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Tuesday, June 28, 2016

SCOTUS Ignoring the Constitution

It's the end of June and it means that another round of Supreme Court decisions It's the end of June and it means that another round of Supreme Court decisions have been released. One of the biggest decisions getting press is the finding in Whole Woman's Health v. Hellerstedt, where the Court overturned a Texas law requiring abortion clinics to meet the standards of other ambulatory surgical centers in the state. Because this is the first Supreme Court ruling on an abortion case in nearly 20 years, it has gotten a lot of press. However, the bigger story is the decision the Court made to not hear a case.

Today, the Court's majority denied a hearing for the owners of a Washington State pharmacy who are resisting being compelled by state law to sell abortifacient drugs at their business. This is a terrifying decision, and not simply because it involves abortion. The case hung on the fact that compelling someone to engage in commerce against their convictions and religious beliefs is unconstitutional. That's what free exercise of religion means. That's why the Pilgrims left for America and it's why religious freedom was demanded as the first of the amendments guaranteed in the Constitution. To simply ignore that now is to gut the very freedom upon which our country is built.

Lest anyone think I'm exaggerating, I offer this quote from James Madison on the need for religious liberty separate from any state compulsion:
Because we hold it for a fundamental and undeniable truth, "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." [Virginia Declaration of Rights, art. 16] The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

2. Because if Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves (emphasis added).1
What makes Madison's arguments even more interesting is in this instance he was arguing against compulsion from the state to subsidize a particular form of Christianity, but he anchored his arguments in the understanding that personal conviction takes precedence over the state's desire. It is the guarantee that the people have the right of conscience to live out their beliefs to the Governor of the Universe first that is inalienable. In denying the hearing, the Court 's majority is denying that any such right exists.

Justices Roberts, Thomas, and Alito understood the problem rejecting the case poses for religious liberty. In their dissenting opinion, they call this “an ominous sign” and conclude “If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.” 2

I'm concerned. I'm deeply concerned that judicial reinterpretation is erasing the very rights upon which this country was built and why it should exist. Madison thought it was a big deal, maybe our judiciary should, too.


1. Madison, James. "Amendment I (Religion): James Madison, Memorial and Remonstrance against Religious Assessments." The Founder's Constitution. The University of Chicago, 1987. Web. 28 June 2016.
2. Stormans, Inc. v. Wiesman. Supreme Court of the United States. 28 June 2016. Supreme Court of the United States. Supreme Court of the United States, 28 June 2016. Web. 28 June 2016.


  1. Doing business in the United States is a privilege, not a right. Doing business entails many responsibilities to society. If your religious faith makes you unable to fulfill those responsibilities, you are free to close down your business, or open a different kind of business, or move to a different state. But you don't have a right to run your business anyway you want. You have responsibilities to the wider society.

    1. You're wrong, John. The Declaration of Independence states we have the right to life, liberty, and the pursuit of happiness. Making a living is entailed in life and liberty. I'm talking about rights. You're making assertions that have no basis in history. Read what Madison wrote. Argue with him--he did write the Bill of Rights. I think he knows what people are guaranteed by the Constitution.

  2. The phrase "life, liberty and the pursuit of happiness" doesn't specify how people may pursue happiness. Clearly some ways are acceptable and others are not. It's a real stretch for you to suggest this phrase gives people an inalienable right to operate their privately owned businesses anyway they please.

  3. How is it that you see it as ok for a pharmacist to second guess a prescription ordered by a doctor? The pharmacist is not the one treating the patient, he has not evaluated the patient and likely has no knowledge of other conditions the patient may have. If the pharmacist has a problem with a drug a doctor prescribes he should discuss it with the doctor, just as he does when he catches a potentially dangerous dug interaction that the doctor may have missed. It seems highly unprofessional to just refuse to fill the prescription.

    1. It's a bit euphemistic to say this amounts to nothing more than a "prescription ordered by a doctor." Kevorkian was a doctor that wrote prescriptions, too, but that didn't mean everyone was beholden to follow him. This is about not killing an unborn human being--that is a fundamental matter of how one understands life, death, and protection of the innocent.

  4. It's the willingness to make blanket statements about someone's health care while knowing nothing about the individual circumstances that disturbs me. Are you a doctor? Have you examined the patient? Do you even know that the fetus is even alive at this time? What makes you think you know better than the people who are intimately involved in the situation?

    1. But that's exactly my point. This isn't a blanket statement. It pertains to a very specific set of drugs used for a very specific purpose. That's why I brought up euthanasia medications. If I were a pharmacist, I would object to being forced to provide drugs designed to end one's life.

      Let's take another parallel. Do you think pharmaceutical companies should be forced to sell prisons lethal injection drugs?

      Also, realize we are not talking about barring patients from their prescriptions. We are only talking about not forcing individual pharmacists to dispense those drugs. In the Washington case, there were 30 stores within a five mile radius where the prescription could be filled.

  5. You, even though you are not a doctor or pharmacist and have no knowledge of the patient, are making the assumption that those drug are only used to kill babies. But you have not yet answered my question: when a person, in consultation with their doctor, decides that ending their own life or terminating a pregnancy is the best course of action for their unique situation, what make you think that you know better?

    Kavorkian is seen as a hero by many because he was fighting for the same kind of rights: the right of an adult to have control over their own body and their own life.

    As to your final paragraph, I'm glad you realized that abortion restrictions only effect poor people. The wealthy have always been able to find a doctor to do what they want, travel to places where different procedures or assisted suicide is legal, or drive 50 miles out of their way to a more reputable pharmacy. I'm curious, how do you justify that in your mind? Is it right to push laws that you may feel are morally correct, but their likely result will do little more that place added burdens on poor people while not changing the behavior of the wealthy at all? Is it fair to pass laws that only effect people who are allready struggling? It seems to me that the poor are dumped on enough, I'd rather focus on helping them become less poor than adding more burdens to their lives.

  6. It seems to me that the problem in this case begins with treating pregnancy as an illness and affliction. I know that's been on the books for quite a while, though, interestingly, neither side of the debate really wants it to be seen that way. Is the doctor prescribing a drug to treat an illness or a drug to reduce the economic burden on a woman? Until we somehow find a common understanding on the nature of sexual intercourse and the probable consequences that will arise from it, how can we agree on a policy on how to "treat" it?


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