The Other Contraception Mandate Fight

The Other Contraception Mandate Fight February 28, 2012

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I do want to do a substantive post on the contraceptive mandate later in the week, but, to set the stage, I want to talk about the conscience objection for pharmacists first..  Since we haven’t all been having this argument to death (at least not recently), maybe it can give us a better lead-in to the more topical fight.

A federal judge in Washington has ruled that “Christian pharmacists could not be required to stock and dispense medication that violated their religious beliefs.”  The main problem medication is Plan B, but across the country, some pharmacists and drug stores have refused to sell any kind of contraception, including condoms.

I don’t think the much-cited analogy of forcing a kosher butcher to sell pork is applicable.  A pharmacy isn’t just any kind of store where I might go to buy a product.  It’s the place I go to get my prescriptions filled — i.e. the place where I pay for the drugs a medical professional has decided I need.

If I live in a rural area, with few pharmacies, I may not have the option of going to a different store.  I’m also out of luck if the doctor’s office calls in the prescription to a particular store without checking if the staff will hand over the medicine.  When medicine must be taken within a certain time frame, traveling to another store may make it impossible for the drug to be effective.

Refusing to fill prescriptions is like a mail carrier refusing to deliver Playboy.  The burden shouldn’t be on the customer to have their magazines shipped by DHL if their local carrier objected to their subscriptions or for the company to check ahead of time to see if any of their customers had conscientious objectors on their mail route.  If you couldn’t in good conscience hand over dirty magazines, you shouldn’t be a mail carrier.  If filling prescriptions for legal drugs violates your conscience, you shouldn’t become a pharmacist.

It’s not for you to insert yourself between patients and doctors in these circumstances.  Pharmacists aren’t mere delivery people — they have medical training and may suggest a customer not fill a prescription if it would interfere with another medication.  They are a valuable error-checking step in the health care system.  But, because they are trusted to give medical advice, they can’t abuse their authority to coerce patients on non-health related matters.

Pharmacists who object to contraception aren’t being silenced when they’re denied conscience objections — they’re just being silenced at their job.  They’re free to talk to friends, give lectures, or distribute leafets to try and persuade people to not get prescriptions for contraception in the first place.  They can skip persuasion and vote for politicians who will push to overturn Griswold v Connecticut.  They just can’t pursue those ends at work.

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  • The assumption here is that a pharmacist is ex officio a kind of public servant (hence the mailman comparison) — that his workplace is “not just a store” but a place where an important and in a sense public social function is performed.

    I think this is not an unreasonable assumption, but it’s not unquestionably correct, and isn’t really reflected in our law, which in some respects medicine as if it were just another private-sector business. Seen from this angle it does seem coercive to tell a businessman what products he must sell.

    • Good point; though such a point seems more applicable to a “mom and pop” pharmacy than to a place like CVS or Walgreens. In other words, if the owner of the store has some vision for what it will provide, he/she can execute such a vision in their private business. But if one is an employee of some larger entity, one is, in a sense, an executor of the larger vision.

      I think Leah’s point is a good one: why get into an industry if you know the industry has certain practices you object to? If I’m a cinematographer and apply at a company I know shoots some percentage of pornographic material, should I, after obtaining the job, declare that they need to hire another part time employee to shoot those films? Again, I can start my own company and carry out whatever vision I want… or work for a company I know does not shoot objectionable material, but it seems odd to show up having known the practices and requirements and then declare that I won’t take part in them

    • leahlibresco

      I agree with Maiki below, that I’m a little more squishy on rules for a storeowner who doesn’t stock something than I am for a pharmacist who refuses to distribute what’s in stock. I’m with Hendy that a chain pharmacy, which markets on convenience, should be able to fire a pharmacist who won’t distribute their product. That employee-overruling-employer dynamic was what I was trying to get at with the analogy of a contentious objector mail carrier.

      Though, public health nerd that I am, I’ll cop to the belief that prompt and convenient access to prescriptions is a public good that the government has an interest in. If pharmacists cut people off in some parts of the country, I’d probably want a new state run pharmacy in town. Or some kind of automated kiosk (which has huge logistical problems, but less so if it’s really only giving out birth control, not painkillers). It’s a lot simpler to just require distribution through the health care distribution system we have.

      • deiseach

        Well, chemists (as we call ’em over here) are businesses, not medical centres, and they sell a range of stuff besides prescription medicines (over the counter remedies, analgesics, cosmetics, perfume, soaps and shampoos, children’s toys and passport photos, just as a quick run-through off the top of my head from my local chemist. Oh, and they do sell condoms as well, which always makes me raise an eyebrow as I’m waiting at the counter for my prescription to be filled and the boxes of Durex are under my nose alongside the travel mints, cough sweets, lip balm and copper bracelets).

        I would quibble here between refusing a prescription for the oral contraceptive (which is a legitimate medical treatment for a range of conditions from acne to polycystic ovarian syndrome and more) and refusing to stock condoms.

        (I’d even quibble more finely about a refusal to fill a prescription for the Pill and refusal to fill a prescription for, say, a heart medication containing a derivative from digitalis on the grounds that digitalis was a poison; the refusal of one medication might give rise to an immediate threat to one’s life that a refusal of the other would not, but that’s a shade too refined for what I want to argue right now.)

        If condoms and (I believe) the emergency contraception known as “Plan B” can be bought over-the-counter without prescription, then I see no reason to treat them any differently than other non-prescription, over-the-counter medicines and remedies. I’ve had the experience of asking for such-and-such a remedy in a chemist’s shop and being told “We don’t carry that, try X, Y or Z” or “That’s not available on the market here yet”.

        If you’re looking for Mrs. Cullen’s Powders and you’re told “We used to stock those but not any more”, can the pharmacy be compelled to stock them? Can you demand that they carry the particular brand or good you want?

        What about cigarettes? Just by a quick Google, I found a story from 2009 about Boston being the second city to ban the sale of cigarettes in pharmacies. Now, suppose a pharmacist in another town where it is not yet law were to approve of the ban and in anticipation of a similar one being introduced, removed all cigarettes from the shelves of his or her shop? And suppose I were an inhabitant of that town and a smoker, and I said “Smoking is legal, I’m aware of the health concerns, I choose to smoke these particular low-tar cigarettes, you used to stock them, I demand you stock them again as your shop is the most convenient place for me to get my cigarettes”, would I have any chance of success in court? Or would the rights of conscience be respected in this case, where the pharmacist says “I think these goods are bad for your health and moreover I morally object to helping you endanger your health”, as long as it is a vice we all disapprove of now (though not in former days)?

        And on a side-note, I do seriously and desperately want to know your, Leah’s, opinion (and anyone else who wants to throw their tuppence worth in) on what constitutes a person or what is personhood or is it innate or an awarded/achieved status, for reasons.

  • Maiki

    See, I think a pharmacist is bound by his employment contract to sell what is in the store, unless he can make reasonable accommodations with his employer (another staff member on hand).

    The pharmacy itself? Can refuse to sell anything it considers “Bad for business” — many pharmacies *don’t* stock medications for many reasons, some for life-threatening illnesses because the market is small, they are expensive, etc. Unless you are homeless, (I understand these people need medications, too, but I’m assuming the majority of the homeless live in urban areas with plenty of pharmacies and some access to non-profits), you can order any non-scheduled medication online. No contraception is scheduled, so not an issue.

  • Madelaine

    Except Plan B, which does still require the cooperation of a pharmacist to get, since it’s behind the counter and age restricted.

    • deiseach

      “since it’s behind the counter and age restricted”

      So is the aspirin, paracetamol and ibuprofen at my local chemist. I presume your point is that it is only available from a pharmacist, and if the one pharmacy in town does not stock it, you are deprived.

      On the other hand, Plan B is only effective before ovulation, so if you require emergency contraception after ovulation, you are still not in the clear as it can fail in those cases. So even having access to it is not a guarantee that you will definitely be spared an unplanned pregnancy.

    • Maiki

      Was that a reply to me? Plan B isn’t scheduled.

      You can get *prescription* medications online. You just need to input your prescription information. You *can’t* do this for Scheduled (e.g. amphetamines) drugs in certain States because they require paper prescriptions.

  • James

    To attack the problem from the other angle consider contraception itself, and the rights involved here. Now obviously everybody has a negative right to purchase contraceptives the same as any other legal substance, the real question is do we have a positive right to them such that we can compel others to stock and provide them for us. This is distinct from an idea of what we reasonably expect or want when we walk into a pharmacy, it is a matter of what we are entitled to see in a pharmacy. To illustrate the difference if my car dies on the interstate and I limp it over to an Autozone, I am in desperate need on a particular part say an sparkplug. Now I have a reasonable expectation sparkplugs will be sold there and a genuine need for a sparkplug, but if for some reason the store lacks or even doesn’t carry the product I need I haven’t been wronged (though I might be disappointed) because I never had a claim on them to provide it for me.

    I think contraception is clearly a substance we have a negative right to and not a positive one and that our expections don’t override a pharmacist’s privilige to stock his shelf any way he sees fit. There are precious few positive rights, but the general idea is that they are things necessary for life, things like food and housing. Despite any degree of desirability as tool to control one’s life contraception is clearly not necessary for life and with a minimal amount of personal responsability will never even be an emergency. It is not encumbant on pharmacists to provide access.

  • Andrew

    The ruling is consistent with a recognition of conscience rights long established.

    Individuals objecting to participating in acts of war have been granted alternative duties by the federal government since the first world war. This right of conscience may be based upon religious belief or other grounds. In this case, the conscience exemption can result in the death of a alternative soldier, while the objector lives.

    A similar court battle currently is taking shape on behalf of Muslim prisoners. Requiring a restricted diet based on religious faith, such prisoners are suing for Halal meals.

    The Kosher deli is not the correct comparison. The Rabbi serving a prison sentence and served bacon for breakfast and ham for dinner is the correct comparison.

    It seems that the right of an individual pharmacist to act on conscience is even much simpler than the examples listed above (and even simpler, if considering the freedom of the business to sell what it wants to sell). Should there be a law that condoms must be in every drug store? should there be a law that condoms can’t be shelved behind the pharmacists counter, in order to not place the burden of embarrassment on the buyer?

    The pharmacist isn’t asking for a right to send someone to fight and die in her place. And he isn’t asking for special meals while serving time for committing a felony. Rather, the pharmacist asks that he not be forced to commit an act which runs foul to his deepest beliefs and may result in death.

    • leahlibresco

      The pharmacist isn’t conscripted to be a pharmacist or imprisoned either. We let people opt-out of the normal rules in those cases because they didn’t get to opt-in to the system. But no one in pharmacy school is unaware they may be asked to dispense drugs they disapprove of. If Scientologists became pharmacists, should they have an exemption for antidepressants and ADD medication?

      • Andrew

        Well, the prisoner actually did opt-in by committing a criminal act. And the conscript today, according to the supreme court, opts in when he applies for financial aid.

        I don’t know much of Scientology but I would go to the pharmacy if Tom Cruise works there.

        It seems that the distinction in our approaches can be simplified to measuring the weight of the individual right, that of the pharmacist, as compared to the rights (but not so clear to be a right, right?) of customers. While the guarantee to individual liberty, religious and otherwise, has been confirmed repeatedly, no such right has been acknowledged for contraception (or penicillin or Oxycontin).

        While the shopper can alternatively avoid the particular pharmacy, the individual has no such choice to practice her profession. Rights of the individual regarding religious freedom within the workplace, have also been established; employers must grant days off to workers observing religious sabbath days. Ironically, invoking these “workers” rights may test the alliance formed the politically conservative who typically with business owners.

        Ultimately, the Rite Aid worker can’t be forced to violate his principles. The customer can buy rubbers at Walgreens.

        • leahlibresco

          The Americans with Disabilities Act only requires employers make reasonable accommodations for physical infirmity. I don’t think employers need to go farther for moral objections. A slaughterhouse employee who has decided animals are worth as much as people can’t continue to work in a slaughterhouse. It would be ridiculous for the slaughterhouse to try to accomodate the objection to their entire purpose. I couldn’t be a Focus on the Family spokesperson if my conscience didn’t allow me to denounce gay marriage. If a pharmacist cannot consent to dispense the medicines doctors have prescribed, they are not qualified to work in most pharmacies. There isn’t a right to hold a job for which one is unfit.

          • Andrew

            I think you’re minimizing the impact of the ADA. This “reasonable accommodation” requirement has resulted in an entire transformation of building codes along huge increases in construction and business operational costs. But, I happen to think it’s worth it.

            While apples and oranges, the argument actually works in favor accommodating the objecting pharmacist knowing that the impact to the business is negligible in comparison with burdensome regulations like the ADA.

            You’re right that a PETA member isn’t really a good fit for a slaughterhouse; in fact the potential for disruption or negative impact to other workers must be considered; and besides, there’s no recognized right to be an animal rights activist. Fortunately, or unfortunately depending on your position, individual religious liberty in the workplace is usually and roundly recognized. Where the impact is minimal, like a police officer who is an orthodox Jew, the police department cannot force him to shave his beard. Even when not so minimal, like having to accommodate workers’ religious observances and rearrange workers’ schedules or even close the business on certain days, the rights of the individual have prevailed.

          • deiseach

            So what is your opinion, Leah, if someone opened a pharmacy and said upfront “I’m not going to stock these items; anyone who has a moral objection to those items can come and shop here and have their prescriptions filled in the knowledge that no such stock is on the premises”?

            Assume it’s not the only pharmacy in the town, or the cheapest, or the nearest or the most convenient.

            Does the pharmacist have the right to run his shop in that manner, or would you say “You can’t study pharmacy at all from the beginning, even if you’re going to work in your family business and absorb the financial risks yourself”?

            What about vegetarians who work as cooks and staff in restaurants that serve meat? Are they bad vegetarians? Should they be confind to working in vegetarian restaurants? Should they be quizzed on their attitudes before being allowed to attend catering school in the first place (‘if you’re not willing to cook meat, you can’t train as a chef, lettuce-muncher, so go home and stop imposing your morals on others’)?

  • Patrick

    The obvious solution is to make medical ethics work like legal ethics. Attorneys are permitted to turn down or quit cases whenever they want in order to satisfy the demands of their conscience… as long as they can do so without harming the client. And “harming the client” includes considering the client’s ability to find other legal representation. If no other lawyer can be found, then the attorney may not quit. Its what you sign up for when you join the bar.

    Meanwhile, an ethic of making sure that everyone can get a lawyer, no matter what, with a high emphasis on the fact that people who can’t even find a lawyer to represent themselves are the ones in most need of legal counsel, is drilled into attorneys at a young age, and reemphasized all through their careers. And if no attorney can be found to take a case at all… judges can literally order an attorney to do it, like it or not. Its what you sign up for when you join the bar.

    Unfortunately, medical ethics at present are vastly inferior to legal ethics. The former serves the needs of the practitioner, the latter the needs of the client.

    • leahlibresco

      I really like the way you put this, Patrick.

    • Brandon

      I think that’s a fantastic comparison, Patrick. In situations where there’s competing rights (which there obviously are both for the pharmacist example and the legal examples you provide), society tends to err on favoring the individual left more vulnerable, and I think this is a reasonable approach.

      • deiseach

        But will society be willing to pay (in the matter of taxes) for free pharmaceutical aid, as they are unwilling to pay for free legal aid?

        In times of purse-tightening (as now), governments like to reduce the public expenditure bill by expedients such as cutting free legal aid budgets, and they generally kick off by stories in the newspapers about lawyers earning hundreds of thousands or even millions from such cases.

        I think that if there were a mandate that there must be a pharmacy service in every population centre of (pick a minimum size), there would need to be state support and subvention (because commercial businesses only set up where it is profitable and the state ends up with the social service elements), and how long would it take for us to see stories about waste, corruption and inefficiency in the state pharmacy aid, pharmacists making fortunes, and vote-grabbing politicians pledging to cut taxes and trim the fat when they get into office by curtailing or ending such schemes?

        It’s a good idea, and it’s definitely one that should already be in operation, but… see concerns above.

        • leahlibresco

          My impression is that if sexually active people are contracepting, they cost their insurance provider less in the long run. That’s why the administration classified this as a preventive treatment, so it’s conceivable to come out ahead if the government is subsidizing contraception distribution but is also on the hook for health care costs anyway.

          • deiseach

            See, that’s the bit I would really love to know more about: contraceptives (and sterilisation) as preventive treatment. Now, in the case of certain conditions, yes, it is, but for the majority of women who would seek to access it, it isn’t preventing anything but pregnancy.

            And by costing insurance providers less, I am assuming you mean that there isn’t the claim on the medical policy for maternity treatment, ante- and post-natal care, claiming for the treatment of the children, etc. So you have young(ish), healthy (more or less) people paying in for insurance plans that they won’t be claiming for until a good few years have passed, and yeah, that’s how the businesses run over here as well – the costs of older policyholders who get sicker are covered by the premiums paid by the young and healthy.

            But the thing is, pregnancy is not a disease. If the rationale is, at the heart of it, economic (and never mind all the talk about women’s health), then as far as I can see, potential policy buyers might as well save their money in the bank (er, maybe under the mattress, since the banks are all shot to hell nowadays) as be buying an insurance policy they won’t (be anticipated to) need or use.

            And I’m still not quite certain who is going to pay for this ‘free’ coverage; contraception may be cheaper than maternity leave, but it still costs something and I really can’t see any business deciding “Well, as a matter of social benefit, we’ll take the loss”. Either they will sock on an increase on all premiums so everyone will cover it, or they’ll charge the government, or they will go to court over this (because I cannot see big firms just accepting a wave of the hand statement by a government department that ‘this treatment is free from now on’ – would supermarkets and grocery stores accept that, for the sake of public health, from now on they must give each customer a free pound of carrots or head of cabbage?)

    • Very well said, Patrick.

    • keddaw

      Except we have a legal right to representation but, at present, no legal right to healthcare. Plus lawyers tend to be much better rewarded than pharmacists…

  • anon22

    In principal pharmacies should of course be able to decide which drugs to dispense and which not. But since pharmacies are licensed this privilege of being allowed to dispense drugs could come with some costs. And one of these could simply be to be legally required to dispense certain drugs. At least this is the way I would agrue.

  • If I may be so frank, and translating to your language, I think this is your privilege talking. It just so happens that you happen to belong to the subculture approving of the drugs now controversial in your country. That makes this kind of talk awfully easy.

    To get a more balanced feel of the issue, suppose a drug gets developed, that, taken during pregnancy/childhood/puberty/whenever the relevant processes happen, drastically reduces the chances of a child developing homosexual desires. We don’t know how simple or complicated the chemistry is, so this might actually be possible. And now imagine the government forcing a gay pharmacist to dispense that drug.

    Now iff you are willing to bite that bullet, then you can also consistently take the position you are taking here. But even then it wouldn’t seem anywhere near as obvious as it does now. Also, you ‘d be standing alone in an environment of liberals suddenly discovering the sacredness of conscience.

    Quite frankly this post rings hollow, like the proverbial rich man telling us the law is equal because rich people can’t sleep under bridges either.

    • Katie

      Why do you assume that liberals would uniformly disapprove of that pill? I would want to look into why it’s being prescribed and whether the “patient” can give meaningful consent, but it’s not obvious to me that I would want that pill banned or restricted or that I would object, on moral grounds, to my friend/spouse/child/whatever taking the pill (though I see no reason to do so, myself). Regardless, I wouldn’t refuse to fill that prescription if I were a pharmacist and I am not particularly sympathetic to other gay people who would.

      To be fair, I’m not sure I have a good answer as to when the government can legitimately force a person to do something they consider to be immoral. I’m inclined to think that setting standards for industries you can choose whether or not to enter falls in that category. Not allowing pharmacists to make moral decisions on behalf of their customers seems like a reasonable industry standard to me, but you’re right that this is easy for me to say because I do not see how a reasonable moral argument could be made for refusing to dispense medication on any (non-medical) grounds.

      Obviously I haven’t made a substantive argument. I guess I just wanted to clarify that my lack of sympathy for the pharmacist who would refuse to prescribe contraceptives has little to do with the medication in question. I am simply nauseated by the arrogance inherent in that kind of paternalism. I feel it’s none of my pharmacist’s business whether I take a perfectly legal medication, no matter how morally repugnant she may find its effects (“murder”) or the actions it enables (non-procreative sex). If she truly believes society would be better off without contraceptives, I would urge her to take her concerns to a public forum and try to make enough converts to outlaw it. But to try and bully me out of it by making my life more difficult? Who does she think she is?

      • Katie

        refuse to dispense* contraceptives, sorry.

      • Well, the only reasons to take such a pill would involve a judgment that being straight is better than being gay. And while that is true I’m pretty sure that is too massive a heresy for movement liberalism to tolerate. And I’m deleting some relevant context here, but I’ll not that “it’s not obvious to me that I would want that pill banned” isn’t that ringing an endorsement either. Plus, if I remember Leah’s “male abortion”/child support series correctly, you are already atypically willing to take liberal principles to consequences most liberals aren’t (for now) comfortable with. So OK, alone/uniformly might be technically a bit too strong (conservatives aren’t universally opposed to Plan B either) but I think I’m quite justified in expecting, let’s say, broad liberal disapproval of such a drug.

        On you being unable to see “how a reasonable moral argument could be made for refusing to dispense medication on any (non-medical) grounds” I guess it also depends on what you call medicine. I don’t see how an abortificant designed to kill rather than heal should be medicine and I suppose many a liberal would argue my hypothetical pill wouldn’t be medicine because what it cures isn’t an illness. So “medicine” isn’t really a category everyone can agree on. So are you sure you can imagine no biochemical agents you wouldn’t want to dispense as a pharmacist even if they had been declared medicine? How about poisons for the death penalty? Dueling pills (an identical looking pair, one sugar, one cyanide)? A pill inducing strong sexual desire, lowering inhibitions and suspending long-term memory formation officially for consensual use but used almost exclusively for rape? Or, more simply, sleeping pills at a pharmacy right beside a frat-house where everyone knows but nobody can prove the brothers use them for date rape? An effective love-potion? An effective truth-serum? A pill inducing temporary psychopathy? A pill reducing the patient’s intelligence? Doping? A pain inducer for masochists?

        One problem with “setting standards for industries you can choose whether or not to enter” is that it piles on over industries. By this standard industries destined to exclude social conservatives already include pharmacy, most of medicine, nursing, psychological counseling, foster parenting, wedding photography or really anything relating to weddings, and running a B&B. And that’s what we have now, as time goes by more will surely be added. Another problem is that people may already have chosen their industry before the standard gets set.

        As for your last paragraph, well I don’t know you so I’ll have to take your motivation on faith. But looking at the article Leah linked, I find it interesting why that regulation was ruled unconstitutional:

        Washington had never forced pharmacists to stock any particular drug until its Board of Pharmacy passed rules designed to force pharmacists to provide Plan B and other drugs, without permitting pharmacists to refuse for reasons of conscience (although they could refuse for secular reasons). As the court recognized, this was no accident: “The board’s regulations have been aimed at Plan B and conscientious objectors from their inception.”

        Indeed, the court found “reams” of evidence “demonstrating that the predominant purpose of the rule was to stamp out the right to refuse.”
        Steven Saxe, the executive director of the pharmacy board, clearly testified that the intent of the regulations was to eliminate conscientious objections. The court forcefully notes that Washington was unable to present any evidence that anyone was denied drugs they needed as a result of religious objections or the phantom concern over “bigotry.”

        So, at least in this case, the rule clearly had no reason except crushing religious dissent. And I didn’t notice any liberal criticism of that regime while it lasted.

        To any individual I owe the benefit of the doubt, but when it comes to the greater movement, well the demonstrated will to do it for tyranny alone casts a lot of reasonable doubt on the other reasons they present for doing it.

  • Leah,
    I agree with Andrew that this decision is in line with precedents in conscience rights case law. Your special pleading in the case of remote locations with only one provider fall flat, especially when there are mail-order and online pharmacies. It is the same in principle as a law requiring the Catholic friar/surgeon at the Catholic hospital with the only accredited OR within X miles to also do D&C and/or D&E. I regard either as absolutely unsupportable.

    Pharmacists are likely to have employment contracts, specifying duties, that ought to be read before signing. But that’s contract negotiation, not statutory law. If a pharmacist wants to negotiate a different agreement on behalf of his conscience, well, that’s probably going to be tougher than opening his own place, and it’s likely to affect his compensation, which is fine by me. If it’s really important to him, he ought to run his own pharmacy.

    I’m an HIT student these days; I’m not going to take a job coding for Planned Parenthood, other abortuaries, or for that matter any ob/gyn who also does abortions (not that I’d expect them to want me — one of the charges that seems to run through most abortion provider scandals is failure to properly document).