Right to Free Exercise Part 1, No Leeway for Conscience

by: debra rae | published: 12 19, 2011

Once again, a four-year legal fight in Washington State has landed in a federal courtroom. In the end, two individual pharmacists (Margo Thelen and Rhonda Mesler) and a family-owned pharmacy (Ralph’s Thriftway in Olympia) could be forced out of the pharmacy profession solely because of their religious beliefs.[i] Yes, in America.

Significantly, Washington is one of only two states requiring pharmacies that object on the basis of conscience to stock and dispense early abortifacient drugs, as Plan B and Ella. The other state (Illinois) recently struck down similar regulations as unconstitutional—and rightly so.

The plaintiffs view moral choice as their constitutional right under the “free exercise” clause of the Constitution.[ii] They cannot in good conscience dispense Plan B or Ella because they believe human life begins at the moment of fertilization; and both drugsoperate by destroying a fertilized egg, or embryo. This dilemma, they’re told, is best resolved through a new line of work. But plaintiffs disagree.

More About Agenda Than Access

At public hearings in 2010, activists from Planned Parenthood, Legal Voice, NARAL, and others testified passionately in Renton, Washington, before the Washington State Board of Pharmacy. Their demand was clear: Regulations are necessary to force pharmaceutical providers to dispense the “morning-after pill” when and where a repeat customer asks for it. In their worldview, religion has nothing to do with it. [iii]

To “choicers,” a state license held by pharmacies is a privilege, not a right. They believe defense of conscience deadheads at the drug counter, and a pharmacy must forfeit personally held, religiously motivated moral objections to meet a woman’s demand for emergency contraception.[iv] Moreover, respecting politically charged drugs as Plan B and Ella, facilitated referral is not an option. Since Stormans, Thelen, and Mesler are left with only one choice (their livelihoods or their deeply held religious beliefs), real “choice” applies exclusively to “choicers.”

In brief, patient access to Plan B trumps the Bill of Rights. Timely access of safe and appropriate drugs, we’re told, is what every patient is due. However, forcing pharmacies out of business—Ralph’s Thriftway, for example—actually limits access (and therefore choice) for other patients in need of time-sensitive medications. It stand to reason that agenda, not access, is at the heart of the matter.

Lots of Room for Wriggle—Only Not for the Conscience Crowd

For decades, there’s never once been a complaint about the stocking rule. In fact, until 2006, the rule was not broadly known. To meet patient demand, a pharmacy need only stock a “representative assortment of drugs,” but the State provides no list of required drugs. Nor does it publish policies or established procedures for determining stocking violations.

In the pharmaceutical industry, it’s accepted that numbers of reasons—i.e., economic, convenience, business, clinical—exempt a pharmacy from stocking a drug. Everyday Washington pharmacies make choices about which of more than six thousand FDA-approved drugs they’ll stock (or decline from stocking, as the case may be).

Arguably, the stocking rule leaves lots of room for wriggle since our State gives no definition for “good faith compliance.” For most, there’s no quantitative formula of patient demand signaling need to stock a drug, nor are there rules for how long the pharmacy must carry a given drug, once demand for it wanes.

Additionally, Washington State offers no stocking standards for low-demand drugs within a given community, nor are pharmacies required to stock diabetics’ syringes, Schedules 2 and 5 nonprescription meds, or narcotics feared to invite armed robberies.

If shelf space is limited and a medication has a short life, no problem. If it’s exceptionally expensive (and the patient can’t afford it)—or if stocking it requires additional, burdensome paperwork or unit dosages—no worries. If bulk purchase is necessary (beyond what the patient can consume), or if a drug requires monitoring or special preparation (e.g., compounding processes that require related equipment)—again, not to worry. Don’t stock it.

In the industry, it’s generally understood.

related artcles

Right to Free Exercise Part 2, Slippery Slope Politics

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