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.”