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April 08, 2005

the case of the conscientious pharmacist

Don Herzog: April 8, 2005

Next week, Wisconsin's Pharmacy Examining Board will review an administrative law judge's recommendation that Neil Noesen be reprimanded.  Back in 2002, Noesen was working at Kmart.  A University of Wisconsin undergraduate stopped by to fill a prescription for contraceptives.  Noesen refused.  He also refused to transfer the prescription to another pharmacy.  Why?  A Roman Catholic, Noesen believed he'd be sinning.  "I could have trouble sleeping at night.  I could be suffering the worst kind of pain:  spiritual pain," he testified before the administrative law judge. 

The case has produced some sadly overheated claims.  "This is a real problem," said the president of Pharmacists for Life International.  "We've got judges practicing medicine without a license."  Yes, I know, judge-bashing is all the rage these days.  But how shameless do you have to be to say that with a straight face?

Less implausibly, some imagine that Noesen's constitutional rights are being violated.  "It's unconscionable that a health professional is being put through such a disrespectful ordeal because of his deeply held religious convictions," said the director of Pro-Life Wisconsin.  "Not only is this an infringement on Neil Noesen's free exercise of religion, it will in the long run serve to aggravate the already acute shortage of qualified pharmacists by discouraging people of faith from entering the field."  There's no constitutional bar to Wisconsin applying its law here.  But there is a serious policy question.

Alas the judge's recommendation is unpublished.  (At least it isn't here or on Lexis.)  So I'll have to speculate on what the legal issues were, and you may want to take my diagnosis with a boulder of salt.  Wis. Stat. § 450.10 provides for disciplinary proceedings against pharmacists on grounds of unprofessional conduct.  In an unfortunately common style of legislative drafting, it gives instances of such conduct but says the category is not limited to those instances.  And it looks like the judge decided Noesen violated this code of ethics.  There's room here for worries about notice, though there may well be other legal rules on point that I haven't surfaced.  But I suppose the state's interest is in ensuring nondiscrimination:  any and all patients ought to be able to procure any and all medicines legally prescribed for them.  That rule does indeed burden Noesen's religion:  I take the man at his word that he thinks he'd be sinning in helping a woman have sex and avoid pregnancy.  But as I've argued, that burden, standing alone, doesn't entitle Noesen to judicial relief.  These questions properly go to the legislature.

Two measures in fact have been floating through Wisconsin's legislature.  The first would guarantee a pharmacist's right to refuse "to dispense a prescribed drug or device if the pharmacist has reason to believe that the drug or device would be used for causing an abortion" or the death of any person.  (Noesen testified on behalf of the measure, which makes me suspect the language could be used to cover people refusing to prescribe birth control.  As I've noted before, legal language doesn't always mean what people think it does, and political actors aren't above being sneaky.)  The second, more ambitious, would guarantee health care workers the right to refuse, on moral or religious grounds, to participate in

1) sterilization procedures; 2) abortions; 3) experiments or medical procedures that involve the destruction of a human embryo or that involve a human embryo or unborn child but do not relate to the beneficial treatment of the human embryo or unborn child; 4) procedures using fetal tissue or organs other than fetal tissue or organs from a stillbirth, spontaneous abortion, or miscarriage; 5) withholding or withdrawing nutrition or hydration under certain circumstances; or 6) acts intentionally causing or assisting in the death of an individual, including assisted suicide, euthanasia, or mercy killing.

Both measures would grant these guarantees by saying that employers moving against such refusals would be discriminating on basis of creed; they'd also extend immunities from liability and discipinary hearings.  Both measures do not allow the employer to argue that accommodation would impose "undue hardship," the federal standard under Title VII for not accommodating "religious observance."  But there's no way Noesen's refusal counts as religious observance anyway.  That category covers people who need to pray, say, during the workday.  Antidiscrimination law does not think anything and everything becomes a religious observance if you do it for religious reasons.  And no one should be even vaguely tempted by the principle that everyone ought always to be exempted from a law if he has religious objections, even if they're sincere, even if they're deep.  (Child sacrifice, anyone?)  Instead we always have to say something about how reasonable the objections are, and how much offering an exemption would impinge on others' interests.

Wisconsin already permits doctors and other hospital workers to refuse to take any role in providing abortions (Wis. Stat. § 253.09).  I approve of that rule.  (Yes, it's perfectly coherent for me to be rabidly pro-choice and to think that given the deep, principled divisions surrounding the issue, legislatures ought to allow doctors and others to refuse to provide abortions.)  So now we have two kinds of positions on the table.  One:  require the pharmacists to dispense whatever's prescribed.  Two:  require employers to grant pharmacists the right of conscientious objection, and then we quibble over how broad that right might be.  But isn't a third position missing?  What about freedom of contract?  Why not get the state out of this business altogether and leave it up to private parties to negotiate mutually advantageous deals?

Freedom of contract is a wonderful strategy for respecting autonomy and advancing human welfare, but I don't think it's the holy grail of policy in these areas.  I think the state may set the terms on which parties can negotiate:  the state can guarantee rights to some parties, refuse to let some rights be bargained away or bargained for, and so on.  When the state does that to ban discrimination, I'm particularly happy.  Spare me any fantasies about the alleged dreadful novelties of the New Deal or the Great Society:  citing hoary common law, the Supreme Court was happily upholding regulations of businesses "affected with a public interest" as early as 1876.  If you leave pharmacists and their employers to hammer out whatever contractual arrangements they like, you're neglecting the interests of patients.  Yes, their market demand gives employers some reason to represent their interests.  But this mechanism isn't foolproof.  Among other unsavory possibilities, notice the potential for nasty third-party preferences:  "we won't fill our prescriptions here if you fill prescriptions for Drug X, or to members of Church Y or Race Z."  A free market would be perfectly responsive to such preferences.

Then too if you're solicitous about pharmacists you may wonder how voluntary their contracts are.  If they have no reasonable alternatives if there's just one employer, or all the employers are offering similar terms it's stretching it to say that they've voluntarily agreed.  In English, we'd say that they do what they have to do.  That everyday language is illuminating.  So too for patients.  If you live in Shell Lake (population 1,309), how many local pharmacists do you think there are?  (Looks like one.)  I guess you could drive to that nearby metropolis, Spooner (population 2,653).  But what if you live way out in the countryside?  Yes, in a libertarian paradise we'd dispense with state controls on the right to prescribe or vend medicine, and you could buy whatever you wanted off the internet.  The Messiah hasn't arrived, though, and meanwhile responsible policymakers have to figure out what to do.  When the law enlists pharmacists as common carriers, when it says they must be willing to dispense valid prescriptions to any and all comers, it is limiting the contractual rights of pharmacists and pharmacies.  But that limit can expand the choices of patients.  And we don't think of prescription drugs as just another commodity consumers can buy or not as they see fit, on a par with iPods or lemon meringue pies.  We think of them as something people need.

A rule that requires Kmart to respect Noesen's conscience violates freedom of contract.  A rule that requires Noesen to fill prescriptions violates freedom of contract.  Insisting on always leaving these matters to private parties to negotiate is making a fetish out of a principle that's highly attractive but which can sensibly be overridden.  So here my view is that Wisconsin should require pharmacists to dispense contraceptives, even if those pharmacists have sincere moral or religious objections.  If Noesen can't swallow that, he shouldn't be a pharmacist.

Noesen isn't alone; plenty of these cases have surfaced in the last few years.  Last week, the governor of Illinois issued an emergency rule requiring drugstores to fill orders for contraceptives. "No delays.  No hassles.  No lecture.  Just fill the prescription," he said.  It will remain on the books for 150 days while the legislature considers making the policy permanent.  Good for him.  All I want courts to do in this arena is impartially apply whatever the law is:  no judicially granted carveouts for those with religious objections, thank you very much.  This battle belongs in the political arena, with vibrant public debate.  And I hope the Noesens of the world lose.


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Posted by: amh

Wahooo...I am the first on the board :-)

But really these people are ridiculous. It is not a pharmacist’s job to decide what medication a patient gets; it is the doctor’s job! If you don't want to dispense medicine, don't be a pharmacist. If it is a legally prescribed drug, it is their duty to then give it....this is just another affront on woman’s rights. If you don’t believe in birth control, don’t take it…but don’t then try and stop me from doing so. What about condoms? You don’t have to but them from the pharmacist, but what if the man (or woman) who is checking you out at the drug store has those same “deeply religious” beliefs? Do they get to refuse to sell them to you? Or what if you go to check out with some beef from the grocery store and a Hindu is behind the counter? Do they get to refuse since it is against their religion to not touch/eat beef? A health care person is there to provide me with care- not to lecture me on their beliefs. Besides the fact a good number (I think 20% or so…I’m sure someone can find the stat) take birth control to regulate their period and for other health benefits- not to avoid pregnancy. My friend (who was a virgin) was taking it because she had cysts (not sure if that is how it’s spelled) on her ovaries…besides it is against my ‘deep religious beliefs’ to talk to wankers, but I must do it every day (/sarcasm)

Posted by: amh | Apr 8, 2005 7:56:56 AM

Posted by: Jay Cline

I only got as far as the claim that the good pharmacist's freedom of religion was being infringed upon. Let's see. He is licensed, by the government, isn't he? Well, isn't that a violation of the establishment clause?

Constitutional rights cuts both ways, bubba.

The license to dispense prescription medicine does not include license to preach religion. Do that on your own time.

Posted by: Jay Cline | Apr 8, 2005 8:05:43 AM

Posted by: D.A. Ridgely

I am, to put it mildly, less sanguine than Mr. Herzog that there are no 1st Amendment issues in these cases and vastly less comfortable than he appears to be in relying on common carrier and warehouse cases that seek recourse in the words of Lord Hale and the statutes of William & Mary to extend the notion that the net in which pharmacists and physicians might find themselves ensnared isn't really made of newly spun judicial silk. To paraphrase Lewis Carroll, "All is in the public interest and all must have state control." Or so, it seems, some would argue.

I do think he's on to something (or close to it, at least) in at least noting that contract law (and the resulting market) might resolve these issues even while some of us continue to await the Messiah. As between KMart and the pharmacist, the issue should be governed by the employment contract, period. As between KMart and the local population, it was under no obligation to operate a pharmacy at all. If it loses sufficient business because it hires a pharmacist who refuses to fill certain prescriptions, Spooner's pharmacy gets the business, KMart gets a new pharmacist and/or another pharmacist sets up shop elsewhere in Shell Lake. No one has a right to a pharmacist within X miles of home. (I would probably, however, not feel uncomfortable in requiring pharmacies that limit their trade in such manners to give effective notice. See there? Even libertarians can accept some limited state action.)

Posted by: D.A. Ridgely | Apr 8, 2005 8:11:28 AM

Posted by: amh

Ok, I swear I have to go back to work so this will be quick...

D.A. Ridgely- While I get your point, I think you miss the whole arena of this affecting a woman's right. I also think there is an entire topic to be had on the practical implications of these types of actions in a small town and small town dynamics (i.e. you can not come to church if you dispense this medicine, this is the only pharmacist in a 50 mile radius…mix in a poor woman with no money and no type of transportation to get her that distance and well….) And forget the internet as a way to get the medicine. While I have enjoyed broadband for several years now, there are still large (mostly) rural parts of the country that have dial up and many times no computers at all…as hard to believe as that seems. And it is rather flippant to say just another pharmacist will magically spring up if the only pharmacist in town doesn’t dispense birth control…You could be right on this being a 1st amendment issue, but what about my right to take a legally prescribed medicine?

Well, I am off…look forward to seeing this discussion later.

Posted by: amh | Apr 8, 2005 8:25:06 AM

Posted by: D.A. Ridgely

A quick search of pharmacies close to Spoon Lake indicates that there are sixteen within a 25 mile radius (many much closer).

The KMart, by the way, appears to be in Rice Lake. There are several pharmacies in Rice Lake. The KMart probably had the lowest prices. Ho hum.

Posted by: D.A. Ridgely | Apr 8, 2005 8:36:43 AM

Posted by: Josh Jasper

Well, my religion prohibits me from allowing republicans to buy viagra. So we'll just be checking voter registration every time someone comes into the store. Oh, and publishing who buys what in the local paper.

If you don't object to the Wisconsin law, I fail to see how you can object to that.

Posted by: Josh Jasper | Apr 8, 2005 8:55:39 AM

Posted by: pedro

In the libertarian utopia, do businesses have the right to refuse service to people on the basis of race? I'm genuinely curious.

Re: pharmacists. Say we require pharmacists to abide by the code of ethics the prevents them from refusing the sale of contraceptives on the basis of their personal religious beliefs, and, instead of arguing that the consumer is free to go to another pharmacy 25 miles away, we argue simply that the pharmacist had the choice *not* to become a pharmacist. Isn't there a somewhat free market of professions for the pharmacist to choose?

Posted by: pedro | Apr 8, 2005 9:03:10 AM

Posted by: john t

Although I find myself in a limited sympathy for our very religious pharmacist I wonder what he thought would be crossing his counter. Did he think he would only be dispensing cold medicine and blood pressure pills? Or maybe he could run into the back room to get the atheist pharmacist for help. The first obligation of the citizen,or at least an important one,is to navigate thru a world of differing or even disagreeable laws,customs,and morals while sustaining his own beliefs and individuality. If he had noticed those little plastic baggy things they sell in drugstores he could have navigated to another line of work. Lord Hale and commom carrier both aside for a moment his conduct is rude and sanctimonious and violates something that both precedes law and supports it,common public civility

Posted by: john t | Apr 8, 2005 9:05:48 AM

Posted by: D.A. Ridgely

I trust Mr. Herzog would extend his logic to require the only ob-gyn in town to perform abortions? And if and when assisted suicide becomes legal, physicians and hospitals will be universally required to comply with and assist in patient suicides? Or are pharmacists so low on the health care food chain that their moral scruples are less worthy of honoring?

Look, I would be disgusted by, say, a religiously biased homophobic pharmacist refusing to fill required prescriptions for a gay HIV+ patient. If only as a matter of professional ethics, I think physicians, pharmacists, etc. have an obligation to render appropriate life saving treatment. And insofar as they hold themselves out to the public as offering unrestricted services within their fields (that is, for example, insofar as the Roman Catholic ob-gyn doesn’t make it clear to prospective patients that she doesn’t perform abortions), the law should properly hold them to that representation.

But please spare me the argument that my constitutional right to contraceptives or an abortion require any and all pharmacists and physicians to render those services any more than my right to cosmetic surgery entails an obligation on the part of any particular plastic surgeon to make me look like Michael Jackson.

Mr. Jasper, certainly you can appreciate the distinction between prohibiting others who want to buy or sell Viagra and permitting those who choose not to sell it to refrain from doing so. (Besides, Viagra doesn’t work for many Republicans or, for that matter, many Democrats – it only makes them taller.)

Pedro, the answer to your question is yes, private parties would be free to discriminate on any grounds they saw fit to do so. It is worth noting, however, that I have never once met a racist libertarian. What people should be permitted to do and whether I approve of it are two entirely different matters.

Posted by: D.A. Ridgely | Apr 8, 2005 9:13:17 AM

Posted by: Tad Brennan

Mr. Ridgely--

I'm not sure anyone will claim you have a constitutional *right* to look like Michael Jackson.

But I do know that if someone on this blog wants to start up a pool to pay for the surgery, I'll be the first to chip in. This is the best laugh I've had in days. From now on, I'm going to read your posts and imagine Michael Jackson lip-synching all of them--and people say that libertarians are all living in Neverland.

Sorry--back to substance in a later post.

Posted by: Tad Brennan | Apr 8, 2005 9:37:09 AM

Posted by: Terrier

Who died and made pharmacists God? I have in my time on this earth been employed doing things that I considered immoral. I did those things because I felt I had a higher obligation to provide for my family. No one is even asking these guys to TAKE this medicine. They are dispensing the medicine. Is it against the laws of the Catholic Church to possess contraception? Why don't these guys refuse to stock the pills? Why don't they burn the pharmacy? Why don't they just pack their bags and get the hell out?

Posted by: Terrier | Apr 8, 2005 9:46:43 AM

Posted by: john t

D A Ridgely the primary obligation is on the individual,regardless of how gross or how insignificant the State is. It is up to the individual,the chooser,and if his scruples prevent him from dealing in certain things then he should choose to involve himself in other things. Now if the store does not wish to carry certain products he may have an out,but if the store does carry such products and that is his line of work then he has made a committment when other employment or vocational opportunities were in fact available. This would be akin to a Islamic bank officer refusing a loan because the customer is Jewish. Does everybody get to pick and choose? If so there are alternatives that an individualist may follow. You did mention representations, did the store represent anything supportive of this particlular man's position,if not why is he working there?

Posted by: john t | Apr 8, 2005 10:33:26 AM

Posted by: Mark

Requiring pharmacists to dispense these drugs is either too little or too much. If that's literally all the law requires, then objecting pharmacists can simply not stock these drugs, so the law does too little.

If the law requires pharmacists to stock these drugs, how much of a stockpile must they keep? Will the reorder points be specified in the statute or by regulation? Or will it be left so vague the courts end up inventing rules and tests? Do this, and we'll have lawyers sending young women into pharmacies in retirement communities looking for someone to sue. (Seniors have more sex than you might think, but they're not big consumers of contraceptives.)

Maybe I'm just revealing my simplistic libertarian roots, but I think contract and property law really does solve a lot of this. Dispensing medication is a pretty important part of the pharmacist's job, and can't reasonably be part of a religious accomodation, so an employer can certainly make it a condition of employment.

On the other hand, if a pharmacy allows its pharmacists to refuse, it's hard to say it shouldn't without running into the stockpiling issue.

Finally, the prescription belongs to the customer and the state can certainly prevent the pharmacists from stealing it.

Posted by: Mark | Apr 8, 2005 10:50:24 AM

Posted by: D.A. Ridgely

john t:

I have no idea what representations Kmart may or may not have made, I merely offered that as one measure I might think appropriate. Actually, your Islamic bank officer ought not to be in the business of lending money at interest in the first place, at least according to the Koran. (They appear to manage to finesse that point, though.)

In any case, your analogy does not work. Discriminating against a person because of his or her gender / ethnicity, etc. (libertarian perspectives on such discrimination aside) is entirely different from refusing to provide a particular good or service to anyone at all. There is no evidence here that the prescription holder was discriminated against; that is, that the pharmacist would gladly have filled the prescription to someone from a different religious or ethnic group, etc. The presupposition here is that he would not fill anyone’s contraceptive prescription. The notion that a person in a chosen career has to violate his conscientious beliefs for the sake of any right on the part of any potential customer, client or patient under any or all circumstances or else forego that career is absurd.

Look, a public defender can’t say she won’t defend people charged with rape. That’s what public defenders do, provide legal defense to anyone charged with a crime who otherwise qualifies for a court appointed attorney. But that doesn’t mean every criminal defense attorney in private practice must accept as a client every defendant charged with any and all crime at all. It has never been the law that a lawyer or doctor must take on any prospective client or patient who walks in the door. Perhaps as a matter of legal ethics the private defense attorney should take such cases. That’s at least a debatable claim. Perhaps state codes of professional responsibility or even state bars should require it as a condition of licensing, also. Again, debatable.

And so, too, perhaps the pharmacists’ equivalent professional association or licensing agency should require it, too. I think not, but the case under consideration suggests that there is no per se legal legal requirement on the part of pharmacists to fill contraception prescriptions. If the pharmacist in question misrepresented to KMart his unwillingness to fill contraception prescriptions, KMart should have every right to fire him. Even if it didn’t come up when he took the job, if KMart believes his refusal is hurting its business it should be free to fire him. He doesn’t have a right as an employee to do any damned thing he wants. But if he goes off and sets up a pharmacy in town by himself and refuses to sell contraceptives, I say more power to him. Let the market decide whether he succeeds or not.

Posted by: D.A. Ridgely | Apr 8, 2005 11:02:08 AM

Posted by: D.A. Ridgely

Oops! Reading Mr. Herzog's post a bit more carefully the second time through, I see he supports the Wisconsin statute exempting medical personnel from being required to perform abortions. My bad. Still, I question whether his position really is coherent unless he would also permit pharmacists to refuse to fill prescriptions for abortafacients (e.g., RU486) sold as birth control.

Posted by: D.A. Ridgely | Apr 8, 2005 11:15:09 AM

Posted by: D.A. Ridgely

BTW, if only to prove there is no single libertarian position on such things, ReasonOnline has just posted an entirely different slant on the Noesen case and related issues.

Posted by: D.A. Ridgely | Apr 8, 2005 11:25:33 AM

Posted by: Achillea

Or maybe he could run into the back room to get the atheist pharmacist for help.

Depending what "He also refused to transfer the prescription to another pharmacy." means, it may be that not only did he refuse to get someone to fill the prescription, he attempted to prevent her from getting someone to do so. I've heard of incidents in which the pharmacist refused even to return the prescription to the patient, but I don't know if this is one of them.

Posted by: Achillea | Apr 8, 2005 12:18:02 PM

Posted by: David Velleman

Achillea: I don't know the facts of this case, but if your physician telephones or faxes your prescription to the pharmacy, then it is never in your possession. Anf if the pharmacist is permitted to refuse to fill it -- and also refuses to transfer it to another pharmacist -- then the pharmacist has in effect deprived you of the prescription that your physician intended you to have. Whether or not this is the scenario in the present case, it is obviously a possible scenario

Posted by: David Velleman | Apr 8, 2005 1:04:04 PM

Posted by: D.A. Ridgely

Mr. Herzog's phrasing, "A University of Wisconsin undergraduate stopped by to fill a prescription for contraceptives," suggests otherwise.

But the point is valid. Whatever I think about the pharmacist's right not to fill a prescription, any interference with the patient's right to get it filled elsewhere is wrong and should be actionable. Moreover, if Noesen was taking phone prescriptions for contraceptives and then refusing to fill them, he should have his license revoked as well.

Of course, it is also possible the prescription was phoned in and accepted by a different pharmacist then on duty, along comes the student later and now Noesen refuses to fill or deliver it. Unlikely but possible.

Posted by: D.A. Ridgely | Apr 8, 2005 1:24:12 PM

Posted by: Dave Schuler

Deviating from the facts of the actual case, let's consider a hypothetical. Let's assume that the pharmacist's beliefs are sincere and well-founded i.e. his religion actually stipulates what he thinks it does. Do a woman or man's reproductive rights trump the pharmacist's right to practice his or her religion? Why?

Posted by: Dave Schuler | Apr 8, 2005 1:46:08 PM

Posted by: john t

D RIdgely, in the interest of time I'll keep it short,plus I know you have other things to do. If I understand your answer you seem to be saying he is not discriminating against a particular group,therefore he can discriminate against everybody who wants a certain type of product. He is unavoidably discriminating because he would sell them that blood pressure medicine would he not. Regarding career's I would it is not absurd to forgo a field if you believe you may have ethical problems,and if it is absurd I'm sure the aburdity takes place every day. I would distinguish between a lawyer refusing to handle a rape case and the present question and as for doctors,apart from personal expertise the only reson I've heard of for not accepting a client is mental instability,or conflict between the patient and M.D. . I do agree with your last sentence,however he does it let him save his pennies and open his own place. You did read Don H's code of ethics,I went over it,I hope not to quickly,and didn't see anything in there about the pharmicists convictions taking precedence over the public.

Posted by: john t | Apr 8, 2005 1:52:13 PM

Posted by: Mona

Unsurprisingly, I agree almost entirely with D. A. Ridgely. There is a profound 1st Am issue at stake here, and no reason in either principle or need for the state to compel a devoutly Catholic pharmacist to participate in transactions s/he believes to be mortally (as in hellfire) sinful, as a condition of holding a license to earn a living. (The owner of the pharmacy employing the pharmacist, however, should be free to require participation in such transactions, or to accommodate the employee, as that owner sees fit.)

You cannot tell me that for all these women stranded in Outer Mongolia, U.S.A who have Don H. and others wringing their hands, there is not an obvious solution that preserves the rights of a tiny handful of devout Catholic pharmacists not to aid and abet sin. Surely Wisc. physicians could use their DEA-provided password and send an Rx into, say, wisconsindrugs.com, and secure next day delivery to anyone.

What I suspect is happening in this whole controversy is that people who are (sometimes rightly) angry at the religious right, are losing sight of the fact that even if such persons present a political agenda we often do well to battle, as individuals, they retain rights, as we all do. Battling them at the level of their own actual rights is misguided, at best.

My license to practice law does not mean that I am required to prosecute drug cases, and in fact, I told an employer once that I couldn't do it after a few rounds of same. (Small pvt firm that did misdemeanor prosecutions for a tiny Michigan municipality.) Now, my employer could have insisted, but did not. In any event, the State Bar of Michigan did not make my license contingent on doing so.

And, just because a person charged with a crime has a constitutional right to a defense, it does not mean that person may compel *me* to provide it, not if I find this person repugnant. S/he can go down the street; lawyers are a diverse lot and we are, alas, everywhere. My refusal does not = him/her losing their 6th Am rights.

Any who think it is just fine to burden a sincere religionist with having to engage in transactions s/he finds totally immoral, should think twice. I would not do so for my own safety's sake.

Posted by: Mona | Apr 8, 2005 2:27:51 PM

Posted by: Dennis J. Tuchler

All this talk about rights and duties confuses me. I thought licensure only assured that the pharmacist was competent, not that the pharmacist's services are available to all. The pharmacist remains free to provide such services as she wishes, I think, but should inform the public of what services the pharmacist will not perform so that people don't waste their time going there. If the pharmacist is the only one in town, that pharmacist should not have to take on the responsibility to provide every service anyone in the area would need. The pharmacist's wealth would limit her services. Why not her conscience, too?

On the other hand, what if the pharmacist wants to sell morning-after pills but finds that one of the people serving customers at her shop refuses to sell those pills because she believes that a newly fertilized ovum is fully human and has a right to life? Is there any problem with a pharmacist firing or refusing to hire such a person? That would seem to allow a pharmacist to discriminate in hiring with respect to religious belief.

Posted by: Dennis J. Tuchler | Apr 8, 2005 2:32:34 PM

Posted by: Paul Shields

If the refusal of a pharmacist to fill a prescription for religious reasons interferes with a person’s right to have a prescription filled by a nonobjecting pharmacist, then there is clearly something wrong and I would agree with DAR that this should be actionable . But it seems to me that the market would make short work of pharmacists who refuse to fill prescriptions anyway. So what exactly is this issue? I have observed that there is a strong sentiment against certain sorts of religious belief on this blog. For comparison, consider the tradition of granting almost automatic CO status to Quakers, Mennonites and Bretheren--even in time of war. Would the left argue that this religious exemption is unjustified? Or does making social ‘space’ for religious beliefs only suit the left when they happen to approve of the particular beliefs in question?

Posted by: Paul Shields | Apr 8, 2005 2:34:37 PM

Posted by: Dan Kervick

Mona wrote:

There is a profound 1st Am issue at stake here, and no reason in either principle or need for the state to compel a devoutly Catholic pharmacist to participate in transactions s/he believes to be mortally (as in hellfire) sinful, as a condition of holding a license to earn a living. (The owner of the pharmacy employing the pharmacist, however, should be free to require participation in such transactions, or to accommodate the employee, as that owner sees fit.)

The fundamental legislative issue in this case is probably the second one, right? The question is whether the employer will have the right to require the pharmacist to fill these prescriptions he finds objectionable, and make that a condition of employment. If the employer does have this right, then game over. Objecting pharmacists will find a much smaller market for their services, and most would be well-advised to seek another line of work.

According to Don's account of the measure floating through the Wisconsin legislature:

Both measures would grant these guarantees by saying that employers moving against such refusals would be discriminating on basis of creed; they'd also extend immunities from liability and discipinary hearings.

I think requiring pharmacies to respect these religious reservations is an excessive burden on those pharmacies. When I visit a pharmacy, there is often only one pharmacist on duty. If a pharmacy must respect the right of a pharmacist not to dispense drugs in the designated categories, whenever the pharmacist has a profound moral objection to dispensing those drugs, then the pharmacy must have an additional non-objecting pharmacist on duty, also earning a pharmacist's rate of pay, whenever they have the objecting pharmacist on duty.

Any person should have the right not to participate in the selling of some product he finds morally objectionable. But businesses that are in the business of selling that product should clearly have the right not to hire people who refuse to participate in the selling of it. Otherwise we are saying that individuals have the right to carve out, within existing companies, a sort of sub-company tailored to contours of their own moral choosing, and that the owners of the company do not have the right to choose which products they will and will not sell.

Some people have a moral objection to the eating of meat that is just as strong as the moral objections other have to the use of contraceptives. Should we require restaurants that are in the business of selling food, some of which contains meat, to hire chefs and waiters who refuse to participate in the serving of meat, but are willing to prepare and serve vegetarian dishes?

Posted by: Dan Kervick | Apr 8, 2005 3:31:04 PM

Posted by: D.A. Ridgely

Mr. Kervick writes: Objecting pharmacists will find a much smaller market for their services, and most would be well-advised to seek another line of work.

Maybe, maybe not. Depends on the market. My physician claims that most ob-gyn’s won’t perform abortions now, as a matter of fact. It doesn’t seem to affect their employment opportunities all that much. Supply and demand. Go figure.

By the way, though I have no proof whatsoever, this smells more and more to me like a contrived legal action along the lines of Griswold and Roe. I wouldn’t be a bit surprised to discover that the “student” was a law student (probably a philosophy or government undergrad, to boot) and that the fine Italianate hand of the ACLU isn’t lurking somewhere in the background here.

Posted by: D.A. Ridgely | Apr 8, 2005 3:55:20 PM

Posted by: bakho

The insurance companies now want us to buy all our prescriptions from discounters through the mail anyway. Does the pharmacist realize that by refusing to dispense birth control, he is contributing to the abortion rate? Why did K-Mart keep him on and not fire him for irritating the customers and losing business? Those assholes deserve to go out of business.

Posted by: bakho | Apr 8, 2005 4:06:01 PM

Posted by: mpowell

I think some people here, particularly Mona, are not recognizing the signficance of the fact that the state licenses pharmacists. As a libertarian, perhaps one should oppose such licensing requirements. Individuals should be allowed to acquire the drugs their doctor recommends from whoever can provide them most cheaply.

However, since the state has imposed a high cost to entry into the field of providing pharmaceuticals, it has significantly altered the dynamics of the market. Under the new arrangement, there are far fewer sources for acquiring drugs than their otherwise would be. This licensing arrangement makes the work of a pharmacist more profitable than it would be otherwise, and once the government gets into the practice of regulating a business, it had better get all the details right.

It is the nature of drugs and contraceptives that people need them to be quickly and easily available. It is a burden on a women who needs a day after pill to take time off of work and visit the pharmacy. It would be a n additional burden to find another pharmacy b/c the first one she visits won't provide them. Especially when this arrangement is spelled out ahead of time, there is no 1st amd issue here, as has been detailed extensively at this website. Mona, you may not like it, but that's what the courts have decided. You can argue that it shouldn't be this way, but then you are arguing for greater freedom of exercise of religion- beyond what the 1st amd guarauntees.

D.A. Ridgeley- I think this is differnt from abortion. I think the legislature and the courts should be considering this issue in the balance. The professionals freedom of religion and the individuals need for drugs/treatment are in the balance. In the case of drugs, people need them quickly and it is a rather mild imposition on pharmacists to provide the drugs that someone else has proscribed. On the other hand, an abortion is an act that should be carefully considered beforehand, and there certainly is no quick and convenient option. So it less of an additional burden on a women to find a different ob-gyn to do it, in my opinion. At the same time, there is a much greater burden on the ob-gyn to perform an abortion she is morally opposed to. This is just to say that I don't think its too hard to consistently argue that pharmacists should have to provide drugs, but doctors should not have to perform abortions.

Posted by: mpowell | Apr 8, 2005 4:30:49 PM

Posted by: Don Herzog

RU-486 is an abortifacient, so right, I'd support the law that says health professionals, including pharmacists, can't be required to supply it.

That means, to redouble a point I'm making here, that the lines we draw can't just be driven by how sincere or vehement the conscientious objections of pharmacists and others are. They have to depend too on how reasonable we find their objections, how they'd interfere with others' interests, what alternatives there are, and so on. There are hundreds and hundreds of religions in this country, and some of them harbor very strange beliefs indeed: a requirement that all conscientious objections be respected is simply hopeless on its face.

For the same reason, I have to vigorously dissent from Mr. Ridgely and Mona's agreement that there is indeed a grievous first amendment issue here. There is none at all. There is for sure a pressing burden on Noesen's religious sensibilities. But if that triggers the first amendment, then just comb through the statute books, remember the same hundreds and hundreds of religions, and you'll find more first amendment problems than there blades of grass or grains of sand. If you could persuade me the state required pharmacists to fill prescriptions in order to stick it to devout Catholics of Noesen's sort, I'd agree instantly that that was forbidden by the first amendment. This isn't, and the thought that it is is hopeless for the same reason that granting conscientious objections across the board is hopeless.

Posted by: Don Herzog | Apr 8, 2005 4:32:48 PM

Posted by: Mona

To directly address some of Don H's arguments:

So now we have two kinds of positions on the table. One: require the pharmacists to dispense whatever's prescribed.

No, not if the entity doing the requiring is the state licensing board. Yes, if it is the decision of the employer-pharmacy.

Two: require employers to grant pharmacists the right of conscientious objection, and then we quibble over how broad that right might be.

No. The state should not require an employer to either grant or withhold accommodations to an employee's conscience.

And then Don gives us this:

Insisting on always leaving these matters to private parties to negotiate is making a fetish out of a principle that's highly attractive but which can sensibly be overridden.

I second Ridgely that this case of the poor student refused his/her contraceptives is highly suspicious. If there is any fetishizing going on, it is that devout Xian religionists must be shown to be the troglodytes they are at every turn, and compelled to conform to enlightened practice, or else.

It cannot possibly be the case that that student could not have gotten that scrip filled virtually anywhere else, with or without a referral from the objecting pharmacist. (If the Rx was directed on a piece of paper, the pharmacist was, of course, obligated to hand it back; it's not his.)

Really, this all has an air of contrivance as well as absurdity. I do not for one minute believe that anyone, in this day and age in the U.S., is hapless and bereft of contraceptive care just because a minority of Xian pharmacists won't fill contraceptive prescriptions.Not unless they want to be, to make a point.

That all said, I do believe any hospital, Catholic or otherwise, should be required to provide the standard treatment of rape victims, including, where appropriate, potentially abortafacaient pharmaceuticals. Emergency rooms are just that, and in that case application of a common carrier doctrine would be wholly justified. Rape victims are in no state or position to be shopping around for the ER that will give them standard care.

Posted by: Mona | Apr 8, 2005 4:38:31 PM

Posted by: Mona

mpowell writesIt is a burden on a women who needs a day after pill to take time off of work and visit the pharmacy. It would be a n additional burden to find another pharmacy b/c the first one she visits won't provide them.

This is simply overwrought nonsense. If she cannot get it filled at Rite-Aid, she goes over to Wal-greens. I get my scrips filled usually after work. If I had to make two trips rather than one, that is much less of a burden to me than to demand that a pharmacist hand me a tool that he believes is going to be used to take a human life.

I do understand the market distortions created by state licensing schemes, and in my ideal world no profession would be licensed; there would only be the equivalent of a "good housekeeping seal of approval" to guide the consumer. But I'm not here arguing for that, and realize it is not going to come about any time soon. Licensing imposes many undue burdens, and among them should not be the demand to participate in transactions, in the ordinary course of non-emergency business, that the licensee finds repugnant. There is, as I said, no reason in either principle or need to impose such a burden.

As to the 1st Am issues, I will have to get back to that after further research, as time permits.

Posted by: Mona | Apr 8, 2005 4:53:13 PM

Posted by: Dan Freed

Mona --

As a private lawyer, you could decline to prosecute drug cases. But consider a judge who has religious objections to the death penalty. If she refused to impose death sentences, or refused to hear capital cases, she would eventually be kicked off the bench, wouldn't she? And thus an entire line of work would be off limits to her. She would be forced to change careers.

So certain jobs are incompatible with certain religious beliefs. It seems at least conceivable that a career as a pharmacist is incompatible with religious objections to some medications.

Posted by: Dan Freed | Apr 8, 2005 5:04:24 PM

Posted by: Dan Kervick

Maybe, maybe not. Depends on the market. My physician claims that most ob-gyn’s won’t perform abortions now, as a matter of fact. It doesn’t seem to affect their employment opportunities all that much. Supply and demand. Go figure.

The fact that refusal to provide abortions does not adversely affect empoloyment opportunities for ob-gyns might perhaps have something to do with the recent parade of state and federal legislation prohibiting the discrimination against health care providers for refusing to provide abortions - laws analogous to the proposed Wisconsin law addressed by Don.

Now this seems like an absurd situation to me. Of course, nobody should be forced to perform provide abortions; and if one wants to open a clinic that provides all ob-gyn services save abortion, fine. But if I am an ob-gyn and I decide to open a clinic, particularly because I want to provide abortions among other services, the idea that I can't turn down an applicant, or fire an employee, because he or she refuses to provide abortions seems ridiculous to me. My business is legal. Why can't I make it a condition of employment that my employees be willing to participate in the business I seek to build?

Nobody is forced to perform abortions. But the question is whether one has a right not to perform abortions, it is whether one has a right to work for an abortion provider, and then refuse to provide abortions. I think we should see this Wisconsin case, and the proposed legislation, in the same light.

It is a mistake to equate this with a conscientious objector status regarding the military. These abortion and contraceptive objector protection cases are more like having a law that says that a company like Kellogg, Brown and Root, that provides services to the military, including during wartime, cannot make it a condition of employment that their employee must be willing to ...well ... provide services to the military during wartime. If you are a conscientious objector, you shouldn't be compelled to fight in a war. But that doesn't mean you have the right to work for any company of your choosing, including those that are in the business of fighting wars.

Posted by: Dan Kervick | Apr 8, 2005 5:30:13 PM

Posted by: Don Herzog

I want to object, strenuously, to Mona's characterizing my position as driven by the desire to mock Christians. (I won't even repeat her grotesque language.) I actually hate that kind of mockery, in a deep visceral way as well as a considered principled way, and see no reason to believe I'm trafficking in it here.

Posted by: Don Herzog | Apr 8, 2005 5:36:36 PM

Posted by: mpowell

Mona- I am not aware of all the different rules regarding pharmacies, but read the first few sentences of Herzog's post. The pharamacist refused to fill the prescription, but he also refused to transfer it to another pharmacy. Now, if you are looking for a day after pill, you have already had to request a prescription from your doctor and now the pharmacist won't give you the drugs and blocks your attempt to have the prescription filled elsewhere, you have a problem. You have one day to address the issue, it certainly wasn't part of your schedule ahead of time and you may not have the luxury of waiting until after work.

I'm not sure if this is how it works, but this is how it sounds like it works, based on this example. If you add to that the fact that you may not live in a city where there are numerous pharmacies around, but only one, then it might be even more of a problem. I don't think this is overwrought nonsense. This may not be an emergency most of the time, but it can be an emergency some of the time (and this b/c of government regulation).

Posted by: mpowell | Apr 8, 2005 5:46:29 PM

Posted by: DBCooper

K-mart knew of Noesen's religious objections at the time of employment, and made arrangements with the managing pharmacist that would preclude Noesen from filling contraceptive prescriptions. The managing pharmacist's absence the following day was not anticipated. In the end, no harm was inflicted in this case. If inconvenience alone were legally actionable, Verizon would be out of business in a matter of minutes.

Isn't this settled? Noesen has been reprimanded, K-mart has been made aware of the ramifications of certain hiring practices, and the woman isn't pregnant. Case closed.

Maybe this proclivity of the state attempting to legislate every eventuality might help to explain...you know...the prison population?

Posted by: DBCooper | Apr 8, 2005 5:47:04 PM

Posted by: Mona

Ok, I have somewhat changed my opinion on the Noesen case after further reading as to why he has been disciplined. The State of Wisconsin was not requiring him to dispense birth control pills, and it was his refusal to release the patient's scrip to another pharmacy that was held to violate his professional duties. Under the circumstances, the disciplining may be warranted.

Noesen did tell his employer he would not fill BC scrips, and the employer agreed that a supervising pharmacist would come in to do those -- which did not occur in this case in a manner timely enough to avoid quite burdensome travail and potential harm to the student, who does not appear to have been playing the role of contrived complainant. Link and excerpt about that below.

But based on some cursory reading, it is happening everywhere that courts and legislatures are extending the right to healthcare workers to refrain from dispensing abortafacaient pills. In CA, one jury explicitly found a nurse's "freedom of religion" rights had been violated by being fired for not giving out a "morning-after-pill". (I do not know, however, whether this may have been overturned on any appeal, or whether the recovery was rooted in the federal and/or state constitution.):

By The Associated Press
RIVERSIDE, Calif. — A federal jury has ordered a county public health clinic to pay $47,000 in damages to a born-again Christian nurse who was fired after she refused to give patients "morning-after" birth-control pills.

The decision by the eight-member jury was reached May 24 but announced yesterday. The jury awarded $19,000 in back pay and more than $28,000 in damages for emotional distress to 28-year-old Michelle Diaz, who believed that dispensing "morning-after" pills to patients violated her religious beliefs.

The jury found that firing Diaz violated her constitutional rights of free speech and freedom of religion.

Whole thing here.

And back to Noesen, and again, it does not appear that Wisconsin is disciplining him merely for refusing to dispense birth control pills, which I believe would be grievously wrong. Rather, it was his failure to transfer data, data that is hers, and thereby causing her some reasonably serious harm that, if the article is accurate and balanced, arouses a smidgen of outrage in me. Also it was also his supervisor's fault, for failing to pick up when and where he had agreed he would:

By The Associated Press

MADISON, Wis. — A pharmacist who refused to refill or transfer a college student's prescription for birth-control pills violated standards of care by not releasing the prescription or telling her about other ways she could get her pills, a former director of the state Pharmacy Internship Board testified yesterday.

Paul Rosowski, a licensed pharmacist in Wisconsin since 1988, testified during a disciplinary hearing for former freelance pharmacist Neil Noesen that Noesen had a duty to tell the woman she could have gone to an emergency room to get her pills.

"It's the patient's prescription, not the pharmacist's prescription," Rosowski said.

Whole thing here.

Posted by: Mona | Apr 8, 2005 5:51:57 PM

Posted by: Mona

Dan Freed: The last thing I want to do is hijack another of Don's postings to engage in a drug policy discussion. But to answer your question, federal district judges have refused to hear drug cases and have done so without getting kicked off the bench. One of my heroes is this guy, described by The Drug Policy Foundation thus:

Robert Sweet is a Senior Judge for the Southern District of New York. Prior to taking the bench, Judge Sweet served as the deputy mayor of New York City from 1966-69 and was a partner and associate in several New York City law firms. Judge Sweet led dozens of federal judges in refusing to hear drug cases in the late 1980s as a way of protesting regressive mandatory minimum sentencing guidelines.

Posted by: Mona | Apr 8, 2005 5:58:39 PM

Posted by: Don Herzog

In response to the suggestion that Noesen has a conscientious right of refusal entitling him not to fill the prescription, but not one entitling him to keep the prescription or to not tell the woman where else she can have it filled, well, I wonder. He thinks any of those courses of action sinful. If you say, yes, but Mr. Noesen she owns that prescription, you can't interfere with her property rights, he responds, it is sinful for me to recognize what you call her property rights. Handing her back that piece of paper is helping her commit sin, and I must not do that.

If you think he's within his rights not filling the prescription, then precisely why isn't he within his rights in keeping her prescription and refusing to give her a reference?

I will repeat my consternation that Mona imagines I am Christian-bashing. I will probably repeat it at regular intervals here, so bear with me. It's all I can think about just about now.

Posted by: Don Herzog | Apr 8, 2005 6:03:58 PM

Posted by: Mona

Don H. writes: He thinks any of those courses of action sinful. If you say, yes, but Mr. Noesen she owns that prescription, you can't interfere with her property rights, he responds, it is sinful for me to recognize what you call her property rights. Handing her back that piece of paper is helping her commit sin, and I must not do that.

I think most priests would tell him that merely giving her back her property is not a sin, and is compelled under "thou shalt not steal".

Mr. Noesen is entitled not to apply his intelligence and education in the commission of a grievous, mortal sin. But merely giving someone their property invokes one of those 10 Commandment thingies.

Posted by: Mona | Apr 8, 2005 6:26:40 PM

Posted by: D.A. Ridgely

Mr. Herzog:

I, for one, don't feel in the slightest bit bashed by you. Then again, I'm an Episcopalian, so there's some question whether I'm really a Christian or not.

As to your other concern, I think there is a real moral distinction between refusing to act and acting and I think the law should draw the distinction as well. Refusing to fill the scrip or to make a referral ("Sorry, I won't kill your wife for you, but call this number and tell 'em Joe sent you.) is consistent with a conscientious objection to participating in something one religiously disagrees with. Holding on to the scrip is an affirmative act (and legally conversion, at the very least, if not outright theft). I am aware that the philosophically sophisticated can quibble this distinction to death, but it's clear enough for me at least in this case.

In any case, if the facts are as Mona now describes them, I have lost all sympathy for Noesen and hope the store fires him.

Posted by: D.A. Ridgely | Apr 8, 2005 6:31:45 PM

Posted by: Kate Abramson

Must go off to get plane, so no time (unfortunately) to engage in the political and philosophical issues here raised.
But I did want to quickly make a practical point that it doesn't look--to my surprise--that anyone has yet made. There are women who are prescribed birth control pills for medical purposes other than preventing pregnancy. Had I not been a smoker (yes, it'll kill me--but that plus birth control pills would kill me quicker), I would have been one of those women over the past two months.
I can only imagine the conversation with the pharm. in question that I would have had, and the bizarre twists in the ensuing litigation:
pharm: I won't fill this.
me: why?
pharm: I believe that the pill you are taking is sometimes also an abortafacaient.
me: I engage in no activity that,short of God's own intervention, could result in pregnancy.Please fill my prescription.
pharm: I don't believe you.
me: okay,give me the script and I'll drive 3hrs into the city where I can find someone to do this.
pharm:no.That would only be aiding you in another way.

Then are we to open up the can of worms of what a pharmacist might reasonably believe in litigating the matter? Is "reasonable belief" here to be determined by statistical generalities concerning how many women are prescribed what pill for what purposes? Shall we compel women to describe their sexual activities to their pharmacists if they want to get the pill for medical reasons other than preventing pregnancy?

I find myself initially sympathetic to Don and other people's position that there are real worries about requiring phramacists to dispense abortafacaients. But some people have a broad view of what falls into that category, and some of the pills that are seen as abortafacients by some are used by some women for purposes having nothing to do with preventing a pregnancy or ending one. I foresee a mess worse still than what we now have...
must run

Posted by: Kate Abramson | Apr 8, 2005 6:32:43 PM

Posted by: Mona

Don, I went back to read my comments, and I cannot see what would inspire you to be so offended. Of course, I admit I was annoyed by any number of things in your original posting, including these:

1. Sarcastic references to a "libertarian paradise," especially in light of the all-too-frequent false accusation flung around here that libertarians are "utopians":;

2. Sarcastic announcements that our "Messiah" has not yet arrived;

3. Notions that we are making a "fetish" out of freedom of contract; and

4. I do believe there is an undue, shall we say, fetish, exhibited on this board, by the authors, on the matter of the religious right.

So, anyway, it seemed to me you had set a tone of pulling no rhetorical punches, and I felt I was merely following suit. But surely we are still friends. ;)

Posted by: Mona | Apr 8, 2005 6:46:50 PM

Posted by: Dan Freed

Mona --

Judge Sweet sounds like a dreaded "activist judge" (or "inactivist judge"?) to me. I guess you could call Mr. Noesen an "activist pharmacist": he effectively overruled a physician, just as activist judges overrule the legislature. Judges and pharmacists are entitled to overrule in the case of demonstrable error -- constitutionally flawed laws or medically flawed prescriptions. But to overrule on the basis of personal belief, religious or secular, seems problematic, even if sometimes heroic.

Posted by: Dan Freed | Apr 8, 2005 6:49:30 PM

Posted by: Mona

Dan Freed writes: Judges and pharmacists are entitled to overrule in the case of demonstrable error -- constitutionally flawed laws or medically flawed prescriptions. But to overrule on the basis of personal belief, religious or secular, seems problematic, even if sometimes heroic.

Judge Sweet is not an activist judge. He did not issue a ruling in total contravention of the law, or conjure law from the shadows of the penumbras of a statute or constitution; he withdrew his labor in protest when his conscience could no longer permit him to sentence people in a manner he found draconian and immoral, but which the law dictated.

Withdrawing one's labor, refusing to be a party to an immoral (in one's opinion) transaction, should be permitted absent a compelling reason not to permit it -- and those certainly exist.

Posted by: Mona | Apr 8, 2005 7:02:58 PM

Posted by: DBCooper

The refusal of Noesen to transfer the prescription to another pharmacy is truly dumbfounding. What is the moral difference of passing the buck to his manager to fill the prescription, or passing the buck to a different pharmacy to fill the prescription? That doesn't make sense to me.

To lighten things up a little bit, I suggest clicking on the following link. It is at least tangentially related to this topic.


Posted by: DBCooper | Apr 8, 2005 7:14:01 PM

Posted by: Don Herzog

Mona, of course we're still friends. If you're really mystified as to what upset (not offended!) me, go to the top of the page and search for "troglodyte."

The language of mine you single out from the post — paradise, Messiah, fetish — sure does look sarcastic. It's not aimed at Christians. It's not even aimed at libertarians as such. It's aimed at those who retreat to ideal theory when a pressing problem that really has to be solved now is on the table. And so that language wasn't intended as sarcastic. I was teasing myself as well as others: for that retreat is the stock-in-trade of us political theorists, even when you ask us to try to think about everyday political problems. But I could see how my intention wouldn't come across at all.

Do I have a fetish about the religious right? Well I am the guy on this blog who has written regularly on and against the thought that ours is a Christian nation. I'd think liberals and libertarians would agree, cordially, even vehemently, that as a general matter you can't justify political principles by appealing to Christianity. (Crank up the historical machinery: we live after the Reformation, and the view that sound politics and social order depend on sharing and affirming the right religious principles has been a lethal recipe for religious civil war ever since the early sixteenth century.) But none of that even begins to commit me to sneering at religion. Not even a litle bit.

One last thing. If you want Noesen to be free not to fill prescriptions for contraceptives, but draw the line at his not referring the prescription or handing it back — whether because you think he misunderstands his own religion, or because he's violating a property right or some more important law — then you are playing the same game, by the same rules, that I am. You're trying to figure out what accommodations to sincere religious belief ought to be (legislatively) granted, what not. My view is yes, let him have a right not to prescribe abortifacients, but not a right not to prescribe contraceptives. Your view may be, no, he may refuse to prescribe contraceptives too. But you simply can't back up that view by appealing to a general right to act or not act on one's conscientious beliefs. You gave that view up the moment you second-guessed his own interpretation of what his morality and religion require.

Posted by: Don Herzog | Apr 8, 2005 7:20:19 PM

Posted by: D.A. Ridgely

Well, yes, Mr. Herzog, but I think my position is as morally consistent as possible. (And a little moral inconsistency doesn't bother me. Indeed, I'd consider demanding absolute moral consistency something of a fetish.) The state should not coerce people. Insofar as some absolutely minimal state is required for there to be any civilization or society at all, I grudgingly accept the fact that we must coerce each other to that extent. Beyond that extent, however, the Noesens of the world may do as they please.

Of course, you're still right that in a sense we're only "quibbling over the price." But I have yet to hear a sound defense of the morality of majoritarian goverment vis a vis the dissenting minority from anyone here so far.

Posted by: D.A. Ridgely | Apr 8, 2005 7:38:43 PM

Posted by: Mona

Don writes: Your view may be, no, he may refuse to prescribe contraceptives too. But you simply can't back up that view by appealing to a general right to act or not act on one's conscientious beliefs. You gave that view up the moment you second-guessed his own interpretation of what his morality and religion require.

But Don, as Ridgely points out, withholding the woman's scrip arguably constitutes conversion. If, when I decided I would not prosecute those depraved monsters caught toking in their yard, I also refused to turn the file on the matter back over to the municipality whose file it was, I should have been disciplined. No govt entity has the right to compel me apply my mind and labor to an enterprise I find repugnant, but they can surely legitimately compel me not to commit a species of theft.

So no, I think I am parsing this in a different and more commensensical kind than you are, and not by some arbitrary degree. The issue is demanding actual labor directly contributed to an "odious" transaction.(And I wonder, without having researched it, whether there are not involuntary servitude issues here. Some state bars have suggested that in opposition to mandatory pro bono work as a condition of licensure, and it is worth exploring here as well.)

Anyway, I agree you have not bashed Xians on this board. My use of the word "troglodyte" might best be considered in the context of some of our regular commenters.

Posted by: Mona | Apr 8, 2005 7:41:34 PM

Posted by: Dan Kervick

If you think he's within his rights not filling the prescription, then precisely why isn't he within his rights in keeping her prescription and refusing to give her a reference?

This strikes me as far too generous toward Mr. Noesen's religious scruples. Suppose the customer had left a book or pamphlet on the counter that contained information on family planning, contraception and abortion. Would Noesen's view that contraception and abortion are sins entitle him to confiscate the book and refuse to return it? Of course not.

Now I have already said that I don't think pharmacists should have a general legal right not to fill prescriptions that violate their religious scruples. But even if a pharmacist does or should have that right, a right not to fill a prescription is not at all the same thing as the right to interefere with the right of someone else to have a prescription filled by seizing their property.

(If, however, DB Cooper is correct that Noesen had an separate agreement with Kmart when he was hired that he would not have to fill contraceptive prescriptions, then I would say that Noesen personally - though not objecting pharmacists generally - has a claim in this case. It is then Kmart that is primarilly responsible for the failure to fill the customer's prescription, not Mr. Noesen.)

Posted by: Dan Kervick | Apr 8, 2005 9:36:40 PM

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