Tuesday, June 28, 2016

Terrible dissent – for the record, “ethics” and “morality” aren’t synonyms for “religion”

The dissent by Justice Alito, joined by Thomas and Roberts, in Stormans v. Wiesman is disturbing for a number of reasons. It’s poorly argued, and simply wrong. The line drawn between this case and Church of Lukumi Babalu Aye v. Hialeah is based on truly weak reasoning. As Mark Joseph Stern suggests, the implications of the dissent are concerning: “If this unholy trinity ever managed to rewrite the First Amendment this way, they could effectively bar states from protecting women, gays, and other minorities from religious-based discrimination.”

Here’s the background:
Ralph’s Thriftway is a grocery store and pharmacy in Washington run by a religious family. It is not a church, or a church-affiliated nonprofit; it is a for-profit business, created and designed to make money for the Stormans. But the Stormans family are devout Christians who believe that Plan B is “tantamount to abortion” and thus refuse to stock it. For years, when customers came to the pharmacy seeking emergency contraception, the Stormans turned them away.

But in 2007, the Washington State Board of Pharmacy issued new regulations declaring that a pharmacy may not “refuse to deliver a drug or device to a patient because its owner objects to delivery on religious, moral, or other personal grounds.” Quite reasonably, the board felt Washington pharmacies should not be permitted to deny patients safe, legal drugs—which was a growing problem within the state: In addition to Plan B, religious pharmacists had refused to give patients diabetic syringes, insulin, HIV-related medications, and Valium. That, the board decided, was unacceptable. Pharmacists have every right to believe whatever they wish, but when those beliefs are manifested in the form of brazen discrimination against customers, they cannot be sanctioned by the law. In 2015, the 9th U.S. Circuit Court of Appeals affirmed the constitutionality of Washington’s regulation.
The most shocking aspect of the dissent, in my view, was its complete conflation of ethics and morality with religion. (To be perfectly clear, when I’m discussing ethics and morality here I mean the spheres or categories.) The dissent’s argument is based on the assumption that these categories are essentially synonymous. Alito argues that the regulations and the ruling effectively discriminate against religion (and intentionally so) because they allow for “secular” exceptions in which a pharmacy doesn’t have to stock or dispense certain drugs or devices but expressly disallow religious ones. He repeats and highlights the words “moral” and “moral beliefs” throughout the dissent as though they supported his contention that “the regulations…are improperly designed to stamp out religious objectors” (p. 9):
As Steven Saxe, the Board’s executive director, explained at the time: “‘[T]he public, legislators and governor are telling us loud and clear that they expect the rule to protect the public from unwanted intervention based on the moral beliefs . . . of a pharmacist.’” Ibid. “‘[T]he moral issue IS the basis of the concern.’” Ibid. Saxe, a primary drafter of the regulations, recognized that the task was “‘to draft language to allow facilitating a referral for only these non-moral or non-religious reasons.’” Ibid. He suggested that making an express “‘statement that does not allow a pharmacist/pharmacy the right to refuse for moral or religious judgment’” might be a “‘clearer’” way to “‘leave intact the ability to decline to dispense . . . for most legitimate examples raised; clinical, fraud, business, skill, etc.’” Ibid. And in the end, that is what the Board did. While the regulations themselves do not expressly single out religiously motivated referrals, the Board’s guidance accompanying the regulations does: “The rule,” it warns, “does not allow a pharmacy to refer a patient to another pharmacy to avoid filling the prescription due to moral or ethical objections.” SER 1248 (emphasis added). (p. 4)
Note especially this last quote. The regulations, he acknowledges, don’t single out religious judgments, but disallow refusals based on “moral or ethical objections.” Here Alito is either trying to convince the reader that “moral or ethical” are equivalent to “religious” or expressing this as his own belief. Indeed, Alito states that “While requiring pharmacies to dispense all prescription medications for which there is demand, the regulations contain broad secular exceptions but none relating to religious or moral objections.” He quotes the District Court’s findings that “the rules exempt pharmacies and pharmacists from stocking and delivering lawfully prescribed drugs for an almost unlimited variety of secular reasons [sic], but fail to provide exemptions for reasons of conscience.” Secular here is set in opposition – both by Alito and by the District Court - not only to religious but to moral and to reasons of conscience.

This distinction between religious/moral/ethical and secular is of course absurd, and I assume thousands of Philosophy departments would have something say about it. Alito provides a few of the accepted “secular” reasons for exceptions to the regulations – related to financial or equipment-related issues, suspicions of fraud, nonpayment, and so forth. I don’t think anywhere in the dissent does he offer a single example of a non-religious objection that would be considered a matter of ethics, morality, or personal beliefs. I can provide one easily: I don’t believe psychiatric drugs (or at least the vast majority) should be dispensed to children. The evidence shows that the biopsychiatric diagnosis of children is quackery, the drugs themselves are often highly harmful and dangerous, and children aren’t able to give informed consent or to refuse. I see the psychiatric drugging of children as a form of abuse, if often an unintentional one.

So if I were a pharmacist, I think it would be unethical for me to dispense them for children. This judgment is based on evidence, and is in no way religious, but it certainly falls under the category of a moral or ethical objection or one based on my personal beliefs. And it would not be a justified exception to the Washington regulations. I could protest pharmacies that dispensed these drugs for children; I can fight for a general ban on their use on children; and, were I a pharmacist or owner of a pharmacy, I could resign or close up shop rather than dispense these drugs to children, as a form of civil disobedience that I would expect to have serious personal consequences. But what I would not expect is that my personal objections would be protected by law.

Moral or ethical refusals, those based on personal beliefs, are not constitutionally defensible justifications to refuse to stock or dispense legal and legally prescribed drugs or devices. This is true regardless of whether that moral objection is purely religious, not at all religious, or any combination thereof. In one sense, the invocation of religion by Alito (it probably needed to be mentioned explicitly in the regulations since the vast majority of, if not all, refusals – including that at issue in this case – were made explicitly on the basis of religious faith, and because religious judgments are often disingenuously claimed as medically or sociologically grounded) is a red herring. A business can’t refuse to provide a legal service on these grounds whether that refusal is religiously inspired or not.

But the staggering aspect of this dissent is its attempt to seamlessly join religion to ethics and morality as the basis for the argument that the regulations discriminate against religion and thus run afoul of the First Amendment. The irony is that the dissent itself raises First Amendment issues. That Supreme Court justices could present arguments so unsound is more than disappointing; the assumptions underlying their argument speak to a religious bias among these men that is itself arguably anti-constitutional. The inability or refusal of Supreme Court judges even to recognize the existence of secular ethics and their readiness to equate morality and religion are astonishing, and could amount to a state recognition of religion.

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