21 Comments

1. Ken  •  Jul 10, 2009 @2:58 pm
   

   One could raise libertarian concerns about laws telling vendors what they may or must sell, just as one could raise libertarian concerns about anti-discrimination laws. But as KipEsq over at Stitch in Haste frequently remarks, if you are going to have anti-discrimination laws, they ought to be consistent. Here, I think that the “neutral rule of general applicability” doctrine is the only workable doctrine if we are not starting from a pure libertarian starting point. Anything else would produce entirely inconsistent results, where people could ignore and defy facially neutral rules for religious reasons but not for other reasons.

2. Tim Fowler  •  Jul 10, 2009 @5:51 pm
   

   I’d say the pharmacist is definitely a victim here. They shouldn’t be required to sell things they don’t want to sell, even if there is no deep religious, moral, and/or political objection to it.

   Of course there doesn’t only have to be one victim. If you accept pro-life assumptions, then the fetus is the biggest victim. If you accept pro-choice assumptions than the woman who finds it difficult to obtain PlanB could be considered a victim, but she wouldn’t be a victim of the pharmacists, but rather of the government that places restrictions on selling the drug and that makes the pharmacist the “licensed gatekeepers to restricted medication”.

   Re: “What he didn’t do was act as if his conscience permitted him to override his customer’s agency or substitute his own judgment for that of his patients’ doctors.”

   Refusing to sell something isn’t overriding your customers agency. Its exercising your own. Not participating in the doctors plan, isn’t interfering with it, its just not participating in it.

3. Mike  •  Jul 10, 2009 @9:53 pm
   

   How would the lawyers feel if there were a law passed saying you had to represent clients like, say, client molesters? You had no choice. You would represent child molesters or lose your law license.

   What if the government said all of us had to work for, say, Green Peace or the NRA or the NWO…. or rap with NWA?

   In our employment decisions, we have a lot of freedom. Not every employment choice is a matter of conscience, but many are. I would not, e.g., work for the Democratic Party in any capacity.

   If we don’t like the conditions of employment, we quit. Professionals are given a lot of discretion in choosing what services they’ll provide. Even a criminal lawyer, e.g., is not required to represent pedophiles. (Excluding the rare case where a judge mandates pro bono.)

   The pharmacist, like the rest of us, has a job to show up to. You are basically saying, “Violate your conscience or quit your job.” No, not just a job – an entire profession. How many here, after spending tens-of-thousands and years training for a profession, would like to have that “choice” presented to you?

   Now, if employers impose those restrictions on employees, I have no beef. Show up for your job. If you don’t like it, find another job.

   If the government is saying, “Violate your conscience or give up profession,” then there’s a problem.

4. Joshua  •  Jul 10, 2009 @11:02 pm
   

   Tim, the restrictions on prescription drugs were not designed or intended to keep women from exercising their right to choose. The pharmacists in this case were intentionally making it more difficult for these women to prevent a pregnancy, because the pharmacists disagreed with the choices those women wanted to make. That’s interference.

   Mike, there’s no problem here. The government does restrict lawyers in what they can say and do, and many lawyers think that those rules in some form or another violate their consciences. Some lawyers break the rules, some quit, some simply violate their consciences.

5. PatrickKelley  •  Jul 11, 2009 @6:18 am
   

   As far as allowing a pharmacist to not stock a specific drug, so far as they refer patients to pharmacists that do, that can be a problem as well, in the case of women living in small or rural communities for whom access to a variety of options might be a problem, due to transportation issues.

6. David Schwartz  •  Jul 13, 2009 @4:49 am
   

   PatrickKelly: What if the only grocery store in a small rural community chose to suddenly stop selling food?

7. Ken  •  Jul 13, 2009 @6:34 am
   

   As I said before, though I understand the libertarian argument that anyone should be able to refuse to sell anything to anyone, if we respected the pharmacists’ wishes here we’d be inconsistent, elevating certain religious beliefs above all other motivations and morals and beliefs. With a few church-based exceptions, we don’t give faith-based exemptions for anti-discrimination laws, for instance. Why treat this instance of faith differently?

8. TomH  •  Jul 13, 2009 @8:21 am
   

   If the small shop stopped selling food: 1) go to next town; 2) open a grocery store and make a killing. Same goes for PlanB. I am sure there are enough pharmacists around that even if several were so principled that they would stop selling, at least a few would make a lot of money through lack of that particular principle (they may have many other laudable principles mind you, just not that one) or subordination of principle to practicality.

9. Charles  •  Jul 13, 2009 @8:34 am
   

   The sale of prescription pharma is a heavily regulated industry. It includes detailed restrictions on what can be sold, the circumstances of sale, and licenses for those who sell it. Among the reasons the government regulates the area so stringently, beyond the inherent danger of the drugs, is the intimacy of the interaction between pharmacist and customer and, sometimes, the exigency of the transaction. The consequence of entering the field is that you can’t substitute your judgment for that of the physician or the government. If you want to make a broad libertarian attack on licensing requirements, go right ahead, but it is a battle you aren’t going to win. The day that you can get OTC morphine is not coming soon, nor is the day that I get to hang a shingle that says “Charles’ Surgical Services” until I get an MD.

   I have no problem saying that if you won’t do the job, you can’t do the job.

10. TomH  •  Jul 13, 2009 @9:18 am
    

    Yes, Charles, agreed about heavy regulation. But what is the purpose of a “must make available” regulation? Is every pharmacist in the country reqto carry or make available on order, every conceivable medication? Or just PlanB?

11. TomH  •  Jul 13, 2009 @9:18 am
    

    ** required to ** carry or make available

12. Charles  •  Jul 13, 2009 @9:39 am
    

    A pharmacy can accommodate an objecting pharmacist by having a second pharmacist on duty to fill the Rx but a pharmacy can not refuse to fill a prescription.

    A pharmacy doesn’t have to stock literally everything, but under state law “the pharmacy must maintain at all times a representative assortment of drugs in order to meet the pharmaceutical needs of its patients.” There is no pharmaceutical equivalent for Plan B, so this may be tantamount to a requirement that it be regularly stocked, though I think there is wiggle room in the law for running out of something temporarily.

13. Tim Fowler  •  Jul 13, 2009 @6:39 pm
    

    Joshua – Yes the restrictions on prescription drugs where not intended to make abortion or contraception more difficult, but in the case where talking about they can do that. Lack of intent is no excuse, at least not after the situation comes about. As for the pharmacists and “deliberately making it more difficult” – That’s not a reasonable way to describe not assisting someone. The government is the only party imposing restrictions on the actions of others here. The pharmacists are only “making it more difficult”, in the same sense that me not giving you a car could in theory make it more difficult for your to drive.

14. Tim Fowler  •  Jul 13, 2009 @6:42 pm
    

    Re: “With a few church-based exceptions, we don’t give faith-based exemptions for anti-discrimination laws, for instance. Why treat this instance of faith differently?”

    I wouldn’t treat it differently. I respect freedom of association and allow most forms of private discrimination.

15. Tim Fowler  •  Jul 13, 2009 @6:46 pm
    

    David Schwartz – Re: “What if the only grocery store in a small rural community chose to suddenly stop selling food?”

    1 – It would probably go out of business.

    2 – People would get their food in the nearest neighboring community.

    3 – If their is sufficient income opportunity in that community someone else will be likely to open a store and sell food.

16. David Schwartz  •  Jul 14, 2009 @2:47 am
    

    “As I said before, though I understand the libertarian argument that anyone should be able to refuse to sell anything to anyone, if we respected the pharmacists’ wishes here we’d be inconsistent, elevating certain religious beliefs above all other motivations and morals and beliefs.”

    How would we be inconsistent? In virtually every other arena, we allow people who run stores to choose which products they do and don’t wish to sell and allow customers who are unsatisfied to shop elsewhere.

    It seems that we are being inconsistent here by treating pharmacists with religious objections different from every other case where a vendor doesn’t want to sell a product.

    (And don’t compare it to a doctor who has, say moral scruples against surgery and won’t tell the patient that surgery is their best choice. The pharmacist who doesn’t wish to provide plan B is not providing a defective product or misleading his customers.)

17. Tim Fowler  •  Jul 21, 2009 @2:33 pm
    

    http://hertzlinger.blogspot.com/2009/07/my-constitutional-rights-are-being.html

18. Charles  •  Jul 21, 2009 @2:39 pm
    

    That blogger – and, by extension, you – get the “constitutional rights” structure of the issue wrong, Tim. There is a statutory requirement in Washington that pharmacies carry and dispense Plan B. The pharmacists are seeking a Constitution-based exemption from that requirement.

19. Tim Fowler  •  Jul 21, 2009 @3:49 pm
    

    I don’t think the blogger seriously thought that his constitutional rights would be violated by the supermarket dropping a brand of rice. He wasn’t making a constitutional argument at all, nether was I (not with my link to his post, or any of my other comments here).

20. Charles  •  Jul 21, 2009 @3:54 pm
    

    I’m not criticizing his constitutional scholarship. I’m criticizing the internal logic of his joke.

21. Tim Fowler  •  Jul 21, 2009 @4:32 pm
    

    I think the religious freedom argument is somewhat weak constitutionally. Not ridiculous, but weak. So I can’t really say this is a horrible court decision in terms of doing what the court is supposed to be doing interpreting the law and the constitution.

    The real problem here is the law in the first place. I have a big problem with making laws requiring people to sell particular things. There’s an even bigger problem in situations of serious moral or religious objection to selling it, but even a law requiring the sale of say toothbrushes would be something I’d have a problem with.

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