Lethal injections: a prescription for state religious freedom laws

The American Pharmacists Association recently adopted a policy discouraging its pharmacists from participating in lethal injections to executed murderers. It reasoned that such actions are “fundamentally contrary to the role of pharmacists as providers of health care.”
This resolution demonstrates that customers (in this case, the government) sometimes will ask business owners to sell them something or participate in an activity that violates the owners’ beliefs. As much as possible, the law should accommodate the owners’ choice to decline the customers’ request, rather than allow big government to punish people for living according to their beliefs.

The issue pertinent here is not whether the death penalty for convicted murderers is moral or not. The issue is whether the state should be able to force people to help facilitate an execution against their will. And it raises the greater question of when the government, in general, can compel people to act against their beliefs.

{mosads}That is why we need state laws like the religious freedom law that the federal government and 20 other states have approved, and that the North Carolina Legislature is currently considering. Government exercises its actions through coercion, and sometimes, the government can achieve its end without compelling those with a moral objection to participate in something that violates their conscience.

Right now, no state government is forcing unwilling pharmacists to sell it the drugs needed for lethal injections, but such coercion could happen. State governments license pharmacists and regulate the dispensing of drugs, which generally helps everyone. However, a state pharmacy board, in a state with the death penalty for murder, could issue a formal rule ordering all pharmacists to sell to the state the drugs needed for lethal injections. And the state board could discipline or punish pharmacists who decline to comply and ask the state to find another pharmacist who is willing to sell the drugs.

A similar situation involving drugs that induce abortions is happening right now in the state of Washington. The state’s Board of Pharmacy issued rules in 2007 requiring all pharmacists to dispense certain abortifacient drugs, and expressly prohibited pharmacists whose beliefs would not allow them to fill those prescriptions from referring the customers to other pharmacists. A pharmacy and two pharmacists, represented by Alliance Defending Freedom, are challenging these regulations in federal court.

In essence, the lawsuit argues that the Constitution protects the right of business professionals to operate their businesses according to their beliefs, without governmental coercion. That’s the rationale behind state religious freedom bills as well: They give people a way to request an accommodation from government power that forces them to violate their beliefs.

The resolution from the American Pharmacists Association is a clear example of the need for such laws. If the federal government or state pharmacy boards in the 20 states with state religious freedom laws tried to force pharmacists to dispense the death penalty drugs, the pharmacists can use those laws as a defense—which would require the government to show the courts why it cannot respect their beliefs and excuse them from dispensing the drugs, and why it must instead require them to provide them.

Importantly, these religious freedom laws would not guarantee that the pharmacists would win, because these types of laws do not pick winners and losers in advance. They simply allow people to raise a defense when the government exercises its authority to force them to do something against their beliefs.

Although we need a government powerful enough to act to promote the common good, the law should also require the government to show why it cannot make room for people who, due to conscience, must refrain from fulfilling some particular governmental requirement. Laws like the one in North Carolina carve out space for people to live and act according to their beliefs, without unnecessary government coercion. That’s a prescription for freedom that everyone can support.

Lorence is senior counsel with Alliance Defending Freedom, which has provided legal guidance to legislators nationwide, including in North Carolina, on religious freedom laws and is defending the religious freedom of many clients in court.