States' License to Pill Increases Conflicts

Should a pharmacist be required to dispense the morning-after pill?

Should a cab driver be forced to transport passengers drinking alcohol?

Should an attorney be prohibited from rejecting a client whose beliefs conflict with her own?

More and more professions require state licensing—from child-care providers to marriage counselors to retailers of frozen desserts. The intent is to raise the quality of services Americans receive. But experts also say that licensing has opened up a new front in the religious freedom debates.

Nearly a quarter of U.S. workers are now required to obtain state licenses, a nearly fivefold increase from 60 years ago, according to University of Minnesota labor professor Morris Kleiner. At least 1,100 professions are licensed in at least one state, up 38 percent since the mid-1980s, according to the Council on Licensure, Enforcement, and Regulation trade group.

Besides requiring more licenses, states are putting more conditions on them, and often doing so in ways that clash with traditional religious beliefs, said Stanley Carlson-Thies, president of the Institutional Religious Freedom Alliance.

“When you put all three of those things together,” he said, “I think we have every reason to think there will be increasing religious or conscientious conflicts.”

Robert Vischer, a professor at the University of St. Thomas School of Law in Minneapolis, agreed: “These debates are only going to increase in frequency and intensity.”

Such concerns prompted the Arizona legislature to pass a bill this spring that would have made that state the first to explicitly protect professionals from having their license or certification revoked because of religious practices.

Governor Jan Brewer vetoed the bill, voicing concerns that it was too broad and might prevent, for example, a municipality from firing a police officer practicing polygamy. However, Brewer pledged to work with lawmakers next session to draft a more acceptable version of the law.

“The Arizona legislation reflects legitimate concerns about how increasing government regulation can burden religious liberty and right of conscience,” said Thomas M. Messner, a visiting fellow at the Heritage Foundation.

The conflict is already playing out. In April, an Illinois trial court overturned a 2005 state rule that all pharmacists must dispense emergency contraception. Washington state’s pharmacy board backed down from a similar rule in 2010 amid court action. Meanwhile, Michigan legislators submitted a bill in April prompted by the dismissal of a Christian counseling student from a state university after she refused to counsel a gay student. A Georgia counseling student has a similar suit pending.

In February, the Obama administration repealed many of the expanded conscience protections for health care providers enacted in the final days of the Bush administration. Instead it restricted federal protections to doctors and nurses who refuse to perform abortions or sterilizations.

In a recent Heritage report titled “From Culture Wars to Conscience Wars,” Messner wrote: “Today, religious liberty and rights of conscience issues are more complicated than simply freedom from government interference in religious worship or teaching.”

In general, Messner said, “Increases in the level of government intrusion in the activities of private individuals and private entities carries with it … the potential to increase the number of conflicts between state-imposed duties … and religious liberty and right of conscience.”