Wednesday, June 29, 2016

Alito (Religion) v. Alito (Abortion)

Mark Graber

Justice Samuel Alito’s dissent from a denial of certiorari in Storman’s Inc. v. Wiesman (2016) undermines his opposition to abortion and is a devastating rebuttal to the conservative dissents in Whole Woman’s Health v. Hellerstedt (2016).  His accusation that Washington engaged in a religious gerrymander implicitly acknowledges that no secular reason exists for opposing birth control and abortion.  Alito’s concern for the plight of those who might have to travel an extra mile or so for needed medications highlights the enormous burden of the significant number of woman Texas would require travel more than 150 miles for an abortion.  Good reasons exist for finding constitutionally problematic the state regulations at issue in Storman’s.  They are not, however, the reasons Alito and the other conservatives give.

Storman’s concerns the constitutionality of a Washington regulation declaring that a pharmacist may not “refuse to deliver a drug or a device to a patient because the owner objects to delivery on religious, moral or other personal grounds” as applied to a Christian pharmacist who does not wish to stock or deliver emergency contraception. A fair case can be made under recent precedents that if a state provides exemptions for business reasons (Washington permits pharmacists not to deliver drugs because they do not accept certain forms of insurance) then states must provide exemptions for religious reasons.  A better case might be made for overruling existing precedents, most notably Employment Division v. Smith (1990), and mandating exemptions when, as appears to be the case in Washington, no strong reason exists for not giving religious pharmacists an exemption from the stocking and delivery rules.  Alito, joined by Roberts and Thomas, did not take either of these routes.  Instead, the conservatives accused Washington of a religious gerrymander that would deprive state citizens of needed medications by putting religious pharmacists out of business.  These claims, as noted below, are startling given conservative opposition to reproductive rights and their willingness to tolerate much stronger regulations on access to abortion.

Alito’s claim that Washington has engaged in a religious gerrymander by allowing business justifications for refusing to stock emergency contraception creates a constitutional dilemma for conservatives.  The regulation explicitly forbids religious, moral and personal justifications for not delivering drugs.  Pharmacists cannot refuse to provide customers contraception that may cause very, very early abortions because they believe the Bible forbids the use of birth control and abortion, because they think birth control and abortion inconsistent with Kantian moral philosophy, or because they just do not like people who use birth control or abortion.  Alito’s repeated insistence that Washington has nevertheless engaged in a religious gerrymander can be true only if as a matter of practice or theory, all objections to abortion or birth control are grounded in religious belief, rather than secular moral philosophy or personal taste.  If as Alito seems to indicate (wrongly in my judgment, but that is another story), no one in Washington opposes birth control or abortion (and probably same-sex marriage) for secular moral reasons, then states, which may constitutionally legislate only for secular objectives cannot constitutionally ban birth control or abortion.  The dilemma is this: If secular reasons exist for opposing birth control and abortion, then Washington has not engaged in a religious gerrymander.  If no secular reasons exist for opposing birth control and abortion, then Washington and other states cannot restrict or regulate birth control or abortion.

Alito's claim about the consequences of Washington’s regulations on pharmacies for consumers demolishes previous conservative claims that common regulations on abortion do not create undue burdens for women.  Observing that some pharmacies may close because of new state regulations, he writes, “shuttering pharmacies would make all of these pharmacies customers find other sources for all of their medications,” because “it cannot reasonably be supposed that new pharmacies will appear overnight.”  An earlier passage in the opinion waxes eloquent on the plight of very poor people, who “are particularly likely to lack ready means of traveling to another pharmacy.”  Alito sneers “Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives.”  Sound familiar.  Texas would rather have no abortion clinics than ones that do not toe the line on admitting privileges and surgical centers.  And unlike antibiotics, anti-depressants, and powerful antacids, women have a constitutional right to an abortion.  If, as Alito, Roberts and Thomas think in Storman, travelling several extra miles to get needed medication is a constitutionally relevant burden, then claiming that state laws create undue burdens by requiring a significant percentage of women to travel more than 150 miles for an abortion is the greatest understatement in American constitutional law. 

When excerpting this year’s decisions for the new edition of Gillman, Graber and Whittington, American Constitutionalism (as always, on sale in the lobby), I was struck by how often Alito misreads liberal opinions.  Apparently, however, Alito does not bother reading conservative opinions either, even ones he writes.  Perhaps he s might begin by rereading his conclusion in Whole Woman’s Health, that, “When we decide cases on particularly controversial issues, we should take special care to apply [law] in a neutral manner.

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