen and Rhonda Mesler) who could be forced out of the pharmacy profession solely because of their religious beliefs.
  • Washington is one of only two states in the country that requires pharmacies to stock and dispense these drugs in violation of conscience. The other state (Illinois) recently had its regulations, which are modeled on Washington’s, struck down as unconstitutional.
  • The Regulations were passed under a cloud of controversy. In 2006, the State Board of Pharmacy unanimously voted to support a rule protecting pharmacists’ right of conscience. When Governor Christine Gregoire learned of the vote, she publicly threatened to fire the Board’s members, replaced several Board members with candidates screened by Planned Parenthood, and personally joined in a boycott of Ralph’s Thriftway. ?
  • Buckling under the Governor’s pressure, the Board ultimately adopted a version of the Regulations drafted by Planned Parenthood and recommended by the Governor. The Regulations prohibit pharmacies from declining to dispense Plan B for reasons of conscience—even though the Board found no evidence that anyone in the State had ever been unable to obtain Plan B (or any other time-sensitive medication) in a timely fashion because of religious objections.

Now, obviously, the Ninth Circuit is going to have their say on this particular issue and perhaps even the Supreme Court. I’m not really here to provide a legal analysis of the First Amendment issue anyway. To me, whether or not the regulations are constitutional, they are anti-American and despicable. What right does the government have to tell a wholly private business that they cannot refuse to carry a certain class of goods because of moral objections?

Let us draw an analogy: Regardless of how you feel about the legality vel non of porn, I daresay even the most strident libertarian (and hopefully the most strident liberal, although I am beginning to wonder) would object if a state government decided to order that Lifeway Books was henceforth required to stock Playboy on the shelves.

Or let me put this in another way that leftists will understand. I like bacon cheeseburgers. I will order a bacon cheeseburger from virtually any type of restaurant I frequent. I get annoyed when I go to a restaurant and they don’t have a bacon cheeseburger on the menu. Suppose hypothetically that I went to a restaurant and was dismayed to find that they had no bacon cheeseburger on the menu, and that when I inquired about this, they responded that they were Muslim and had religious objections to handling and serving bacon. Now, if I started a public campaign that successfully got legislation passed that made it illegal for restaurants to refuse to serve bacon cheeseburgers on religious grounds, what would the left (correctly) say about me? That I was an enemy of America and all it stands for.

There is absolutely no justifiable reason for a government to force a privately owned property that receives no government funding to carry a product that is anathema to their religious beliefs, other than to intentionally insult and subjugate the religion in question. I do not know what the courts will ultimately do with this decision; but I do know that if the people of Washington have any loyalty to the ideas that make America what it is they will rise up and demand that these regulations be legislatively overturned regardless.



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