Pharmacists, Conscience, and Civil Society

Thanks to Rick for drawing my attention to a post by Elizabeth Anderson over at Left2Right regarding the controversy over pharmacists and conscience.  It's a very thoughtful analysis, but Anderson leaves scant space for the operation of subsidiarity.  Here's an excerpt:

Imagine that you lived in a place where you had to ask someone else's permission to leave your property.  Even if the other person always gave permission, you wouldn't be free.  You'd be under conditional house arrest, with the other person your discretionary jailor.  The case wouldn't be much better if you had a choice of 5 people to ask, any one of whose permission would let you leave your property.  Then those 5 would be your joint jailors.  You'd have somewhat wider opportunities, assuming their decisions were not coordinated.  But you'd still be dominated by them. . . .

[T]he "tender religious conscience" against filling birth control prescriptions is inseparable from a religious world-view that regards women as properly confined to a mothering caste (with their sexuality limited to reproductive purposes).  The Christian pharmacist who refuses to fill birth control prescriptions differs only in degree and not in kind from the Talibanesque taxi driver who refuses to serve women who are unaccompanied by their male relatives.

The potential availability of competing pharmacists who assert no conscience exemptions is no argument in favor of allowing them in some cases.  For there may be no such providers. . . . Even if there are some in the same county, this is like the person who has five independent jailors rather than just one.  If women in many towns and counties are not to be turned into a subordinate, unfree caste, limited to the opportunity package [motherhood, celibacy] by the dominion of others, then pharmacists must not have a right to deny them access to birth control.  The freedom to use one's pharmacy as an instrument for promoting one's religious beliefs is nothing compared to the freedom of escape from subordinate caste status-- and even to the freedom of being branded with the badges of subordinate caste status (in the case where women have other easily accessible pharmacies willing to serve them, but still may be snubbed by this or that pharmacist).

Let's put to the side Anderson's assertion that objections to the morning-after pill necessarily flow from a desire to confine women to "a mothering caste."  I'm more interested in the status of civil society under her analysis.  Essentially, she seems to be granting a trump to consumers when it comes to the provision of morally objectionable but publicly vital goods and services.  I agree that calls for conscience clauses by pharmacists are misplaced and are themselves harmful to civil society, as the elevation of individual rights erodes the space in which unique associational identities can be fostered -- i.e., the pharmacist can trump the pharmacy.  I also agree that, when a certain pharmaceutical is not available within a reasonably defined geographic area, the state is justified in mandating that drug's provision as a condition of licensing.  But in most areas, this will not be an issue.  Where there is no discernible access problem, the state should step back and let the market operate.

The common inclination when we're dealing with unresolvable moral controversies is to invoke state power to end the debate on behalf of one side or the other.  This tendency leads to alienation and isolation, short-circuiting any opportunity for contesting values to co-exist in the marketplace and reducing fundamental debates regarding the good to simplistic terms of individual rights and state action.  In allowing all sides in the pharmacist controversy to live out their convictions in the market, the state can maintain a forum in which pharmacies craft their own particular conscience policies in response to the demands of employees and customers.  Instead of making all pharmacies morally fungible via state edict, the market allows individual consciences to thrive through overlapping webs of morality-driven associations and allegiances, even while diametrically opposed consciences similarly thrive.  The zero-sum contest over the reins of state power is replaced by a reinvigorated civil society, allowing the commercial sphere to reflect our moral pluralism. 

To be clear, I support the Civil Rights Act of 1964, which was a prudent means to securing full participation by racial minorities in the economic life of society.  A similar argument could be made by women in the pharmacy context, but only if they face no reasonable means of securing birth control in their community; if that is the case, then I favor state action.  But actions like those by Illinois Governor Blagojevich, in which he ordered all pharmacies serving the public to carry all contraceptives based on two reported customer denials in downtown Chicago (where the customers could have filled their prescriptions by walking several hundred feet) unnecessarily shuts down any space for divergent practices on a hotly contested moral issue.  It is one thing for a pharmacy to wither in the marketplace due to its unpopular stance on the provision of contraceptives; it's quite another for the state to foreclose the pharmacy from that stance in the first place.

Rob