Matter of conscience? Appeals court requires druggists to sell Plan B pills
A federal appeals court has struck down a lower-court ruling that allowed pharmacies in the state of Washington not to sell the Plan B “morning after” drug for reasons of conscience. Prodded by the governor, Planned Parenthood and the state’s Human Rights Commission, state pharmacy regulators had passed a rule in 2007 that required pharmacies to sell the pills. Later, Judge Ronald B. Leighton of U.S. District Court in Tacoma issued an injunction against the new rule.
In an opinion [.PDF] issued this week, the 9th U.S. Circuit Court of Appeals used some curious reasoning to nullify Judge Leighton’s ruling. The cutting-edge issue was whether the Washington rule violated the constitutional right to “free exercise” of religion. As the court pointed out, it’s not an unlimited right – polygamy can be outlawed, for example, even for those whose religion encourages it. A law of “valid and neutral general applicability” can still require conduct that a religion happens to forbid.
Did the Washington rule meet that standard? The appeals court said it did. But here is where the curious reasoning comes in. In deciding whether the law was “neutral” – that it didn’t target any particular religious belief – the court analyzed only the wording of the law, and refused to consider the history leading to its passage. Of course, the Washington authorities were not so foolish as to write a rule saying that “we need to protect women from those fanatical Christians who oppose the right to abortion.” The rule simply requires pharmacists “to deliver lawfully prescribed drugs.” The wording of the law, on its face, is neutral – and so the appeals court ruled against a pharmacy and pharmacists who contended that the law sought to coerce them into violating their religious beliefs concerning the sanctity of human life.
Two of the three judges on the appeals court said Judge Leighton had erred by considering the legislative history of the rule (the third judge disagreed on this point, but joined the other two in their ruling).
I’m not a lawyer, so I can’t speak to the legal precedents involved in considering a contested law’s “legislative history.” But in common-sense terms, how else would one determine if a law was “neutral” or selective other than by examining how and why it was passed? The appeals court simply avoided the allegations raised in the lawsuit [PDF] of how this rule came to be. According to the suit, the Washington State Board of Pharmacy had actually voted unanimously for a new draft rule that affirmed the right of conscience, as the state pharmacists’ association requested. On the same day, Gov. Christine Gregoire (a Catholic) issued a letter saying she strongly opposed the board’s draft rule. And so a much different rule was adopted – and Gregoire went on to clobber a political opponent with this issue in her campaign advertising. According to the suit, the governor had said publicly that she would consider removing pharmacy board members who opposed her on this.
So much for conscience.
I guess that means that if I go to a gun store and tell the guy I want to buy a pistol so I can blow my brains out he has to sell it to me or I can sue him too.
I don’t have time right now to read all the articles and documents, but I would just point out that the rationale (which I assume is that it may prevent implantation) behind wanting to dispense Plan B could also be used to refuse to fill a prescription for any oral contraceptive on the market. Since oral contraceptive drugs are also used for noncontraceptive purposes (for example, to treat endometriosis), a pharmacist might use the same rationale to refuse to fill prescriptions noncontraceptive purposes (or perhaps demand assurances from a woman seeking the drug that she is not sexually active).
I am not opposed to making reasonable accommodations for people’s consciences, but a law that mandates the dispensing of all legal drugs is preferable to a law that gives pharmacists an unchallenged right to refuse to dispense any drug that offends their consciences.
David have you heard that first trimester abortions (several weeks post-implantation) occur by drug now very frequently? Would it also count as “preferable” in your view to force pharmacists to dispense first trimester abortion drugs too when they are approved by prescription? How about the prescription drug component of a second trimester abortion? Would forcing those too be better than giving professionals some pesky unchallenged rights?
You’re assuming a consumerist idea of medicine and a concept of rights that makes somebody’s newly discovered right to do some sexual thing extend to mean they have a right to force others to help them do it.
Doesn’t the legislative history of laws against polygamy indicate that a particular religion was targeted? Would that then render such laws unconstitutional?
As a pro-lifer, I do not see any threat to conscience in this situation. The rule is intended to assure availability of a legal drug, no more, no less. The fact that a pharmacist is intimidated should have no bearing on the legal outcome. The pharmacist can still exercise his conscience by refusing to dispense the drug. The law and the board rule do not prevent a pharmacist from following his conscience. Granted, he may end up losing his state-issued license, but that’s the cost of exercising conscience. Like David (with whom I invariably disagree on abortion), I have not yet read the relevant documents. I wouldn’t be surprised if in the state of Washington (my birthplace), there are communities with only a single pharmacy and still other places without any pharmacy. In an ideal situation, a pharmacist could be allowed to refer a customer to another pharmacy that dispenses a drug, but the ideal is often not the real. Sometimes freedom of conscience has a pricetag.
Jason,
I would favor an arrangement that takes into account the rights of the person who has been prescribed the drug, and not just the rights of the pharmacist who does not want to dispense it. If I read the article correctly, the temporary stay allowed the pharmacists to refuse to dispense Plan B if they referred the person seeking it to a nearby pharmacy that would dispense it.
You’re assuming a consumerist idea of medicine and a concept of rights that makes somebody’s newly discovered right to do some sexual thing extend to mean they have a right to force others to help them do it.
No, I am assuming that in this country, when the FDA has approved a drug for a specific use, and when a licensed doctor prescribes it, the patient has some right to fill the prescription.
we need to protect women from those fanatical Christians who oppose the right to abortion
Plan B is not an abortion drug – it prevents pregnancy but does not abort an already existing pregnancy.
Perhaps conscience is genuinely exercised only under conditions of adversity? Just a thought not thought out :)
Plan B is not an abortion drug – it prevents pregnancy but does not abort an already existing pregnancy.
Here’s how I understand the Catholic objection to Plan B. Under most circumstances, contraception is prohibited. An exception would be in the case of rape, where preventing conception would be permitted. Plan B is intended to prevent ovulation, and if there is no ovulation, there can be no pregnancy. But what if the victim has already ovulated? Then it is possible for conception to take place, in which case it may be one of the effects of Plan B to prevent implantation. A widely used medical definition says that pregnancy begins at implantation. But the Catholic Church interprets pregnancy to begin at the moment of conception. Plan B has no effect once implantation has taken place, so if you define pregnancy as beginning with implantation, Plan B is not an abortifacient. However, if you define pregnancy as beginning at conception, Plan B may sometimes act as an abortifacient.
Also, if pregnancy begins at implantation, oral contraceptives are true contraceptives — they prevent pregnancy. However, if pregnancy begins at the moment of conception, then in some (apparently rare) cases when the pill has failed to prevent ovulation, an egg will be fertilized, the pill will cause failure of implantation, and it can be considered an abortifacient.
if you define pregnancy as beginning at conception, Plan B may sometimes act as an abortifacient</I …… I see.
Under most circumstances, contraception is prohibited. An exception would be in the case of rape, where preventing conception would be permitted ….. I’ve just been reading the book “What Happened at Vatican II” and a Catholic physician, John Rock, one of the inventors of the Pill is mentioned. Wikipedia writes …
John Rock believed the Catholic Church would approve use of the birth control pill, and based his position on the 1951 acceptance of the rhythm method by Pope Pius XII. The reasoning given by the pope was that the Rhythm Method did not kill the sperm, like a spermicide, or frustrate the normal process of procreation, like a diaphragm, or mutilate the organs, like sterilization. John Rock believed that the pill should be considered a natural method of birth control. The pill in part suppressed ovulation with progesterone, the same way a woman’s body suppresses ovulation during pregnancy. And it did not kill sperm, mutilate organs, or involve a physical barrier in the reproductive tract.
Obviously it didn’t work out as he had hoped. But I don’t understand why the rhythm method is ok and contraception not ok.
I always find it interesting to bring up conscience protection as it applies to Muslims, since in cases like the one in this thread, it is the “hot button” issues that wind up getting discussed rather than how far society should go to accommodate a person’s conscience. For example, as I have mentioned before, some Muslim supermarket workers will not touch anything with pork in it, so if a customer buys something like a frozen pepperoni pizza, a Muslim cashier may ask you to scan it yourself, or a co-worker may need to come scan it. Muslim cab drivers in Minneapolis were refusing to pick up passengers at the airport whom they believed to be carrying alcohol in their luggage. They were also refusing to take passengers with dogs, since dogs are unclean to Muslims.
The question, as I see it, is how far society should go to accommodate people’s religiously motivated rights to refuse, and to what extent does the burden fall on the person with religiously imposed limitations to find employment that does not violate their consciences. Maybe it would be reasonable to allow a Muslim cab driver to refuse passengers with dogs (although what about blind persons with seeing-eye dogs?), but it would be going rather far to rule that a veterinarian’s assistant could refuse contact with dogs, and it would be ridiculous to require a dog kennel to hire an employee who would then exercise a conscience right to refuse to be near dogs.
This is a prime example of why discussion about “common ground” is such a fraud. For a pro-abortion politician like Gregoire to comprimise on this issue would mean nothing in terms of practical effect to anyone but a few pharmicists. There are literally thousands of outlets for Plan B with or without such an exception. It is about making a political point – not protecting anyone’s access to health care.
Paul – how a law is determined to be “neutral” is first to look at the wording. Legislatures have complete choice in language and the compromises that brought a particular bill to a particular use of language for passage is the first and foremost place that the judiciary looks to determine the neutrality of the law.
If the language is neutral on its face then there is no need to look to legislative history or other supportive data.
That is why it is an important step in the process for people who are Pro-Life to be involved in every step of the legislative process. We do not have to stop at this juncture.
Bills can also be filed with language exempting a particular pharmacist from dispensing a particular drug, and can be written in such a way that said Pharmacist can opt out of handling the prescription and have other modalities in place for the patient who is attempting to acquire a particular drug.
There is Supreme Court Precedent for this:
“The language of a regulation or statute is the starting point for its
interpretation.” Dyer v. United States, 832 F.2d 1062, 1066 (9th
Cir.1987) (citing Consumer Product Safety
Comm’n v. GTE Sylvania, Inc.,
447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). “The
plain meaning governs unless a clearly expressed legislative intent is
to the contrary.” Id. “When we find the terms of a statute
unambiguous, judicial inquiry is complete.” Rubin v. United States, 449
U.S. 424 (1981); see also, e.g., Wilson v. Stocker, 819 F.2d 943, 948
(10th Cir.1987).
Oh, and the same thing goes for regulations. So the Pharmacy Industry can promulgate Conscience Regulations for their Pharmacists …. taking into consideration legality of prescriptions, mission of the Pharmacy and the conscience of a Pharmacist. It is possible.
It seems to me that if rights imply duties, then the person who wants the morning fter pill has a duty to go to a pharmacist who canin good conscience dispence them.
It also seems to me that the religion of this mattere is irrelevant. Perhaps pharmacist’s conscience was formed by his religion, but what if it weren’t? What if an atheist pharmacist who is against abortion refused to fill the prescription? There would be no religious issue, only a simple conscience issue.
What I”m saying is that I don’t see why anyone has to do whatever anyone else demands of them in aIF there is NO CONTRACT between them. You can say that we may not discriminate against customers brecause on racial or religious grounds, but that is not the same thing as refusing service on the basis of one’s own conscience or evn of one’s own religion.
It seems to me that to demand that pharmacists act against their consciences — religious or otherwise in effect makes them the other person’s slave — it demands involitry servitude.
This is a prime example of why discussion about “common ground” is such a fraud. For a pro-abortion politician like Gregoire to comprimise on this issue would mean nothing in terms of practical effect to anyone but a few pharmicists.
Sean,
Actually, the regulation was a compromise. Instead of putting the burden on individual pharmacists, it puts the burden on the pharmacy. A pharmacist may not be penalized for declining to fill a prescription, as long as there is another pharmacist (in the pharmacy) who will fill it.
If very few pharmacists would refuse to dispense various drugs on conscience grounds, those few could seek employment in large pharmacies that always have more than one person on duty.
It also seems to me that the religion of this mattere is irrelevant. Perhaps pharmacist’s conscience was formed by his religion, but what if it weren’t?
Ann,
The pharmacist who sued argued that the regulation was unconstitutional on First Amendment grounds because it interfered with his free exercise of religion. You can’t fault the court for deciding the case that was brought before them.
As for the involuntary servitude argument, pharmacists and pharmacies are licensed by the state in which they operate, and when you choose to work for a business, or own and operate one, that is licensed and regulated by the state, it doesn’t seem to me you can argue that following state regulations amounts to involuntary servitude.
David
That’s no compromise at all. The pill has to be dispensed by a pharmacist – not a tech. The types of pharmacies that have multiple pharmacists on duty like this are not the norm. It is easy for us to say just work somewhere else, but the reality is much more difficult.
More to the point is that this shows just how idoelogically bounded people like Gregoire, and I believe the President are. They talk about “common ground” but even something as simple and low impact as this (or as near universally popular as limits on late term abortions) they cannot bring themselves to risk offending the most radical of the pro-abortion crowd. “Common Ground” is simply code for political cover for pro-abortion politicians and those that support them.
Here in Massachusetts there was – and expect will be again – a move to require Catholic Hospitals with emergency rooms to dispense abortifacients. Supporters claim this is a patient’s rights issue, but that is nonsense. There are over 2000 places in the state where someone can get “emergency contraception” and only 11 Catholic hospitals that would be affected. All of them are in fairly or highly populated areas. Why is it vital to make these hospitals do something like this when a patient can typically find an alternative within walking distance? It’s not about patient rights – it’s about getting people who disagree to bend to your will or harm them if they don’t.
That’s no compromise at all. The pill has to be dispensed by a pharmacist – not a tech. The types of pharmacies that have multiple pharmacists on duty like this are not the norm. It is easy for us to say just work somewhere else, but the reality is much more difficult.
Sean,
It is a compromise considering the regulation could have required any pharmacist presented with any prescription to fill it himself or herself. You yourself said only a few pharmacists would be affected.
More to the point is that this shows just how idoelogically bounded people like Gregoire, and I believe the President are.
Obama was in no way involved in this. I think you need to wait and see what his proposed conscience regulation will be. I saw a video clip of Gregoire, and she made very forceful statement that medical treatment is between the doctor and the patient, not the doctor, patient, and pharmacist. I might allow a little more leeway than this regulation does, but it seems to me that it is pharmacists’ “role” to fill legal prescriptions presented to them. (You have frequently mentioned judges acting within their role and being exempt from matters of conscience. I don’t see why it can’t apply to pharmacists.)
I remember reading an analysis of the morality of dispensing contraceptives, and the point was made that pharmacists aren’t selling drugs. They don’t own the drugs. They are doing a job. (Pharmacy owners are a different story.) If I have an infection, go to the doctor, get a prescription, and fill it at my pharmacy, I don’t give credit to the pharmacist for curing the infection. I give credit to my doctor, who prescribed the correct antibiotic. I would need some more convincing that pharmacists are morally responsible for filling prescriptions for legal prescriptions for FDA-approved drugs.
There must be thousands of Catholic pharmacists dispensing prescriptions for Plan B and oral contraceptives. Are they all sinful?
Why is it vital to make these hospitals do something like this when a patient can typically find an alternative within walking distance? It’s not about patient rights – it’s about getting people who disagree to bend to your will or harm them if they don’t.
I don’t think whether or not a rape victim receives emergency contraception should depend on which hospital she is taken to. And when you arrive at the emergency room in an ambulance, it is not much comfort to know (if you are even conscious) that there is a more appropriate hospital within walking distance.
David
First – in emergency contraception situaltions, there is no doctor if a woman presents at a pharmacist.
Will you say the same thing if, as has happened in Oregon, assisted suicide becomes legal? Should it be a condition of licensure to dispense poison just as long as a doctor has prescribed it?
Finally, I am not even saying that one can’t take the position you are vis-a-vis the moral implications for the pharmacist, but what this regulation does is say that a pharmacists MUST take that position or lose there job. Allowing individual pharmacists the ability to make a different moral judgment on this issue is a tiny compromise in the grand scheme of things. The practical implications are very small for those who will not make the compromise and very large for those who seek it.
Thus it is with all abortion issues. Look at late term abortions. Why not outlaw them? Almost 90% of Americans agree with that position. NARAL claims it is less than 2% of abortions – that’s not much of a compromise. Why won’t they? Why won’t Obama? Why wouldn’t Clinton?
Thus it is with all abortion issues. Look at late term abortions. Why not outlaw them? Almost 90% of Americans agree with that position. NARAL claims it is less than 2% of abortions – that’s not much of a compromise. Why won’t they? Why won’t Obama? Why wouldn’t Clinton?
Sean,
The reason the pro-choice side resists “reasonable” compromises is that the pro-life side is not interested in compromising. They are interested in chipping away on all life issues in tiny increments until they have everything they want.
I was in a discussion recently on (I think) Vox Nova and brought up, as I do so frequently, the fact that Orthodox Jews and Catholics agree on abortion — in actual practice — about 99 percent of the time, differing only when the life of the mother is in danger. I asked whether Catholics could find common ground with Orthodox Jews and arrive at a compromise to legally prohibit all abortions except those involving the life of the mother. The answer was yes. But then when that compromise was reached, the person said, then other ways should be looked for to prohibit the remaining one percent.
Why should someone who is pro-choice compromise on 2 percent of abortions with someone who would join with Orthodox Jews to prohibit 99 percent of abortions, and then turn around and attempt to take away the religious freedom of Orthodox Jews whose tradition permits (some would say mandates) abortion to save the life of a mother?
By the way, common ground and compromise are two very different things.
Regarding assisted suicide, Oregon does not require either physicians or pharmacists to participate. As I said, I might allow more leeway than the Washington regulation does, and it seems to me the rule in effect during the stay was acceptable. That is, a pharmacist would be permitted to refuse to fill a prescription if he or she could direct the person to another nearby pharmacy that would fill it. I could be perfectly happy with that. But I believe the Catholic position is that not only should the right to refuse to fill a prescription be protected, but the right to refuse to refer the customer to another pharmacy should be protected, too. That does not seem reasonable to me.
I could be perfectly happy with that.
Sean,
Actually, I went too far. I would find that an acceptable compromise for Plan B. One of the concerns you always bring up with life issues is the slippery slope. I would not endorse a regulation that said a pharmacist could always refuse to fill a prescription for reasons of conscience as long as he or she referred the customer somewhere else. Conscience exemptions should be carefully defined and strictly limited.