Rules Are for Schmucks: Religious Privilege for Pharmacies

I drink a fair amount of wine, much of which I purchase at my local convenience store. Suppose I show up there one day and find the wine section replaced by something less pleasant, like detergent. I complain to the owner, who tells me she just doesn’t feel like selling wine anymore or that she thought she could make more money selling detergent instead. I’d be a little miffed, but that’s the way the free market works.

Suppose instead she told me she’d just converted to Islam, or Mormonism, and that’s why she no longer sold alcohol. I’d be even more unhappy (not proud to admit that, but it’s true), but my grumbling wouldn’t extend as far as “There ought to be a law…” I’d just go somewhere else, most likely for all my non-alcohol purchases as well.

Today’s question is: should the same thinking apply to pharmacies? It’s a highly relevant question, because a case involving pharmacists’ right to refuse to fill prescriptions has just been petitioned to review by the Supreme Court.

Generally speaking, the law relating to pharmacy sales is not the same as it is for convenience store sales. Pharmacists are licensed by the state, and a licensed pharmacist may not refuse to sell blue pills because his child hates the color blue. Nor can a licensed pharmacist refuse to sell drugs made by Company X, on the grounds that his profit margins would be bigger selling exclusively drugs made by Company Y. I’ve never heard anyone seriously question these laws on libertarian grounds, or suggest that pharmacies ought to have all the same rights to decide which products to sell as a convenience store has. Life is vastly more bearable for all of us when consumers don’t have to worry about which pharmacy is going to sell which drug and can walk into any pharmacy, with any prescription, and know their order will be filled. This assurance is especially important when you happen to be sick and not in a good position to drag yourself around town.

Thus we have a simple rule that applies the same to everybody, that virtually everyone agrees with, that makes all our lives much easier. Until, of course, the God industry gets involved.

The hot-button issue in the case that’s been petitioned to the Supreme Court is the putatively abortifacient “Plan B” pill, condemned by the Catholic Church and many evangelical Protestants, who believe that pregnancy is a fair punishment for committing the crime of sex. For women, anyway. The pope himself has demanded that Catholic pharmacists refuse to dispense these drugs, along with others he deems objectionable.

The state of Washington adopted a “middle ground” approach, allowing an individual pharmacist to refuse to fill a prescription on religious grounds, but only if another pharmacist in the same store fills it on a timely basis. This presumably takes care of the majority of pharmacists with religious objections, with only minor discomfort for the customer. (And for the secular fellow employee, who now has extra work dumped on her, so the religious employee can do less.) But it doesn’t defer to the religious predilections of the owner of the store, who is unable to prevent his store from filling these prescriptions altogether.

So, with the help of God industry-funded lawyers, the owners of an Olympia-area pharmacy who did not want to sell Plan B sued, claiming that their right to free exercise of religion was denied by the rule. And they won. Until the case was appealed to the Ninth Circuit, where they lost, when the court found that the rules in question were “neutral and generally applicable.” The court quoted a 1982 9-0 Supreme Court opinion: “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

Note that Washington is not one of the states that has a “Religious Freedom Restoration Act,” as twenty-two others do (with more possibly on the way). If it did, it is likely this case would have turned out differently. The whole point of a RFRA is to invalidate every law that gets in the way of religious privilege, whether or not that law is “neutral and generally applicable.” Under RFRA, the pharmacy owner here could prevail if he could demonstrate any “less intrusive” means of carrying out the state’s interest, e.g. by referring a customer to a different pharmacy.

Refusal to sell the Plan B contraceptive is just the tip of the iceberg. Many pharmacists refuse to sell any type of contraceptive, not just the Plan B variety, and thirteen states explicitly give them this right. Going even further, consider Georgia, one of the states with a much broader exemption than Washington has: “It shall not be considered unprofessional conduct for any pharmacist to refuse to fill any prescription based on his/her professional judgment or ethical or moral beliefs.” A pharmacist who disliked homosexuality could refuse to sell HIV drugs. A pharmacist could refuse to sell a drug made or even developed with help of embryonic stem cells—indeed, the God industry reacted furiously when research into an Ebola vaccine started following this path. Quite a few billion tax dollars are being invested in a variety of potential treatments involving embryonic stem cells, which could conceivably revolutionize the entire medical profession. Can taxpayers who won’t able to get these treatments get their money back?

For that matter, not too many years ago, quite a few Georgians had “ethical or moral” objections to selling anything at all to a black person in a whites-only store. As I read the exemption, it would easily cover this case as well.

Nothing here is farfetched. In Milledgeville, GA, last spring, Brittany Cartrett suffered a miscarriage, and her doctor prescribed a drug to clear things out in order to avoid a more intrusive procedure. But her local Walmart pharmacist refused to fill it. In Idaho, a pharmacist refused to fill another woman’s prescription because he’d heard that she’d recently had an abortion, even though the drug she sought had nothing to do with contraception or abortion.

So now the Supreme Court, which has leapt at every opportunity in recent years to extend the scope of religious privilege at the expense of the rest of us, is presented with a case in which Scalia & Co. can strike down even the “middle way” consumer protection regime enacted by the state of Washington. They haven’t decided whether to take the case yet. But if they do, I may need to head back to my convenience store to pick up a large bottle or two, or perhaps something even more consciousness-numbing than that.