Pharmacists must dispense the controversial Plan B contraceptive pill regardless of religious conviction, according to a ruling by the Ninth Circuit Court of Appeals on July 8. In its opinion, the court found there “is a general public interest in ensuring that all citizens have timely access to lawfully prescribed medications.”
Defendants in the suit had argued that dispensing the pill, required by a 2007 Washington state regulation, violated the First Amendment free exercise of religion clause. Three court of appeals judges disagreed saying the state regulation was “neutral” and that the public interest in access to health care trumped the individual beliefs of the pharmacists.
The suit was brought by The Alliance Defense Fund, a conservative legal group founded as a counter to the American Civil Liberties Union, but political ideology seemed not to be a factor in the three-judge opinion. According to the Los Angeles Times, “The three 9th Circuit judges found common ground despite differing outlooks: Two conservatives named to the court by President George W. Bush and a liberal named by President Clinton made up the panel.”
Pharmacists’ protection laws, also known as “conscience clauses,” have been enacted by eight states giving pharmacists the right to refuse to dispense contraceptives or other medications to which they have moral or religious objections. Only one state, New Jersey, has passed legislation prohibiting pharmacists from exercising personal objection to filling lawful prescriptions. California’s conscience clause allows pharmacists to decline to fill a prescription only “when their employer approves the refusal and the woman can still access her prescription in a timely manner,” according to the National Conference of State Legislatures web site.
Pharmacists’ protection laws are reminiscent of the rights private businesses asserted during the civil rights era of the 1950s and 1960s. Restaurant and hotel owners claimed it was within their discretion to serve, or deny service to, persons of their choice. Of course, in the South particularly, the persons that white lunch-counter owners refused to serve just happened to be black. Federal equal opportunity laws gave all Americans, including minorities, equal opportunities in the areas of education, housing, transportation and health care.
Individual owners’ claims of personal convictions against integration were overshadowed by the public interest of ensuring access to all businesses designed to serve the public. In some communities, “private club” laws were passed to subvert the public access requirements. Some restaurateurs including Lester Maddox, later elected governor of Georgia, closed their establishments rather than integrate them.
Similar choices face pharmacies and pharmacists today. Drugstores open to the public and licensed to dispense legal medications must make access to all legal medications available to those who present valid prescriptions.
Allowing pharmacists to subvert public interest because of personal conviction is not good public policy. Pharmacists whose personal consciences will not allow them to dispense certain drugs should either find employment in a non-public sector or seek another line of work.
If pharmacists’ conscience clauses are allowed to stand, HIV patients could be denied drugs by a pharmacist who assumes that the patient contracted HIV/AIDS through some type of behavior he or she considered immoral. Children could be denied medication for ADHD or autism by pharmacists who misapply the Old Testament proverb that parents who spare the rod, spoil the child.
The Ninth Circuit made a decision based on the common good regardless of personal conviction, and that is what makes a disparate collection of people into a society governed by the rule of law.
Chuck Warnock is pastor of Chatham Baptist Church in Chatham, Virginia.