Pharmacists and Conscience in Washington State

Federal district judge Ronald Leighton is getting criticized in the blawgosphere today for upholding the conscience rights of pharmacists in Washington state.  State regulations made it sanctionable for a pharmacy to permit a pharmacist to refuse to fill a prescription because of moral or religious objections unless another pharmacist was on duty who could fill the prescription.  Judge Leighton enjoined the regulations' enforcement under the Free Exercise Clause.  Crucially, he applied strict scrutiny, avoiding Employment Div. v. Smith by observing that the evidence "strongly suggests that the overriding objective of the subject regulations was . . . to eliminate moral and religious objections from the business of dispensing medication."  Under strict scrutiny, the state's interests did not measure up; the court reasoned that "the interests promoted by the regulations have more to do with convenience and heartfelt feelings than with actual access to certain medications."

Howard Wasserman argues that the court erred in applying strict scrutiny because "the regulations do not allow any refusal to fill a proper prescription that can be properly filled, regardless of whether the basis for the refusal is religious or secular."  Marci Hamilton makes the same argument, but adds that "the court's condescending treatment of the woman's plight as a matter of mere 'convenience' is especially problematic" because we are dealing with a "right to obtain contraceptives free of state interference." 

For what it's worth, I tend to share their skepticism as to whether the court could so easily circumvent Smith based on evidence of the impetus behind the regulations, and I am not a huge fan of dressing up claims of conscience in the workplace as constitutional rights.  So while I have a hard time defending the court's ruling, I do object to the underlying regulations. 

To begin with, I'm not convinced that "a right to obtain contraceptives free of state interference" is at stake here.  The state interference is coming at the request, not of the pharmacies and pharmacists, but of those who wish to obtain contraceptives, and it is not clear to me that the state needs to intervene in the marketplace unless the goal is to ensure that Plan B is available at every single pharmacy.  If we embrace the more modest goal of access to Plan B, there should be a greater showing that state intervention is needed in a particular geographic area.   

Hamilton also notes that "the woman seeking contraception has a set of religious beliefs, too, and they permit the use of contraception," so it is not obvious why "the licensed pharmacist's beliefs get to trump the patient's beliefs."  I agree that the pharmacist's beliefs should not trump the patient's, but they only function as a trump when the market is not providing alternative access points to the pharmaceutical at issue.  Consider the five women who intervened in this litigation in support of the regulations: 

* One woman who was out of town visited a pharmacy that did not carry Plan B; the pharmacist there indicated generally the location of another pharmacy for her to try, but did not provide specific directions.  The woman returned home early and obtained Plan B at a pharmacy with which she was familiar.

* A second woman was refused Plan B by one pharmacist, but then another pharmacist on duty at the same pharmacy apologized to her and filled the prescription.

* A third woman obtained Plan B on two occasions from Planned Parenthood because she had "heard numerous accounts of pharmacists who refuse to fill emergency contraception prescriptions or otherwise act in a hostile or harassing manner to those seeking such prescriptions."

* A fourth woman did not use Plan B, but participated in a Planned Parenthood testing program designed to identify pharmacists who refused to stock or distribute Plan B.  She found that in the town of Wenatchee (population: 27,000), she could obtain Plan B at two out of five pharmacies.

* The fifth woman had never used Plan B, but wanted to join the suit to ensure that "all women in Washington can get timely access to emergency contraception . . . without harassment or hostility."

These accounts do not provide much evidence that the market has failed.  What bothers me most about the regulations is that they preclude pharmacies from staking out any distinctive claim on the propriety of offering morally contested products and services, short-circuiting any possibility that pharmacies can function as venues for conscience.  This doesn't mean that pharmacies should somehow be shielded from the marketplace fallout of their conduct.  For example, if Tom Cruise wants to open a pharmacy that does not provide anti-depressants, let him try.  It is one thing for a person to act on their moral convictions and learn that the market won't support his effort; it's quite another for the state to shut him down.  Prior to the adoption of the regulations, the pharmacy that ultimately brought suit was the target of a boycott because of its refusal to stock Plan B.  We don't need to give pharmacists a constitutional right to make unilateral decisions about what services they'll offer; we also don't need to make all pharmacies morally fungible via state edict absent a specific showing that access has been compromised.

For those who haven't grown tired of my conscience-related ramblings, you can read a fuller development of these ideas here.