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Abortion and Marriage: Supreme Court Asked to Take First Amendment Case on Conscience Rights


WASHINGTON, D.C.—Today top religious-liberty scholars and lawyers asked the U.S. Supreme Court to rule that a state law requiring a person of faith to engage in actions that violate his religious conscience violates the First Amendment, in a case with profound implications for the hot-button issues of abortion and same-sex marriage.


In response to a 2007 request by pro-abortion Democratic Gov. Christine Gregoire, Washington state officials issued regulations forbidding pro-life pharmacists from declining to provide abortion-causing drugs. Previously, pharmacists who conscientiously objected to abortion could refer customers seeking such drugs to another pharmacy.

The second clause of the U.S. Constitution’s First Amendment provides that the government shall make no law prohibiting the free exercise of religion. Stormans is a small family-owned pharmacy that, along with two pro-life pharmacists, challenged the law on the grounds that it violates this Free Exercise Clause.

Stormans filed suit in federal district court. After five years of litigation and a twelve-day trial, a federal judge ruled that Washington’s regulations violated the First Amendment as applied to people who object to abortion. But the U.S. Court of Appeals for the Ninth Circuit reversed, splitting with several other federal appeals courts in the process.

Judge Michael McConnell is a former federal appeals judge who is now perhaps the top law professor on the Religion Clauses of the Constitution (meaning both the Free Exercise Clause and the Establishment Clause, which forbids the government from adopting an official religion and coercing Americans to participate in it). The Alliance Defending Freedom (ADF) and the Becket Fund for Religious Liberty are two leading law firms for pro-life issues and religious freedom.

On Jan. 4, 2016 McConnell, ADF, and Becket jointly filed a petition for certiorari at the Supreme Court, asking the justices to review the judgment of the Ninth Circuit.

The petition explains, “This Court’s unanimous decision in Church of the Lukumi Babalu Aye v. Hialeah was clear: Governments may not pass laws that target religious conduct for negative treatment while exempting the same conduct when done for nonreligious reasons.”

Yet the Washington regulations here do exactly that, coercing pro-life pharmacists to become complicit in abortion against their sincerely held religious beliefs. Stormans’s lawyers argue that the Free Exercise Clause guarantees the right to be able to run your business affairs consistent with your religious faith.

This case has profound implications. If the High Court sides with the pharmacists, the ruling would also be a basis for Christian bakers, photographers, and florists to decline to participate in same-sex weddings that violate their conscience.

The case is Stormans v. Wiesman. The Supreme Court could announce as early as March 7 whether it will hear the case. If it grants review, the case would be argued in late fall 2016, with a decision in spring or summer of 2017.

Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.

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