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Posted by on Jul 11, 2009 in Health, Politics, Religion | 19 comments

When Pro-Choice Meets Pro-Business

I was alerted to yet another controversial court case involving the dreaded “morning after pill” by our friend Ed Morrissey at Hot Air. This particular drama is playing out in the 9th Circuit Court of appeals and deals with a pharmacy being told by the courts that they must provide Plan B.

Pharmacists are obliged to dispense the Plan B pill, even if they are personally opposed to the “morning after” contraceptive on religious grounds, a federal appeals court ruled Wednesday.

In a case that could affect policy across the western U.S., a supermarket pharmacy owner in Olympia, Wash., failed in a bid to block 2007 regulations that required all Washington pharmacies to stock and dispense the pills.

This is one of those interesting cases in punditry, because Ed and I come down on opposite sides in the abortion issue – I’m reluctantly pro-choice and Ed is pro-life. However, in this case we wind up agreeing and it really has nothing to do with either religion or Roe v. Wade. A portion of his take:

There have been two different issues in the legal fight over Plan B. In one group, pharmacists not working for themselves — for instance, at chain pharmacies — objected to dispensing the pill and wanted job protection despite their refusal. Those cases hardly stand up to scrutiny. The owner of the pharmacy has the right to decide on his own inventory and what to sell, and the employees of that pharmacy either should follow that policy or find a job somewhere else if it offends them.

Ed and I may not agree on whether or not women should be legally able to take the Plan B pill, but we certainly do agree on whether or not business owners have to sell anything they choose not to. This isn’t a question of pro-choice vs. pro-life. It’s a business decision. I most certainly do not feel that a pharmacist who works for the owner of a shop can decide not to sell the pill to customers if the owner has decided to carry it. The pharmacist has their rights, of course. They have the right to go work someplace else where their values won’t be compromised. But if the owner or chain management wish to have it sold, that is their business. (literally.)

This case, however, is dealing with the owner of the shop. I’ve been to Olympia. Trust me, there are plenty of pharmacies in the area. Anyone seeking the product can find it in short order, often without having to hail a cab. If the owner chooses to not carry it and a sufficient number of consumers are offended by that, he will go out of business and the market will have spoken. If a good portion of the community admires his position and chooses to shop there, he will thrive and those needing Plan B will still be able to go to Walgreen’s or Rite_Aid.

I think Plan B is a valuable product which can help a lot of women in difficult circumstances. But I do not believe that it is the government’s place to tell business owners that they must carry it – or any other product for that matter – and shoppers will make the required judgment.

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  • Father_Time

    Though I am vehemently opposed to the Catholic church, (the principal anti-choice advocate), interfering in our laws, as well as stirring up hate and murder, I think that if a pharmacy owner does not want to sell morning after pills, condoms or anything pertaining to contraception, then fine.

    However each one of these pharmacies should then be compelled by law to display at their store front and in every advertisement, that they are, “An Anti-Contraception Business” clear and in large print. So that people don’t have to waste time in their stores looking for what they don’t have.

    • That’s an interesting position, FT, and one I’ve honestly not given any thought to. Are there any parallels in current law? Must any business advertise publicly if they fail to provide some service or product which the consumer cold reasonably assume would be offered? I’m not saying there aren’t but nothing jumps to mind. I’m picturing a scenario where a hardware stores don’t carry snow shovels during a storm or Circuit City doesn’t carry the Playstation 3, preferring the Wii and the X-box. If they don’t have what I want, I’m really not out anything but a bit of time and some gas money.

      Of course, medical needs always prompt exceptions, since time may truly be of the essence. But your proposal, during the admittedly short time I’ve considered it, has two flaws for me. First, the consumer in dire medical need is really only going to save the time required to get out of the car and go inside, not the entire trip. Also, I don’t want the government doing any sort of “Scarlet Letter” type thing to private business.

      What I’m initially picturing as an alternate to your proposal is a requirement for pharmacies to provide information regarding what they will not carry to the govt. and for the govt. to then pass that information to health care providers. They, in turn, when writing a prescription, would have to provide the patient with information essentially saying, “Hey. Don’t go to these places to fill it because they refuse to. Instead, here are some other local outlets where you can have your prescription filled.”

      Would that suit better?

      • MC1701B

        Jazz, your solution won’t work at all, for this reason: as you yourself say, “time may truly be of the essence.”

        If the Christianist troglodyte who owns the pharmacy truly doesn’t want to carry Plan B, he or she should be willing to proudly proclaim it, and send their potential customers elsewhere. It’s not the business of the physician to keep track of who carries what.

      • Dr J

        Geez, in what part of the Constitution was “government should dictate what pharmacies carry” written? I must have missed it.

        I’m pretty sure the clause “The Congress shall pass Laws and more Laws until no Citizen is ever Inconvenienced in any Manner Whatsoever” ended up on the cutting room floor for a reason.

  • kathykattenburg

    I’ve been to Olympia. Trust me, there are plenty of pharmacies in the area. Anyone seeking the product can find it in short order, often without having to hail a cab.

    You do realize that court cases affect a larger geographic area than just one town, right?

  • sphouch

    Pharmacies have long been in the process of selling contraceptive devices. The Plan B pill (which is not RU-486) is another in the line of contraceptive devices. Pharmacists have known since they began their training for their PharmDs that they would be working in an environment that involved the dispensing of contraceptives. That there is a newer method available is moot.

    The 9th Circuit Court of Appeals held that this law requiring the dispensing of a contraceptive medication falls under Rational Basis review – in other words, the law is presumably valid and the burden would then fall on the plaintiff to show that the law is not rationally elated to any legitimate government interest (for example, medical care). This is a very difficult burden to overcome, and may explain the challenge to their religious sensibilities, which is specious given the historical relationship of pharmaceuticals and contraception.

    The fact is that these individuals knew (or should have known) that their jobs required dispensing contraceptives, and as such, they accepted the burdens placed upon them by their licenses to abide by the laws and regulations put in place by their state. These individuals have no injury, because they are completely and fully able to avoid the “harm” they are claiming – namely, they are able to stop working as pharmacists, giving up their (in Lakewood WA, 12 miles from Olympia) $116,000+ average annual salary that they enjoyed while selling condoms, birth control pills, and other contraceptives over the course of their career. However, if they wish to continue to enjoy their salary and other perks of their positions, then they must take the bitter with the sweet.

  • AustinRoth

    This case is of an owner of a pharmacy, at that is different than just an employee.

    What right does the government have to dictate that any given pharmacy ‘X’ MUST sell product ‘Y’? What about condoms? What about Coke? What about lipstick?

    Is it the position of those who support this ridiculous expansion of government intrusion into private business that we have reached the next step – government approval of inventory for sale?

    And let’s say this ruling stands. How much do I have to carry, as an owner? Can I carry one dose at a time, and reorder when it is sold? Do I have to have a guarantee of when it will be back in stock?

    This ruling is yet another in a long history of 9th Circuit decisions that seem to be made for the express purpose of allowing SCOTUS to overturn.

  • This is ridiculous.

    This issue has absolutely nothing to do with being pro-choice versus pro-life and absolutely everything to do with the government dictating to private businesses what they can and cannot sell.

    As Ed Morrissey point out, this is situation involving a decision made by a store owner, not an employee. It should be patently obvious that a store employee doesn’t have the authority to decide which products he/she will or will not distribute to customers. In the case of a store owner, however, that is precisely the type of decisions that should be made.

    What is the point of going into business if the government is going to dictate what it is that the store owner is supposed to sell?

    As far as what the pharmacy’s obligation is towards people who are looking for the Plan B pill, that’s a separate issue entirely. It has been well established in the field of medicine that practitioners can’t simply send the potential patient/customy away and “wash their hands” of the situation. This comes up in the field of obstectrics/gynecology (I’ve actually attended a discussion in which an OB-GYN addressed this very issue). An OB-GYN doctor is obviously under no obligation to perform an abortion if he/she is morally opposed to such a procedure. But that doctor is obligated (from a medical ethics point of view, though not necessarily from a legal point of view) to refer the patient to another OB-GYN physician or practice who would “reasonably” be expected to provide such services.

    I would assume the same would be the case with pharmacists. If you are a pharmacy or pharmacy owner, you have to know that potential customers are going to be asking for various forms of contraception, and it’s not enough (from a medical ethics standpoint) to simply say, “Nope, we don’t have it” and then send the customer away. At the very least, the pharmacist is obligated to direct the customer, to another pharmacy (with either directions to that pharmacy or a phone number where that pharmacy can be reached).

    But again, this is a separate issue. Government cannot dictate what stores or pharmacies can or cannot sell. The Ninth Circuit has clearly gone beyond their power on this one.

  • EEllis

    “The Ninth Circuit has clearly gone beyond their power on this one”

    Don’t blame the court it’s the State of Washington and in particular the state legislature.

    They set the guidelines that Pharmacies operate under in their state the court case was if religious reasons were sufficient to refuse to follow those guidelines and the court said no. The case was never about store owners not stocking, or refusing to stock, a product. Lets face it if it keeps the bureaucrat’s happy a few bottles of pills is a small price to pay and just not worth making an issue of in and of itself.

    The idea is pretty off though and personally I would be upset with the state govt if I was a resident.

  • adelinesdad

    Father Time and Jazz,

    It seems reasonable to me that perhaps a private, pro-choice organization (planned parenthood, etc.) could take the initiative to find out which pharmacies carry the drug, and which don’t, and make that information publicly available via web site and phone bank. That would save even more time and there would be no need for regulation.

    For the record, I agree with the original post. Employees don’t have the right to decide what they will and will not sell. Private businesses, however, should have that right in general.

    However, I’m not expert in pharmacy licensing, but I assume that under state law a pharmacy needs to be licensed and such. I’m assuming there are some regulations put in place as part of that licensing agreement, such as regulations regarding safety, competence of pharmacists. Could that list of regulations include a list of medications considered to be basic enough that all pharmacists should have them. So my question would be: are there other drugs that pharmacies are required to carry by law? If so, we can debate whether this drug should be one of them. If not, to single out this drug as the one that must be carried is absurd.

  • Father_Time

    Jazz–

    In Oklahoma, nothing can be sold in a liquor store but alcoholic beverages. The store front sign or marquee, can only spell out “Retail Liquor Store”, (Not Bob’s Liquor etc.). They also must have large pane glass windows so that others, presumably their religious neighbors, can see them buying Liquor. Best I can do on short notice Jazz.

    One might reasonably assume that a pharmacy sold condoms and other contraceptive items, (such as a liquor store selling swizzle sticks). Especially since these are personal/medical items commonly found in pharmacies or apothecary. Should one, or two or three or more people discover that indeed, a specific pharmacy does not sell these items, then they have indeed wasted their time shopping for them at such specific pharmacy. Said specific pharmacy has made the specific CHOICE not to sell these personal/medical items based on religious or political reasons to the determent of the general public.

    The government, federal preferred, could perform a public service to the greater citizenry, requiring such signs on store fronts and noted advertisements upon stores that have made this (in the end political) choice. Condom/contraception buyers would not be inconvenienced and those wishing to support business making such choices may find them easier.

    The Constitution cannot bar public notification laws. In fact, generally speaking, it supports them.

  • sphouch

    Again, we are discussing pharmacists who made a conscious decision to enter into a career field that is regulated by the state,/a> (and yes, the state does have a legitimate interest in the providing of health care), knowing that licensing is required and that they would have to provide medications authorized by the state as a condition of said licensing.

    While I understand the concern about government interference with private enterprise, it is important to note that we are discussing an enterprise that is subject to government regulation with pharmaceuticals, and said regulation is in response to the legitimate interest of public safety.

    Adelinesdad, the law in question requires the dispensing of all drugs – it’s neutral on its face, Washington Administrative Code section 246-869-010, and provides for an alternative for those who disapprove with dispensing of the medications – namely that the pharmacy have another pharmacist available either in person during that shift or via telephone. The law requires (as written in the opinion on page 9) pharmacies “to deliver lawfully prescribed drugs or devices to patients and to distribute drugs and devices approved by the U.S. Food and Drug Administration for restricted distribution by pharmacies . . . in a timely manner consistent with reasonable expectations for filling the prescription,” a reasonable expectation for a pharmacy subject to licensing and regulation from the state.

    • adelinesdad

      Thanks for the info sphouch. So, while I agree with many commenters here that in general the government should not be dictating what private businesses should carry, even at the risk of wasting some consumers’ time. However, pharmacies are an exceptional case. I would expect the government to regulate pharmacies in ways it would not regulate other businesses. Thanks for pointing me to the opinion which does indeed state that the law in question requires pharmacies to provide all drugs (and allows for substitutes and certain exceptions of course). So, I have no problem with the state of Washington choosing to regulate its pharmacies. But considering the law already has exceptions for various reasons, it doesn’t seem to me to be too extreme to simply grant another reason for an exception: the moral objection of the pharmacy owner. But at the same time I don’t think that the law violates the Free Exercise clause since just as a pharmacist can choose his or her profession and where he works, so can a business owner choose to start a pharmacy (and abide by the regulations on pharmacies) or some other kind of business. But I’m no legal scholar so we’ll see what the court decides.

      So, the bottom line is this: I don’t like the law in Washington that doesn’t allow for moral objections (and I think my state has a similar law), but I don’t think it violates the US constitution. So as far as I’m concerned this is a legislative issue and not a judicial one.

      • It is the job and responsibility of a pharmacist to dispense drugs prescribed by a physcian. The only exception is the substitution of generic drugs for branded ones. Making other exceptions would be a very slippary slope. A pharmacist is licensed to dispense prescribed drugs not moralize. If they can’t do that it’s time to find another line of work.

  • I agree with sphouch, pharmacists are licensed to despense drugs prescribed by a physician not some drugs. They knew the rules when they made the career decision if they now find the rules objectionable they should seek a new line of work. I have quit a job because I found the company”s business practices did not mesh with my ideas of right and wrong.

  • adelinesdad

    Correction: I understand the court as already ruled, but when I said “we’ll see what the court decides” I meant that I’m assuming (rightly or wrongly) that the case is not yet dead.

  • sphouch

    My primary concern with regard to a moral exception would stem from very rural locations where there might not be more than one or two pharmacies in a 40 mile radius (or more). While someone who lives in Olympia, Lakewood, Tacoma, Seattle, Everett, Federal Way, Fife, or elsewhere along the corridor would probably have little trouble finding alternative pharmacies, individuals living in Mazana or Aeneas might have more difficulty if the one or two pharmacy owners in their city have a “moral objection” to providing a medication. The legislature apparently attempted to carve out a moral objection alternative by requiring an alternative pharmacist be available at said pharmacy, hence achieving the substantially same solution as telling an individual where to go to get their prescription filled.

    I understand that your position on the case disposition is accurate, as well. This opinion was on the injunction, yet the challenge to the merits of the legislation seems to still be pending.

  • adelinesdad

    I agree, that is the job of a pharmacist. If I don’t do my job sufficiently well, I get fired. If I were self-employed, I’d go out of business. There is no need for the government to dictate how I should do my job and under what conditions I should be fired. Now, as I said before I recognize that this profession does warrant some regulation in order to ensure safety. I, as a consumer, don’t have any reasonable way to independently verify that I’ve been given the correct drug at the right dosage, so I rely on the state to ensure that the pharmacist is competant and follows certain safety procedures.

    So in order to argue that the law requiring pharmacists to carry plan b or any other drug is justified, you have to make the case that not carying it creates a hazard for the public. I don’t think you can make that case. I should point out that the exceptions I’m talking about are not just about genetics. According to the opinion that was linked to, the law already has has exceptions for lack of expertise or inavailability of the drug. So, if the doctor gives you a prescription, you cannot assume that the pharmacist will be able to fill it, even in Washington. If time is of the essence, you call ahead.

    As for the slippery slope, what do you anticipate seeing? There are very few drugs that have any sort of moral controversy associated with them. And even for those that do, it is a minority of people that would go so far as to refuse service. Considering that it is in their financial interest to serve their customers, I don’t forsee any vast shortage of medications due to allowing a moral exception.

    Sphouch, you make a good point about the problem of rural areas. However I come back to the fact that there are already exceptions, so there’s no guarantee of accessibility of any drug. If plan b is not readily available in a particular area, there’s a business opportunity for someone. I imagine a pharmacy would be willing to make a rush delivery to a rural area for the right price. I don’t believe that just because something is legal necessarily means that the government must ensure that it is readily accessible. And also remember that I have argued that a pharmacist should be able to be fired for refusing to fill a prescription, so there is a strong incentive not to take advantage of the moral exception.

  • Ryan

    Wait a minute. I thought conservatives were all over that “states’ rights” thing. Congress had nothing to do with this.

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