More on Pharmacists and Conscience

Various lawsuits have been filed against Illinois Governor Blagojevich's rule requiring dispensing of the "morning after" pill, including this one where the plaintiff is represented by the Center for Law and Religious Freedom of the Christian Legal Society (full disclosure:  I serve on their advisory board).  The following excerpt from the press release suggests a couple of points:

The lawsuit alleges that Governor Blagojevich's rule is void because it violates Mr. Scimio's rights protected by [among other things] the Illinois Healthcare Right Conscience Act. . . .

David Scimio is a pharmacist at Albertsons, a grocery store in Chicago, and a Christian. Mr. Scimio believes that human life is sacred, that life begins at the moment of conception, and that the destruction of a fertilized human ovum ends a human life. Mr. Scimio, consistent with his Christian beliefs, does not dispense emergency contraceptives, such as the "Morning After Pill" or "Plan B." Albertsons accommodated Mr. Scimio's religious beliefs until it was required to order Scimio to comply with Governor Blagojevich's "emergency rule" earlier this month. Under that accommodation, Mr. Scimio would refer patients seeking "Plan B" to another pharmacy less than five hundred yards from his store.

Rob, in his discussion of this issue, advocates protecting "value pluralism" on the issue of the morning-after pill by leaving the decision to each employer (pharmacy).  But the health-care conscience act on which Mr. Scimio relies would (if it's applicable to pharmacists) protect him not only from sanctions by the state, but also from sanctions by his employer.  In this particular case, the employer apparently accommodated the pharmacist until the governor stepped in and forced the accommodation to end.  But the conscience act, if applicable, would bar even the employer firing the pharmacist on its own initiative.  Health-care right-of-conscience acts in states around the nation do this.  The Medicare and Medicaid statutes contain a protection for individuals against being fired for refusing to participate in a Medicare/Medicaid-funded medical procedure on the ground of religious or moral conscience (42 U.S.C. § 300a-7).  Title VII of the Civil Rights Act also requires employers to make "reasonable accommodations" of employee's religious practices.

All of these statutes -- Rob, do you think they're all a bad idea? -- reflect the judgment that "value pluralism" should be protected not solely through the employment market, but by directly shielding the individual's right to decide whether to participate in giving health care that s/he believes is morally wrong.  (Actually, it's not necessarily the solitary individual acting; objecting pharmacists have joined together in the group Pharmacists for Life, which it seems to me qualifies as among the associations to which Rob refers, that "create and maintain identities that diverge from -- and even defy -- the surrounding society's norms."  At the very least, isn't Pharmacists for Life a better "identity-creating" association than Walgreen's?)

Protecting value pluralism through the market -- let each employer/provider decide -- is often a sensible strategy.  But it is ineffective if the market becomes concentrated, as may well be the case with pharmacies (my untutored impression is that the "mom and pop"s are steadily getting crowded out or snapped up by the national chains.)  If two or three of those chains require all their pharmacists to dispense morning-after pills, objecting pharmacists may be driven out of their life's work as a price for their conscience, which is a high price to pay in a society supposedly committed to the importance of conscience.

Of course, if the market were concentrated and instead a few chains refused to dispense contraceptives, that would make contraceptives effectively unavailable.  The alternative approach to simply letting the market take its course is to accommodate the pharmacist's right of conscience as long as there are alternative ways for women to get contraceptives -- either from some other pharmacist at this store, or from another store nearby (like the one that, according to the Illinois complaint, was 500 yards away).  This is a somewhat harder decisionmaking standard to apply.  But it has advantages over simply relying on the market, which tends to protect "value pluralism" only indirectly.  In a modern consumerist society, the value that tends to drive out all the others is "give the people what they'll pay for."  That's not to dismiss the depth of moral arguments about the need for women to have access to contraceptives.  It's just to say that the market will tend to respond to those who need or want to buy a legal product; so maybe those whose conscience forbids them to provide such a product need some protection from the law.

Tom