In Wisconsin, a pharmacist who is a devout
Christian refused to fill a woman's prescription for birth-control
pills. He also refused to transfer the prescription to another
pharmacy. He now faces disciplinary action.
In Texas, another pharmacist refused to fill the prescription for a
morning-after pill requested by a rape victim - again, because
of his religious convictions. Though Texas has a law that allows
any doctor, nurse or hospital employee to opt out of an abortion
procedure to which he or she has religious objections, it isn't
clear whether the law covers pharmacists or morning-after pills.
The Texas pharmacist has been fired.
These cases are not unusual. Other disputes involving pharmacists
whose religious conscience will not allow them to fill a
prescription have surfaced in a half-dozen other states. So the
question naturally arises: How should the law react to these
events? Such an inquiry requires us to examine the role of religion
and law in the public square.
An understanding of American history would help. The journey of
the Pilgrims to Massachusetts was a journey of religious conscience
from the orthodoxy of Anglican England. So, too, was the journey of
the Society of Friends to Pennsylvania.
Harlan Fiske Stone, later to be Chief Justice of the Supreme
Court, drew on this history when he wrote: "Both morals and sound
policy require that the state should not violate the conscience of
the individual. All our history gives confirmation to the view that
liberty of conscience has a moral and social value which makes it
worthy of preservation at the hands of the state. So deep in its
significance and vital, indeed, is it to the integrity of man's
moral and spiritual nature that nothing short of the
self-preservation of the state should warrant its violation; and it
may well be questioned whether the state which preserves its life
by a settled policy of violation of the conscience of the
individual will not in fact ultimately lose it by the
As a society, we have long recognized the truth of Stone's words,
refusing even to compel the religious conscience of objectors to
serve in wartime. We exempt from combat service anyone who "by
reason of religious training and belief, is conscientiously opposed
to participation in war in any form." Our civil rights laws
prohibit discrimination on the basis of religious belief in any
So, the answer from our history and the law is fairly clear. The
answer we've given to those who are conscientious objectors to war
should be the same answer we give those who are conscientious
objectors to abortion. The principle of liberty of conscience must
be a universal one, evenly applied across all religions and all
beliefs, lest the government be in the uncomfortable and untenable
position of choosing among disparate religious views and
determining their legitimacy. We should no more compel a pharmacist
to dispense birth control if it violates his conscience than, say,
compel a prison guard to participate in an execution if religious
objections cause him to oppose capital punishment.
That same history also allows us to draw appropriate lines.
Freedom of conscience is a shield against compulsion, not a sword
for religious orthodoxy. That is the beauty of the balance struck
by the Free Exercise and Establishment clauses of the First
Amendment. Those who bring their religion into the public square
may not be compelled as the price of admission to abandon it.
But neither can they impose their views on others. Society may
accommodate religious beliefs by, for example, not requiring a
pharmacist to fill a prescription that violates his scruples. But
the pharmacist cannot then impose his beliefs by refusing to
identify an alternate source for medication whose dispensation
remains a lawful, permissible activity.
To be sure, the balance is a delicate one. But it's a line we must
draw faithfully if we are to remain true to our history and the
Paul Rosenzweig is a senior legal research fellow at The
Heritage Foundation and an adjunct professor of law at George Mason
University School of Law.
First appeared on FOXnews.com