Illusory Tenant wonders how the Wisconsin Supreme Court will rule in the case of Noesen v. Wisconsin Department of Regulation and Licensing. This is the one in which a pharmacist at K-Mart not only declined to participate in filling a prescription for oral contraceptives (K-Mart had made clear that he need not do so), he also refused to cooperate in it being filled by another pharmacist. The state Pharmacy Examining Board has reprimanded him and placed conditions on his practice.
There are due process and administrative law issues in the case, but I want to focus on Noesen's claim that the board's action impinged on his rights of conscience and free exercise.
There's irony upon irony here. IT has been a defender of New Federalism. If, in fact, the Wisconsin Supreme Court were to follow the standard adopted by the United States Supreme Court for analyzing this type of claim - a standard adopted in a decision written by none other than Antonin Scalia - Noesen would almost certainly lose (as IT believes that he should).
But in interpreting Wisconsin's right of conscience, the Wisconsin Supreme Court has chosen to go its own way. (The language in the state constitution is different from that in the federal, although that is not why the state supreme court has adopted from the federal test.) The tougher standard that it applies might make Noesen's case more of a horse race, but I suspect that he will still lose. If he had simply declined to fill the prescription and transferred it to someone else (which K-Mart would have permitted him to do), he might have a case. But he went too far.