Pharmacy and Religion

[Damuri_Ajashi]

@begbert2

I throw it out because this is a discussion on a message board. We’re not a state legislature, and we’re not a state court. THOSE are the forums which decide whether there’s enough of a problem in the local area to start slinging laws around or not…But this isn’t a discussion over whether there is currently enough of a problem to force the government to do something about it.

I think you misunderstand. I am not asking for examples because I want to know if it is worth doing anything about it. I am asking for examples to figure out if we are constitutionally justified in doing something about it. I guess my position is that a state requirement that pharmacists dispense the pill regardless of religious conviction is on its face violative of the first amendment and the state would have to have some sort of reason for passing the law that overcomes that first amendment concern. So far, the argument seems to be that pharmacists are licensed so they have to do whather the state says without any caveats for firs amendment rights and I have already addressed the fact that this is not true (except in the case of the military).

Better bring those examples, because it’s only your silly opinion that people would consider this law a first amendment violation, and without that evidence your entire position goes down in flames!

Can you restate this?

Or alternatively you could stop this red herring bullshit and engage in the discussion properly. If you feel like going this route, let me help make it easier for you: from now on you can assume that all pharmacists are refusing to fill prescriptions based on religious objections. Frame all arguments based on that premise. Go to it.

If we are assuming that ALL pharmacists are refusing to fill the prescription for religious reasons then the state probably has a compelling state interest in regulating the behaviour and it will probably survive constitutional challenge.

If on the other hand, very few pharmacists were engaging in this behaviour (and once again ignoring the therapeutic value of the pill), then the state would have a much tougher time justifying its infringement on religious freedom.

If there is absolutely noone in any state that has banned religious discrimination on the part of pharmacists that has complained of being denied access to their first amendment rights because of these liberal whacko legislators, then how can you claim the state has overcome the whacko pharmacists’s first amendment right?

If the law is unconstitutional but noone minds then it generally stays on the books. Lots of unconstitutional laws have remained on the books for lack of objection.

Do we simply ignore the lack of people claiming protection under the right because we don’t like admitting the inapplicability of the right in this scenario? That certainly seem to be the overwhelming sentiment here.

Why does a lack of whacko pharmacist prove that freedom of religion does not apply to pharmacists in this scenario?

I thought we were talking about passing a law in a place where pharmacists is taking the offensive action.

Or we could just not try to argue from examples, eh?

I thought we were arguing a pretty specific scenario? I am not arguing from examples. I am arguing that there is no compelling state interest until there is a harm (I think you understand that and still you make these posts) which ws why I ask for examples.

Have they been? In those states with this law, I mean.

I don’t know, I am not aware of anything like that. But I do know that first amendment protections are frequently sought by people trying to keep from getting fired.

This is just your way of saying that without assuming primacy of the first amendment, you don’t have an argument.

I don’t know about primacy )I think I have said about 6 times now that I think that the first amendment can be overridden) but I agree that if the first amendment didn’t exist, we would not be having this discussion.

So yeah. How many examples would you need to consider the first amendment trumped in this case?

Well, lets start with one and at least establish that there is a problem. Then we can discuss whether the first amendment right is overcome or not.

And those science teachers. You forgot you conceded that those science teachers can be removed to some other position where their religion isn’t a pain.

You mean reasonable accomodation? If the science teacher does not consider teaching math to be a reasonable accomodation they insist on teaching creationist science, then there is an undue burden. Like I said I think that a pharmacist that refuses to dispense the pill might in fact be an undue burden and can get fired but they do not lose their first amendment rights. But you were saying that if a pharmacist (I thought we were talking about private pharmacy owners) didn’t want to dispense, they could go do something else. but just like the creationist science teacher is free to open their own school and teach creationism, the religious whacko pharmacist is free to open their own pharmacy and refuse to sell the pill (apparently its not a great business model but…).

You shouldn’t let yourself get so worked up when you’re proven wrong - though I do admit it’s especially annoying when your own words are turned back on you.

I’m sorry

Its just frustrating arguing with someone who uses invalid arguments, makes stuff up and distorts arguments and facts. I’ll try to get used to it, heck I’m already getting used to it.

[Damuri_Ajashi]

@villa

Why isn’t requiring a referral an impingement on that person’s First Amendment rights?

if making that referral is contrary to their religious beliefs then it is an impingement of their first amendment rights. It might be a justifiable impingement of their first amendment rights

[Damuri_Ajashi]

@villa

And yes, the government should require that, if pork products were comparable to prescription medication, and if the restrictions on sale of pork products were comparable to the restrictions on sale of prescription medication. Which they aren’t, however many times you trot out ridiculous examples.

In what way is pork different than a contraceptive (I am assuming we are still talking about the pill as a contraceptive). Other than the fact that you need a prescription for it, how is it any different than sudafed?

[villa]

@Damuri_Ajashi

if making that referral is contrary to their religious beliefs then it is an impingement of their first amendment rights. It might be a justifiable impingement of their first amendment rights

OK - though why I am carrying on playing your shell game I don’t know. Why is it a justifiable infringement on their first amendment rights to make them faciliate the sale of contraceptives by giving a referral, but not by handing a box over?

[villa]

@Damuri_Ajashi

In what way is pork different than a contraceptive (I am assuming we are still talking about the pill as a contraceptive). Other than the fact that you need a prescription for it, how is it any different than sudafed?

Try asking Justice Douglas, Chief Justice Warren, Justices Clark, Brennan, Goldberg, Harlan & White. And more recently, though a little more tangentially, ask Justice Kennedy.

[otternell]

@Damuri_Ajashi

In what way is pork different than a contraceptive (I am assuming we are still talking about the pill as a contraceptive). Other than the fact that you need a prescription for it, how is it any different than sudafed?

And here is where I have to chime in (though with meetings, this may be my only chance to do so today) but the pharmacist does NOT know the purpose of the prescription. You cannot differentiate between the therapeutic and the contraceptive purposes because the pharmacist does not get that information. And I suspect that under HIPAA they would never be allowed that information (though I could definitely be wrong about HIPAA applicability).

No matter how much you want to parse the argument about “the pill as contraceptive” vs. “the pill as therapeutic” you cannot, because the pharmacist does not know.

[Damuri_Ajashi]

@villa

I don’t need to hang my hat on the therapeutic purpose of the pill. The licensing aspect is good enough.

Didn’t we already go over why licensing is not state action?

I’ll tell you again, read Employment Division v. Smith. It will show you why a law requiring filling prescriptions for contraceptives isn’t considered unconstitutional, just as laws preventing rastafarians smoking weed aren’t considered unconstitutional.

OK I read it and I don’t think it says what you think it says. Did you read the case or the wikipedia entry? because the wiki entry shorthands the opinion quite a bit.

In the Employment case, two employees of a private drug rehabilitation program were caught using religious peyote, fired and denied unemployment benefits. It was determined that absolute prohibitions against the use of peyote regardless of religious use is constitutional (just like prohibition against marijuana use is constitutional). The state went on to say that restricting unemployment benefits due to a dismissal due to work related misconduct, however the criminality of respondents’ peyote use was irrelevant to resolution of their constitutional claim – since the purpose of the “misconduct” provision under which respondents had been disqualified was not to enforce the State’s criminal laws, but to preserve the financial integrity of the compensation fund, and since that purpose was inadequate to justify the burden that disqualification imposed on respondents’ religious practice.

This is an unemployment insurance case and whether you can withhold unemployment checks because someone was fired for breaking the law while practicing their religion.

The case does generally go into when a compelling state interest must be shown and in the case of laws of general applicability, this is not necessary. At the same time a law that is directed at a specific religious practice would run afoul of the first amendment. I agree that this weakens my previous position. The first amendment has changed since I’ve been to law school (this more conservative court has been undercutting civil rights for a while so I guess I shouldn’t be surprised, I suspect that privacy and reproductive rights are on the chopping block next).

I hadn’t analogized refusal to dispense the pill for religious reasons with getting high for religious reasons but the reasoning of the case seem to argue otherwise. It seems like any rule that does not target a religious practice is going to get upheld and as long as the requirement to dispense the pill doesn’t say something like “in order to prevent these religious whackos from observing their religious beliefs, we will require them to dispense the pill” it seems like a well drafted law could in fact force people to stock and dispense the pill or lose their license.

It seems like this same rationale could also be used to draft a law of general applicability that requires doctors to perform abortions or lose their license.

On the other hand this consistent undercutting of our rights seems to also make all the privacy and reproductive rights more tenuous than they once were.

[Damuri_Ajashi]

@villa

OK - though why I am carrying on playing your shell game I don’t know. Why is it a justifiable infringement on their first amendment rights to make them faciliate the sale of contraceptives by giving a referral, but not by handing a box over?

If I said it was (and I honestly don’t remember), then it was probably in recognition of the fact that there are therapeutic uses for the pill and a state has an interest in making sure that medicine is available.

[Damuri_Ajashi]

@villa

Try asking Justice Douglas, Chief Justice Warren, Justices Clark, Brennan, Goldberg, Harlan & White. And more recently, though a little more tangentially, ask Justice Kennedy.

They won’t return my calls. Can you tell me?

[Damuri_Ajashi]

@otternell

And here is where I have to chime in (though with meetings, this may be my only chance to do so today) but the pharmacist does NOT know the purpose of the prescription. You cannot differentiate between the therapeutic and the contraceptive purposes because the pharmacist does not get that information. And I suspect that under HIPAA they would never be allowed that information (though I could definitely be wrong about HIPAA applicability).

No matter how much you want to parse the argument about “the pill as contraceptive” vs. “the pill as therapeutic” you cannot, because the pharmacist does not know.

You are absolutely right and if the debaters on the other side of the argument had been willing to hang their hat on that, this conversation would have been a lot shorter but we have been debating a contraceptive pill ignoring the therapeutic uses.

[villa]

@Damuri_Ajashi

They won’t return my calls. Can you tell me?

It’s the majority in Griswold. As well as the author of Lawrence.

And, no, I haven’t been ignoring the therapeutic uses. Just as a matter of law right now, it is constitutional to require a pharmacist to provide birth control for birth control purposes. You might not think it is good policy, but it is constitutional. Reading the relevant case law would help here.

The therapeutic aspect isn’t central to it. Mainly because that is up to the Doctor to decide, and has nothing whatsoever to do with the Pharmacist.

[elbows]

This has been a very interesting thread to read. Long, but interesting. I was pretty black and white about the thing in the beginning but you have all raised some very interesting points and given me much to think about over the days.

(I tried to read it all, over several sittings, forgive me if I’ve missed parts.)

I am here to advocate for a two fold plan. Firstly, if you or your employees, for personal reasons, find you do not want to supply birth control or some other service normally provided by a pharmacy, you should be required to post your disinclination to do so, largely and proudly, on your front door for all your customers to see.

This would do two things, put the decision back into the court of capitalism, (I’m sure as hell not buying toothpaste or chips at any store that declines to provide access to birth control while calling itself a pharmacy.), and not force anyone to do anything. Let the owner decide if this is a hill he wants to die on or not. If he feels such a notice won’t cost him his business, I say, let him have at it.

I would make a special provision for pharmacies that exist as the sole provider of such services in their locations. So, if you want to deny people access to birth control based on your beliefs you need to open your pharmacy in a location that assures you are not the only provider in town. And, of course, proudly post your position on the issue on your front door.

Well, what say you all?

[begbert2]

@Damuri_Ajashi

Didn’t we already go over why licensing is not state action?

It was shown that the liscence does not inherently require the pharmacists to distribute the pill to protect the customers’ first amentment rights. It was certainly not shown that the government doesn’t have the ability within the bounds of the constitution to require such behavior as part of liscencing physicians. That’s not going to be shown either, because for all your squalking it’s simply not true.

You knew this already.

@elbows

This has been a very interesting thread to read. Long, but interesting. I was pretty black and white about the thing in the beginning but you have all raised some very interesting points and given me much to think about over the days.

(I tried to read it all, over several sittings, forgive me if I’ve missed parts.)

I am here to advocate for a two fold plan. Firstly, if you or your employees, for personal reasons, find you do not want to supply birth control or some other service normally provided by a pharmacy, you should be required to post your disinclination to do so, largely and proudly, on your front door for all your customers to see.

This would do two things, put the decision back into the court of capitalism, (I’m sure as hell not buying toothpaste or chips at any store that declines to provide access to birth control while calling itself a pharmacy.), and not force anyone to do anything. Let the owner decide if this is a hill he wants to die on or not. If he feels such a notice won’t cost him his business, I say, let him have at it.

I would make a special provision for pharmacies that exist as the sole provider of such services in their locations. So, if you want to deny people access to birth control based on your beliefs you need to open your pharmacy in a location that assures you are not the only provider in town. And, of course, proudly post your position on the issue on your front door.

Well, what say you all?

The government certainly could do this. Alternatively, it could mandate that pharmacists must distrubute contraceptives. The government has options!

[tumbleddown]

@Skammer

I’m taking myself out of the transaction. I’m not profiting from the sale. I’m referring you because I don’t care if you get contraception as long as I’m not the one providing it to you. Is that clear?

I know I say this in every post, but I’m not trying to prevent the woman from getting contraception. I’m trying to avoid selling it to her.

“I don’t want to sell bullets to this woman to take home and shoot her husband, so instead, I’ll send her across the street where they’ll sell her all the bullets she wants.”

The hypocrisy here would be laughable, if real people, often with limited options, weren’t being affected by it. If these pharmacists honestly believed that birth control pills were tantamount to abortion and abortion is murder, then they wouldn’t be giving referrals at all. That they do only weakens their case that their discriminatory actions deserve some sort of legal protection.

@Damuri_Ajashi

And if the pharmacist is breaking no laws by refusing to provide birth control pills “for no reason other than” their personal religious beliefs, can the state step in and force the pharmacist to fill those prescriptions regardless of their mere religious beliefs?

The beliefs are irrelevant until there is an action, and in this case, the action is discriminatory on its face. And the discrimination is why the state can and should step in.

@Damuri_Ajashi

If on the other hand, very few pharmacists were engaging in this behaviour (and once again ignoring the therapeutic value of the pill), then the state would have a much tougher time justifying its infringement on religious freedom.

That’s ridiculous. If only 10% of companies in a state refused to hire <Members of a Protected Class>, should there be no law against that because they can always go elsewhere to be employed?

[Damuri_Ajashi]

@villa

It’s the majority in Griswold. As well as the author of Lawrence.

And, no, I haven’t been ignoring the therapeutic uses. Just as a matter of law right now, it is constitutional to require a pharmacist to provide birth control for birth control purposes. You might not think it is good policy, but it is constitutional. Reading the relevant case law would help here.

The therapeutic aspect isn’t central to it. Mainly because that is up to the Doctor to decide, and has nothing whatsoever to do with the Pharmacist.

I was pretty sure that Griswold was about states not being able to restrict access to birth control, I don’t remember it saying that states therefore have a right to force people to dispense birth cotrol.

Just to be clear, none of the positions I have taken in this thread have been in favor of or against reproductive freedom, my concern has solely been first amendment rights. I have some views on abortion that may not go down very well on this baord but I think the pill is one of the most important developments in women’s liberation since women got the vote. I believe in family planning and I think that first trimester abortions should be available on demand (I wouldn’t object to some form of pre and post abortion counseling being offered (but not imposed) to anyone who wants an abortion). but regardless of my views of what I think the world should look like, I have a lot of trouble with the idea that the government can force a private citizen to do something they don’t want to so that other people can exercise their rights.

[Damuri_Ajashi]

@elbows

This has been a very interesting thread to read. Long, but interesting. I was pretty black and white about the thing in the beginning but you have all raised some very interesting points and given me much to think about over the days.

(I tried to read it all, over several sittings, forgive me if I’ve missed parts.)

I am here to advocate for a two fold plan. Firstly, if you or your employees, for personal reasons, find you do not want to supply birth control or some other service normally provided by a pharmacy, you should be required to post your disinclination to do so, largely and proudly, on your front door for all your customers to see.

This would do two things, put the decision back into the court of capitalism, (I’m sure as hell not buying toothpaste or chips at any store that declines to provide access to birth control while calling itself a pharmacy.), and not force anyone to do anything. Let the owner decide if this is a hill he wants to die on or not. If he feels such a notice won’t cost him his business, I say, let him have at it.

I would make a special provision for pharmacies that exist as the sole provider of such services in their locations. So, if you want to deny people access to birth control based on your beliefs you need to open your pharmacy in a location that assures you are not the only provider in town. And, of course, proudly post your position on the issue on your front door.

Well, what say you all?

Forcing people who want to express themselves to actually express themselves on their front door doesn’t seem offensive to me.

[Damuri_Ajashi]

@begbert2

It was shown that the liscence does not inherently require the pharmacists to distribute the pill to protect the customers’ first amentment rights. It was certainly not shown that the government doesn’t have the ability within the bounds of the constitution to require such behavior as part of liscencing physicians. That’s not going to be shown either, because for all your squalking it’s simply not true.

Yeah, like I said I read that emplyment division case like someone suggested and the rationale certainly seems to support your position (it is a departure from the supreme court I grew up with but that’s neither here nor there). I mean I could probably distinguish it by saying that employment was about prohibiting action (taking peyote) versus requiring action (dispensing the pill); or I could point out the limited scope of the ruling but in the end I would have to ignore a large part of the analysis to maintain my previous position.

The government certainly could do this. Alternatively, it could mandate that pharmacists must distrubute contraceptives. The government has options!

The government can choose sides in this debate and the constitution and the courts apparently will not interfere as long as the legislation is not targetted at religious activity. I think it s problem that government is getting so much of a bye on this issue. Be careful what you wish for, I can see this sort of decision as the set-up for overturning Roe v. Wade and throwing the abortion issue back to the states.

[Damuri_Ajashi]

@tumbleddown

The hypocrisy here would be laughable, if real people, often with limited options, weren’t being affected by it.

I will admit that a state has the ability to require pharmacists to carry the pill as long as it is done in a way that doesn’t target their religious beliefs or practices. Can the rest of you admit that these “real people, often with limited options” simply don’t exist.

[SteveG1]

@Damuri_Ajashi

I will admit that a state has the ability to require pharmacists to carry the pill as long as it is done in a way that doesn’t target their religious beliefs or practices. Can the rest of you admit that these “real people, often with limited options” simply don’t exist.

No. If it is a one horse town, with only one pharmacy, and the next town is too far to get to - no car, or too sick, or too something to get to, then there is a problem. If it is a more “normal” town, where there are other pharmacies, then it’s probably a non - issue, unless the clown behind the counter tries to “confiscate” the prescription. But, like I’ve said before… If the company owning the pharmacy stocks these items, and the employee doesn’t want to sell them, he/she can refer to another employee (except if he/she is the only one) or refer to another NEARBY pharmacy. Or quit. If the pharmacist is the owner, he/she may have more of a say in what is stocked, but again, there should at least be the courtesy of a referral.

[villa]

@Damuri_Ajashi

I was pretty sure that Griswold was about states not being able to restrict access to birth control, I don’t remember it saying that states therefore have a right to force people to dispense birth cotrol.

Yes, Griswold was. But doesn’t it explain to you why contraceptives are different to pork? And doesn’t Lawrence explain to you even further how sexual expression is treated differently from culinary preference under the constitution?

Wasn’t that, after all, the question you asked me to answer?