A 9th Circuit panel ruled today that pharmacists may not refuse to stock Plan B, the morning after pill on the grounds that it is a violation of their religion. A Seattle district court had earlier enjoined Washington from enforcing a state law that required pharmacies to stock the pill; today's ruling dissolves that injunction. The 9th Circuit found that the free exercise clause of the First Amendment did not override a generally applicable pharmacy regulation. Good for them.
I don't accept that the objecting pharmacists are the victims here. Pharmacists are licensed gatekeepers to restricted medication. Refusal to fill a Plan B prescription is an abuse of authority not far removed from a judge refusing bail to prevent a pregnant woman from obtaining an abortion.
My father was a pharmacist. For most of my childhood he owned his own small pharmacy. He frequently let his conscience be his guide in deciding how to do his job. Fortunately for the people of Queens, my father's conscience guided him to, say, sell condoms to young teens (because they were clearly going to have sex with or without his approval) or provide small-pox vaccine injections without always collecting the mandatory fee (because small pox shouldn't be a consequence of poverty). 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.
There are probably less-restrictive alternatives than a must-stock law. The Oregon Board of Pharmacy Code of Conduct, for example, does not require a pharmacy to stock any particular drug but, in the absence of a non-objecting pharmacist, requires timely referrals to a pharmacy that does stock Plan B. In their words, "It is the Board's belief that pharmacy policies and procedures could allow a pharmacist to exercise his or her choice to not participate, and at the same time not interfere with the patient's right to receive appropriate and lawfully prescribed drug therapy."
Since it was Justice Scalia that first announced, in Employment Division v. Smith, that the free exercise clause did not override non-discriminatory, generally applicable legislation, I'm curious to see how he rules when the proscribed activity is something he is a bit more sympathetic to than peyote use.
Last 5 posts by Charles
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