Death and Wal-Mart.

The law, lawyers, and the court.
Feb. 25 2006 8:07 AM

Death and Wal-Mart

Pharmacists, physicians, and the right of conscience.

No one disputes that there are circumstances in which people have a fundamental right to assert a moral or religious objection to performing duties—like military service—and thus cannot be pressed by law into performing them. The problem lies in sorting out who can opt out and when.

Consider, through that lens, the parallels between California physicians who refused this week to participate in the proposed execution of a convicted killer and the growing numbers of pharmacists around the country who refuse to dispense morning-after pills.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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Until last week, only prison employees served as executioners in California. But U.S. District Judge Jeremy Fogel ruled—in response to an Eighth Amendment challenge to California's lethal-injection procedure—that physicians or other licensed medical personnel must participate in the execution of rapist and murderer Michael Morales. The judge was troubled by testimony suggesting that prior lethal injections had resulted in excruciating deaths. He ordered that Morales' execution proceed with a doctor on hand to administer the sedative, and to intervene in the event that Morales woke up or appeared to be in pain. Two doctors who had volunteered to participate withdrew at the last minute upon learning they'd need to do more than passively observe. When no replacements could be found, Morales' execution was postponed pending further hearings in May.

Meanwhile, the nation's pharmacists are starting to find themselves in court, defending their right to refuse to dispense emergency contraception. Several pharmacists have filed suit, under state conscience clauses, when they were fired for exercising that right. Yet at the same time, pharmacies have been the target of lawsuits, including several filed this month in Massachusetts, for refusing to dispense birth-control or morning-after pills.

The similarities between the doctors and the pharmacists are striking. Both are refusing to participate in the performance of services acknowledged to be lawful: capital punishment and abortion/contraception. Both cite as grounds for refusal their professional interest in promoting, as opposed to ending, human life.

State legislatures are scrambling to enact legislation that would either condone or prohibit these professional objections. The California Medical Association is pushing for a bill that would prohibit any physician involvement in executions. Last week, Georgia went the other way, approving a bill to protect any doctor who administers a capital sentence from being sanctioned by the state medical board. Four states allow pharmacists to refuse to dispense emergency contraception, and 13 others are considering such laws. Illinois and California have laws requiring pharmacists to dispense morning-after pills.

Are our varying, even conflicting, legislative responses to these professional choices ultimately about a distinction between abortion and the death penalty, or is there some principled difference between what doctors and pharmacists do?

It's facile to suggest that pharmacists merely count out pills while doctors are serious professionals. Each is a critical link in a health-providing chain. That's why, in a growing number of states, pharmacists are permitted to dispense morning-after pills without a prescription—at the strong urging of advocates for choice. Many pharmacists argue, not without merit, that they entered their profession to heal people. Medical technology has simply outpaced them, they say, making it necessary to dispense drugs with moral consequences they never anticipated.

Still, critical differences between physicians and pharmacists may justify treating them differently. One distinction is the Hippocratic oath. Physicians affirmatively swear an oath to do no harm. They say they are bound—in a way pharmacists are not—to heal and not to kill. That is one of the reasons physicians cannot be required to perform abortions, while pharmacists may be pressed to dispense early contraception in some states. It's why the American Medical Association's guidelines forbid physicians from inspecting, supervising, or monitoring the process or instruments of death. But an oath alone cannot explain the different legal treatment of doctors and pharmacists. If it did, pharmacists would just need an oath to be off the hook.

Perhaps a more significant difference lies in the amount of harm a physician is able to do. One reason doctors have generally been kept away from lethal injections is the historical anxiety about the participation of physicians in state executions, from the guillotine to Nazi experiments. When medical expertise was pressed into aiding government murder, physicians became accomplices of the worst sort. Pharmacists, on the other hand, have no such history. The distinction between physicians and pharmacists, then, may simply come down to differences in their respective histories and associated collective guilt.