Again; Should Pharmacists Be Allowed To Refuse To Dispense Drugs They Object To?

[villa]

@Sarahfeena

I think what I’m saying to both villa and Kalhoun is that you have to base the “protected class” status on something. So, let’s say that the customer is protected based on, I don’t know, her “pro-choice” views, wouldn’t the pharmacist be protected then based on her “pro-life” views? And then, aren’t we at a stalemate again? Whose rights then are paramount?

Except that is a false dichotomy. It really isn’t about rights in the way you are talking. There is no taking away of the right not to sell contraception. There is (or would be) a policy determination that in order to be a pharmacist, you would have to agree to sell contraception. Your “right” not to sell it is still present, just by not being a pharmacist.

There simply isn’t a stalemate, at least not in terms of rights. I am not claiming the person has a right to be able to purchase contraception, though I advocate a government policy that would ensure she had the ability to do so. And I am not advocating holding a gun to anyone’s head to make them sell contraception. Just making it a condition of the benefit of a government license. I might even be nice enough to grandfather in existing pharmacists, if such a thing could be done in a way which did not jeopardize my policy (not rights) oriented goal of ensuring availability of contraception.

As for whether pharmacists are a protected class on this, probably not, though religious freedom jurisprudence changes by the day. In all likelihood, a condition that all pharmacists carry contraceptives would pass constitutional muster, as it is a generally applicable statute not targeted at religion. If the Bill was entitled the “Lets Screw Over the Catholic Church by Making the Papist Bastards Handle Rubbers Act of 2007” on the other hand, there might be sufficient evidence of anti-religious intent for the law to be struck.

I should say at this point that my interpretation of the religion clauses is very different from pretty much all of SCOTUS right now. What I am trying to do there is apply existing precedent, which is tough to do because it is all over the shop, and there is the typical danger of interpreting it in such a way as to get the result for which you were looking in the first place.

I could go into my radical and trendy view of equal protection analysis if you wanted (end all different levels of scrutiny, give rational basis review some real teeth) but it would bore everyone to tears, so I won’t.

[Stratocaster]

@villa

Except that is a false dichotomy. It really isn’t about rights in the way you are talking. There is no taking away of the right not to sell contraception. There is (or would be) a policy determination that in order to be a pharmacist, you would have to agree to sell contraception. Your “right” not to sell it is still present, just by not being a pharmacist.

That policy determination would destroy my right to be a pharmacist who chooses not to sell Plan B. It’s certainly about rights. The pharmacist’s right to be left to his own conscience.

A law requiring this of pharmacists may well pass constitutional muster. It would still be an example of overbearing “nanny government” intrusion.

[Telemark]

@villa

Just making it a condition of the benefit of a government license.

Is it also a requirement that pharmacies stock all drugs? And manufacturers make all drugs? If the pharmacies decided that they won’t stock it aren’t we back where we started?

I guess I don’t see a pharmacy license as something that compels this sort of action on the pharmacists. All it says is that the pharmacist has the training necessary to do his job, nothing else. Yes, you can make the license mean more then that but I’m not sure it is the right thing to do for a variety of reasons.

The analogy I like is if it becomes legal to prescribe an overdose of morphine to someone who wants to die. While I support the right to do that, I wouldn’t have any problems if a pharmacist couldn’t bring him or herself to fill that prescription for ethical reasons. Or if a pharmacy decided not to fill those prescriptions as a matter of policy. Would you force them to fill those out (even at a Catholic hospital)?

[Shodan]

@villa

Well, I really wanted to know how far you will take this. Presumably a lecturer who refuses to teach medical students subjects unrelated to abortion, but necessary to graduate med school, unless they take a legally enforceable pledge never to perform an abortion would be fine and dandy too.

I tend to be libertarian on this matter - let the private companies decide how they want to proceed. Your lecturer would be in competition with all the other medical colleges in the market, many of whom would make no such restriction. If the college lost enough business, they would either change, or accept that they would be most successful with pro-life doctors.

Actually, your example was of a state employee who wanted to refuse, which is a much stickier issue. Presumably the pro-life bus driver paid taxes, and was therefore entitled to the equal protection of his right to choose. Similarly, the abortion-seeking passenger paid taxes, and was entitled to the use of subsidized bus service to get to the abortion clinic. How do you resolve this clash of rights?

ISTM that the bus driver’s rights are more easily protected by allowing him to opt out of driving a bus that carries people to abortion clinics. Some other, less scrupulous driver can no doubt be found. But the driver should not have to suffer any penalty except for inherent ones, just like the passenger should not be penalized other than by the natural inconvenience of having to take a different bus. Otherwise, either or both are being deprived of the right to exercise their choices.

I am not a very strict libertarian, but I see cases where it makes sense. Even (God help us) in race cases. In theory I am against preventing private owners from discriminating on the basis of race, but it is hard to argue the point because people automatically assume it is because I am a racist. In cases of private, non-governmental action, I would rather see (for instance) desegregation brought about by boycotts and other actions by private citizens, not by government action. I can see the advantages of forcing the issue thru the government, but I can also see the disadvantages as well.

IIRC, many Jim Crow and/or apartheid laws were passed to protect the white workers from low-cost black competition*. So maybe the simple removal of government enforced discrimination (which is inherently against libertarian principle) can do much to bring about change for the racial better.

Regards,
Shodan

*Thomas Sowell talks about this in one of his books. I can look up the cite if you like.

[Eva_Luna]

@Sarahfeena

I think what I’m saying to both villa and Kalhoun is that you have to base the “protected class” status on something. So, let’s say that the customer is protected based on, I don’t know, her “pro-choice” views, wouldn’t the pharmacist be protected then based on her “pro-life” views? And then, aren’t we at a stalemate again? Whose rights then are paramount?

Courts have previously ruled that failure to provide insurance coverage for contraceptives can constitute gender-based discrimination. Gender is a fairly common protected class.

Can anyone here draw a distinction between failure to provide contraceptive coverage and refusal to provide a legal drug that can (by definition) only be used by one gender, insofar as it relates to gender-based discrimination?

[corrected typo]

[Sarahfeena]

@Stratocaster

A law requiring this of pharmacists may well pass constitutional muster. It would still be an example of overbearing “nanny government” intrusion.

That’s basically how I see it…constitutional interpretation is pretty loose these days, and I don’t agree with it.

@Shodan

I am not a very strict libertarian, but I see cases where it makes sense. Even (God help us) in race cases. In theory I am against preventing private owners from discriminating on the basis of race, but it is hard to argue the point because people automatically assume it is because I am a racist. In cases of private, non-governmental action, I would rather see (for instance) desegregation brought about by boycotts and other actions by private citizens, not by government action. I can see the advantages of forcing the issue thru the government, but I can also see the disadvantages as well.

As I mentioned, I, too, hesitate to take a stand against “protected class” laws, for the same reason…people tend to misinterpret your motivations on that one. But I agree with you that this sort of change is made much more meaningful when brought about by the people rather than the government.

IIRC, many Jim Crow and/or apartheid laws were passed to protect the white workers from low-cost black competition*. So maybe the simple removal of government enforced discrimination (which is inherently against libertarian principle) can do much to bring about change for the racial better.

Regards,
Shodan

*Thomas Sowell talks about this in one of his books. I can look up the cite if you like.

That is interesting…do you think it’s from his book “Affirmative Action around the World?” I’ve been meaning to read that.

[villa]

@Stratocaster

That policy determination would destroy my right to be a pharmacist who chooses not to sell Plan B. It’s certainly about rights. The pharmacist’s right to be left to his own conscience.

A law requiring this of pharmacists may well pass constitutional muster. It would still be an example of overbearing “nanny government” intrusion.

As stated multiple times, accepting a government license often involves limits on what you can and cannot do. There is no protected “right” to be a pharmacist who does not sell Plan B. It just isn’t there. Now you may be right on “nanny government” interference. But that doesn’t alter the analysis.

@Telemark

Is it also a requirement that pharmacies stock all drugs? And manufacturers make all drugs? If the pharmacies decided that they won’t stock it aren’t we back where we started?

I guess I don’t see a pharmacy license as something that compels this sort of action on the pharmacists. All it says is that the pharmacist has the training necessary to do his job, nothing else. Yes, you can make the license mean more then that but I’m not sure it is the right thing to do for a variety of reasons.

The analogy I like is if it becomes legal to prescribe an overdose of morphine to someone who wants to die. While I support the right to do that, I wouldn’t have any problems if a pharmacist couldn’t bring him or herself to fill that prescription for ethical reasons. Or if a pharmacy decided not to fill those prescriptions as a matter of policy. Would you force them to fill those out (even at a Catholic hospital)?

I am pretty certain I covered this. I think you could require that all pharmacies stocked certain drugs, though it might not be the best way. You could, for example, require all pharmacists either carry a drug or order it on request. As for the euthanasia situation, I haven’t thought a vast amount about it. I can’t see it becoming that available, but I wouldn’t have an issue with requiring the prescription to be filled, no.

@Shodan

Actually, your example was of a state employee who wanted to refuse, which is a much stickier issue. Presumably the pro-life bus driver paid taxes, and was therefore entitled to the equal protection of his right to choose. Similarly, the abortion-seeking passenger paid taxes, and was entitled to the use of subsidized bus service to get to the abortion clinic. How do you resolve this clash of rights?

I don’t see it as a clash of rights. I don’t think a bus driver has a protected right not to drive a person to an abortion clinic, nor do I think a person has a protected right to be driven to an abortion clinic. A person has a protectable right not to be forced to drive another person anywhere, but they give up that right when they become a bus driver.

[Telemark]

@villa

I think you could require that all pharmacies stocked certain drugs, though it might not be the best way. You could, for example, require all pharmacists either carry a drug or order it on request.

But why? You’re trying to force people to do something that they feel strongly against. I really don’t see where is the imperative to force that on pharmacists, pharmacies, and drug companies. What if the government decides to force you to do something that you disagree with.

As for the euthanasia situation, I haven’t thought a vast amount about it. I can’t see it becoming that available, but I wouldn’t have an issue with requiring the prescription to be filled, no.

I think you’d find a very large number of people in the US would strongly disagree with that.

[Odesio]

@villa

So presumably, Shodan, you would find it acceptable for a state employed, pro-life bus driver to leave a pregnant woman beside the street rather than drive her into the next town for her appointment at an abortion clinic?

Legally, sure, for example I wouldn’t demand that his CDL was removed for such an act or he was charged with a crime. I would expect that he was fired for such an act.

Marc

[Stratocaster]

@villa

As stated multiple times, accepting a government license often involves limits on what you can and cannot do. There is no protected “right” to be a pharmacist who does not sell Plan B. It just isn’t there. Now you may be right on “nanny government” interference. But that doesn’t alter the analysis.

I’ve already conceded that there is likely no constitutional basis for protecting this right, so I’m not sure why you’re lecturing me. And as I stated, I believe more than once, the fact that the government has the power to restrict behavior via licensing is not reason in itself that it’s justified to do so. Citing the fact the government’s issuing of a license provides a medium for restricting behavior is a circular argument when that’s the essence of the debate–i.e., is that restriction appropriate?

[Stratocaster]

@villa

I don’t see it as a clash of rights. I don’t think a bus driver has a protected right not to drive a person to an abortion clinic, nor do I think a person has a protected right to be driven to an abortion clinic. A person has a protectable right not to be forced to drive another person anywhere, but they give up that right when they become a bus driver.

Only if they willingly give it up as a condition of their employment. Otherwise the person taking the bus does indeed have a right that the driver does not, as a practical matter.

[villa]

@Telemark

But why? You’re trying to force people to do something that they feel strongly against. I really don’t see where is the imperative to force that on pharmacists, pharmacies, and drug companies. What if the government decides to force you to do something that you disagree with.

The government forces me to do things I don’t agree with every day of the week. In my opinion the provision of contraception is an important enough goal to require this of pharmacies and pharmacists. You don’t. We aren’t going to convince each other of that. But arguments like “what if the government makes you do something you don’t like” don’t really cut it.

As I stated before (which I am not sure you read) I think there is possibly a better way to do this. And that would be a central provision of these drugs that could be ordered for overnight delivery.

@Telemark

I think you’d find a very large number of people in the US would strongly disagree with that.

You think? I would not have realized that. Maybe that’s why - given that I don’t think there are enforceable rights on either side of the situation here this might well be best left to the democratic process.

[villa]

@Stratocaster

I’ve already conceded that there is likely no constitutional basis for protecting this right, so I’m not sure why you’re lecturing me. And as I stated, I believe more than once, the fact that the government has the power to restrict behavior via licensing is not reason in itself that it’s justified to do so. Citing the fact the government’s issuing of a license provides a medium for restricting behavior is a circular argument when that’s the essence of the debate–i.e., is that restriction appropriate?

I apologize if I sounded like I was lecturing. It wasn’t the intent. I think the issue is that we are using “right” in a different way. You seem to be using it to mean something that a person is not prevented from doing by the law. I am using it in a more narrow sense, meaning something the law cannot prevent someone from doing.

Under your sense, there is indeed a right not to sell Plan B to someone. I just don’t think that is a particularly valuable use of the term.

As for the final question, well, I think the policy goal of wide availability of contraception trumps the policy goal of a pharmacist not having to make contraception available in return for a pharmacy license. Hence I would find that restriction appropriate. If pharmacists did not have to have a government license, I would be a lot more wary of imposing such a restriction, as it would be imposing the government into an area where they previously weren’t, and I am not a big fan of that. Given that they are already there, I don’t think this is an excessive increase in their presence. But then again, that’s because I cannot see the problem with selling someone this product. Other people have different views on it, clearly.

[saoirse]

@Stratocaster

I’ve already conceded that there is likely no constitutional basis for protecting this right, so I’m not sure why you’re lecturing me. And as I stated, I believe more than once, the fact that the government has the power to restrict behavior via licensing is not reason in itself that it’s justified to do so. Citing the fact the government’s issuing of a license provides a medium for restricting behavior is a circular argument when that’s the essence of the debate–i.e., is that restriction appropriate?

Your right. I think the government should require pharmacists do dispense drugs they disapprove of because the patient’s right to obtaining appropriate care outweighs the pharmacist’s right to pick and choose which medications he would like to dispense that day.

[Shodan]

@Sarahfeena

That is interesting…do you think it’s from his book “Affirmative Action around the World?” I’ve been meaning to read that.

Race and Culture, IIRC.

@villa

The government forces me to do things I don’t agree with every day of the week.

Would you agree that this is something to avoid if reasonably possible?

As I stated before (which I am not sure you read) I think there is possibly a better way to do this. And that would be a central provision of these drugs that could be ordered for overnight delivery.

I don’t believe these drugs are prescription only. My understanding is that they are behind the counter so that minors can’t get them. Another can of worms, no doubt.

@villa

There is no protected “right” to be a pharmacist who does not sell Plan B. It just isn’t there.

Do you agree that there is a right to decide whether or not to participate in an abortion?

@saoirse

I think the government should require pharmacists do dispense drugs they disapprove of because the patient’s right to obtaining appropriate care outweighs the pharmacist’s right to pick and choose which medications he would like to dispense that day.

Then take it a step further - would you agree that a pregnant woman could compel a doctor to perform an abortion on her, even if the doctor believed abortion was a moral wrong?

Regards,
Shodan

[villa]

@Shodan

Would you agree that this is something to avoid if reasonably possible?

Not necessarily. As a general proposition, I would say that where it is reasonably possible to avoid it, and the costs of avoiding it are not greater than the benefits by not avoiding it, and I would include the restrictions on individual choice as a pretty major cost, then yes, I would say avoid it.

However, your question is different. The government should not avoid forcing ME to do things I don’t agree with if it is reasonably possible. It may be reasonably possible to exempt me, and only me, from paying taxes for certain things I disagree with, but I think the overall goal of a tax system that applies to all trumps that. Further, we are also talking about a situation here where pharmacists have voluntarily accepted government regulation, and we are debating the level of such regulation. It isn’t bringing the government into a new area.

@Shodan

I don’t believe these drugs are prescription only. My understanding is that they are behind the counter so that minors can’t get them. Another can of worms, no doubt.

Well, the principle is applicable to all drugs, and so a discussion of prescriptions are relevant. The availability of these drugs, though, IIRC, is restricted to licensed pharmacists. Therefore I don’t think it is outrageous to tie a requirement regarding their availability to the license.

@Shodan

Do you agree that there is a right to decide whether or not to participate in an abortion?

Interesting. We have that “right” word in there again. I think such a right definitely exists, but I think you are asking more if I think you have a right to have a medical license, or a pharmaceutical license, and not take part in an abortion. In which case, I would say no. If a doctor is presented with a situation where mother and fetus will both die, but refuses to take part in the abortion, meaning abortion does not happen, and both mother and fetus die, then I would support the removal of said doctor’s license to practice medicine. In that situation, then, I don’t believe one has the right to refuse to take part in an abortion and maintain a medical license.

With elective abortions, it is a different situation. I can see both sides. Given the moral issues people seem to find in this, I would be a lot happier with the government ensuring there were widely available contraceptive and abortion services for all who might want or need them, staffed by people willing to provide such medical services to those who need them. Short of that, I’ll be honest I don’t have a perfect answer.

[saoirse]

@Shodan

Then take it a step further - would you agree that a pregnant woman could compel a doctor to perform an abortion on her, even if the doctor believed abortion was a moral wrong?

Regards,
Shodan

Nope, but I would require the bus driver to let the pregnant lady off at the abirtion clinic. She could just walk from the next stop, and she could ride the route that goes down the next avenue over, and she could just take a cab, or leave earlier and ride with a pro-choice driver. Nevertheless, I think the bus driver should have to let her off there, if there is a stop.

I wouldn’t require doctors to perform operations though. Doctors are not pharmacists. There is a difference between performing an internal exam, and performing an abortion. They are two different skill sets. Counting amoxicillin tablets is not different from counting otho-novum (or whatever the kids are using these days) tablets. Taking a Zithromax pack off the shelf and putting a patients name on it is the same skill set required to take an orto-novum (or whatever) pack off the shelf and put a patient’s name on it.

[Stratocaster]

@villa

As for the final question, well, I think the policy goal of wide availability of contraception trumps the policy goal of a pharmacist not having to make contraception available in return for a pharmacy license. Hence I would find that restriction appropriate. If pharmacists did not have to have a government license, I would be a lot more wary of imposing such a restriction, as it would be imposing the government into an area where they previously weren’t, and I am not a big fan of that. Given that they are already there, I don’t think this is an excessive increase in their presence. But then again, that’s because I cannot see the problem with selling someone this product. Other people have different views on it, clearly.

Again, I’m much more libertarian. By and large, I don’t care what benefits are derived by forcing me to do something. I believe I have the right to be left alone. And I still don’t see the relevance of the license as justification for restricting behavior. The license is simply the mechanism for the restriction. The restriction is either warranted or it’s not, licenses notwithstanding.

[villa]

@Stratocaster

Again, I’m much more libertarian. By and large, I don’t care what benefits are derived by forcing me to do something. I believe I have the right to be left alone. And I still don’t see the relevance of the license as justification for restricting behavior. The license is simply the mechanism for the restriction. The restriction is either warranted or it’s not, licenses notwithstanding.

The you should oppose the need for the license generally. Once the cat is out of the bag, and the government nose in the trough, or whatever the analogy is, I think it is legitimate in return from the quasi-monopoly or reduction in competition that a licensing scheme gives to you that you bear responsibilities. I assume you don’t mind one of the responsibilities being only to provide lortabs to those with prescriptions. This of course would be in force regardless of whether you felt you had a moral obligation to allow anyone to use lortabs. Similarly this would be a restriction requiring you to make a particular form of contraception available.

If on the other hand you don’t think that some drugs should be restricted to prescription only, or that pharmacists who supply them without prescriptions should be liable to lose their licenses, regardless of the moral convictions that motivated them, which is a legitimate, though in my mind misguided view, I apologize for putting words in your mouth.

[Stratocaster]

@villa

The you should oppose the need for the license generally. Once the cat is out of the bag, and the government nose in the trough, or whatever the analogy is, I think it is legitimate in return from the quasi-monopoly or reduction in competition that a licensing scheme gives to you that you bear responsibilities.

But that’s not what’s happening here. As I mentioned earlier, a license that limits competition (e.g., the FCC only granting certain broadcast licenses) is a different kettle of fish. That’s not we we have here. There’s different kinds of licenses. Some licenses are to regulate entry into a market, limiting the total number of participants. Some are principally to raise revenue (e.g., fishing licenses). Some, like this, are to ensure qualifications. The government is conceding nothing in granting this license. It is acknowledging the person’s competence. Period.

I assume you don’t mind one of the responsibilities being only to provide lortabs to those with prescriptions.

No, I don’t mind this at all.

This of course would be in force regardless of whether you felt you had a moral obligation to allow anyone to use lortabs.

The difference here (I’m avoiding the whole “all drugs should be legal” debate) is that providing lortabs without a prescription actively creates harm to another.

Similarly this would be a restriction requiring you to make a particular form of contraception available.

???