Prescriptions filled without Prejudice
George W Bush attempted to stab american people across the US with one of his final acts. This executive order allowed medical personel to refuse to do their jobs. Thankfully it was repealed by President Obama (mostly) but a specific case is going on in Illinois, where 2 pharmacists are refusing to do their jobs
The pharmacists were refusing to give out the morning after pill despite a statewide mandate insisting that they should do so. Their beliefs stated that the morning after pill was murder since it prevents an embryo from implanting on the uterine wall. I am not going to go into a detailed critique of this argument, my views on foetal development are well known.
This is about pharmacists refusing to do their job. Their job is to distribute the appropriate medication as directed by medical knowledge for non-prescription medication, and prescription medication as directed by the customer’s doctor.
I managed to have an e-mail conversation with the attorney in the case, Mark Rienzi, who despite being a prominent pro-life attorney was courteous and very responsive to all my questions which I do appreciate.
I asked him four questions, along with followup questions, to which he responded.
Question 1a: you raise the fact that there are numerous pharmacies around the pharmacy concerned. Would you fight your case were this the only pharmacy in a town, with the nearest one 20 miles away? If this is the case, will you ask it to be entered in the record that you feel that it is a specifically limited decision for pharmacies with easily accessible competition?
As to the existence of other pharmacies nearby, I do think that is a relevant fact. But even if competition were further away, the bottom line is that if the state thinks it is supremely important that women have access to the one particular drug these stores don’t sell (emergency contraception), then the state can just provide it directly, rather than by forcing unwilling people to violate their beliefs or lose their jobs. That should be the essence of a pro-choice position in a free society–everyone gets to make the choice for themselves as to what they will do. In any case, this drug is available over the counter and over the internet, and there is no reason that the willing doctors who prescribe it cannot be asked to help people get it. Nor is there any reason that other willing groups can’t help make it available. In fact, the government could just set up a website and phone number to order it for people if they actually think someone won’t get their drug (and that is just as quick as what they are trying to force the pharmacists to do, because there is no obligation to stock the drug, just to order it if asked). In any case, if the government wins this case it won’t be making drugs more available but less–because these pharmacies will be forced to go out of business entirely. That doesn’t help anyone’s health.
Question 1b: I worry for women who need those medications (including myself) were in a restricted situation such as in a small town with one pharmacist, without the assumption of internet access, they would be disadvantaged by their situation and unable to access the choice everyone else has. There are a lot of small american towns with one pharmacy and limited internet access….and your lawsuit could threaten the rights of women in those environments..
As to small towns with limited internet access–if the government sees this as a concern, it can do something directly to meet it rather than forcing unwilling people to participate. The government in this case has been more than willing to set up special telephone hotlines for the purposes of finding and reporting pharmacists with religious objections. They could just as easily use those hotlines to mail order people their medications. And since this is a prescription, presumably the person was able to get to or talk to a doctor–the state just ask that doctor (who obviously has no objection to the medication) to order the drug for the person. All of these seem like easier, faster, and less burdensome ways to get people their medicines.
Question 1:My analysis
The gist of his argument was that he felt the way to handle supplying “controversial” medications was that the state should provide alternative routes of getting those medications to take the onus off the pharmacist to supply those medication.
I was describing the situation that many people are in where they have limited access to pharmacy resources and are at the mercy of pharmacists choosing not to do their job. Its possible to create these work arounds in theory, however the political minefield of setting up such a system would be completely impractical. The fact is that no other profession allows you to stop doing your key function because of your beliefs. I addressed this more in my next question.
Question 2a: is it not the duty of a pharmacist to fill the prescription given by a medical practitioner? Have you considered this precedent could be extended to any possible system of beliefs, such as a pharmacist refusing to dispense drugs that have been developed with animal testing, and would you defend those cases?
As to whether allowing religious objections is a good or a bad thing as a policy matter, as we explained to the court that’s not our judgment or the AG’s judgment or even this court’s judgment to make. The legislature of Illinois already made it when they enacted the Health Care Right of Conscience Act, the Religious Freedom Restoration Act, etc.; and the federal constitution already makes it as well in the First Amendment.
Question 2b: I suppose the thing I find troubling is that I see the role of the pharmacist as giving out the medications that they are required to by a doctor’s prescription, did they enter the field with the specific intention of not fulfilling this requirement? A jehovah’s witness would not work in a blood bank, and a vegan would not work in a slaughterhouse, it seems to me they had to know they would be required to give medication out in conflict with their personal views.
As to expectations, these plaintiffs entered the profession in a state that expressly protects them from being forced by the government to violate their religion. So the law says they can validly expect the ability to occasionally step aside and not participate in what they believe to be killing.
As to whether this is the same as a vegan at a slaughterhouse, I think it is a matter of definition. Given that these pharmacists will sell 99+% of available drugs, I don’t think the analogy is quite right. I don’t think a pharmacist is just a drug vending machine. Of course it is certainly possible as a policy matter to define any profession to exclude a class of people. We could say all doctors need to be willing to perform abortions (or executions). And I’m sure the folks from Westboro Baptist Church (the funeral protesters from the Snyder v. Phelps case) would love to convince their local public school board to define the job of public school teacher to include things that would exclude gays (or Catholics for that matter). But I don’t think either one of those things would be permissible or right.
Question 2: My Analysis
Now his point is focussed on trying to make out that the duties of a pharmacist can be superseded by personal belief. The fact he sadly ignored was that giving out medication as required is the core belief, and a vegan could not get away with refusing to dispense Heparin (anticoagulant derived from pig intestines), or an antibiotic rationer could not get away with not dispensing antibiotics for trivial infections due to their beliefs. You don’t get to not do your job because you disagree with the core functionality of your job, if you are in that situation you have to find a new career.
He’s trying to twist the definition of what it means to be a pharmacist, yes you can be a pharmacist who has anti-choice beliefs, but just the same as any other job you are expected not to bring beliefs that conflict with your job into the work place. Nobody forces you to be a pharmacist, you are free to try to work in any profession you are qualified to perform, but you must meet all the requirements of that profession.
Question 3a: There are many conditions for which contraceptive hormones can be prescribed for the health of the woman concerned, particularly related to the reproductive system, such as heavy period flow or other ailments. Is it the place of the pharmacist to question the reason for a certain treatment? They are not the customer’s doctor and are unaware of many of the details of a woman’s health and should not interject themselves into decisions which are between a patient and her doctor. As a result is such action an invasion of privacy, or should the woman be forced to disclose personal medical details in order for the pharmacist to decide if the treatment will conflict with their belief?
As to your particular situation, while I know nothing about it, I agree it would be a terrible thing if you were unable to get you the life saving drugs you describe. The pharmacists in this case, however, did not ask to avoid selling drugs that are life saving as you describe. They sell drugs to heal and help people; their objection is to giving drugs that, they believe, would kill someone, just like pharmacists and doctors who don’t want to participate in assisted suicide or capital punishment. Obviously there are places where assisted suicide and capital punishment are legal, but that doesn’t have to mean that unwilling people get forced to participate against their will or get fired. In a pluralistic society obviously people are free to disagree with these pharmacists as to whether a 2 day old embryo should be respected as a human being and not deliberately killed. But it seems to me fair that when people have a sincere belief that they would be killing a human being, the law should try to respect that, particularly where there are so many other ways for the government to meet the health need it claims. And here the government admitted under oath at trial that it was unaware of even one instance in which a religious pharmacist stepping aside had prevented anyone from getting their medication, despite the fact that this controversy has been going on in Illinois for more than 6 years.
Question 3b: This was more of a question of privacy, there are women who take the pill for medicinal health purposes, is a woman in this situation expected to reveal personal private medical information to a pharmacist in order to get the medication they require?
But he blocked with the following response.
As to privacy, pharmacists do lots of counseling of patients (and are actually required by law to offer counseling). The patient certainly has a right to choose not to talk. But I think the pharmacist then has the right to say they don’t want to sell a drug that might be used to kill a tiny human being. At least in Illinois, the law does not require them to simply give out the drugs and hope that they haven’t participated in what they believe to be killing.
Question 3: My Analysis
Now a pharmacist may be allowed to ask questions to determine if illegal activity is going on, but to the best of my knowledge the patient is under no obligation to answer them, and it is their responsibility to ask about drug conflicts and the rest. Contraceptive medication is not something that would normally be considered a restricted substance. Opiates, and illegal drug precursors (such as ephedrine containing cold medications for crystal meth) are the general focus of pharmacists investigating customers.
If I come in with a prescription for estrogen/progesterone preparation the pharmacist has no right to question whether its because of birth control, or because of other private medical matters. A pharmacist is a medical professional, however they are not someone to whom you have given the right to know your medical details the way you have to your primary care doctor or a specialist. Aside from all the other concerns this is a gross invasion of customer privacy.
Question 4a: I’m a transgender woman, and part of my daily medication is contra-hormone therapy prescribed and monitored by my endocrinologist, under the supervision of my therapist. Should a pharmacist be allowed to refuse to give me the life saving medication I need, because their beliefs conflict with the mountains of medical evidence showing the vital need for treatment for transgender individuals?
Lastly, I’d point out that these pharmacies have a policy of politely returning the prescription. No one at these places has ever been accused of giving a lecture, ripping up a prescription, humiliating a patient, or otherwise interfering. They have not tried to impose their views or morals on anyone; they have simply asked for the right to step aside on this one particular drug.
While the US is a matter of Civil rather than Common law, precedent still carries weight, and a pharmacist could point to your lawsuit if it is successful to refuse to treat me, or a pharmacist could refuse to give anti-retrovirals to an AIDS sufferer because they don’t believe its right to help people suffering from a disease caused by theoretical promiscuity. This lawsuit may target a single medication class for a single situation, but the precedent it sets could be used to allow any pharmacist to refuse any medication because of some belief no matter how rational or logical it is. Does this potential situation not worry you?
Question 4b: Slight addendum on this, the first time you go to a pharmacist to get contra-hormones is nerve wracking because of all the emotional excitement and the stress of the situation, and the humiliation of refusal to be served is something we all fear. Even today 2 years down the line, there’s still that little fear in the back of my mind because any potential pharmacist can work out from my medications what they giving out and refuse to treat me, although here in the UK I’d be able to sue them for discriminatory behavior, it would still be exceptionally heartbreaking and stressful… when I return to the states if i have to go to a new area I have no guarantee that that pharmacist will not have a moral objection and humiliate me by refusing to give me the medications that keep me alive.
As to the precedent, we don’t have a ruling yet and I can’t predict what it will say or how it will be used. But ultimately the policy judgment here was made by the legislature and the constitution-writers. They decided that religion and conscience get special protection. And at least in Illinois, there was no one who commented on the rule seeking a right to refuse any of the types of drugs you mention, nor has the government ever received even a single complaint about a refusal to sell any other drug–everything was about emergency contraception. So for what it is worth, there was no indication here of anyone trying to make the types of refusals you describe. And again, the pharmacists in this case are decent and kind people–they have each been practicing for more than 25 years and have never been accused of humiliating anyone, even though they occasionally cannot give a customer exactly what she wants. In fact, despite the fact that they have both refused prescriptions for emergency contraception, no one has ever complained about them at all.
I felt like in 4a, Mark responded with what is essentially the “free to refuse to serve african americans” excuse.. i.e. they could be courteously told to shove it… I felt this was a direct attempt to excuse such behavior, so I came back strongly and clarified my postion.
Now sadly his 4b response was being a bit dishonest intellectually, in that as a lawyer he does know that precedent would be set on the right of pharmacists to refuse to give out certain medications if doing so conflicted with their beliefs. My point was clear that being turned down would be humiliating, no matter how kind and respectful the pharmacist was in the refusal.
Well? What Now
To me the idea that a Pharmacist would not do their job because it conflicted with their beliefs is ludicrous, they were well aware of the requirements of their job, primarily the requirement to dispense medication without prejudice. I fully expect the supreme court of illinois to uphold the statute requiring all pharmacies to provide emergency contraception.
However I will be keeping an eye on this case and similar ones to protect the rights of all who need their prescriptions to be filled without prejudice.