Martyrs and pestles.

Martyrs and pestles.

Martyrs and pestles.

The law, lawyers, and the court.
April 13 2005 5:46 PM

Martyrs and Pestles

Should pharmacists be allowed to refuse to dispense birth control?

Illustration by Mark Alan Stamaty

We have had this conversation before—you and I—about where my religious liberties end and your civil liberties begin. We've had it on these virtual pages, at oral argument, and over e-mail. Well, brace yourself, because here we go again: I don't know what to make of the newest iteration of "religious freedom"—the wave of pharmacists refusing to dispense birth-control pills or emergency contraception because it violates their religious convictions.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

The problem with these types of religious protest is that they treat every step down the slippery slope as equally urgent: One's religious conscience can just as easily be shocked by birth control as by abortion; the right to die maps flawlessly onto premeditated murder; homosexuality differs not at all from incest. Religious law can afford to be absolute in ways that secular laws may not. But legislatures exist to make principled distinctions where such distinctions exist. The alternative is a theocratic heckler's veto.

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At least 11 state legislatures are now considering bills to extend "conscience clauses"—which allow doctors in 47 states to opt out of performing abortions based on religious or moral objections—to also protect pharmacists who don't believe in birth control or morning-after pills. (Four already have such laws in place.) That means 11 state legislatures can't see any distinction between abortion and contraception; between what a physician does and what a pharmacist does; or between performing a complex medical procedure and scooping a pill out of a bin.

First, there is a whole lot of medical yardage between an abortion and birth control. In fact, there is a whole lot of yardage between abortion, a morning-after pill, and birth control. Contraceptives—even emergency contraceptives—are nothing like surgical abortions, although the pro-life movement continues to conflate the two. Emergency contraception inhibits ovulation, fertilization, or implantation. The accepted medical definition of abortion is that it can occur only after implantation. Whatever visceral appeal the "Life Begins When Sperm and Egg Walk Into a Bar" position may hold, it remains factually inaccurate; only a fringe of the medical community accepts the notion that emergency contraception is an abortifacient.

Second, whatever you may think of the morality of taking a morning-after pill, the incontrovertible fact is that it loses efficacy after 24 hours and becomes virtually useless after 72. So, one pharmacist's refusal to dispense them can rapidly morph into an unwanted pregnancy. That means—particularly in isolated or rural communities—the religious objections of the pharmacist can trump the mother's legal rights. This may well lead—as noted recently by the St. PetersburgTimes—to an increased number of later-term abortions. Which would be ironic, were it not so sad.

Third, pharmacists are not physicians. Comments like those of Karen Brauer, president of Pharmacists for Life International, who recently told Canada's National Post that "stopping human life is not a legitimate part of medical practice … medicine is for healing," are grandiose and dangerous. A woman's decision to use birth control or emergency contraception is between her and her physician, period. Hard questions about the circumstances of her pregnancy, her marital status, and her alternatives can be asked there—if they need be asked at all. But for a pharmacist to subordinate a physician's judgment to his own is the height of arrogance. Reports from around the country—of pharmacists delivering hectoring lectures, discriminating against unmarried women, or refusing to return prescription forms to be filled elsewhere—reveal what happens when pharmacists are allowed to interpose their own values between a physician's medical judgment and the needs of her patient. Does the guy who drives the Pfizer delivery van hold an analogous right to be a conscientious objector?

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Steve Chapman compares a pharmacist's refusal to dispense a drug to a bookstore owner's legitimate refusal to sell a book. Of course, the worst thing that can happen if I can't get a book within 24 hours is that I only pretend to have read it at the cocktail party. Whereas an unwanted pregnancy represents a fairly profound violation of self.

The law cannot always be called on to immunize us from our decisions to take the law into our own hands. That's why Ellen Goodman pointed out last week that the very definition of "conscientious objector" includes the proposition that you may well suffer consequences for your protest. "In a conflict between your job and your ethics, you can quit," she writes. If you don't believe an FDA-approved drug should be legal, work at the Dairy Queen. But if a pharmacist doesn't have to dispense birth control, or an EMT can refuse to drive someone to an abortion clinic, or a nurse can refuse a rape victim emergency contraception, none of us can really trust in the professionals around us at those moments when we need them the most.

Karen Brauer, of Pharmacists for Life International, disagrees, likening a conscientious-objector pharmacist who refers customers elsewhere or transfers prescriptions to other pharmacies to someone who says, "I don't kill people myself but let me tell you about the guy down the street who does." Her position is that a pharmacist can and should refuse to dispense medication that offends her and also block all future access by that patient to that medication. Of course, that person is not really a pharmacist anymore; she's just a bully.

The best tool I can offer to sort out this conundrum is the "least cost avoider" model from law and economics. Where the burden can either fall on a pharmacist (who knows in advance of her own moral reservations and is in a position to provide a patient with suitable alternatives) or on an unknowing patient (who may well be pregnant, frantic, poor, and short on time), the burden must properly fall on the pharmacist. Patients cannot have their expectations of timely, professional service undermined by unanticipated bursts of conscientious objection. That's why the counterproposals under consideration in at least four other states grappling with reluctant pharmacists seem eminently reasonable: Such laws would require druggists to fill all prescriptions unless they can find alternatives that don't inconvenience the patient. This is essentially the mechanism created earlier this month when Illinois Gov. Rod Blagojevich filed a 150-day emergency rule requiring drugstores to either fill prescriptions or otherwise accommodate their patients.

These solutions don't force individual pharmacists to undermine their personal religious views. They do place high costs on the drugstores, which would now need to implement fixes such as posted warnings, agreements with other pharmacies, and the hiring of extra pharmacists, even if they can ill afford it. If an individual service provider wants to reserve the right to deny services, they should be free to do so, and if a drugstore wants to employ such a person, they should also do so. But these celebrations of religious conscience should happen at their own cost and never at the expense of citizens requiring services.