Medical Refusniks: Individual Rights or License to Discriminate?

By Edward

Let me start with an explanation of why I stand where I do on this issue: Doctors and pharmacists in the US are given a license to practice their profession by the state. They do not have the right to practice without a state-issued license (in other words, their church cannot issue them a license). Our constitutionally mandated separation of church and state therefore extends to that license IMO. Few people would hesitate to call it wholly unacceptable discrimination if a doctor or pharmacist's beliefs led them to refuse to treat a person because of their religion or race or gender, no matter how sincerely they felt their religion insisted that treating such people was repugnant. Some religions prohibit men from touching a woman when she's menstruating, for example. Would anyone sane consider a licensed doctor in the US within his rights to refuse emergency treatment to a woman just because she was having her period?

And yet, there's a growing trend among pharmacists who oppose abortion to turn away patients seeking birth control or morning-after medicine. Here's one anecdote illustrating how insane this is getting (from yesterday's Washington Post):

"There are pharmacists who will only give birth control pills to a woman if she's married. There are pharmacists who mistakenly believe contraception is a form of abortion and refuse to prescribe it to anyone," said Adam Sonfield of the Alan Guttmacher Institute in New York, which tracks reproductive issues. "There are even cases of pharmacists holding prescriptions hostage, where they won't even transfer it to another pharmacy when time is of the essence."

That is what happened to Kathleen Pulz and her husband, who panicked when the condom they were using broke. Their fear really spiked when the Walgreens pharmacy down the street from their home in Milwaukee refused to fill an emergency prescription for the morning-after pill.

"I couldn't believe it," said Pulz, 44, who with her husband had long ago decided they could not afford a fifth child. "How can they make that decision for us? I was outraged. At the same time, I was sad that we had to do this. But I was scared. I didn't know what we were going to do."

Those supporting pharmacists' "rights" to refuse to fill certain prescriptions argue that such medicine violates the Hippocratic Oath. What violates the Hippocratic Oath, however, should probably not be determined on an individual basis. The one case that made it to court fell against the pharmacist:

But the only case that has gotten that far involves Neil T. Noesen, who in 2002 refused to fill a University of Wisconsin student's birth control pill prescription at a Kmart in Menomonie, Wis., or transfer the prescription elsewhere. An administrative judge last month recommended Noesen be required to take ethics classes, alert future employers to his beliefs and pay what could be as much as $20,000 to cover the costs of the legal proceedings. The state pharmacy board will decide whether to impose that penalty next month.

And so, states are beginning to pass laws to protect individual pharmacists. These so-called "conscience" or "refusal" laws exist in four states already (and Wisconsin and 10 other states are considering one according to WaPo), as do laws in other states that explicitly require pharmacists to fill all prescriptions.

The American Pharmacists Association stands somewhere in the middle. Allowing pharmacists to refuse service, but insisting they ensure their customers can get their medications some other way (that isn't always happening though). This compromise seems stupid to me. What difference does it make if one hands a patient a drug or sends them to a pharmacy that does? And groups like Pharmacists for Life agree. But this is clearly only the beginning of this brave new world for medicine.

Another front in the Medical Refusnik movement is being waged in Michigan, where the Conscientious Objector Policy Act passed last year. This gem has been interpreted to allow emergency medical technicians to refuse to answer a call from the residence of a gay couple because they don't approve of homosexuality:

Democratic Rep. Chris Kolb of Ann Arbor, the first openly gay legislator in Michigan, pointed out that while the legislation prohibits racial discrimination by health-care providers, it does not ban discrimination based on a person’s sexual orientation.

The Michigan politician who introduced this bill nails the essence of the issue:

Republican Rep. Randy Richardville of Monroe, who introduced the main bill of the package, said the legislation is intended to protect religious, moral and ethical freedoms of health-care providers.

“Nothing in this bill, not a thing, denies a patient from receiving medical care,” he said. “This simply means a medical professional cannot violate their religious obligations.”

And so there it is. What should be a state-licensed medical professional's top obligation: their religion or their patients' rights to legal therapy? Medical professionals who would presumably otherwise object to the practice of "doctor shopping" are actually encouraging it through measures like this. Taken to its logical conclusions (given that access to medical care is a determining factor in where people live) eventually entire communities or counties or even states will become birth control dry or gay free (and, well, isn't that the real objective here on one level?).

Comments

[Happy Jack]

I've already posted on this elsewhere, but if you can't abide by the ethics , maybe you should look into another line of work.

[crionna]

Hmm. Sounds like a market opportunity to me. Maybe one of our lawyer friends can tell me if I would be allowed to fire a Pharmacist for failure to dispense as long as there was a clear company policy against the discrimination described above, and the pharmacist signed a note acknowledging that s/he had been made aware of the policy prior to his/her hiring?

[Bernard Yomtov]

Did Rep. Richardville offer any explanation of how removing a gay person's appendix, say, could possibly violate a surgeon's religious beliefs?

[Phil]

I'm waiting for a Christian Scientist to get a pharmacy job, then refuse to dispense any medications at all. That'll be a fun day.

[Edward]

I'm waiting for a Christian Scientist to get a pharmacy job, then refuse to dispense any medications at all. That'll be a fun day.

Excellent!!!

[cleek]

i object to Republicanism. can i refuse to yield to Republicans at intersections ?

[CaseyL]

Some blogger - I can't remember who, unfortunately - came up with the perfect comment on this:

"Cool! Can I get paid for not doing my job, too?"

[Kyle Hasselbacher]

What difference does it make if one hands a patient a drug or sends them to a pharmacy that does?

What difference does it make if one sells the police cocaine or sends them to a dealer who does?

[rilkefan]

Heard there are already laws on the books in Illinois and Mississippi allowing doctors to refuse treatment on moral, ethical, or religious grounds.

[Catsy]

It's this simple: dispensing prescribed medications is a pharmacist's job. If you anticipate ever being put in a position where your job would require you to dispense a prescription that conflicts with your beliefs, you don't get into that line of work. If you take the job in good faith, but later find yourself in such a situation, you find another line of work.

By way of analogy: I think unsolicited commercial email is a plague on the internet, that those who traffic in spam are scum, and that they should be prosecuted to the fullest extent of the law--and that those laws should be made much harsher than they are.

If I took a job as a dev for a company, and one day they asked me to design an app that would harvest email addresses or otherwise form a part of an unsolicited email campaign, I would quit my job. Sure, I can try to tell them that I think spamming is unethical and that I won't participate in generating it--but I'd have a pretty high expectation of losing my job.

[Francis]

[obscenity-laden rant deleted.]

Why is it that so much of the Religious Right seems to be devoting so much effort to make other people's lives more miserable? Doesn't their god call them to do the opposite?

what's next, an exception to lawyers' "zealous representation" obligations? client: i want you to make a church-state first amendment violation argument. atty: nope, it's against my principles. client: ???!!! you're telling me this now? after i have foregone the opportunity to go elsewhere? i'll have your license! atty: not in this state, you won't.

beautiful.

[hilzoy]

Ah, but what I really want to see is the coming collision between (a) the Academic Bill of Rights stuff, which requires professors to teach differing viewpoints (and, my reason for objecting to it, makes this enforceable by law), and (b) some future attempt to allow professors the right not to teach views that go against their religion/beliefs. -- I mean, I bend over backwards to teach opposing viewpoints, but if the general principle behind this pharmacy law is right, why should I bother?

[cleek]

some future attempt to allow professors the right not to teach views that go against their religion/beliefs

eventually, we'll just end up with a system where you can choose a college to suit your particular ideology. they'll come in all flavors and degrees of Purity. you can just pick the one that reinforces you what you already know.

it'll be just like blogs, magazines and dating services.

[Sebastian Holsclaw]

I think combining doctors and pharmacists in this post doesn't do much for clarity. Pharmacists are to dispense drugs based on other people's decisions. Doctors are to make decisions about appropriate care. I don't have any trouble with a doctor deciding that he doesn't want to perform an abortion, but I would have a problem with a pharmacist who didn't want to dispense a drug to help control bleeding which was the result of an abortion. I wouldn't begrudge a doctor 20 years from now who doesn't feel ok producing a cloned child to replace a killed one, but I wouldn't be happy with people saying that they won't treat the clone once produced.

There is a moral difference between the decision-making position of a doctor and the drug-interaction gatekeeping function of a pharmacist.

[Macallan]

A minor nit, but there is no

constitutionally mandated separation of church and state

That's a rather modern formulation, and not a very accurate description of the establishment clause nor is it particularly germane to this issue.

On the pharmacist front, unless they've been issued an exclusive license, I don't understand most of the objections raised. It appears that they've made a business decision and are willing to suffer the losses from that decision. Simply shop somewhere else. I mean unless you watched the Soup Nazi episode of Seinfeld and yelled at the TV that "SERVE the soup man! Regardless of your personal views!" If a small businessperson is willing to piss off customers, that's their choice as far as I can tell.

[Edward]

What difference does it make if one sells the police cocaine or sends them to a dealer who does?

Having just spent four weeks on a narcotics grand jury, I can tell you not much in the eyes of the law. If you send the police to a dealer who sells cocaine, you can still be sent to jail in New York. If I recall, there's a slight distinction in punishment, but it's not enough to make this a compelling parallel to the issue at hand.

I think combining doctors and pharmacists in this post doesn't do much for clarity.

There are two distinct trends with different ramifications, I agree, but I'm comfortable combining them as both are getting mileage from the belief that one's religion trumps a patient's needs and I strongly disagree with that. I see a social obligation for health care professionals to not pontificate about legal therapies. That doesn't mean they have to offer them personally, but they damned well better have immediate alternatives and/or offer the information about access in a timely, unembarassing, nonjudgemental manner for the patient who asks or get out of the business.

[Bernard Yomtov]

Sebastian,

In the case of the physician you are conflating two distinct issues:

1. A physician refusing to perform a procedure, such as abortion, of which he morally disapproves,

and

2. A physician refusing to treat an individual of whose lifestyle he disapproves on moral grounds, even though he has no objection to the needed treatment itself, and regularly provides it to other patients.

[Edward]

That's a rather modern formulation, and not a very accurate description of the establishment clause nor is it particularly germane to this issue.

You saw the label had "WORMS" on it, but you found that can-opener right there and thought, hmmm?, didn't ya, Mac?

If a small businessperson is willing to piss off customers, that's their choice as far as I can tell.

Consider the case cited above, where a couple in a panic calls their doctor, gets a prescription, and rushes to the closest pharmacist because time is of the essence. It's not at all clear in that story how near the next closest phramacy is, but at a certain point, this health care professional is impacting their health (adding stress, at the very least, if not risking they'll be too late to stop a potential pregnancy with LEGAL medication).

And perhaps more importantly here, most of these types of stories suggest it's the luck of the draw. The pharmacists are not saying the medicine is not in stock (which could be the case for any medicine theoretically), but rather that because the patient was unlucky enough to place the order when a judgmental person was on duty, they're going to be both humilated and inconvenienced. If all that (the stress, the humiliation, the time lost, etc.) is not a violation of the Hippocratic Oath, it should be.

[Sebastian Holsclaw]

Bernard, actually I was trying to distinguish between the two cases which were conflated in the post. You are right, doctors should be allowed to decline to engage in procedures which (though legal) they find morally questionable. They should not be allowed to decline to treat people whom they find morally questionable.

[JerryN]

Mac - a couple of points. One is that there have been instances of "pharmacists holding prescriptions hostage, where they won't even transfer it to another pharmacy when time is of the essence." (see WaPo article for more). That's way beyond being a business decision - that's the pharmacist intervening in patient care based the pharmacist's morals. The other is that, in rural areas, there may be no other pharmacy within a reasonable distance. While the market may adjust (another pharmacy coming to town) it does nothing to address the patient's current needs.

[cleek]

i wonder how supporters will feel the first time a vegetarian pharmacist refuses to fill their cholesterol meds because he thinks the customer is just eating too many hamburgers ?

[Macallan]

Consider the case cited above

OK. So they rush to the nearest pharmacy. However, the nearest one happens to be closed when they get there. So are we going to force the orthodox Jew who owns it to open his pharmacy and work on Saturday? I mean if patient needs trump all, isn't that what you're advocating? Or how about that time I went to a convenience store in Chicago to get a bottle of water and some Tylenol, but the store was closed so the Muslim owner could say evening prayers. I was pretty sick; didn't he have an obligation to open up right then? While we're at it, how do you feel about a devout Muslim storeowner refusing to stock alcohol? I mean how dare he refuse LEGAL medication on religious grounds…

[Bernard Yomtov]

Mac,

I don't think the pharmacy case can simply be viewed as a small businessman willing to piss off customers.

Most pharmacies are not small businesses these days. If you convinced CVS and Walgreen's not to fill certain prescriptions around here there would be some options left, but not many. And make no mistake, there will be pressure on the large chains.

And of course in some regions there will be substantial pressure on all drugstores not to fill certain prescriptions. In those cases not pissing off your customers may well mean not filling prescriptions even though you have no objection yourself, and that could easily lead to some medicines simply being unavailable.

Your argument echoes some that were heard opposing civil rights legislation. "Why force a restaurant owner to serve people he doesn't want to serve? It's money out of his pocket."

The trouble with this, then as now, is that patterns develop that make certain services unavailable, and that there exists the possibility - quite real in the case of civil rights - that social pressures would make it in the merchants' economic interest to discriminate, rather than the other way around.

This sort of libertarian argument, while it may have some initial appeal, seems to me to ignore actual consequences and focus on dubious hypothetical ones.

[Dianne]

Sebastian: "I don't have any trouble with a doctor deciding that he doesn't want to perform an abortion,"

A doctor can, ethically, refuse to perform any procedure for any reason he or she chooses as long as: 1. the refusal does not jeopardize the patient's life or health and 2. the doctor refers the patient to someone who is willing to treat the patient appropriately. So I don't have a problem with a doctor who is unwilling to perform an elective abortion but refers the patient to another ob who is willing to. However, I do have a problem with the only doctor in town refusing to perform an abortion in a woman with an ectopic pregnancy or medical condition that makes the pregnancy dangerous to her (for example, pulmonary hypertension or atrial fibrillation.) Or even refusing to perform an elective abortion if the next nearest doctor competent to perform the procedure does not practice within a day's drive from the patient's home. It's part of the job of being a rural doctor to be willing and able to deal with routine surgical procedures. If the doctor in question is unwilling or unable to do so, he or she find a partner who is willing and able to complete the practice. Or quit and find a different job.

Many small towns have only one pharmacy. If the pharmicist there refuses to fill a prescription that puts a major burden on the patient. In the case of a prescription for the "morning after pill" such a refusal could mean that the patient in question ends up needing a surgical abortion, which is much more inconvenient and painful and mildly more dangerous than taking the prophylaxis.

[Francis]

Mac: it's not like "separation of church and state" exactly came up for the first time last Term.

And given that the pharmacist is lobbying for an exception to his legal and ethical duty to fill prescriptions, based on religious beliefs, i find the comparision to other professions in which practitioners are required to set personal beliefs aside in service of their clients useful.

the failure to get soup when you want it is rarely life-threatening. [although, its worth remembering that one of the earliest actions of civil disobedience in the 1950's was lunch counter sit-ins.]

the failure to get medication on a timely basis can be life threatening, and certainly life-changing, if pregnancy ensues.

legal services are rarely as time-critical, and there tend to be more lawyers around than pharmacists. but i'm speaking from big city experience. lawyers also have the absolute right to refuse representation, so the analogy isn't perfect.

Nevertheless, it seems perfectly feasible to me that a Michael Schiavo in some small town could hire a lawyer on an emergency basis to enforce an advance directive, only to have the lawyer refuse to make the necessary arguments once the lawyer discovered the patient was, say, Catholic.

that's just appalling. Professional services imply professional obligations. Unless you have a BIG sign on your door regarding the services you won't provide, by hanging out your shingle you have made an implicit promise to fulfill the scope of your obligation to your client. that's true, or should be true, of doctors, lawyers and pharmacists.

[Edward]

Mac,

First, as much as I use it as such, you should know that alcohol is not a real medicine. Just sayin'

But you're constructing very convoluted excuses for this. If you knew your local pharmacy owned by the Muslim or Jew was closed during certain hours, you wouldn't drive there then, you'd go to the one you knew was open.

The Pulz's very likely used that phramacy for all kinds of other products/needs. It was only when they asked for a "morning after" medicine they were refused. There's a significant difference here.

[crutan]

Mac: To the best of my knowledge, this isn't about when pharmacies are open and when they are closed. This appears to be about an individual making a choice while executing their job that places their personal religious morality above patient needs.

Now if the individual pharmacist in question heard your request for Tylenol, and then told you he was closed, and unable to help you, but continued to serve other customers, that might be more of an issue...but the analogies you've run off there, while interesting, don't seem to be relevant to the discussion at hand.

This isn't about grocers, or small businessmen, either, really. It is about ethics. Pharmacists and doctors have sworn to uphold a code of ethics. Your kosher deli may not sell pork or shrimp, but they haven't told you they would, either. They haven't promised to sell you a ham sandwich. As I understand it, the pharmacist has promised to fulfill patient needs.

Just my two cents.

crutan

[Macallan]

But you're constructing very convoluted excuses for this.

Not really. I'm demonstrating that there are numerous times that moral or religious beliefs infuse the decisions business people make. The establishment clause is a double edged sword and it appears that you're wanting to perhaps prohibit "the free exercise" portion of it. I'm wondering what is the point where a customer's "needs" trump a business provider's right to free exercise?

[Kyle Hasselbacher]

If you send the police to a dealer who sells cocaine, you can still be sent to jail in New York.

I'm shocked and dismayed. I might remark further, but I think it would be too far off topic. Suffice it to say I find a stark difference between pulling the trigger myself and directing others to others to pull the trigger.

Likewise, I think it's possible to (1) think that contraception is bad, but (2) respect the views of those who disagree, and (3) tell them where they can go get a bottle of evil without oneself otherwise involved. Some might feel responsible enough for the "consequences" of #3 as to avoid it, but that's a personal matter.

[Sebastian Holsclaw]

"However, I do have a problem with the only doctor in town refusing to perform an abortion in a woman with an ectopic pregnancy or medical condition that makes the pregnancy dangerous to her (for example, pulmonary hypertension or atrial fibrillation.) Or even refusing to perform an elective abortion if the next nearest doctor competent to perform the procedure does not practice within a day's drive from the patient's home."

I suspect very few doctors have a problem with medically necessary abortions, so that isn't really an issue. I'm not at all willing to give you the second case. If it is an elective abortion, the doctor can elect not to perform it because it isn't medically necessary.

[Edward]

I'm shocked and dismayed. I might remark further, but I think it would be too far off topic. Suffice it to say I find a stark difference between pulling the trigger myself and directing others to others to pull the trigger.

I was shocked too, and although I can't comment on specifics, suffice it to say most of my co-jurors were also shocked when such a case came up. We didn't give the DA exactly what they were looking for, so shocked were we.

I'm demonstrating that there are numerous times that moral or religious beliefs infuse the decisions business people make.

Absolutely, but as crutan well noted, Mac, the difference is in the ethical expectations. If the Pulz's had been happily served when placing prescriptions for all their other medicines by these pharmacists and their conversations were always quite friendly and there were no notices posted that this pharmacy would not fill a prescription of a certain type, then they have every ethical right to expect this same friendly pharmacy they've been patronizing to fill their emergency prescription with out humilating them and without delay.

[Macallan]

the difference is in the ethical expectations.

Really? So if I went to my long time doctor and asked him to do something I deemed medically necessary but was against his religious beliefs, he'd have an ethical obligation to do it anyway? I don't see how prior service creates future obligation here.

Let me ask again, at what point does customer "need" trump a provider's right to free exercise of their beliefs?

[JerryN]

Mac - If the medical procedure was requested was legal, appropriate to the condition in question, and a generally accepted practice, I believe the physician would be obliged to refer you to someone else.

I note that you haven't touched on the question of a pharmacist's refusal to transfer a valid prescription to another pharmacy.

[Gary Farber]

"This sort of libertarian argument, while it may have some initial appeal, seems to me to ignore actual consequences and focus on dubious hypothetical ones."

But that never happens!

[Macallan]

I note that you haven't touched on the question of a pharmacist's refusal to transfer a valid prescription to another pharmacy.

Because it seems a minor point. If you refuse to do something on religious or moral grounds, it would seem a consistent position to not assist in streamlining the process for someone to get around your refusal.

[Jesurgislac]

Macallan: Let me ask again, at what point does customer "need" trump a provider's right to free exercise of their beliefs?

Interesting that you put customer "need" in inverted commas, but not the provider's "beliefs".

Are you just arguing the wrong side for the hell of it, Macallan, or do you sincerely believe in it?

[dmbeaster]

Why is it that so much of the Religious Right seems to be devoting so much effort to make other people's lives more miserable?

Just another day at the culture wars, which they have been preaching for years. There is nothing benign about it.

Your argument echoes some that were heard opposing civil rights legislation. "Why force a restaurant owner to serve people he doesn't want to serve? It's money out of his pocket."

The trouble with this, then as now, is that patterns develop that make certain services unavailable, and that there exists the possibility - quite real in the case of civil rights - that social pressures would make it in the merchants' economic interest to discriminate, rather than the other way around.

Excellent argument -- and this is about refusing to do business based on a form of religious discrimination.

[Macallan]

Are you just arguing the wrong side for the hell of it, Macallan, or do you sincerely believe in it?

I always argue for the hell of it; however, I never argue the wrong side.

:-p

[Jesurgislac]

Macallan: I always argue for the hell of it

I meant, do you actually believe that (for example) Mormons ought to have the right to refuse to serve black people because black people are evil: certain breeds of Christian ought to have the right to refuse to serve Jews because Jews are evil: certain breeds of Christian ought to have the right to refuse to serve gays because gays are evil: and so on and so forth? This certainly appears to be the position you're taking, and I wondered if you were taking it just so there was an opposition here for others to argue against, or if you really feel it?

I note, by the way, that you appeared terribly outraged when the Obsidian Wings collective decided to refuse services to Tacitus on the grounds of their belief that he had no right to be that rude to Edward. Was that outrage sincere, and if so, how do you reconcile it to the position you're taking here?

[JerryN]

Mac - it's not a minor point. The pharmacist is now interfering with the treatment of the patient. The patient has to go back to the doctor to request a new prescription. The doctor, in order to fulfill his obligations, needs to verify that the prescription has not, in fact, been filled. Let's say that the ensuing delay in treatment results in say, a pregnancy that because of complications causes the death of the mother. Should the pharmacist be tried for manslaughter? Can the family successfully sue the pharmacist for negligence?

[CaseyL]

I can't help but gaze with awe at defenders of the concept that someone can selectively refuse to perform their job duties based on discriminatory religious beliefs.

You just know they'd be the first ones demanding the pharmacists be fired if the pharmacists were anything other than conservative Xtians refusing to serve the conservative Xtian's favorite targets.

[Bernard Yomtov]

If you refuse to do something on religious or moral grounds, it would seem a consistent position to not assist in streamlining the process for someone to get around your refusal.

I disagree. To the extent you have the right to refuse to do something on religious grounds, the right is limited to controlling your behavior, not others'.

Suppose you rush to your hypothetical pharmacy owned by an Orthodox Jew on Friday afternoon and find that you are a bit late. Sundown approaches and the pharmacist is just locking up and won't serve you on religious grounds. Is it really OK for the pharmacist to refuse to direct you to another drugstore nearby that is still open?

[Macallan]

Holy Cow Jes!

I had no idea Tacitus was banned because of the religious beliefs of the ObWi collective. Man, you learn new things everyday 'round here.

[votermom]

Isn't the pharmacist over-riding the doctor's treatment in this case? Isn't that equivalent to practicing medicine? Does he have a medical license?

What if the pharmacist has a religious objection to providing pain relievers? What if a nurse had objections to administering it?

[Jesurgislac]

Macallan: had no idea Tacitus was banned because of the religious beliefs of the ObWi collective. Man, you learn new things everyday 'round here.

Ah. So when you talk about "beliefs", you mean religious beliefs. Do you have a reason for privileging religious beliefs above all other kinfs of belief?

[Macallan]

"Is it really OK for the pharmacist to refuse to direct you to another drugstore nearby that is still open?"

Since you acknowledge "To the extent you have the right to refuse to do something on religious grounds, the right is limited to controlling your behavior" and they are in fact only controlling their own behavior, it seems a difference without distinction.

"I don't perform abortions, but here's a free phonecard to call Planned Parenthood" would certainly be polite, but I don't see it as an obligation.

[Marc]

Paul Krugman had an insightful column that gives a strong reason why these "right of refusal" laws are not a good thing. If pharmacists have a "right of refusal", then in areas where the religious right is strong they can be pressured to exercise this "right of refusal" - even if it does not accord with their personal morals.

In other words, it's a tool for a pressure group to deprive other people living in their area of perfectly legal medicines.

[Macallan]

I can't help but gaze with awe at defenders of the concept that someone can selectively refuse to perform their job duties based on discriminatory religious beliefs.

...but enough about the Founders. How 'bout them Red Sox?

[Macallan]

Do you have a reason for privileging religious beliefs above all other kinfs of belief?

Besides the Constitution?

[rilkefan]

"What if the pharmacist has a religious objection to providing pain relievers? What if a nurse had objections to administering it?"

Part of Hitchens's case against Mother Teresa.

A quick google inclines me to suspect pharmacies' hours are regulated and overseen by boards - as long as the pharmacist follows the law, I don't see a problem.

Mac, maybe the kitten lets the rifle do the talking, maybe not - but Jes does not speak for the kitten.

[Macallan]

Mac, maybe the kitten lets the rifle do the talking, maybe not - but Jes does not speak for the kitten.

I thought my answer made it obvious that I knew that. Dang. Too subtle again -- it's a problem I've got.

[Jesurgislac]

Macallan: Besides the Constitution?

No, that's just fine. I wondered what your reason was for only allowing religious beliefs as a motivation, but if your reason is "the Constitution", I'll take that as an answer.

Okay, so let me get this clear: You were outraged when ObWing collective decided to deny Tacitus services (if we may so interpret the privilege of being allowed to comment here) because their motivation for doing so was not religious, but ethical/aesthetic: they objected to his rudeness.

You would not have objected to their banning Tacitus had they done so because they'd all suddenly converted to being Jehovah's Witnesses and decided that Catholics are too wicked to comment. (Or whatever religious Tacitus is. I rather thought he's Catholic, but I admit I'm now not sure.)

Do I have that right? Religious beliefs are a good reason for denying someone services, in your book: but rudeness isn't?

[Phil]

That's a rather modern formulation, and not a very accurate description of the establishment clause nor is it particularly germane to this issue.

Yes, so "modern" that the formulation goes all the way back to Thomas Jefferson referring to (and insisting on) a "wall of separation between church and state" in his letter to the Danbury Baptists of Jan. 1, 1802. So, if by "modern" you meant "nearly contemporaneous with the ratification of the Constitution and the Bill of Rights," then sure.

The mind boggles at the idea that refusing to give a patient their prescription back so they can take it elsewhere is not "controlling others' behavior."

[rilkefan]

Mac, maybe the kitten lets the rifle do the talking, maybe not - but Jes does not speak for the kitten.

"I thought my answer made it obvious that I knew that. Dang. Too subtle again -- it's a problem I've got."

Mac, I knew that you knew that - just thought the attempted Mafia tone was funny. Or did you know that I knew that you knew, and _this_ is the point at which you're too subtle for me?

[Macallan]

Do I have that right?

Since they reserve the right to ban to anyone for any reason, and when Tacitus was banned I told them I supported their right to do so, but also told them I couldn't support the blog for doing so, it appears that you're so far a field that right or wrong isn't even possible.

[Sebastian Holsclaw]

You were outraged when ObWing collective decided to deny Tacitus services (if we may so interpret the privilege of being allowed to comment here) because their motivation for doing so was not religious, but ethical/aesthetic: they objected to his rudeness.

You would not have objected to their banning Tacitus had they done so because they'd all suddenly converted to being Jehovah's Witnesses and decided that Catholics are too wicked to comment. (Or whatever religious Tacitus is. I rather thought he's Catholic, but I admit I'm now not sure.)

I don't actually speak for Mac, but I suspect he might point out a subtle difference between 'outraged' and 'would make illegal' or even 'pull the license'.

[Macallan]

I knew you knew that I knew...

[Macallan]

I don't actually speak for Mac, but I suspect he might point out a subtle difference between 'outraged' and 'would make illegal' or even 'pull the license'.

…or even 'would force them to go against their religious beliefs'.

[Jesurgislac]

Ah. So, by using the real-life example of your outrage over Tacitus's banning, I think I'm actually clearer about what you think:

You think that anyone has the right to discriminate against anyone else for any reason at all.

But you cannot support a business if that business exercises their right to refuse services to a customer who is virulently rude and offensive to the staff/the management.

[Jesurgislac]

…or even 'would force them to go against their religious beliefs'.

Who is being "forced"? No one forces them to become pharmacists.

[Macallan]

Who is being "forced"? No one forces them to become pharmacists.

Wow again. I had no idea all the ObWi writers were pharmacists too! How do they find the time for two jobs and writing here?

These guys are amazing.

[Jesurgislac]

Macallan: Wow again. I had no idea all the ObWi writers were pharmacists too! How do they find the time for two jobs and writing here?

Oh. I thought we'd gone back to talking about the thread topic. My mistake.

[Macallan]

Oh. I thought we'd gone back to talking about the thread topic.

Heh, I was having a hard enough time trying to follow your "outrage" track, jumping tracks only makes it harder.

I think I'm actually clearer about what you think

Err...no.

[st]

Mac -
Say a pharmacist refused to fill a prescription for birth control, and refused to release the prescription back to the customer. Say this customer complained to the manager. Say the manager fired the pharmacist for refusing to serve the customer.* Is the manager discriminating against the pharmacist because of his religion, or is he justified in exercising his right to control his workplace and offer legal services to the public?

*this presumes, of course, that store managers outrank pharmacists - I am not in that business, so I can't say.

[Jesurgislac]

Err...no.

Ah. So your position in this thread is really one of devil's advocate, and you don't actually believe any of the stuff you've been spouting. Fair enough.

[Macallan]

you don't actually believe any of the stuff you've been spouting.

No, I just don't believe any of the stuff you claim I'm spouting. Pretty simple really.

[rilkefan]

"I knew you knew that I knew..."

Ok, Mac, upping my assessment of your subtlety. I'll add an extra layer of obfusc in my comments to you in future - hopefully exactly one.

[Macallan]

Is the manager discriminating against the pharmacist because of his religion, or is he justified in exercising his right to control his workplace and offer legal services to the public?

That's a excellent question.

[Jesurgislac]

No, I just don't believe any of the stuff you claim I'm spouting. Pretty simple really.

Nope. I summarized what you said you believed in my comment at March 29, 2005 04:09 PM. If you don't want to stand by it, fine, you're playing devil's advocate: it's not worth arguing with you.

[Macallan]

But you knew that I knew you knew that I knew.

[Jesurgislac]

Skipping all the devil's advocate stuff from Macallan, Edward:

Would anyone sane consider a licensed doctor in the US within his rights to refuse emergency treatment to a woman just because she was having her period?

I hope not, and I don't see it coming, because as far as I can see, these new laws are intended to privilege Christianity only, no other religion.

And so, states are beginning to pass laws to protect individual pharmacists.

This is absurd. If a soldier discovers that s/he can't kill because their religion forbids it (I recall reading about a Catholic soldier who, after his experiences in Iraq, decided that he had to become a conscientious objector) the solution is for the soldier to leave the army, to quit being a soldier. Similarly, if a pharmacist discovers that s/he has problems of conscience with the duties required of him/her as a pharmacist, the solution is to change careers.

Freedom of conscience doesn't mean your freedom to impose your religious beliefs on me.

[rilkefan]

"But you knew that I knew you knew that I knew."

Yeah, I guess I did, deep down - I suspect that at some point the reference chain stopped being funny and I wasn't sure where it broke...

[crionna]

Is the manager discriminating against the pharmacist because of his religion, or is he justified in exercising his right to control his workplace and offer legal services to the public?

That's a excellent question.

And one I asked way upthread. However, I'm now wondering if the ethics that Happy Jack posted are adhered to by all pharmacists; i.e. is it a requirement of their licensing that they follow them? If so, were I a manager/business owner, I'd feel within my rights to fire the pharmacist on the basis that if s/he no longer follows the ethics required of licensing, then they have removed themselves from the field. In fact, I might see it as my duty to do so lest I, the pharmacist and the company be sued for fraud.

[Jesurgislac]

Crionna: In fact, I might see it as my duty to do so lest I, the pharmacist and the company be sued for fraud.

And if you do so, and the pharmacist then calls on the state laws that say s/he's entitled to decide what services to provide on the grounds of his/her religious beliefs?

The more I think about it, the nastier these state laws sound.

[Sebastian Holsclaw]

"These guys are amazing."

Ah, finally something we can all agree on. :)

[Macallan]

I'm not sure which of the ethics Happy Jack linked to is actually being violated. On the same website there was this .pdf of a report of policy adoptions with the following:

Pharmacist Conscience Clause

1. APhA recognizes the individual pharmacist’s right to exercise conscientious refusal and supports the establishment of systems to ensure patient’s access to legally prescribed therapy without compromising the pharmacist’s right of conscientious refusal.

FYI

[JerryN]

I'm think it's the bit about

... the establishment of systems to ensure patient’s access to legally prescribed therapy ...

but then again, it appears this means different things to different people. Perhaps the mere existance of some willing pharmacist within the same time zone as the patient is an adequate system.

[Francis]

wow, a whole bunch of thought fouls.

let's slice and dice this a different way.

1. Assume pharmacists hold a state license and a condition of the license is that they fill all prescriptions. Can the pharmacist refuse? No. EEOC v. Smith -- individuals cannot refuse to comply with laws of general applicability, even if it interferes with their religion. Is that the right answer? Yes. If pharmacists want to be able to get a religious exemption against filling certain prescriptions, they should go to the legislature.

2. Assume that the legis. passes a blanket law saying that any time without notice a pharmacist can refuse to fill a prescription, on religious grounds, and refuse to return it to the patient. Legal? I really doubt it. It looks a lot to me like an establishment clause violation. The licensure of the pharmacist constitutes sufficient state action so that allowing his religious based discrimination violates the first amendment.

Point 2, for those still reading, is where Mac's soup analogy fails. there is a HUGE difference between state-licensed and state-supervised health care services and soup sales.

3. Now, the legis. passes a law saying that any time a pharmacist may randomly refuse to approve a scrip, without saying why. First, this could be one of the few times where a state law would be stricken as violating the police power to regulate the general welfare. Second, this could likely violate the Equal Protection clause. (hidden discriminatory intent plus discriminatory impact.)

4. Now, assume that i'm wrong on point 2 and the regulation stands. Can the federal congress over-ride? Despite my new-found admiration for states' rights, sure. the federal handle is probably even stronger than it is in many other areas, given the fact that the feds already regulate medicine.

5. Can a state craft a narrow exception allowing pharmacists to refuse to fill certain scrips? Would it make a difference whether the pharmacist had a blanket refusal to fill a certain type of scrip, or whether the pharmacist wanted the right to refuse to serve certain individuals?

Here's the hard one, and i really have to get back to work. 5a -- yes. I see no obvious constitutional violation in a pharmacist refusing to stock, for example, birth control pills. 5b -- yes, big difference. This is the clear, gross equal protection / first amendment violation. Once the state commits to overseeing the practice of pharmacy, it cannot allow pharmacists to violate the constitution. This is simply point 2 over again.

[Jesurgislac]

Sebastian: Ah, finally something we can all agree on. :)

True! ;-)

JerryN: Perhaps the mere existance of some willing pharmacist within the same time zone as the patient is an adequate system.

Yes - more realistically, does this mean that a pharmacist who is the only one available in a small town has no right of conscience?

[Macallan]

more realistically, does this mean that a pharmacist who is the only one available in a small town has no right of conscience?

The answer would be 'No'. At least from that policy. AphA recognizes the right, but only supports establishing access that doesn't compromise that right.

[Jesurgislac]

Right, so moving on: the part about "compromising the pharmacist’s right of conscientious refusal" is garbage.

A pharmacist has no right of conscientious refusal, except the right to quit being a pharmacist.

[Jesurgislac]

Were you aware of this, Edward:

Doctors or other health care providers could not be disciplined or sued if they refuse to treat gay patients under legislation passed Wednesday by the Michigan House. The bill allows health care workers to refuse service to anyone on moral, ethical or religious grounds. cite

[Macallan]

A pharmacist has no right of conscientious refusal, except the right to quit being a pharmacist.

Huh? The AphA says specifically they have a right of conscientious refusal.

[Jesurgislac]

The AphA says specifically they have a right of conscientious refusal.

Indeed. But the AphA is not empowered to decide that a pharmacist is allowed to break state and federal laws, as Francis outlined carefully and clearly in his comment [March 29, 2005 05:40 PM].

[Macallan]

But the AphA is not empowered to decide that a pharmacist is allowed to break state and federal laws, as Francis outlined carefully and clearly in his comment [March 29, 2005 05:40 PM].

Unless I misread it (always a possibility) none of these laws actually exist. Francis was talking lots of "assumes". Also I couldn't find a EEOC v. Smith case. Perhaps Francis could provide a cite.

[liberal japonicus]

What struck me was that the cases given in the article were pharmacists working at places like Kmart and Walgreens. If there is majority opinion against this sort of behavior, the obvious option is to apply pressure to the management of the chain. I'm wondering what others think about that option (I have lots of thoughts, but not sure if it is a good idea or a bad one)

[Macallan]

I'm wondering what others think about that option

Well, it's not that different than free speech for me. You have to tolerate people making asshats of themselves in order to reserve the right for yourself. You can't say Ward Churchill out to be fired without risking everyone's right. So I'd tread lightly on trying to infringe on people's right to freely practice their faith lest you unintendedly put everyone's rights in danger.

[Francis]

employment div. v. smith (always get that case name wrong, dammit.)

"Although a State would be "prohibiting the free exercise [of religion]" in violation of the Free Exercise Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons"

link

i think my assumptions are pretty well taken, though you're free to disagree.

[Macallan]

Thanks for the link

[Phil]

It is not "freely practicing your faith" to deny service to your employer's customers who are seeking legally available products under the supervision of their doctors, and it certainly isn't "freely practicing your faith" to conspire to ensure that they cannot seek that same service elsewhere as well. It's bullying, and trying to hide it behind some noble "free exercice" excuse is a bunch of crap. Note that the only class of pharmaceuticals to which this is being applied is birth control pills and "morning-after" pills. This is just the next wedge in the abortion war.

[liberal japonicus]

Well, it's not that different than free speech for me. You have to tolerate people making asshats of themselves in order to reserve the right for yourself. You can't say Ward Churchill out to be fired without risking everyone's right.

But mac, in the Sartre thread, you claimed that capitalism was defensible because it was individual choices (my restatement and if it's wrong, please correct me). If I pointed out that this chain hires people who feel they can withhold medical 'treatment' from you based on their beliefs, why would you object to the aggregate weight of individual choices?

[crionna]

And if you do so, and the pharmacist then calls on the state laws that say s/he's entitled to decide what services to provide on the grounds of his/her religious beliefs?

My point is that if s/he violates the ethics then s/he is no longer a pharmicist in the first place and MUST be replaced.

If there is majority opinion against this sort of behavior, the obvious option is to apply pressure to the management of the chain.

Agreed. The Pulzs should have a friendly party get a prescription filled by the same pharmacist and then sue the company for not employing and actual pharmacist, since this one gave up that status when s/he violated the ethics required to BE a pharmacist.

[chris]

The real problem I have here is the presumptive practicing of medicine on the part of pharmacists and the lack of ability to see where it goes on the part of people who support it.

Right now its Birth Control and EC. What is to stop a concientious objector from refusing to fill a script for a medication that they deem too expensive? Or a "lifestyle" medication, you know, a Statin perhaps because the patient should just eat less fat.

It also presumes that all women taking Birth Control are wanton sluts. (Seriously, it really does seem to presume this.) I spoke with a friend this morning who takes Birth Control to help control endometriosis.

Pharmacists do not have access to invidiualized health care information such that they can have any basis on which to legitmitately refuse to provide medications, nor do they have informatino to know why a prescription was written or the effects of not having the medication on the patient.

Its a frightening push to allow pharmacists to refuse to fill prescriptions. It seriously undermines the provision of health care.

[CaseyL]

Pharmacists have to take an exam to be licensed. That seems to be a national requirement, and there seems to be a standard national test. But each state appears to have its own standards for licensure, renewal, and re-licensure after a license has lapsed.

The only professional standards I've found (in a brief Google search) have to do with knowing what the drugs are, not dispensing drugs without an Rx, and not disclosing Rxs to nonauthorized people. I'm not sure if these are national or state-level standards.

I can keep searching, see if refusal to fill prescriptions runs afoul of any professional licensing requirements. I would think refusing to fill an Rx skirts around the edges of unlawful disclosure.

Does anyone here know more about this?

[Macallan]

If I pointed out that this chain hires people who feel they can withhold medical 'treatment' from you based on their beliefs, why would you object to the aggregate weight of individual choices?

It isn't that I would object lj, as an individual you're free to boycott the chain. Just be aware of the consequences.

[CaseyL]

It occurs to me that refusing to fill prescriptions constitutes unlicensed, unlawful practice of medicine. The pharmacist is deciding unilaterally what drugs a person "should" take, and not in reference to drug interactions.

[Phil]

Think about it, LJ: If you as a consumer insist that pharmacists dispense the drugs that patients' doctors have prescribed without passing moral judgement on the patients or withholding service from them because they believe their souls are threatened if they use the Pill, then your right to believe in the deity you see fit might be threatened. Or something.

[Bernard Yomtov]

I note that you haven't touched on the question of a pharmacist's refusal to transfer a valid prescription to another pharmacy.

Because it seems a minor point. If you refuse to do something on religious or moral grounds, it would seem a consistent position to not assist in streamlining the process for someone to get around your refusal.

Maybe we could address this transfer issue from a different perspective. Whose property is the prescription? Isn't it the patient's? Doesn't the patient just hand it over to the pharmacist to meet the legal requirement of proving that a doctor had issued a prescription, and also for convenience? When exactly did the ownership of the piece of paper actually change hands? If I'm unhappy with my pharmacy, or I move, don't I have the right to take my prescription back?

If it's my property then the pharmacist has no business withholding it if I want to take it elsewhere.

[Phillip J. Birmingham]

I wonder what these pharmacy prigs would say if their refusal was met with "well, I guess we'll just have to HAVE AN ABORTION, THEN!"

[Macallan]

If it's my property then the pharmacist has no business withholding it if I want to take it elsewhere.

Seems like a fair point to me.