Last month a small group of Washington State pharmacists celebrated a ground-breaking victory after a five-year lawsuit against their regulator, the Washington State Board of Pharmacy. The lawsuit was launched in 2007 by two pharmacists and a retailer just a day after the board, under pressure from the state governor, Planned Parenthood and the Northwest Women’s Law Centre, enacted new, seemingly neutral regulations about stocking drugs and filling prescriptions.
There is little doubt the 2007 “stock and delivery” rules would have passed constitutional muster, if they applied to all as written. But the rules were declared unconstitutional by District Court Judge Ronald B Leighton in his February 2012 opinion because they are anything but neutral, or generally applicable. Instead, they were designed to compel a few objecting pharmacists to stock and dispense the Plan B morning-after pill in violation of their deeply held beliefs — or close shop. And this, in spite of there being no evidence that consumers were unable to buy the product elsewhere.
In a nutshell, the delivery rule requires all pharmacies to deliver in a timely fashion all lawfully-prescribed medications (with certain enumerated exemptions). The stocking rule requires all pharmacies to “maintain at all times a representative assortment of drugs in order to meet the pharmaceutical needs of [their] patients.”
But for 40 years, the stocking rule has never been enforced against any pharmacy, even though it, too, is intended to ensure public access to all medications. Plainly, it was absurd to force retailers to stock and dispense economically unprofitable products; products for which there is little demand; products not fitting into a specialty niche; products with high-theft potential, among others.
No wonder it was ignored — until a group of women committed to their own vision of reproductive health decided to use the stock and delivery rules to run religious objectors to abortifacient drugs out of the trade. The Pharmacy Board — not without a certain amount of pressure — complied. When the new rules were finally agreed on they reflected the drafting group’s view that, to quote Judge Leighton, “a pharmacy would be permitted to refer patients for a broad range of business reasons, but referral for reasons of conscience was objectionable and should not be permitted.”
Prior to the 2007 rules, pharmacists and pharmacies with an objection to dispensing Plan B engaged in a practice known as “refuse and refer”. The new rules recognise the right of an individual pharmacist to refuse to fill a Plan B prescription on conscientious or religious grounds but oblige the pharmacy to stock the drug and fill prescriptions. In other words, an owner operator has no appeal to conscience, and must employ at least one pharmacist per shift who has no conscientious objection.
When the rules were reviewed by the Ninth Circuit Court it found them “neutral and generally applicable”. But, as Judge Leighton points out in his opinion, the test of neutrality is not limited to a mechanical review of the text, but to how the rules function in practice. And the rules in this case are clearly designed to force religiously motivated pharmacists to dispense morning after pills, while refusals to dispense for all sorts of secular reasons are permitted.
This is further evidenced by the fact that since 1997 there have been at least nine complaints to the Pharmacy Board regarding a pharmacy’s refusal (or failure) to dispense drugs other than Plan B, and that the board declined to investigate any of them.
Although this particular attempt to eliminate conscience protection in regard to certain pet products in the health arena seems to have failed, there will no doubt be others. Conscience formed by (to quote the judge) “a sincere religious belief” that so-called emergency contraception “terminates a human life” has won this time, but that belief is apparently incomprehensible to those of the “birth control at all costs” mentality. There will be continuing efforts to depict it as the irrational belief of a small religious minority — as has happened in the debate over the contentious White House “contraceptive mandate”.
And yet the view that a fertilised ovum or an embryo a few days old is a human life is based on biological science, not religion. And the fully human value of that life can be deduced by reason; it is not a matter of faith. So I find it rather disheartening that we need to draw on religious freedom in order to win a case against the indignity of being forced to sell a product whose very purpose is the eradication of a human life at its beginning. A better name for the morning–after pill, in my view, would be “human pesticide” or embryocide. Even a non-religious pharmacist might object to being forced to dispense such a product.
The evident fact of the humanity of the fetus revealed by ultrasound has not stopped abortion, although it has changed the attitude of many people towards that practice. The humanity of the newly conceived human being cannot be demonstrated in that way, but we should not give up talking about the rational grounds for according the embryo fully human status and dignity.
Meanwhile, although referral for all morally controversial services may not always be an option for an individual pharmacist, it is clearly a more respectful way of dealing with moral disagreement. If it is important not to deny someone a product, how much more so not to deny them the ability of think and act according to conscience.
The Washington victory says it all.
Cristina Alarcon is a Vancouver pharmacist and writer. She holds a Masters in Bioethics.