Total Drek

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Thursday, December 02, 2004

Having a cake, and eating it too.

Despite my recent obsession with Half-Life 2, the growing mountain of grading I must complete, and other such end of semester tasks that are climbing onto my plate, I still find time to watch the news in the evenings. This is usually a mixed experience for me- on the one hand I enjoy getting updates on various matters while, on the other hand, television news is often less than fully informative.

In any case, my attention to the news meant that I was around when CBS ran a story on a growing movement among pharmacists to refuse to dispense birth control pills. The justification for this is, apparently, that these pills are believed to cause "silent abortions," or to prevent a fertilized egg from developing into a fetus.

This wasn't the first time I had heard of this movement. In one of my seminars this semester the issue has come up several times, to universal condemnation. This isn't too surprising, since my seminars contain predominantly sociology grad students who tend to be, as you no doubt know, overwhelmingly liberal. For myself, I don't like this new movement one bit, but I also find that my reaction to it is somewhat different from that of my peers. Many people have been asking questions like, "Can they do that?" and, "Is that legal?" My response to those questions is to ask another question: "Does it matter?"

In the United States we have a long-established history of civil disobedience. The environmentalist and liberal classic On Walden Pond was written by Henry David Thoreau, the man who pioneered the concept of civil disobedience. His moral distaste for taxation was so great that he accepted imprisonment before payment. He, in essence, broke the law in order to make a moral point. Our own social movements and organizations have long made use of similar tactics, as is obvious in Greenpeace harassment of whalers and waste-dumpers, the deliberate violation of segregation laws in the American South during the civil rights movement, and the use of public nudity as a protest tactic during the most recent Republican National Convention in New York City. So, I am forced to ask whether or not it matters if these conservative pharmacists are breaking the law. They are doing it, it is a protest tactic that we ourselves have legitimized through use, and they have as much right to it as we do. All I can say is that turn about is fair play, and we should have expected it sooner or later.

Beyond that, however, I am distressed at the sorts of arguments that liberals are raising to counter this movement among pharmacists. In a longer and more informative article on this movement published by it is clear that our fellow liberals are reacting to this issue in a manner that suggests more irritation than intellect. Why do I say this? Well, because like it or not the pharmacists have a few points on their side, and in our haste to condemn their actions, we may end up condemning only ourselves.

Let's deal with the basics first. These pharmacists apparently believe that life begins at conception, which means fertilization. Therfore, if birth control pills (on failure, which happens to about 1 in 1,000 women) prevent this fertilized egg from implanting on the uterine wall (referred to as the Post-Fertilization Effect) then for these pharmacists a chemical abortion has occurred. For these individuals, this is tantamount to murder, or perhaps at best negligent homicide. So, the question is, do pharmacists have a moral right to refuse to fill prescriptions for a medication that they believe can and will cause the murder of an unknown number of unborn human beings? Well, ask yourself another question: would a doctor have had a moral right to refuse to participate in the Tuskegee experiment? Is a private corporation liable if it knowingly produced the Zyklon-B nerve gas used to murder millions of innocents during World War II? If you want to answer "yes" to either of those questions, then you're going to have a hard time asserting that pharmacists don't have a personal right to refuse to dispense birth control medication. Or, in the words of Karen Brauer, president of "Pharmacists for Life International:"

"We shouldn't have to dispense a medication that we think takes lives."

Indeed, the right to abstain from otherwise required behavior on moral grounds is a fundamentally enshrined belief in this country, as is apparent from the conscientious objector clause in the selective service system. Yet, how are we reacting to this argument? Are we respecting it as the moral converse to many of our positions? No, we're dissolving into frothing absurdity. This is apparent in the argument of one Dr. Anne Drapkin Lyerly, who asserts that:

"We're seeing a growing trend among pharmacists and medical practitioners who consider it acceptable to impose their morality on women's bodies. I don't think moral aspects should be a concern. Imagine a pharmacist asking a customer whether his Viagra prescription is to enhance sexual performance in his marriage or in an extramarital affair. Never!"

While the attempt to link this issue to sexism is certainly reasonable, let's tease apart the argument a little. Dr. Lyerly seems to be arguing that pharmacists don't have a responsibility for how the medication is used. Thus, whether viagra is to be used within a marriage or an extramarital affair is irrelevant. It is, in essence, the responsibility of the drug user to see that it isn't abused, not the phamacist. The problem is, this is very similar to the logic underlying another argument: "Guns don't kill people, people kill people."

The logic is, in effect, the same. The object itself has no moral qualities of its own, and therefore the morality of an action committed with the object is entirely the responsibility of the human user, and not the object or the manufacturer. This logic, as it applies to guns, has long been ridiculed by the left. The "UrbanDictionary" even condescendingly defines this phrase as: "A common excuse by rednecks to have laws banning guns be removed." Yet, here when it comes to birth control we find ourselves making a more or less equivalent argument: birth control pills don't chemically abort fetuses, the person using the pills does, and thus when it comes to pharmacists, like gun makers, "...moral aspects should [not] be a concern." Well, I guess it's nice that we can get together with the conservatives on something. Speaking for myself, I actually find the argument that "people kill people" to be quite compelling, even though I compromise by supporting certain types of gun control. Still, I would prefer that my fellow liberals at least be consistent with their logic, even if that consistency means I must sometimes disagree with them.

This isn't the only place in recent memory where we've descended into hypocrisy. Democrats have long been considered the party of big government while Republicans were the states' rights party. Yet, in a recent court hearing on medicinal marijuana, a traditionlly liberal issue, we find liberal lawyers making a states' rights argument that, "...the federal government [is] trying to butt into state business of providing 'for the health, safety, welfare and morals of their citizens.'" So, when it comes to things like segregation, block-grants for education, or law-enforcement, liberals are anti-states' rights, but when it comes to marijuana we're pro-states' rights?

I guess we can take some comfort from the knowledge that we are not alone in our hypocrisy. Not by a long shot. Our Republican buddies have been falling all over themselves to abandon their support for states' rights. In connection to the marijana case, we find that suddenly Congress is the ultimate arbiter for anything that happens in a given state:

The Bush administration argues that Congress has found no accepted medical use of marijuana and needs to be able to eradicate drug trafficking and its social harms.

This is, of course, rather puzzling since the cannabis involved in the current case is home-grown in a state where doing so is legal and has not been sold or, most importantly, transported across state lines. Since commerce that occurs entirely within a given state is outside the jurisdiction of the federal government, the Bush Administration's arguments would seem to be a powerful challenge to the independent powers of the states. I suppose one might argue that the FDA has jurisdiction, but given the success of non-regulared herbal supplements, many of which can have quite deleterious effects, I rather doubt that would be much of an argument. We see a similar situation unfolding with regard to Oregon's euthanasia law. As early as 2002 Attorney General John Ashcroft was involved in an attempt to use federal courts to strike down Oregon's law permitting medical euthanasia. At present there is every indication that this attempt will be renewed, further shredding the Republicans' claim to be the champions of states' rights.

I am desperately concerned about the new developments in birth control provision, and I am horrified that this has happened. This is not least because recent events in the battle between evolution and creationism in public schools lead me to believe that sometime in the near future we may see instructors refusing to teach evolution because it conflicts with their morals. Likewise we may see instructors refusing to teach the scientifically-bankrupt doctrine of "Intelligent Design" for similar reasons. I say that because under different circumstances I would likely be one of them. The adoption of this tactic of personal civil disobedience by the conservatives signals not just a challenge to reproductive rights, but a possible shift in the entire field of political contention. We have received a glimpse into a future where liberals are not the only politically rowdy group.

So how do we combat this new trend? Well, first off, let's not lapse into hypocrisy. Civil disobedience and moral objections are legitimate in this country, and their recognition is beneficial to us at least as often as it is harmful. Let us not challenge that legitimacy directly. I say, if a pharmacist objects to the use of birth control pills on moral grounds, it is well within their rights to refuse to provide them. Even if you don't agree with that, you can probably agree that in the battle for public opinion, trying to force a person to do something they find morally repugnant is not the way to sway undecideds. If the most recent election has shown us anything, it is that we must not allow the conservatives to monopolize the moral high ground in the public's view.

This does not, however, mean that we are powerless before this issue. One tactic of opposition is clearly suggested by the article:

In 1996, Brauer says, she was fired from a Kmart pharmacy in Delhi, OH, after she refused to sign an agreement to dispense all lawfully prescribed medications regardless of her feelings or beliefs. (She filed suit against Kmart, but since the discount chain is in bankruptcy proceedings, it has never been settled.)

Let us consider the above in a legal context. Did Brauer have a case against Kmart? Well, on the one hand businesses are prohibited from discriminating on the basis of race, color, creed, or disability status. This would seem to imply that Brauer was being discriminated against on the basis of her moral beliefs, right? Right?

Wrong. The legal precedent covering this issue is contained within the Americans with Disabilities Act. Specifically this act requires that employers make reasonable accomodations to allow those with disabilities to perform job duties. However, those accomodations must be "reasonable" and as such explicitly do not include "eliminating a primary job responsibility" or "excusing a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity." So, an employer might be compelled by the AwDA to provide a ramp allowing a wheel-chair bound individual to work on an assembly line, but would not be compelled to employ a wheel-chair bound individual to teach a step-aerobics class. No "reasonable" accomodations would permit a wheel-chair user to walk, much less perform step-aerobics, and thus the employer is fully justified in refusing to hire a person so disabled for the position.

Now, can this precedent be extended to pharmaceutical moral objectors? Well, let's consider: could a Jew demand that the military provide kosher food during his or her enlistment? Sure- such kosher meals are already available. The military had to make a reasonable accomodation for the beliefs of a member. Now, taking this a step further, can any reasonable accomodations be made that would allow a vegan to work as a butcher without violating his or her beliefs? No, obviously not, since vegans do not approve of the consumption of animals or animal products. Granted, I can't imagine why a vegan would apply for a butcher's job in the first place, but that isn't the point. A butcher shop is perfectly justified in denying the job to a vegan on the grounds that their beliefs render them incapable of performing their duties even with reasonable accomodations. Clearly moral obligations can be grounds for both accomodations and the denial of employment under the correct circumstances.

The implications are clear: if a pharmacy defines the role of the pharmacist to be a dispenser of all legal medications as prescribed by a doctor, then that pharmacy may dismiss any pharmacist who refuses to do so. Since such tasks are "primary job responsibilities" the pharmacist's refusal to perform them constitutes grounds for dismissal, or refusal to hire in the first place, and is fully supported by existing legal precedent. It isn't the moral belief of the pharmacist that is the problem, but their inability to do the job for which they were hired. I do indeed support the rights of pharmacists to abstain from filling prescriptions for medication that they find morally objectionable, but I do not support the right of said pharmacists to hold their employers or their communities hostage to their beliefs. They are free to abstain from performing their job duties, and their employers are free to fire them for the same.

While we may find it distasteful to side with faceless corporations, I think it more distasteful to indulge hypocrisy. Let us respect the moral choice of these pharmacists and let us respect their right to engage in civil disobedience, but let us also support and patronize those businesses that have the courage to require their pharmacists to fill all legally written scripts. In this way we can both fight for reproductive rights, and preserve our own dignity.


Blogger tina said...


As a supporter of civil disobedience, I agree with you that this tactic is one that lefties should not dispute. However, I disagree with your claim that this is a right. It is certainly not a right to break the law, regardless of the fact that one may be morally justified in doing so. There are criminal penalties for breaking the law, and there are (and should be) professional penalties for pharmacists who choose to not distribute birth control medicine to women, including the loss of licenses.

Rights are much more narrow than common use of this term suggests. We do have a right to protection from discrimination based on sex, among other characteristics, and it is pretty clear that refusing to dole out bc pills is a special penalty just for those of us with ovaries. Pharmacists are violating our civil rights by refusing to provide full health care to women.

So, while I agree with you that pharmacists can claim some misguided moral ground to support this choice, I think it is also important to consider what formal and informal penalties might be the consequences of this choice.

Thursday, December 02, 2004 11:43:00 AM  
Blogger Brayden said...

I think Tina makes a good point. The basic idea behind civil disobedience is that you engage in non-sanctioned behavior that elicits a response. Pharmacists that do this demand a response. They would be successful if enough people sided with them that they forced legislators to make a change in law or forced their licensing association to change their ways.

Thursday, December 02, 2004 12:10:00 PM  
Blogger Hazel said...

While I agree with almost all of what you said, I think your lens is too broad. I think the key issue in the pharmacist debate is not refusal to fill perscriptions. The problem is that the pharmacists are taking the perscription slips and refusing to give them back. If we stipulate for the sake of argument that the pharmacists have the right to refuse to fill perscriptions on moral grounds, the question remains as to whether they can/should actively try to prevent the patient from getting thier script filled anywhere. I think that confiscating the slip impinges on someone else's liberties, and is therefore indefensible. This is not the same as protesting in front of an abortion clinic. This is more along the lines of eco-terrorists keying SUVs to "raise the cost of owning an SUV". These pharmacists are likewise trying to raise the cost of procuring birth control pills. No one has made the arguement that it is legal to slash the tires of SUVs or mess up thier paint jobs. Even the perpetrators refer to themselves as terrorists, which implies that they are opperating outside the legal system.

Thursday, December 02, 2004 12:27:00 PM  
Blogger Drek said...

Tina: "Right" may have been the wrong way to put it, but I see civil disobedience as a form of communication, unlike simple law-breaking, which is another animal. Since if I am radical on anything, it is free speech, I am very leery of restricting anything I think might constitute speech. That said, I do not mean to imply that those who engage in civil-disobedience should escape punishment. Because disobedience is disruptive, and disruption is in many ways antithetical to the social order, there is an inherent antagonism between this form of speech and society- an antagonism that does not necessarily exist with other forms of speech. It is up to a society to decide how much disobedience it is willing to tolerate before warming up the billy clubs. Since I'm advocating the firing of such pharmacists, I think I do imply that there should be consequences for this behavior, though I understand that a fully reasonable reading of my post might lead one to conclude that I think these individuals should get off scot-free. I really just wanted to make the point that we can't be offended at their use of one of our own tactics.

I would tend to agree with you that there should be professional penalties for pharmacists who engage in this behavior, but I think that's more of a political position than an obvious truism. No doubt there are those who think that there should be professional penalties for those who DO fill prescriptions for birth control.

I agree that the refusal to dispense birth control is a special hardship on women, and I am not unsympathetic to the civil rights argument. My only problem is that these pharmacists would no doubt argue that being forced to distribute medication that they believe causes a number of murders is a violation of their civil rights. As such, I resolve the conflict by suggesting that pharmacists who feel that their civil rights are so violated should be removed from a position where they will feel such ethical conflict- either fired, or not hired to begin with.

Brayden: I also think Tina makes several good points, which pleases the hell out of me since god knows I didn't write such a long post for the sheer hell of it. That said, I don't really follow the remainder of your comment. I'm not saying that we shouldn't respond to this move by the right, I'm saying we should respond in a thoughtful manner that is consistent with our other positions. What I've seen so far is mostly knee-jerk outrage and poor logic. Please note I'm not referring to my commenters here, I've actually been thrilled with these comments.

Hazel: I would agree with you completely that there is a world of difference between pharmacists simply refusing to fill prescriptions, versus confiscating the script. I would support the right of pharmacists to do the former, but not under any circumstances the latter. The latter I WOULD consider to be a criminal action deserving of legal retribution. Thank you for bringing this distinction up.

Thursday, December 02, 2004 2:30:00 PM  
Blogger Brayden said...

What I was trying to say is that the point of civil disobedience is to get the "institution" - whatever that may be - to react to what you perceive as an injustice. So if pharmacists feel they shouldn't have to give out prescriptions for something they feel is immoral, they can not fill it out and keep the prescription and then face the consequences - have their license revoked. Following the basic formulae for social movements, if enough people feel like the pharmacists have been wronged, perhaps the pharmaceutical association will change their policies about what pharmacists are required to do. I personally hope they don't succeed, for the reasons that Tina stated.

As to the basic theme of this post, I agree that people on the Left get lazy with their rhetoric sometimes and this tends to get us in some trouble. I'd say that we get even lazier when we're hanging around a bunch of friends who are also liberal, which is why we sometimes see logical contradictions stated in our graduate sociology seminars.

Thursday, December 02, 2004 2:40:00 PM  
Blogger tina said...

I think we are all in agreement. How the heck did that happen?

I, too, think civil disobedience is a form of communication. And that communication is delivered in a context. In this case, the context is a long history of the medical profession's interest in the social control of women that interferes with the delivery of proper health care (examples: widespread sterilization of Native American women, hysterectomies for uppity women, clitorectomies for masturbating young women).

So, given that this is just one link in a long chain, this story gets my ire up in a really big way (and if they are taking prescriptions, even more so), and that is probably what is happening with your in-person grad pals as well. I'd bet that if you pressed them on it, they'd back off the attack on civil disobedience in general.

Thursday, December 02, 2004 5:02:00 PM  

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