TO FREE EXERCISE
December 18, 2011
No Leeway for Conscience
Once again, a four-year legal fight in Washington State has landed in a federal courtroom. In the end, two individual pharmacists (Margo Thelen and Rhonda Mesler) and a family-owned pharmacy (Ralph’s Thriftway in Olympia) could be forced out of the pharmacy profession solely because of their religious beliefs. Yes, in America.
Significantly, Washington is one of only two states requiring pharmacies that object on the basis of conscience to stock and dispense early abortifacient drugs, as Plan B and Ella. The other state (Illinois) recently struck down similar regulations as unconstitutional—and rightly so.
The plaintiffs view moral choice as their constitutional right under the “free exercise” clause of the Constitution. They cannot in good conscience dispense Plan B or Ella because they believe human life begins at the moment of fertilization; and both drugs operate by destroying a fertilized egg, or embryo. This dilemma, they’re told, is best resolved through a new line of work. But plaintiffs disagree.
More About Agenda Than Access
At public hearings in 2010, activists from Planned Parenthood, Legal Voice, NARAL, and others testified passionately in Renton, Washington, before the Washington State Board of Pharmacy. Their demand was clear: Regulations are necessary to force pharmaceutical providers to dispense the “morning-after pill” when and where a repeat customer asks for it. In their worldview, religion has nothing to do with it.
To “choicers,” a state license held by pharmacies is a privilege, not a right. They believe defense of conscience deadheads at the drug counter, and a pharmacy must forfeit personally held, religiously motivated moral objections to meet a woman’s demand for emergency contraception. Moreover, respecting politically charged drugs as Plan B and Ella, facilitated referral is not an option. Since Stormans, Thelen, and Mesler are left with only one choice (their livelihoods or their deeply held religious beliefs), real “choice” applies exclusively to “choicers.”
In brief, patient access to Plan B trumps the Bill of Rights. Timely access of safe and appropriate drugs, we’re told, is what every patient is due. However, forcing pharmacies out of business—Ralph’s Thriftway, for example—actually limits access (and therefore choice) for other patients in need of time-sensitive medications. It stand to reason that agenda, not access, is at the heart of the matter.
Lots of Room for Wriggle—Only Not for the Conscience Crowd
For decades, there’s never once been a complaint about the stocking rule. In fact, until 2006, the rule was not broadly known. To meet patient demand, a pharmacy need only stock a “representative assortment of drugs,” but the State provides no list of required drugs. Nor does it publish policies or established procedures for determining stocking violations.
In the pharmaceutical industry, it’s accepted that numbers of reasons—i.e., economic, convenience, business, clinical—exempt a pharmacy from stocking a drug. Everyday Washington pharmacies make choices about which of more than six thousand FDA-approved drugs they’ll stock (or decline from stocking, as the case may be).
Arguably, the stocking rule leaves lots of room for wriggle since our State gives no definition for “good faith compliance.” For most, there’s no quantitative formula of patient demand signaling need to stock a drug, nor are there rules for how long the pharmacy must carry a given drug, once demand for it wanes.
Additionally, Washington State offers no stocking standards for low-demand drugs within a given community, nor are pharmacies required to stock diabetics’ syringes, Schedules 2 and 5 nonprescription meds, or narcotics feared to invite armed robberies.
If shelf space is limited and a medication has a short life, no problem. If it’s exceptionally expensive (and the patient can’t afford it)—or if stocking it requires additional, burdensome paperwork or unit dosages—no worries. If bulk purchase is necessary (beyond what the patient can consume), or if a drug requires monitoring or special preparation (e.g., compounding processes that require related equipment)—again, not to worry. Don’t stock it.
In the industry, it’s generally understood that a repeat customer’s prescription triggers the “stocking rule requirement,” but then the rule has no teeth and is never enforced. However, when it comes to conscientious objectors, this overly permissive and otherwise vague rule takes on selective specificity.
An adequate, though not ideal compromise is for a pharmacy/ pharmacist to “step away, but not in the way.” But that’s not good enough for Washington State. While it’s okay to refer patients elsewhere for reasons other than conscience, it’s not acceptable to redirect a seeker of Plan B.
No Leeway for Conscience
Only pharmacies with religious objection, as Ralph’s Thriftway, are held accountable to stock and dispense designated drugs when regular customers request them. Apparently, others are free to decide for themselves. For example, Walgreen pharmacies have opted not to serve Medicaid patient demands and, without facing disciplinary action, niche pharmacies limit drugs they stock to specified healthcare categories such as pediatrics, cancer, or long-term care.
What’s more astonishing is this: Also never having faced disciplinary action, faith-based Catholic hospitals exclude Plan B from their inventories; but Ralph’s Thrifty isn’t afforded the same leeway. You see, by its own admission, the Pharmacy Board is “complaint-driven.” Hence, when Planned Parenthood Pill Patrollers target a pharmacy, the board takes action. Otherwise, it’s business as usual.
Even so, the Washington State Pharmacy Board argues that rules are “neutral” and “generally applicable.” But the plaintiffs disagree (and for good reason). Should a patient violate pharmacy dress- and/or behavior- codes—e.g., no shirt or shoes—or should he be identified as a known shoplifter, he need not be served. But a woman who demands emergency contraception must be served, even when a pharmacy conscientiously objects to it. Neutral? I think not. Generally applicable? You tell me.
My Problem; Your Responsibility
Practically speaking, a woman can conceive when responsible efforts to prevent pregnancy are ineffective. In the minds of activists, this apparently becomes the pharmacist’s problem. It’s his job not to refer a patient elsewhere, but rather to “fix” the outcome; conscience, we’re told, has nothing to do with it.
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Forget that emergency contraception may be effective for days after unprotected intercourse, and that it’s never 100% foolproof, activists nonetheless insist upon immediate product and service from the first pharmacy of choice—no matter the provider’s heartfelt convictions against a drug’s safe, ethical use. The reason for referral has no bearing on the fact that, for whatever reason, the patient must go elsewhere, but for Plan B patients a pharmacy on the next block simply won’t do.
More to come in Part 2.
Click here for part -----> 1,
Stormans v. Selecky, a landmark case handled by the Becket Fund, a non-profit,
non-partisan law firm that protects the
religious liberty of all faiths. Also on the legal team are lawyers Kristen Waggoner and Steve O’Ban with Seattle-based law firm Ellis, Li & McKinstry. Plaintiffs are challenging the Washington State Pharmacy Board ruling that, despite religious objections, pharmacies must forfeit their prerogative to facilitated referral and stock/dispense early abortifacient drugs, as Plan B and Ella.
2. The First Amendment of the Constitution of the United States of America, ratified effective 15 December 1791, follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
3. The lost art of critical thinking.
4. The Seattle Times editorial view, 29 November 2011.