Conscientious objection and pharmacists

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The battle over emergency contraception is heating up. The key question is what obligation pharmacists have to dispense emergency contraceptives. It seems to me that there are at least the following coherent positions in roughly decreasing order of uncertainty for customers:
  1. Pharmacists have the right to refuse to dispense EC without impacting their job status.
  2. Pharmacists have the right to refuse to dispense EC, but employers can fire them for it.
  3. Pharmacists have the right to dispense EC, but pharmacies must arrange for the customer to be able to acquire EC--though potentially at another pharmacy.
  4. Pharmacists have the right to refuse to dispense EC, but pharmacies must ensure that someone is on staff to dispense EC locally.
  5. Pharmacists have the right to refuse to dispense EC, but they have an affirmative personal obligation to arrange for the customer to be able to acquire EC.
  6. Pharmacists have the right to refuse to dispense EC, but they have an affirmative personal duty to arrange for the customer to be able to acquire EC.
  7. Pharmacists have an affirmative personal duty to dispense EC.

Now, clearly if we were discussing radial tires, the societal consensus answer would be (2). Sears would be perfectly within their rights--and almost certainly would--fire any employee who would only sell bias ply.1 But what's the difference here?

It seems to me that there are basically two reasons why people who are in favor of allowing pharmacists not to dispense EC feel that EC is different:

  1. There are people who have principled--or at least so they believe--objections to EC.
  2. They themselves object to EC, and this makes it harder to get.

I suspect that for most people in favor of the right of pharmacists not to prescribe EC, the deciding factor is point (2). Ask yourself this: if there was a significant group of people opposed to the sale of radial tires would you support a law that guaranteed the right not to sell them without being fired by Wal-Mart. I suspect that for most people in favor of the right not to prescribe EC the answer here is "no". But the only real difference here is that a larger fraction of the population (in this case legislators) opposes EC, whereas they probably drive on radial tires. But note that this isn't an issue of freedom of the pharmacist's conscience, but one of the pharmacist's right to make the decision the legislators approve of.

On the other hand, if we were discussing radial tires, there wouldn't be anyone endorsing a law guaranteeing the right of consumers to buy them, even if vendors didn't want to carry them--though there are people in favor of such a law for EC. I see two major differences in this respect.

  1. There's a substantial entry barrier to becoming any kind of pharmacist or running a pharmacy. This barrier is at least partly erected and supported by the state. By contrast, pretty much anyone can sell tires.
  2. When people need EC they need it quickly, whereas you can typically drive for a while on partly worn out tires. It's not like you can just order your EC from Amazon.com and wait for it to show up.

I find the first and second points the most convincing. If the state is going to help you enforce your monopoly on some services, it seems to me that this creates some obligation to perform that service for all comers. And unlike a doctor's discretion not to prescribe certain medications, refusing to dispense EC isn't really an medical judgement, it's an ethical one.

Of course, there's an easy solution to this conflict: just make EC available over the counter. There's no medical reason why a pharmacist needs to sell EC; Plan B comes in a convenient single-use package. OTC use would would substantially lower the entry barrier and so reduce the impact of any individual pharmacist not wanting to sell it. Concerns (IMHO bogus concerns) have been raised about making EC available to minors, but it would be easy to have clerks check for ID, as they do for alcohol and cigarettes. Of course, if what you really want isn't to give pharmacists freedom of conscience but rather to make EC harder to get, then this option doesn't really accomplish that. On the other hand, if that's your goal, then hiding behind freedom of conscience is kind of disingenuous.

1 Sure, the radial tire thing is kind of silly but consider a Mormon who doesn't want to sell caffeinated beverages--not that they do so as far as I know.

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16 Comments

A) I think we need a 2.5 that deals with the pharmacist who does not want to dispense EC but is required to allow the patient to get their perscription so that the patient can take it to another place. I have heard that some pharmacists are refusing... and also holding the perscription so that the patient can't go to fill it somewhare else.


B) The analogy I'd make is to a police person who chooses to enforce certain laws. It may be that they have a reason for believing that some laws are moral, but I feel that the job is to enforce the law as the pharmacist's job is to dispense legal perscribed drugs.


C) Note: This extends to judges -- Theoritically a judge can be as religious as they want, but the job is to decide on the LAW of the land and no judge should hold their position if they feel that their judgements are based on a higer law!

If pharmacists are allowed to withhold EC, I suppose they are more receptive to pressure from activists. If I was an anti-abortionist, I would love to convince anyone to voluntarily refrain from selling EC, by peacefully protesting in front of their pharmacies, occasionally shouting "murderer!".

What I find curious about this debate is the complete disregard for the condition of the pharmacist.

Ever hear about the Hippocratic Oath? My doctor keeps the classical version in his office. Consider paragraph #4:

"I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art."

Not all pharmacists have taken the oath in this form, but many have. Their employers have certainly been continuously aware of the existence of this oath since before their hirings.

I hope I don't have to explain here the importance of oaths to society.

==

As for protesting, do note that convenience store operators have been targeted for selling porn. (results have varied.) I find it very interesting that some people are so ready to use the jack boot of government to require that a store carry a particular product. A store operator worries primarily about his net profit for operation. Upon what basis do you enter his premises with gun and writ to require that he sell your preferred item?

Nathan,

I'm not disregarding the condition of the pharmacist. As far as I know, the Hippocratic oath isn't a requirement for being a pharmacist. It's an independent commitment voluntarily undertaken by the pharmacist. As such, I don't see how it differs in kind from a non-Radial-tire oath taken by a mechanic. What's your position on whether Walmart can fire someone for refusing to sell radial tires?

It's funny you raise the issue of the "jack boot of government" here, since it's precisely that jack boot which has created the problem by restricting the sale of EC to a certain set of authorized people. If you're willing to allow EC to be sold OTC, I'm more than willing to concede that government shouldn't force stores to sell EC.

Making EC OTC rules out positions 3-7 but still doesn't exclude (2). Is your position that Walmart should be able to fire you for refusing to sell radial tires but not EC? That sure sounds to me like the jack boot of government stomping on a merchant who's just tryingto make a profit.

I'm talking about pharmacists who took the oath years before this issue came up. If tire installers had, for thousands of years, taken oaths not to install radials, and considered to be morally superior for doing so; if employers had habitually hired installers without reference to the oath; if tire installers had not been required to install radials before; then no, Walmart could not then require their current installers to install radials against their oaths.

You will note that I have specifically left out the question of new hires. My (strong) convictions aside, that is a contract for a currently legal service. If the employer puts a must sell clause in their employment offers, then they can make do with whatever pharmacists accept their offers.

You seem to believe that contracts are important. Why is an oath not?

The government must encourage people to uphold oaths in general because its legitimacy is entirely reliant upon the concept. (No matter how poorly upheld in practice.) The oath to tell the truth, the oath to uphold the office, the oath to bear truth faith and alligiance (military service), the oath to uphold the Constitution--all of the institutions of government rely upon men upholding their oaths.

What is this drive? Why is it so critical that we be allowed to snuff out human life before its reality becomes impossible to ignore?

Did you hear about the court case where the entire courtroom burst out in laughter when the oath of truth was given? That was the same day that the Clinton testimony came out. If you negate the oaths of two generations of pharmacists, you impose a much higher external on society that you seem to admit.

Wait, I'm confused. In paragraphs 2-4, you suggest that it's the oath itself that's important, yet in paragraph 1, you suggest that it's somehow subject to it being a traditional practice. I don't see how one's commitment to keep one's word is somehow subject to majority rule or tradition. So, if I have a firm conviction that (for instance) it's immoral to sell anti-depressents (something that's not mentioned at all in the Hippocratic Oath, but that some religions *do* object to) then that's somehow a conviction that's not worthy of being protected by law?

In any case, I don't get this focus on the sanctity of the oath. People are asked to do things as a condition of employment that violate agreements they've entered into all the time. They then have to decide whether to break the agreement or lose their employment. The law doesn't protect their jobs in many such cases. I'm not sure why it should in this one.

Consider the case where I have a pre-existing non-compete agreement with company X. My current employer decides to terminate their product line and go into business competing with X. I have to quit in order to uphold my agreement, but my employer isn't requiring me to break my oath. They simply require a service I'm unable to provide. I don't see how this case is any different.

"What is this drive? Why is it so critical that we be allowed to snuff out human life before its reality becomes impossible to ignore?"

Huh? I'm talking about the right of Walmart to hire and fire as they please. It's merely incidentally about abortion, because as noted above the exact same issues apply when the topic is tires. It's just that nobody current cares what kind of tire you buy--though that could of course change.

I'm saying that if a class of people are known to be taking an oath, that, for those who have taken the oath, that the oath should be treated as an implicit portion of the contract, unless the employment contract specifically bars the oath.

I'm not familiar with non-compete, but again, these are common, and your employer had better be ready to prove that his hire was in good faith if they let you go. And as far as I'm concerned, a generous severance package would be part of the cost of moving to this new line of business.

Hmm.... I'm not sure that this is a well-settled area of contract law. Should Mormons be not required to sell caffeinated beverages? Do you know what fraction of pharmacists haven't taken the oath? What about pharmacists who have NOT taken the oath? Can employers terminate them for not dispensing EC?

As for the non-compete analogy, I think that the currently serving pharmacists *were* hired in good faith. EC just wasn't an issue then. It is now, just as the non-compete is only an issue on moving to the new line of business. I don't believe that in current contract law you are entitled to severence in the non-compete case.

I agree with you that the issue isn't a general one of whether individual pharmacists or tire salesmen have a right of conscience, but rather whether this particular position of conscience is widely enough respected in society to merit legal protection. That "respect" factors in people's convenience, of course--minority moral positions are generally given a lot more respect when they don't inconvenience other people. It also depends on the prevalence of the particular conscientious belief: one lone nutbar's objection to selling radial tires is very different from, say, 30 percent of the population believing that radial tires are "the Devil's road-huggers".

But I don't agree that pharmacist licensing laws automatically create some kind of duty to serve that always trumps pharmacists' individual choices. Are pharmacists never allowed to sleep, or go on vacation, or refuse to stock unprofitable items?

Of course, as a political matter, society may decide to demand of pharmacists, as part of their licensing requirements, that they adhere to certain norms in their practice. But such a "duty" of pharmacists--say, to carry EC--would be every bit as much a matter of political preference as the "right" of pharmacists to follow their own consciences. Either way, it depends on how many people sympathize with the conscience-bound pharmacists, and how many with the inconvenienced patients.

Actually, now I'm curious. Because I was under the assumption that all pharmacists took the "Pharmacists Oath" and (when licensed) agreed to uphold the pharmacists code of conduct. The code of conduct specifically states:

"A pharmacist respects the autonomy and dignity of each patient.

A pharmacist promotes the right of self-determination and recognizes individual self-worth by encouraging patients to participate in decisions about their health. A pharmacist communicates with patients in terms that are understandable. In all cases, a pharmacist respects personal and cultural differences among patients."

In which states are pharmacists not required to do these things?

Again, I'm addressing a class which does not necessarily contain recent entrants to the field. While digging on the Hippocratic oath, I found that there are new versions being floated which essentially repudiate the classical form.

Dan, you scare me with your position that my rights are depended upon your (claims) to inconvenience. I find your presence on the road in front of me to be VERY inconvenient.

Eric, I am not here questioning the good faith of the pharmacist hires. I was working within my example. I was (mostly) speculating on what the settlement would be to the employee, given his likelihood of prevaling in the good faith lawsuit.
I was also pointing out that there is a lower-conflict avenue for pharmacies to move into this line of business.

Are Mormons commonly known to be taking oaths against serving caffinated beverages? Has this been the case for living memory?

A pharmacist who had not taken the oath at the time of his original employment is in much the same position as a convenience store worker at a store that starts selling porn.

Nathan,

Your claim that this is an implicit part of the contract depends critically on the fraction of pharmacists who have in fact taken the Hippocratic oath. Do you know what that fraction is? If it's

I cannot say that I agree. The oath has been held up as a moral standard for practitioners for centuries, and has only recently come under attack by brave new worlders. Anyone considering hiring a pharmacist should be aware of the existance of the oath, and if they fail to take affirmative steps to preclude such oathtakers from their hire, then they should bear the consequences.

I'm relying critically upon the ancient, public, and lauded place of the oath. Not the number of current practitioners. Do you suggest that the last practicing pharmacist to have taken the oath and been employed without question lose his rights (assuming for the argument he has them) simply for being the last? Contrary to Dan's position, I hold that right are far more important for small minorities than for large ones.

"As far as I know, such employees can be terminated without consequence."

Without consequence in law, yes.

Even the pharmacists' lobbying group isn't backing these pharmacists. That's rough when your own discipline says that you should be fired!

I don't know anything about the politics of that particular organization, but do note that a substantial number of national organizations have long been noted for being essentially arms of the Democratic party, regardless of the position of significant portions of their membership. Union workers famously vote 40% Republican. AARP and the bar have alternative organizations set up expressly to be conservative competitors. There have been noteable problems with the American Medical Association and related organizations, so I think one has to look more deeply on this one.

I think you're actually ignoring "the condition of pharmacists" the opposite way, so to speak. The pharmacy profession is a restricted-entry monopoly managed and regulated by the government, and the members thereof accept certain professional obligations in exchange for being able to manage the market for their labour, and for the other state-enforced privileges they enjoy (being allowed to handle and dispense certain controlled substances forbidden to the general populace, for instance).

I do not profess to know whether there is some actually existing ethical obligation or rule which could be construed as positively requiring pharmacists to handle emergency contraceptives. But I feel that they could conceivably, as tenured state-regulated professionals, be so obliged. There's a social contract here; they can't very well stand on pure freedom of trade unless they're prepared to accept its implications.

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