Prescription for Conflict?
My colleague David Boaz and Judy Waxman of the National Women’s Law Center face off in Legal Affairs on whether pharmacists should be forced to fulfill prescriptions. It seems that religion leads some pharmacists to refuse to sell birth control or “morning after” pills. Some people think that they should be free to choose what they will and will not sell. (Imagine that!) But wiser people know that such matters should not be left to “free choice,” but should be determined at the highest levels. But those libertarians keep insisting that we would have a more harmonious society if people were free to decide for themselves what to buy or to sell. As David points out, there is a movement to force pharmacists to fulfill all the prescriptions presented to them, no matter how morally opposed they may be, and a movement to force pharmacies to accommodate the religious beliefs of employees and not, for example, fire those whose religious beliefs require that they not dispense morning after pills. Damned (or at least punished) if you do and damned if you don’t. (Of course, the mere fact that abandoning freedom of choice means that the state will both require and prohibit something seems to many thinkers no obstacle to the use force; I wrote on such odd approaches in my essay on “Saving Rights Theory from Its Friends,” in Tibor Machan, ed., Individual Rights Reconsidered [Stanford, Ca.: Hoover Institution Press, 2001].)
The best solution I can come up with is that pharmacists are left free to not fill any prescription that they feel to be morally reprehensible and pharmacies are free not to retain the services of pharmacists who are obstinately opposed the pharmacies’ own prescription policies.
In this way it is like any other services contract, in that failure to perform services for which once is paid usually leads to termination of the contract.
Thus it seems to me that it is not an unsurmountable issue, unless you happen to be incredibly obtuse or intentionally difficult. I’m not to keen on either faction.
I personally find those pharmacists who don’t fill “morning after” pills and birth control to be kooks who don’t understand the nuances of the reproductive system. But that doesn’t mean I can require them to fill any prescriptions just because it’s supposedly for the “greater good.” Pharamcies operate independenly of one’s HMO or health care plan. Like any business they can turn down any client they so choose. There will always be a more profit friendly company waiting to pick up where some have left off. Such is the beauty of capitalism.
One aspect of this issue that I’ve not seen discussed is the simple fact that no pharmacy is compelled to carry every prescription. I recently needed a relatively common, morally unobjectionable drug. My local pharmacist simply didn’t have it, so I had to go to another one.
So riddle me this. If, say, the day after the local high school prom, the local pharmacist “runs out” of morning after pills, would that be ‘actionable’ under the proposed law requiring pharmacists to dispense everything? Would the fact that the pharmacist sold at least 1 such pill provide a “safe harbor”? Or would the fact that he didn’t order “enough” be proof of deliberate non-compliance?
Would the law extend to my common drug, or just cover drugs with moral questions?
Would the law dictate a price for the drugs, or would the pharmacist be “legal” if he had one pill, but priced it at 100 times the ‘normal’ price (whatever that means in the healthcare “market”)?
Would another law be required to “protect” the ‘privacy’ of minors by requiring the pharmacist to dispense without notification to the insurance company, as that would eventually lead to parental notification through ordinary EOBs? (OK, this question is off topic.)
These so-called common sense regulations to “protect” the consumer from the “unreasonable” exercise of free will in a free market invariably create more questions than they answer. Lawyers thrive in such environments, while no one (not even the lawyers) can be sure of what’s permitted, required, forbidden, etc. This fits my notion of “unconstitutionally vague”, but I realize I’m pretty much alone in that belief.
Leave the poor pharmacist his conscience. Leave the corporate HR department their discretion. Leave the consumer his option to find another pharmacist or to become a pharmacist himself.
I wonder if this issue would even be an issue if there wasn’t such tight regulation of the prescription drug market in the first place. Isn’t that what sets up the conditions necessary for this conflict?
On Compulsory Pharmacology
Yesterday I put my libertarian credentials on the line by asking whether public breastfeeding could rightfully be subject to regulation or prohibition.
Since I’m on a ro…
It’s one thing to say that the pharmacy (=the owner of the establishment) has the right to choose whether or not to sell Item X, and another to say that each individual pharmacist has the right to choose whether to fill a given presription. The former is consistent with libertarianism, but I don’t see how the latter is. If the pharmacy owner chooses to carry Item X, the individual pharmacist (an employee) doesn’t get to choose whether to fill the rx any more than the cashier does.
Of course I agree that pharmacists should be allowed to refuse whatever prescriptions they like, but I must say how amused I am that some of the most non-libertarian types in American politics have suddenly discovered the principles of free choice on this very particular issue.
Other than David (and Tom and Aeon above) really depressingly few people have been willing to draw the utterly elementary distinction here– between pharmacists being required by the state to dispense the drugs and their being required *by their employer* to dispense them. The competing public and silly positions are: both pharmacist and employer have freedom of choice (but what happens when the two disagree?), or both must be compelled (even though proprietors aren’t compelled to carry products when they object to them for other-than-religious reasons).
One thing to note: The objecting pharmacists have sometimes refused to return the prescription slip while also refusing to fill the prescription themselves. *That’s* theft. They’re under no obligation to refer the customer to another pharmacy, but it’s illegitimate for them to prevent the customer from being *able* to go to another pharmacy.
Levywatch
Jacob Levy emerges in the comments of a blog where I haven’t caught him before– he discusses pharmacists’ freedom of choice at Tom Palmer’s….
An excellent example of how the classical liberal approach to rights is the only one able to accomodate these kind of moral differences.
If a pharmacy chooses to accept prescriptions which are government funded, then the government presumably could impose conditions on the pharmacy before it would be allowed to accept and claim money from prescriptions dispensed. One such condition could be that all prescriptions are honored. A pharmacy could choose not to accept such a condition and the government could choose not to award it a license for accepting government funded prescriptions.
Of course, there have been suggestions by previous posters in the form of what if… eg. the pharmacy runs out of a certain product. Regulations or laws do not fall because there are unknown questions as to their implementation. It is a function of the courts or quasi judicial bodies to decide such questions as and when they arise. A quasi judicial or real judicial procedure would be able to determine whether or not it was the intention of the pharmacy to defeat the requirement of dispensing certain prescriptions.