A victory for religious freedom

A federal court in Washington state has ruled that Washington’s law that requires all pharmacists to dispense the drug Plan B (an abortifacient) violates the First Amendment.

Existing case law says that a law that burdens religious freedom can still be constitutional, but only if it is generally applicable and neutral to religion (or if it satisfies strict scrutiny, which almost nothing does). It’s not so in this case:

The court determined that the regulations are not neutral for purposes of deference under Employment Division v. Smith. Rather, they “are riddled with exemptions for secular conduct, but contain no such exemptions for identical religiously-motivated conduct” and thus amount to an “impermissible religious gerrymander.”

Likewise, the regulations are not “generally applicable” but rather “have been selectively enforced, in two ways”: First, the rule that pharmacies timely deliver all lawful medications has been enforced only against the plaintiff pharmacy and only for failure to deliver plan B. Second, the rules haven’t been enforced against the state’s numerous Catholic-affiliated pharmacies, which also refuse to stock or dispense Plan B.

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