They're coming for your Plan-B

[ABraut]

Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest. A famous quip asserts that strict scrutiny is “strict in name, but fatal in practice.”

For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law’s enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, alienage, and poverty.

strict scrutiny

[Really_Not_All_That_Bright]

Religion isn’t a suspect class. Strict scrutiny is applied to religious classifications because they involve the exercise of a fundamental right.

[Bricker]

@Really_Not_All_That_Bright

For the record, do you agree that under Yoder the pharmacists in question must have a conscience-based objection to dispensing all hormonal birth control to qualify for protection?

No. As long as they can articulate a genuine religiously-based objection to Plan B, and as long as the rule allows secular objections such as business concerns but not religious ones, then they qualify for protection under Church of Lukumi.

[Bricker]

@Really_Not_All_That_Bright

Religion isn’t a suspect class. Strict scrutiny is applied to religious classifications because they involve the exercise of a fundamental right.

Um… huh?

McDaniel v. Paty?

[Really_Not_All_That_Bright]

What I said. McDaniel is based on the Free Exercise Clause. Suspect classification is based on the Equal Protection Clause. Still strict scrutiny.

The question presented by this appeal is whether a Tennessee statute barring “Minister[s] of the Gospel, or priest[s] of any denomination whatever” from serving as delegates to the State’s limited constitutional convention deprived appellant McDaniel, an ordained minister, of the right to the free exercise of religion guaranteed by the First Amendment and made applicable to the States by the Fourteenth Amendment. The First Amendment forbids all laws “prohibiting the free exercise” of religion.

[Damuri_Ajashi]

@Really_Not_All_That_Bright

Getting back to the doctor/pharmacist distinction, which is a reasonable comparison, doctors specialize; pharmacists do not. Other than veterinary pharmacists, there is a general expectation that dispensing pharmacists fill all commonly available prescriptions. There is no such expectation that doctors perform all commonly performed procedures.

I think you are making a false distinction ebtween the two. You take the universe of who people can dispense Plan B and tell them they must do so regardless of whether they believe its murder. Why can’t you take the universe of people can perform abortions and tell them they must do so regardless of whether they believe its murder. Why can’t you take the universe of people who are capable of eprforming marriages under state law and tell them they must do so for gay coples regardless of their religious beliefs. Frankly, I have less of a problem forcing priests who want to perform legally binding marriages to perform all marriages that are legal in their state because a priest doesn’t have to perform legally binding marriages at all and withholding their services from a particluar class of people because of their class is a lot harder to defend than just refusing to carry a product.

@ladyfoxfyre

I don’t think the scenario you’re trying to compare here actually exists though. You mean to tell me that a doctor would undergo training in practicing abortions, which involves performing an abortion, in order to then refuse to perform them for religious reasons? The doctor performing abortions analogy just doesn’t hold up because 1) this isn’t abortion and 2) every pharmacist is trained in performing this activity and a minority of physicians are trained in performing abortions.

Obstetricians get trained to perform abortions even if all they want to do is deliver babies for a living just as every lawyer gets trained in constitutuiional law even if they are going to structure tax products for a living and every now and again, constitutional law comes into play just as every baby delivering doctor might find themselves performing a D&C to remove a misacarriage from a woman’s uterus.

I have never stated that pharmacy is explicitly a public service. They are business people, but they are business people who work in the field of public health which means that the normal ethical standards of business don’t apply. Some of them do, sure. But we as a society hold people who work in this industry to a different standard, taking for example my reference earlier to requiring hospitals to treat patients regardless of the ability to pay. We don’t hold other businesses to this standard, but when you are entrusted to providing for the public health, even if you also profit from it, your ethical obligations do not just stop at “make money”.

Cite? Does a pharmacy have to provide free drugs top someone who cannot afford it but really really needs it? No? Can they let that person die of canceraids in the parking lot?

@bengangmo

If he refused for anything other than medical reasons then YES, it would be not only unethical, but also highly unprofessional and should lead to his license being suspended / revoked.

And yet we don’t suspend all the obstetricians who refuse to perform abortions.

@ladyfoxfyre

I have a problem with a person in a profession refusing to provide care for unscientifically supported reasons.

What do you mean by scientifically unsupported reasons? These pharmacists refuse to carry or dispense Plan B because Plan B can result in the failure of a fertilized egg to implant itself on the wall of the woman’s uterus, that sounds pretty scientific to me. Does the failure to get Plan B result in death or disfigurement of the patient?

I have never said that it’s universally bad to impose your ethics on someone else, unless that imposition acts as a barrier to medical care.

So if I ethically have a problem with aborting fetuses in their 9th month but the law permits it, is it bad if I perform abortions in the 5th month of pregnancy but refuse to do so in the 9th month of pregnancy?

Obviously I believe my ethical standards to be the one to be enforced.

Do you even listen to yourself? The pharmacists are saying I want to live by my ethical standards and you are saying that you want everyone to live by your ethical standards.

Plan-B is not abortion. Participating in an actual surgical procedure is not the same as handing someone a box with a pill in it.

in their minds its the difference between murder and accessory to murder.

@Really_Not_All_That_Bright

In the absence of legislation to the contrary, yes, I think pharmacists should be forced to dispense all legal medicines. I don’t necessarily think they should be forced to keep non-emergency medicines in stock at all times, but that’s different.

WTF? There is a constitutional amendment (the very first one in fact) that protects a person to practice their faith without undue interference fromt eh government and you think that the default rule ABSENT LEGISLATION is that pharmacists must do seomthing that goes against their religious convictions?

@jtgain

If it makes a difference, I don’t support “conscience clauses.” If I am a pharmacist that works for Acme Pharmacy, and the pharmacy decides to stock Plan B, then it is a business decision for the pharmacy to make. The individual pharmacist can’t defy his employer any more than a dancer at a strip club can refuse to take her clothes off and still keep her job, or the clerk at the convenience store who won’t sell beer.

What I find upsetting is a mandate from a state to a private business (even though licensed) that you must stock THIS particular medicine and you must dispense it whether you want to or not.

As far as living in the middle of the Bible Belt, that’s part of the deal. Would you mandate that every hospital perform abortions, because after all, it is likely that no hospital will in the middle of Mississippi?

I agree that conscience clauses that permit a pharmacist employed by CVS to refuse to dispense something based on religious beliefs without fear of getting fired is bullshit (to be fair, noone fires pharmacists uhnless they do seomthing to lose their license or they don’t show up for work).

@bengangmo

Well since they’re not an accessory to murder the point is somewhat moot.

But they think they are.

Well, black folks, in my opinion (or under my “moral code”) are more likely to drink and drive. I believe drinking and driving is the same as murder. Therefore, by selling a car to black folk I am supporting murder. Is this ok?
…
Would it have been ok for the pharmacist to deny us this medicine based on their belief that mixed race couples shouldn’t be allowed to breed? Or would you have a problem with that?

There is a difference between refusing to sell a particular type of product and refusing to sell cars to a particular type of person. So the car dealer can refuse to sell foreign manufactured cars but they cannot refuse to sell cars to foreigners.

And if you want to place the refusal to provide plan B as a “moral objection” - is it morally right to force a women to undergo a potentially life endangering 9 month pregnancy, and then impose a duty of caring for a child for 18 years on the basis of your religious beliefs?

If denying someone the choice of whether they want to give up 9 months of their life to your beliefs is Moral - then I guess forced labour for 9 months is also “moral”?

Noone is forcing anyone to do anything. They just aren’t going to sell Plan B to anyone. Forcing them to do so is comparable to forcing a doctor to perform abortions.

BTW, noone is forced to care for a child for 18 years, we have adoption and a forster care system.

@Der_Trihs

Ideally yes, since that would make it impractical for the anti-abortion thugs to concentrate forces on their victims.

And if we can force doctors to do that, then when a conservative government is in power can that government force people to do some conservative shit they don’t want to?

@Really_Not_All_That_Bright

How about it? The pharmacist is free to hire another pharmacist to handle prescriptions he finds objectionable, isn’t he?

In any event, I would be surprised if any pharmacy is structured as a sole proprietorship, and that’s not at issue here. The plaintiffs were individual pharmacists and a corporate pharmacy.

Yeah, I was surprised too, there are over 20,000 independent pharmacies in this country. So the question is can an independent pharmacy run by an independent pharmacist make the decision not to carry Plan B for religious reasons and get away with it?

[ABraut]

@Really_Not_All_That_Bright

Religion isn’t a suspect class.

Technically, no, but religious people are. Just like “race” isn’t technically a suspect class, but people of [any race/ethnicity but European Caucasian] are.

[Bricker]

@Bricker

Um… huh?

McDaniel v. Paty?

Ok, then Lukumi.

[Shodan]

@Damuri_Ajashi

And yet we don’t suspend all the obstetricians who refuse to perform abortions.

Give it time. This is (I think) the next step in defining “the right to choose” as “the right to choose what the government tells you”.

And if we can force doctors to do that, then when a conservative government is in power can that government force people to do some conservative shit they don’t want to?

In principle, yes. I doubt that many of those arguing in favor of compelling Roman Catholic organizations to fund Plan B will admit it, but that conclusion seems pretty inescapable.

Regards,
Shodan

[bengangmo]

@Damuri_Ajashi

BTW, noone is forced to care for a child for 18 years, we have adoption and a forster care system.

And the pregnancy part?

And when you say “no-one is forcing” - just what is a woman supposed to do if she doesn’t want to carry the baby? Give you a call and ask you to take over incubating the sprite for a few months?

[Lobohan]

@Shodan

Give it time. This is (I think) the next step in defining “the right to choose” as “the right to choose what the government tells you”.
In principle, yes. I doubt that many of those arguing in favor of compelling Roman Catholic organizations to fund Plan B will admit it, but that conclusion seems pretty inescapable.

Regards,
Shodan

I think you’re misinformed. The RCC doesn’t have to fund any sort of birth control.

The regulation you seem to be thinking of says that businesses the RCC owns, if they decide to provide insurance, don’t have to provide birth control coverage. The insurance company is to provide it, absorbing the cost.

[Really_Not_All_That_Bright]

@Bricker

Ok, then Lukumi.

Same thing.

The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U. S. Const., Amdt. 1 (emphasis added). The city does not argue that Santeria is not a “religion” within the meaning of the First Amendment. Nor could it. Although the practice of animal sacrifice may seem abhorrent to some, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714 (1981). Given the historical association between animal sacrifice and religious worship, see supra, at 2, petitioners’ assertion that animal sacrifice is an integral part of their religion “cannot be deemed bizarre or incredible.” Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829, 834, n. 2 (1989). Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners’ professed desire to conduct animal sacrifices for religious reasons. We must consider petitioners’ First Amendment claim.

[Damuri_Ajashi]

@bengangmo

And the pregnancy part?

And when you say “no-one is forcing” - just what is a woman supposed to do if she doesn’t want to carry the baby? Give you a call and ask you to take over incubating the sprite for a few months?

Well assuming that this mythical woman who gets pregnant because she cannot get Plan B due to the conscientious objection of the only pharmacist that she has access to (much like the family farm that has to be sold to pay estate taxes), she can get an abortion.

[Damuri_Ajashi]

@Shodan

Give it time. This is (I think) the next step in defining “the right to choose” as “the right to choose what the government tells you”.
In principle, yes. I doubt that many of those arguing in favor of compelling Roman Catholic organizations to fund Plan B will admit it, but that conclusion seems pretty inescapable.

Regards,
Shodan

I missed the part where we are forcing the RCC to fund Plan B.

I don’t think we will ever force doctors to perform abortions against their conscience or priests to perform marriages against their conscience but we seem to be ready to force pharmacists to dispense a drug against their conscience. I think this is just a lack of respect for the rights of pharmacists that people seem to mentally equate to a glorified cashier and in some cases even less than a cashier. The reason I say that some people MIGHT view the phramacist with less respect than a cashier is that if a cashier refused to sell a pregnant woman alcohol and cigarettes they wouldn’t have too much of an problem with it and would be appalled by a state law that required the cashier to sell these things to pregnant women upon pain of losing their license to sell alcohol (and in some cases cigarettes).

@Lobohan

I think you’re misinformed. The RCC doesn’t have to fund any sort of birth control.

The regulation you seem to be thinking of says that businesses the RCC owns, if they decide to provide insurance, don’t have to provide birth control coverage. The insurance company is to provide it, absorbing the cost.

I agree that the RCC objections in this case are bullshit too, especially now. But, I don’t think its fair to say “well then you don’t have to provide insurance to your employees” you might as well say you don’t have to provide a 401K. As a practical matter, you do, if you want good nurses and doctors.

[Lobohan]

@Damuri_Ajashi

I agree that the RCC objections in this case are bullshit too, especially now. But, I don’t think its fair to say “well then you don’t have to provide insurance to your employees” you might as well say you don’t have to provide a 401K. As a practical matter, you do, if you want good nurses and doctors.

Well, I put the if they in there to cover a hypothetical hospital that doesn’t cover its staff.

I agree it might be functionally necessary, but they could possibly pay extra salary and direct them to the exchanges.