1 Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940).

2 NARAL Pro-Choice, Examples of Pharmacy Refusals 2 (Apr. 2005), http://maloney.house.gov/documents/olddocs/women/ALPHA/Examples.pdf [hereinafter Examples of Pharmacy Refusals].

3 See id.

4 O’Reilly himself expressed surprise and disapproval, responding with “Ohh. Well, that wasn't good.” See J.F., Who Are Karen Brauer and “Pharmacists for Life”?, Media Matters for Am., Mar. 30, 2005, http://mediamatters.org/research/200503300002.

5 Rob Stein, Pharmacists’ Rights at Front of New Debate: Because of Beliefs, Some Refuse to Fill Birth Control Prescriptions, Wash. Post, Mar. 28, 2005, http://www.washingtonpost.com/ac2/wp-dyn/A5490-2005Mar27 (Brauer said, “[transferring is] like saying, ‘I don't kill people myself but let me tell you about the guy down the street who does.’ … It's the same thing.”).

6 See infra notes 12-13.

7 See Noesen v. State Dep't of Regulation & Licensing, Pharmacy Examining Bd., 751 N.W.2d 385, 389-90 (Wis. Ct. App. 2008).

8 Pharmacist Cites Sin in Birth Control Case, Wash. Times, Oct. 11, 2004, http://www.washingtontimes.com/news/2004/oct/11/20041011-115311-7515r/.

9 See Noesen, 751 N.W.2d at 391.

10 A family planning method endorsed by the Roman Catholic church which involves having sexual intercourse only when a woman is not ovulating, and doing so without protection. Advocates claim observation of the “signs” of ovulation is possible, even if a woman does not have a regular period, and that natural family planning is up to 99% effective at preventing or achieving pregnancy “when couples understand the methods.” See Natural Family Planning, U.S. Conference of Catholic Bishops, http://www.usccb.org/prolife/issues/nfp/information.shtml (last visited Oct. 11, 2010). What are these methods? They include, among other things, monitoring “the mucus released from the woman's cervix” and temperature, and watching for “minor abdominal pain or pressure” that indicates ovulation. Id.

11 See Joint Brief of Defendants-Appellees at 11-12, Noesen v. Med. Staffing Network, Inc., 232 Fed. App’x 581 (7th Cir. 2007) (No. 06-2831), 2006 WL 3319670, at 11-12.

12 There have been numerous widely publicized incidents of pharmacists not only refusing, but often berating or making rude comments to women seeking time-sensitive emergency contraception (“Plan B”), including rape victims. For example:

In 2004, a Texas rape victim got a prescription from the hospital for emergency contraception. All three pharmacists on duty at the local Eckerd pharmacy refused to fill it. While the victim sat in the car crying, a friend tried to explain to the pharmacists that she was traumatized and their refusal to deal with her was tantamount to “a second victimization.” Unmoved, they turned the friend away citing moral reasons. The friend returned to the car and told the victim that “morally they say you’re wrong.” Examples of Pharmacy Refusals, supra note 2, at 1.

In 2004, a single mother in rural New Hampshire brought a prescription for emergency contraception to a local pharmacy. The pharmacist told her that he would not fill it and would not transfer it. By the time she found a pharmacist willing to fill her prescription, 72 hours had passed (emergency contraception must be taken within 72 hours). Id.

In 2005 in Wisconsin, a mother of six and her husband agreed their financial situation prohibited any more children, and obtained an emergency contraception prescription after a “birth control failure.” The mother brought the prescription to a local Walgreens where the pharmacist “berated the mother in the pharmacy's crowded waiting area, shouting ‘You’re a murderer! I will not help you kill this baby. I will not have the blood on my hands.’” She subsequently became pregnant and had an abortion. Nat’l Women's Law Ctr., Pharmacy Refusals 101 at 2, (Apr. 2010), http://www.nwlc.org/pdf/pharmacyrefusals101.731.pdf [hereinafter Pharmacy Refusals 101].

In 2005, a Missouri doctor wrote a Plan B prescription for a woman who already used two methods of birth control with her boyfriend, but wanted to have a third and final option in the unlikely event the other two failed. The pharmacist on duty at a local Target would not fill it, telling her “that is my right.” Todd Frankel, I’m Sorry, I Won't Fill that Prescription, St. Louis Post-Dispatch, Dec. 4, 2005, at B1.

In 2005, when an upstate New York woman brought her prescription for emergency contraception and some refills to her local CVS/pharmacy, the pharmacist dispensed the medication, but deleted the refill orders. When the prescribing provider found out and contacted the pharmacy, he was told that women who need Plan B refills are “irresponsible and should bear the consequences of their actions.” Letter from N.Y. Civil Liberties Union to N.Y. State Office of the Professions 6 (Aug. 15, 2006), http://www.nyclu.org/pdfs/rrp_ec_complaints_complaintletter_081506.pdf.

In 2005, an Arizona college student accepted a ride home from a party from someone she did not know very well and was raped. It took her three days to find a pharmacist who would dispense emergency contraception to her (emergency contraception must be taken within 72 hours). Carla McClain, Rape Victim: ‘Morning-After’ Pill Denied, Az. Daily Star, Oct. 23, 2005, at A1.

In North Carolina in 2006, a young mother and her husband feared their primary method of birth control had failed. The woman's doctor called in a prescription for emergency contraception, only to discover that the pharmacist on duty refused to dispense it and also refused to transfer the prescription elsewhere. Refused at the Counter: Personal Stories, Planned Parenthood Affiliates of N.J., http://www.plannedparenthoodnj.org/library/topic/pharmacy_refusal/refused_at_the_counter [hereinafter Refused at the Counter].

In 2006, a California husband and wife who had recently become new parents obtained a Plan B prescription, worrying that their primary method of birth control had failed. When the wife presented it to the pharmacist, he told her, “If you and your ‘boyfriend’ were not so irresponsible, you would not have to be dealing with this.” Needless to say, he refused to fill it. Guarantee Women's Access to Birth Control, NARAL Pro-Choice America Foundation, 2-3 (Jan. 1, 2010), http://www.prochoiceamerica.org/assets/files/birth-control-pharmacy-access.pdf.

In 2006, a 42-year-old Georgia woman and her husband decided that given their age, they wanted to be cautious in case their primary method of birth control failed, and obtained a Plan B prescription. Their local pharmacist refused for religious reasons. Refused at the Counter, supra.

In 2006, a Washington woman and her fiancé experienced a birth control failure. She was refused emergency contraception by the pharmacist who told her the store stocked the drug but that he would not give it to her because he thought it was wrong. He also refused to transfer it. Refused at the Counter, supra.

In 2007, a young mother in Ohio sought emergency contraception at a local Wal-Mart. The pharmacist she spoke to “shook his head and laughed at her,” telling her although the pharmacy carried it, no one there would give it to her. Indeed, no one on the staff would help her, and she drove forty-five miles to obtain it elsewhere. Pharmacy Refusals 101, supra, at 2.

13 Reported incidents include:

In 2004, a CVS pharmacist in Texas refused to fill a married, 32-year-old mother's birth control prescription. She summoned her husband, and upon his arrival they were both told that birth control pills are “not right” and “cause cancer.” Pharmacy Refusals 101, supra note 12, at 2.

In 2004, a UMass sophomore filled out the requisite online form in order to pick up her monthly birth control refill at a CVS/pharmacy. When she arrived the pharmacist informed her that he had “deleted her request from the computer because he did not want to fill it.” Examples of Pharmacy Refusals, supra note 2, at 1.

In 2004, the only pharmacist in a rural West Texas town decided he would no longer fill birth control prescriptions and repeatedly turned away customers who then drove at least thirty miles or crossed into Mexico to have their prescriptions filled. Interestingly, when asked whether he carried Viagra, the pharmacist said, “I don't see how that could possibly be related to the issue that we’re talking about.” See Katie Fairbank, Waging a Moral Battle from Behind the Counter: Pharmacists’ Refusal to Fill Contraception Prescriptions Prompts the Question: Whose Choice Is It to Make?, Dall. Morning News, Apr. 24, 2004, at 1A (noting that Texas has 199 towns with only one drug store and that those towns frequently have only one pharmacist).

In 2004, the only pharmacist on duty in a West Virginia pharmacy refused to fill a woman's birth control prescription, then took her aside and lectured her. The woman stated that the pharmacist made her “feel like she was doing something illegal” when she was trying to be “responsible for someone who is not yet ready to bring a child into the world.” Refused at the Counter, supra note 12.

In 2007, a 49-year-old Great Falls, Montana woman who used birth control for a medical condition went to her local pharmacy to pick up her latest prescription. The owner of the pharmacy told her birth control was “dangerous” and that he would not fill her prescription. Pharmacy Refusals 101, supra note 12, at 2.

14 See, e.g., J.T. Finn, Birth Control Pills Cause Early Abortions, Pro-Life America, http://www.prolife.com/BIRTHCNT.html (last updated Apr. 23, 2005) (claiming “[p]hysicians across America—and around the world—are now confirming that the Pill … cause[s] early abortions” because “[s]cientists agree that new human life begins at the moment of conception”). This claim is misleading for two reasons: 1) there is substantial disagreement about when life begins; and 2) birth control pills function by suppressing ovulation and inhibiting sperm so that fertilization won't occur. Although people claim abortion is possible because there is a chance an egg may escape and a sperm may survive to reach it such that fertilization occurs in an environment where implantation is impossible, there is no way to know if this happens. See e.g., Caroline Bollinger, The Post-Fertilization Effect: Fact or Fiction?, Prevention, Nov. 22, 2004, available at http://www.prevention.com/health/health/healthy-living-centers/the-post-fertilization-effect-br-fact-or-fiction/article/98d672e50d803110VgnVCM10000013281eac____. Even if it does happen, the legal status of contraception would likely remain unchanged because there is no legal or political consensus that life begins at fertilization. See, e.g., Rob Stein, Birth Control Fears Addressed: HHS Chief Says Draft Rule is Not Redefining Abortion, Wash. Post, Aug. 9, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/08/08/AR2008080802978.html (Department of Health and Human Services rejects a proposed regulation endorsing the notion that birth control pills are abortifacients because they prevent implantation of fertilized eggs).

15 Starting in 2000, the problem of a pharmacist shortage drew much attention with this study: Bureau of Health Professions, Dep't of Health & Human Servs., The Pharmacist Workforce: A Study of the Supply and Demand for Pharmacists (2000), ftp://ftp.hrsa.gov//bhpr/nationalcenter/pharmacy/pharmstudy.pdf. Many years later, states are still reporting shortages. See, e.g., Fairbank, supra note 13 (noting that Texas has 199 towns with only one drug store and that those towns frequently have only one pharmacist); Cory Galliher, Pharmacist Shortage a Continuing Problem for Local Businesses, Employees, Cumberland Times-News (Md.), Mar. 5, 2010, http://times-news.com/local/x1897228987/Pharmacist-shortage-a-continuing-problem-for-local-businesses-employees; Terry Rombeck, KU Taking Steps to Address Pharmacist Shortage, Lawrence Journal–World (Kan.), Aug. 19, 2009, http://www2.ljworld.com/news/2009/aug/19/ku-taking-steps-help-address-pharmacist-shortage/.

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17 See supra notes 7-13 and accompanying text.

18 See Guttmacher Inst., Facts On Contraceptive Use in the United States (June 2010), http://www.guttmacher.org/pubs/fb_contr_use.pdf (reporting that 62 million U.S. women are in their childbearing years and of these 43 million are using birth control to avoid pregnancy, and that of the 2.9 million sexually active U.S. teen women who use contraceptives, 54% use the pill).

19 Klein, Luella, To Have or Not to Have a Pregnancy, 65 Obstetrics & Gynecology 1, 1 (1985)Google ScholarPubMed (among fertile, sexually-active women).

20 See Lauren Cox, Doctors Say Women with Many Children Have Increased Incontinence, Pregnancy Risks, ABC News, Dec. 19, 2009, http://abcnews.go.com/Health/Television/19th-baby-duggar-woman-face-risks/story?id=9340188.

21 ACOG: Obstetricians and Gynecologists Call for Insurance Coverage, Kaiser Network (May 11, 1998), http://www.kaisernetwork.org/reports/1998/05/kr980511.1.html.

22 See Guttmacher Inst., State Policies in Brief: Insurance Coverage of Contraceptives (Oct. 1, 2010), http://www.guttmacher.org/statecenter/spibs/spib_ICC.pdf (reporting that close to 30 states now mandate that insurers cover the full range of FDA-approved contraceptives).

23 Guttmacher Inst., supra note 18.

24 Division of Reproductive Health, Ctrs. for Disease Control, Achievements in Public Health, 1900-1999: Family Planning, 48 Morbidity & Mortality Wkly. Rep. 1073 (1999), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm4847a1.htm.

25 See Beverly Wildung Harrison, Our Right to Choose 130 (Beacon Press 1983).

26 Preamble to the Constitution of the World Health Organization (Apr. 7, 1948), http://www.who.int/about/definition/en/print.html.

27 See Nat’l Women's Law Ctr., Pharmacy Refusals: State Laws, Regulations, and Policies (June 2010 Update), http://www.nwlc.org/sites/default/files/pdfs/PharmacyRefusalPolicies-June2010.pdf.

28 Id.

29 Id.

30 Id.

31 Id.

32 Id.

33 Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936.

34 See Health Law: Cases, Materials and Problems 321 (Barry R. Furrow et al. eds., West 6th ed. 2008).

35 U.S. Const. art. VI cl. 2.

36 HIPAA § 264(c)(2) (providing that “a regulation … shall not supersede a contrary provision of State law, if the provision of State law imposes requirements, standards, or implementation specifications that are more stringent than the requirements, standards, or implementation specifications imposed under the regulation”).

37 Press Release, Representative Debbie Wasserman Schultz, Birth Control: On 40th Anniversary of Supreme Court Decision, Some Women Have Seen Their Rights Vanish (June 7, 2005), http://www.house.gov/apps/list/press/fl20_schultz/prescription40thpresser.html.

38 Chandrasekhar, supra note 16, at 71 (2006) (listing close to forty states).

39 See, e.g., UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) (holding discrimination in the workplace related to pregnancy or the possibility of pregnancy is per se sex discrimination for purposes of Title VII of the Civil Rights Act, which prohibits sex discrimination in the workplace); Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (same); Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001) (same).

40 Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified as amended at 42 U.S.C. § 2000e(k)).

41 Erickson, 141 F. Supp. 2d at 1276-77 (holding that the selective exclusion of prescription contraceptives from an employer's otherwise comprehensive plan constitutes discrimination on the basis of sex under Title VII, as amended by the Pregnancy Discrimination Act).

42 Id. at 1271.

43 See generally Chandrasekhar, supra note 16.

44 See Pharmacy Refusals 101, supra note 12 (noting a refusing pharmacist who shouted, “I will not help you kill this baby”); see also supra note 14 (demonstrating that religious opposition to birth control stems from a belief that birth control causes fertilized eggs to “die” in utero).

45 See Fairbank, supra note 13 (“When asked whether he carried Viagra, the pharmacist said ‘I don't see how that could possibly be related to the issue that we’re talking about.’”).

46 See generally Chandrasekhar, supra note 16.

47 See Griswold v. Connecticut, 381 U.S. 479 (1965) (Constitution protects a right to privacy which includes the right of married couples to use contraception); Eisenstadt v. Baird, 405 U.S. 438 (1972) (extending the right to use birth control to unmarried persons).

48 See Chandrasekhar, supra note 16, at 71 (noting that close to forty states prohibit sex discrimination in public accommodations, meaning a lawsuit based on this theory would end in a “failure to state a claim” dismissal in more than ten states).

49 42 U.S.C. § 2000a(a) (2006) (“All persons shall be entitled to the full and equal enjoyment of goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion or national origin.” (emphasis added)).

50 See id. § 1981 (“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts … as is enjoyed by white citizens.”).

51 U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion … .”).

52 Id.

53 See Tex. Monthly v. Bullock, 489 U.S. 1, 8 (1988); see also Gillette v. United States, 401 U.S. 437, 450 (1971) (“The Establishment Clause prohibits the government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization.”).

54 Bullock, 489 U.S. at 9.

55 Cutter v. Wilkinson, 544 U.S. 709, 719 (2005).

56 See Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144-45 (1987) (“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.”).

57 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1972).

58 Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)).

59 Ginsburg, Douglas H., Originalism and Economic Analysis: Two Case Studies of Consistency and Coherence in Supreme Court Decision Making, 33 Harv. J.L. & Pub. Pol’y 217, 232 (2010).Google Scholar

60 See, e.g., McConnell, Michael W., Accommodation of Religion: An Update and a Response to the Critics, 60 Geo. Wash. L. Rev. 685, 685-86 (1992)Google Scholar (explaining that the Supreme Court has moved away from the Lemon test to a much less ambiguous evaluation of accommodations).

61 See, e.g., Van Orden v. Perry, 545 U.S. 677, 686, 690 (2005) (applying a historical analysis (“the Ten Commandments have an undeniable historical meaning”) and explicitly discounting the Lemon test's usefulness); Zelman v. Simmons-Harris, 536 U.S. 639, 662-63 (2002) (The Court upheld a school voucher program as “neutral” and permitting “true private choice” without mentioning Lemon. Justice O’Connor joined four justices in the majority opinion and, in a concurring opinion, maintained that, despite appearances, the majority did not depart from Lemon.); Agostini v. Felton, 521 U.S. 203, 234 (1997) (defining “three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion” as whether an accommodation “result[s] in governmental indoctrination; define[s] its recipients by reference to religion; or create[s] an excessive entanglement”); Marsh v. Chambers, 463 U.S. 783, 786-91 (1983) (applying a historical analysis rather than the Lemon test).

62 See, e.g., Van Orden, 545 U.S. at 691-92 (public display of the Ten Commandments did not violate the Establishment Clause); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993) (religious groups must have access to public property when secular groups are allowed access).

63 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 845-46 (1995).

64 Zelman, 536 U.S. at 662-63.

65 Van Orden, 545 U.S. at 691-92.

66 Lamb's Chapel, 508 U.S. at 395.

67 Ginsburg, supra note 59, at 233.

68 See, e.g., Lamb's Chapel, 508 U.S. at 398 (Scalia, J., concurring) (The Lemon test is like “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” and “stalks [the Court’s] Establishment Clause jurisprudence … frightening … little children and school attorneys.”).

69 Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987).

70 McCreary Cnty, Ky. v. ACLU of Ky., 545 U.S. 844, 864 (2005).

71 See Alexander, Klint, The Road to Vouchers: The Supreme Court's Compliance and the Crumbling of the Wall of Separation Between Church and State in American Education, 92 Ky. L.J. 439, 450 (2004)Google Scholar (suggesting that the Lemon test aids legislatures in drafting concessions to religious interests).

72 See Agostini v. Felton, 521 U.S. 203, 223, 231-32, 234 (1997).

73 Marsh v. Chambers, 463 U.S. 783, 794-95 (1983)

74 Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 338 (1980) (“A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden ‘effects,’ the Government itself must have advanced religion through its own activities and influence.”); see also Developments in the Law–State Action and the Public/Private Distinction, 123 Harv. L. Rev. 1248, 1280 (2010)Google Scholar (arguing “the application of the state action doctrine, in conjunction with a test to determine whether an action was religious in nature, would more clearly signal to other courts, governments, and private actors the line between constitutionally protected and constitutionally forbidden activity”).

75 Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794 (1973) (citing Lemon v. Kurtzman, 403 U.S. 602, 619 (1971)).

76 Cutter v. Wilkinson, 544 U.S. 709, 720 (2005).

77 Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709 (1985) (The statute granted Sabbath observers “an absolute and unqualified right not to work on whatever day they designate as their Sabbath.”).

78 See Smearman, supra note 16, at 532.

79 See Caldor, 472 U.S. at 709.

80 Tex. Monthly v. Bullock, 489 U.S. 1, 18 (1988).

81 Caldor, 472 U.S. at 709-11.

82 See Bullock, 489 U.S. at 25.

83 See Teliska, supra note 16; see also Fairbank, supra note 13.

84 See supra notes 27-32 and accompanying text (discussing the various states’ positions).

85 See supra notes 12-13.

86 Am. Pharmacists Ass’n, Issue Brief: Federal Conscience Clause 3 (2009), http://www.pharmacist.com/AM/Template.cfm?Section=Home2&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=15688.

87 See id.

88 See supra notes 27-34 and accompanying text.

89 Access to Legal Pharmaceuticals Act, H.R. 1652, 109th Cong. (2005); see also S. 809, 109th Cong. (2005).

90 S. 778, 109th Cong. (2005).

91 H.R. 1539, 109th Cong. (2005).

92 See Davis & Lansing, supra note 16, at 81, 88.

93 See Stein, supra note 5.

94 See Peggy Peck, AMA: Physicians Charge Pharmacists with Interference in Medical Care, MedPage Today (June 20, 2005), http://www.medpagetoday.com/tbindex.cfm?tbid=1215&topicid=88.

95 See Varughese, supra note 16, at 675.

96 Supra notes 37-50 and accompanying text.

97 42 U.S.C. § 2000e(j) (2006).

98 See, e.g., Jones v. United Parcel Serv., Inc., 307 F. App’x 864 (5th Cir. 2009).

99 See, e.g., Brown v. F.L. Roberts & Co., 896 N.E.2d 1279 (Mass. 2008).

100 See, e.g., Webb v. City of Philadelphia, 562 F.3d 256 (3d Cir. 2009); Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004); Holmes v. Marion Cnty. Office of Family & Children, 349 F.3d 914 (7th Cir. 2003); Ali v. Alamo Rent-A-Car, Inc., 8 F. App’x 156 (4th Cir. 2001); United States v. Bd. of Educ., 911 F.2d 882 (3d Cir. 1990); EEOC v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006 (D. Ariz. 2006); Hussein v. The Waldorf-Astoria, 134 F. Supp. 2d 591 (S.D.N.Y. 2001); Swartzentruber v. Gunite Corp., 99 F. Supp. 2d 976 (N.D. Ind. 2000); Kalsi v. N.Y.C. Transit Auth., 62 F. Supp. 2d 745 (E.D.N.Y. 1998); Rourke v. N.Y. State Dep't of Corr. Servs., 915 F. Supp. 525 (N.D.N.Y. 1995); Carter v. Bruce Oakley, Inc., 849 F. Supp. 673 (E.D. Ark. 1993); EEOC v. Reads, Inc., 759 F. Supp. 1150 (E.D. Pa. 1991); Brown, 896 N.E.2d 1279; Engstrom v. Kinney Sys., Inc., 661 N.Y.S.2d 610 (App. Div. 1997).

101 See, e.g., Adams v. Retail Ventures, Inc., 325 F. App’x 440 (7th Cir. 2009); Jones, 307 F. App’x 864; EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008); Ellis v. Principi, 246 F. App’x 867 (5th Cir. 2007); Tepper v. Potter, 505 F.3d 508 (6th Cir. 2007); Bush v. Regis Corp., 257 F. App’x 219 (11th Cir. 2007); Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317 (11th Cir. 2007); Baker v. The Home Depot, 445 F.3d 541 (2d Cir. 2006); Aron v. Quest Diagnostics Inc., 174 F. App’x 82 (3d Cir. 2006); Richardson v. Dougherty County, Ga., 185 F. App’x 785 (11th Cir. 2006); Rose v. Potter, 90 F. App’x 951 (7th Cir. 2004); Creusere v. Bd. of Educ., 88 F. App’x 813 (6th Cir. 2003); Isse v. Am. Univ., 540 F. Supp. 2d 9 (D.D.C. 2008); Siddiqi v. N.Y.C. Health & Hosps. Corp., 572 F. Supp. 2d 353 (S.D.N.Y. 2008); EEOC v. Texas Hydraulics, Inc., 583 F. Supp. 2d 904 (E.D. Tenn. 2008); Marchant v. Tsickritzis, 506 F. Supp. 2d 63 (D. Mass. 2007); Goldschmidt v. N.Y. State Affordable Hous. Corp., 380 F. Supp. 2d 303 (S.D.N.Y. 2005); Rice v. U.S.F. Holland, Inc., 410 F. Supp. 2d 1301 (N.D. Ga. 2005); Douglas v. Eastman Kodak Co., 373 F. Supp. 2d 218 (W.D.N.Y. 2005); Cal. Fair Emp't & Hous. Comm’n v. Gemini Aluminum Corp., 18 Cal. Rptr. 3d 906 (Cal. Ct. App. 2004); Fox v. Lear Corp., 327 F. Supp. 2d 946 (S.D. Ind. 2004); Mass. Bay Transp. Auth. v. Mass. Comm’n Against Discrimination, 879 N.E.2d 36 (Mass. 2008); Elizarov v. Martha Stewart Living Omnimedia, Inc., 845 N.Y.S.2d 263 (App. Div. 2007).

102 See supra notes 12-13 (detailing stories of pharmacists who publicly berated or lectured contraceptive-seeking customers, or otherwise belittled them).

103 See Lumpkin, supra note 16, at 119.

104 Varughese, supra note 16, at 683-686 (worrying that “the refusal is not so much about protecting the personal liberty of the provider as it is about actualizing the goal of obstructing access to contraception.”).

105 See supra notes 154-155.

106 See Louisiana: Calls for Resignation, N.Y. Times, Oct. 17, 2009, at A9 (reporting that a Louisiana justice of the peace refused to marry an interracial couple).

107 Radha Chitale, Doctors Deny Lesbian Insemination on Moral Grounds, ABC News (Oct. 1, 2009), http://abcnews.go.com/Health/MindMoodNews/doctors-deny-lesbians-insemination-procedure/story?id=8716410 (reporting that doctors refused to provide fertility services to a same-sex couple for religious reasons).

108 Thomas v. Anchorage Equal Rights Comm’n, 102 P.3d 937 (Alaska 2004) (holding against landlords who refused to rent to unmarried couples for religious reasons); Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994) (same); Smith v. Fair Emp't & Hous. Comm’n, 913 P.2d 909 (Cal. 1996) (same); McCready v. Hoffius, 586 N.W.2d 723 (Mich. 1998) (same); State ex rel Cooper, 460 N.W.2d 2 (Minn. 1990) (en banc) (holding for landlord); Idaho Motel Owner Refuses to Rent to Unmarried Couples, Oct. 7, 2000, http://www.unmarriedamerica.org/members/news/2002/October-DP/ID_motel_owner_refuses_to_rent_to_unmarried_couples_Oct_7,2002.html.

109 See generally Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998) (City refused to exempt police officer from assignment to guard abortion clinic).

110 Adam Sonfield, New Refusal Clauses Shatter Balance Between Provider ‘Conscience,’ Patient Needs, Guttmacher Rep. on Pub. Pol’y 1, Aug. 2004, at 1, 1, http://www.guttmacher.org/pubs/tgr/07/3/gr070301.pdf.

111 ACLU Reproductive Freedom Project, Religious Refusals and Reproductive Rights 5 (2002), http://www.aclu.org/FilesPDFs/ACF911.pdf (introductory page).

112 See Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 222-23 (3d Cir. 2000).

113 See Peck, supra note 94 (The story reports that pharmacist refusals are spreading. “‘It's not just contraceptives,’ said Mary Frank, M.D., a family physician from Mill Valley, Calif., during a discussion of the issue. ‘It's pain medications and psychotropics. And not only are the patients not getting prescriptions filled, but pharmacists are refusing to return the prescriptions and they are lecturing the patients about the drugs.’”).

114 See Miller, supra note 16, at 260; see also Sonfield, supra note 110, at 1 (describing how refusals are spreading to “increasingly indirect forms of involvement”).

115 U.S. Const. art. I, § 8, cl. 1.

116 U.S. Const. art. I, § 8, cl. 3.

117 See generally Outterson, Kevin, Health Care, Technology and Federalism, 103 W. Va. L. Rev. 503 (2001)Google Scholar (discussing how health care has traditionally been tied to the state police power, and the growth of federal regulation of health care under the Commerce and Spending Clauses).

118 South Dakota v. Dole, 483 U.S. 203 (1987) (holding Congress may condition state receipt of federal funds if such conditional spending satisfies a four-part test); New York v. United States, 505 U.S. 144, 161 (1992) (holding the federal government may not “commandeer” state governments to implement federal programs, only encourage adoption of such programs through conditional spending).

119 Welfare benefits are the most well known example. See generally Huberfeld, Nicole, Conditional Spending and Compulsory Maternity, 2010 U. Ill. L. Rev. 751 (2010)Google Scholar (discussing the impact of conditional spending on individuals, primarily poor women on welfare). In addition, there are numerous “conditions of participation” which hospitals must follow to receive Medicare payments. See 42 C.F.R. §§ 482.11-.45 (2009).

120 See, e.g., Jeff Miller, Pharmacists Fear Threat to Business Posed by Medicare Part D, UCSF Today (Mar. 17, 2006), http://today.ucsf.edu/stories/pharmacists-fear-threat-to-business-posed-by-medicare-part-d/.

121 See Cutter v. Wilkinson, 544 U.S. 709, 719 (2005) (Accommodation is “legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause.”); Walz v. Tax Comm’n, 397 U.S. 664, 673 (1970) (pointing out that accommodation and free exercise are not the same thing); see also Gordon, James D. III, Free Exercise on the Moutaintop, 79 Cal. L. Rev. 91, 111-12 (1991)CrossRefGoogle Scholar (accommodations to religion are within the discretion of legislatures because the Free Exercise Clause does not compel them).

122 Farber, Daniel, Another View of the Quagmire: Unconstitutional Conditions and Contract Theory, 33 Fla. St. U. L. Rev. 913, 917 (2006).Google Scholar

123 Id.

124 Connick v. Myers, 461 U.S. 138, 154 (1983).

125 See, e.g., Broadrick v. Oklahoma, 413 U.S. 601 (1973); U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 567 (1973); United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 102 (1947).

126 Rust v. Sullivan, 500 U.S. 173, 177-78 (1991) (upholding a law requiring that health care professionals, as a condition of receiving federal funds, not counsel patients on certain topics, including abortion).

127 Harris v. McRae, 448 U.S. 297, 318 (1980) (holding that a welfare recipient's constitutional right to procure an abortion is not violated if her funds cannot be used for abortion); Maher v. Roe, 432 U.S. 464, 469 (1977).

128 Lyng v. Int’l Union, 485 U.S. 360 (1988) (legislation denying food stamps to striking workers upheld).

129 United States v. Am. Library Ass’n, 539 U.S. 194, 211-13 (2003).

130 Buckley v. Valeo, 424 U.S. 1 (1976).

131 Sunstein, Cass R., Why the Unconstitutional Conditions Doctrine Is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. Rev. 593, 597-98 (1990)Google Scholar; see also Davis v. Massachusetts, 167 U.S. 43, 48 (1897) (“The right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser.”); Bronson v. Kinzie, 42 U.S. 311, 328 (1843) (“[I]f this be a constitutional exercise of power … , surely the exercise of the lesser power … must also be constitutional. Does not the greater power include the lesser?”).

132 Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 542 (2001); Rosenberger v. Rector, 515 U.S. 819, 831 (1995).

133 Sullivan, Kathleen M., Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1417 (1989).CrossRefGoogle Scholar

134 Hannaford, Rachel, Trading Due Process Rights for Shelter: Rucker and Unconstitutional Conditions in Public Housing Leases, 6 U. Pa. J. Const. L. 139, 148 n.86 (2003).Google Scholar

135 Sunstein, supra note 131.

136 Easterbrook, Frank H., Insider Trading, Secret Agents, Evidentiary Privileges, and the Production of Information, 1981 Sup. Ct. Rev. 309, 348 (1981).Google Scholar

137 Baird, Stephen R., Moral Intervention in the Trademark Arena: Banning the Registration of Scandalous and Immoral Trademarks, 83 Trademark Rep. 661, 696 (1993).Google Scholar

138 Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (2006) [hereinafter RFRA].

139 RFRA's strict scrutiny requirement was found to be an unconstitutional exercise of Congress’ remedial power with respect to state laws. See City of Boerne v. Flores, 521 U.S. 507, 519 (1997) (“Congress’ [remedial] power … extends only to enforcing the provisions of the Fourteenth Amendment … . The design of the amendment and the text … are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause.”) (internal quotations and citations omitted). However, RFRA's strict scrutiny requirement continues to apply to federal laws substantially burdening religion. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 418-21 (2006) (confirming that RFRA applies to federal laws substantially burdening religion and that Boerne found RFRA unconstitutional only as applied to the states); Cutter v. Wilkinson, 544 U.S. 709, 715 (2005) (“In City of Boerne, this Court invalidated RFRA as applied to States and their subdivisions … .”) (emphasis added).

140 42 U.S.C. § 2000bb-1(a)-(b) (“(a) In General. –Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) … . (b) Exception. –Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person –(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”).

141 42 U.S.C. § 2000bb-3(b) (“Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.”).

142 See supra notes 51-84 and accompanying text (discussing the weaknesses of an Establishment Clause challenge to pharmacist refusal laws).

143 See generally Nicholson, Matthew, Is O Centro a Sign of Hope for RFRA Claimants?, 95 Va. L. Rev. 1281 (2009)Google Scholar (arguing there are many ways lower federal courts can get away with applying less than strict scrutiny to RFRA challenges and that, in light of much skepticism about the constitutionality of RFRA, there is a good chance lower federal courts will defer to the government).

144 O Centro, 546 U.S. at 430.

145 For example, in O Centro, the government's main argument was simply that the Controlled Substances Act should be uniformly enforced. Id. at 423.

146 Id. at 436.

147 Nicholson, supra note 143, at 1312.

148 O Centro, 546 U.S. at 433.

149 Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (upholding IRS's denial of tax exempt status to colleges and universities whose racially discriminatory practices were tied to religion).

150 United States v. Lee, 455 U.S. 252, 257-58 (1983) (holding Amish could not be exempted from making Social Security payments, even though their religion forbade public assistance, because not granting exemptions was “essential” to an “overriding governmental interest” in preserving the integrity of the tax system).

151 See, e.g., Emp't Div. v. Smith, 494 U.S. 872 (1990); Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008).

152 See, e.g., United States v. Lee, 455 U.S. 252 (1982); Jenkins v. Comm’r, 483 F.3d 90 (2d Cir. 2007).

153 O Centro, 546 U.S. at 428 (noting that the district court found plaintiff made out a prima facie case by establishing the challenged law would “(1) substantially burden (2) a sincere (3) religious exercise.”); see also Laycock, Douglas & Thomas, Oliver S., Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 228 (1994)Google Scholar (“[S]ignificant burdens on activities that are not religious exercise[] fall outside the RFRA's protection.”).

154 See generally Greenwalt, Kent, Judicial Resolution of Issues About Religious Conviction, 81 Marq. L. Rev. 461, 464-65 (1998)Google Scholar (discussing issues courts confront in trying to determine whether something is “religious exercise,” including whether an activity must be objectively required by a religion to be protected, or whether a claimant's idiosyncratic belief that his or her religion compels the activity suffices).

155 See, e.g., Lee, 455 U.S. at 257; Thomas v. Review Bd., 450 U.S. 707, 714-16 (1981); Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) (“[I]t is no business of courts to say … what is a religious practice or activity … .”).

156 See, e.g., Mahoney v. U.S. Marshals Serv., 454 F. Supp. 2d 21, 38 (D.D.C. 2006) (“It is not the case that every activity which could be cast as ‘religiously motivated’ is the kind of exercise of religion protected by RFRA.”) (citation omitted).

157 The Supreme Court understands expressive conduct to be symbolic speech. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); Texas v. Johnson, 491 U.S. 397, 406 (1989). Because “the First Amendment … includes both the right to speak freely and the right to refrain from speaking at all,” both affirmative conduct and refraining from conduct constitute speech. Wooley v. Maynard, 430 U.S. 705, 714 (1977).

158 See supra notes 122-137 and accompanying text.

159 See supra note 126 and accompanying text.

160 Brownstein, Alan, Protecting Religious Liberty: The False Messiahs of Free Speech Doctrine and Formal Neutrality, 18 J.L. & Pol. 119, 120-23, 143 (2002)Google Scholar (The author notes with concern that the Supreme Court has begun to “[e]valuat[e] burdens on religious practices as the regulation of speech,” causing a “shift from a rigorously enforced free exercise and establishment clause paradigm to a free speech model” with the result that “during this decade, most of the protection provided religious activity occurred under the auspices of the Free Speech Clause, not the Free Exercise Clause.”); Ellis, Nichole, Note, The First Amendment, Original Intent, and Public Schools: Should Political Speech Deference in Public School Cases Be Applied to Free Exercise Challenges?, 6 Geo. J.L. & Pub. Pol’y 649, 656 (2008)Google Scholar (“Despite these differences in the [Free Speech and Free Exercise] clauses and the Court's general, separate approach to the two rights, in some situations the Court has extended Free Speech jurisprudence into the realm of Free Exercise challenges.”); see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 120 (2001) (finding limitations on the use of public buildings for worship and other religious gatherings to be a violation of the Free Speech, rather than Free Exercise Clause); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (striking down restrictions on the use of public buildings for religious purposes with Free Speech doctrine); Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 645 (1981) (although the challenged law burdened something that to plaintiffs constituted a religious “practice” or “ritual,” the Court upheld it as a reasonable time, place and manner restriction on speech); Widmar v. Vincent, 454 U.S. 263, 277 (1981) (using Free Speech rather than Free Exercise law to strike down state restrictions on using public buildings for worship); Cantwell v. Connecticut, 310 U.S. 296, 304 (1940) (discussing time, place and manner restrictions in the context of a Free Exercise challenge).

161 Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 45 (1983) (Time, place and manner restrictions serve to balance the speaker's interests in speaking and the government's interest in protecting society.).

162 H.R. Rep. No. 103-88, pt. 20, at 8-9 (1993); S. Rep. No. 103-111 Pt. 37, at 13 (1993).

163 Brownstein, supra note 160, at 131.

164 Hill v. Colorado, 530 U.S. 703, 715-16 (2000) (upholding a buffer zone around an abortion clinic and noting the importance of protecting a captive audience).

165 See Perry, 460 U.S. at 45.

166 City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (upholding zoning ordinance relegating adult entertainment establishments to a separate part of town).

167 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 (1976) (suggesting that had the restriction on pharmacists’ speech been reasonable, it may have survived as a time, place and manner restriction).

168 Renton, 475 U.S. at 50 (internal citations omitted).

169 Id. at 48 (internal quotations and citations omitted).

170 Id. at 50 (internal quotations and citations omitted).

171 Id. at 53-54 (finding reasonable alternative channels for communication even though “practically none” of the alternative sites were actually available and, of the sites available, none were “commercially viable”).

172 Ward v. Rock Against Racism, 491 U.S. 781, 797 (1989) (internal citation omitted).

173 See Part III.B.2.a (“The Proposed Law Is the Least Restrictive Means of Furthering Compelling Governmental Interests.”).