Wednesday, July 19, 2006

The Conscience Clause

Cato@liberty just fired a shot across the bow of those who want to mandate that pharmacists fill prescriptions they find morally objectionable. I've been on the fence on the issue. This post combines all of my arguments on the side of the pharmacists (free market, freedom of religion, etc) and questions the consistency of the liberal forces, to boot. I might now be off the fence, despite my concerns about the momentum in the direction of restricting reproductive rights. I'm just not sure that I buy that a woman's right to choose implies a duty to pharmacists. That would turn a negative right into a positive right. And that's always trouble.


Orrin Johnson said...

If you told those same liberals that their "alternative book store" had to sell Ann Coulter books, they'd be outraged. The right to do something doesn't come with the government's duty to provide you with the means of doing it.

Juvenal said...

Ah, but the "alternative book store" liberals are not on quite the same footing as pharmacists, are they? When you choose to enter certain professions that provide essential public services, you lose the right to refuse to provide some aspect of those services because of your individual moral scruples. Do you think an Emergency Room doctor who is a Jehovah's witness should be allowed to refuse to give me a blood transfusion because its against his religion? Should a policeman be allowed to ignore some criminal violations because of his religion? I don't think so. You lose some of your rights every time you enter a profession. With many private employers you give up your right to free speech with reference to the company. When you become a pharmacist or a doctor, you lose (or should) the right to let your moral scruples come in the way of your duty. Your duty to provide the medical care that people want and are willing to pay for. If you don't like it, don't become a pharmacist, don't become a doctor. Maybe open up an anti-contraception bookstore instead?

Orrin Johnson said...

I understand that argument, but disagree with respect to pharmacists. They aren't a public service with a geographic or service monopoly, like a hospital or a police department. There are plenty of Walgreens across the street from Rite-Aides. Seconds don't count when filling a prescription or providing contraception, and if one store doesn't sell the product you want another one surely will. They are more akin to a doctor who, for moral or economic reasons, refuses to perform abortions - something well within their rights to do.

I wouldn't have any problem with a Jehovah's Witness doctor who refused to do a transfusion in a non-emergency if hospitals were totally private and were on every other street corner. I wouldn't patronize him, but I would respect his right to do what he thought was right.

Bottom line: The consumer can still get what she wants (not "needs," there are some choices involved here on their part, again as opposed to many legitimate ER accidents that require a blood transfusion), and the moralist pharmacist remains free to freely practice and express his religious beliefs. Why should government step in?

The only thing that frustrates me about it is that the emergency contraception available in the US is NOT an abortion pill, like RU-486 is. It's no more killing a unborn child than a regular birth control pill is. The problem is that because abortion activists are so all or nothing about the issue, that they aren't taking the time to reassure people that it's NOT part of the abortion debate. The hard core abortion activists see no moral difference between partial birth abortions and birth control pills, so they don't bother distinguishing them in the public debate.

Cato said...

I think Ranjit's argument is excellent, and I've been thinking about it a lot lately. Given that the government has created a monopoly through licensing (you can't get certain drugs without the approval of the gatekeeper), the monopolists may have a fiduciary duty to those who require their services only by dint of the monopolies. You can go and buy books wholesale if you want, independent of a bookstore. You can buy them online, or from other individuals. You aren't allowed to get certain drugs without the action of a pharmacist. So maybe there is a duty there that can trump free exercise. I'm not entirely convinced, but I think it's a fairly compelling argument.

Orrin Johnson said...

If there were fewer pharmacies, I'd be with you. But they are EVERYWHERE. There's no "monopoly" in any reasonable sense of the word, despite the FDA's omnipotence.

Besides, it is NOT a necessity for life or health. I'm all for contraception and emergency contraception. But as conservatives and ESPECIALLY as libertarians, we don't believe it's government's role to step in and protect us from ourselves. They can have the forethought to use BC ahead of time, not have sex in the first place, or failing all of that, have the baby. That there are dozens of private pharmacists out there that offer additional choices is good, but this is NOT the same as withholding, say, an asthma inhaler or blood thining drugs. Why infringe on free religious association and practice (which IS protected by the Constitution) to enforce an affirmative right to super duper easy access to all birth control without having to walk two extra blocks (which is not)?

Birth control is free, if you want it to be. I don't want to ban more expensive methods by any means, but it's not the duty of government to provide it, or to force private pharmacies to provide it. It's good policy to have it available. I think the pharmacists who refuse to sell it are uninformed, short sighted, and would help cause more harm than good if their stance was widely adopted.

But it's not a substantive right. And it shouldn't be. Religious freedom is.

Right now, we can maintain free association and freedom to run a business however one wants, AND a woman can get whatever FDA approved contraceptives that are out there easily. Everyone wins. Not one single woman who wants to get Plan B is prohibited or unable to get it. When that changes, then we have to look at hard choices. But why sacrifice a pharmacists freedom when that freedom isn't negatively impacting anyone? All the, "Well, what if they ALL do it?" people can give me a call when that highly, highly, highly unlikely scenario happens, which I expect to see about the same time Hitler starts building snowmen in Hell.

Cato said...

There are plenty of large geographical areas with only one pharmacy. I think in a practical sense, it can be a monopoly, in many areas. I'll keep you posted as events warrant.

Orrin Johnson said...

There are lots of large, geographic areas (entire states) where no doctors are willing to perform abortions. That doesn't mean the government should force doctors to perform them. But I'm sorry - I come from one of those large, rural states, and even in the most desolate of areas there is another drugstore the next town over - and the next and the next and the next. Not to mention all the large chain grocery stores that have now gotten into the business.

PubliusRex said...

"There are plenty of large geographical areas with only one pharmacy. I think in a practical sense, it can be a monopoly, in many areas..."

So what? Licensing requirements notwithstanding, it's a free market. If there's a demand for certain drugs, and some providers aren't meeting it, then let the market handle it.

That this issue exists at all should be a warning shot to libertarian, limited government-leaning sorts about the dangers of voting for political parties that favor socializing health care. One can only imagine the level of coercion on professionals if the government were to take over that industry. That issue, not the Patriot Act, is the greatest threat to individual liberty from our own government.