Morning After Pills
Ed Morrisey links to a Los Angeles Times story on the Ninth Circuit’s recent decision to overturn an injunction barring the State of Washington from enforcing a regulation requiring pharmacies to dispense morning after pills. Ed makes much of the fact that the Ninth Circuit is the most overturned circuit, which is true, but there could be less here than meets the eye. For one thing, not all cases get appealed to the Supreme Court. For another, only a tiny fraction of those that are appealed to the Supreme Court are granted certiorari (i.e., heard by the court on the merits) and the cases the Supremes choose to hear are not necessarily representative of all cases brought to their attention. Further, while the Ninth Circuit generally leans hard left, it also has its share of conservative luminaries like Alex Kozinksi and Diarmud O’Scannlain, so to a large extent betting how the Ninth Circuit will rule on anything comes down to the luck of the draw. Nevertheless, there’s nothing magical about the Ninth Circuit in particular that should make it any more likely to have its cases overturned than those originating in other circuits, so Ed’s point is taken, for as far as it goes.
The question, in my view, is how far does it go? As a matter of public policy, I think it would really suck for the state to require licensed pharmacists to offer every FDA-approved drug whether they want to or not, just as much as it would suck to require every bookstore to carry every [porno mag that isn't considered legally obscene, every licensed school teacher to teach sex education, to require every licensed physician to perform abortions, or to require every licensed attorney to represent accused terrorists under ACLU-style theories they personally deem repugnant, all under the dubious theory that if the state requires a license to perform a service, that gives the state carte blanche to impose whatever ridiculous restrictions on that otherwise lawful profession it may wish to impose, as long as the law in question is considered "neutral" and "of general application." Nevertheless, as liberals rarely grasp but conservatives should, there's quite a gulf between "this really, really sucks" and "this violates a specific prohibition of the U.S. Constitution." Not all bad ideas are unconstitutional, and quite frankly, not all good ones are constitutional, either. [Term limits and the line-item veto come to mind as examples of the latter.] Does a law requiring all pharmacists to check their consciences at the door or cease being pharmacists violate common decency? Absolutely. But does it violate any specific proscription of the U.S. Constitution? And if so, which one?
July 12th, 2009 at 9:58 pm
Freedom of religion?
I wish it were more than that. The more the abortion/anti-abortion debate is relegated strictly to terms of religion, the more it is marginalized.
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July 13th, 2009 at 6:25 am
A colorable argument can be made (and in this case, has been made) that requiring pharmacists to offer all approved drugs violates their right to free exercise of religion. I think it’s a bit of a stretch, though, as no religion requires anyone to be a pharmacist, and this particular regulation does not appear to target religion as such. If the pharmacists prevail, I agree that that is the substantively correct result, but am concerned how far the principle may go in other arenas. If the state and federal governments ban peyote, do I have a right to (ab)use the stuff anyway if my religion requires it? What if I prefer weed to peyote; can I join the Church of Marijuana instead? What if I’m a cop who doesn’t believe in working on the Sabbath? Etc. Animal sacrifice is the exception that proves the rule; in Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) the Supreme Court unanimously struck down an ordinance banning ritual animal sacrifices because the law singled out religion. Suppose that the town had not singled out religion in particular (one religion, really, namely Santeria, though they weren’t dumb enough to draft an ordinance calling them out by name) but had instead passed an ordinance making it illegal to kill animals for any purpose (or any purpose except something glaringly obvious, like self-defense)? That ordinance would have have created exactly the same problem for Santeria, but would almost certainly have passed constitutional muster.
I agree that it’s unfortunate that the abortion debate is largely confined to religion. I don’t think it’s necessarily an either-or, though. No one should be asked to check his faith at the door, and in any event, one can simultaneously advance both religious and non-religious arguments against (or for?!) abortion, without one necessarily diminishing the other. However, only the religion argument will work here since the Constitution only protects the free exercise of religion specifically, and not of conscience generally. Meaning that if these pharmacists prevail, they will enjoy the right not to offer Plan B, but their atheist competitors probably will not, even though said competitors may hold all the same moral and philosophical objections to abortion as they do.
July 13th, 2009 at 12:05 pm
Just throwing stuff against the wall to see what sticks, but could it be argued on right to privacy grounds? Essentially that your inventory is your business and none of the states?
July 13th, 2009 at 12:11 pm
Nah, “privacy” is just a code word for abortion, silly.
July 13th, 2009 at 2:34 pm
Involuntary servitude?
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July 13th, 2009 at 5:30 pm
Nope … a pharmacist can always quit and take up bricklaying.
The first bite of the pharmacists personal rights was taken when they allowed their profession to be state licensed instead of privately/academically regulated.
They opted to prevent people from outside their clique from joining the profession via state regulation … now they get to dance the state’s tune.
July 13th, 2009 at 6:03 pm
Nah, “privacy” is just a code word for abortion, silly.
Heh. :-)
Of course that only means that a right to privacy argument wouldn’t succeed, not that it wouldn’t be correct.
July 14th, 2009 at 12:42 am
Well, if the religious protections of the First Amendment get the same sort of expansive reading that the freedom of speech gets then the pharmacists win, no problem. But if the courts actually follow the Constitution, then they’re hosed.
But what about the prohibition of a religious test for office? Since the justification for the law is that pharmacists are licensed by the state their employment is at the will of the state. Therefore a religious test for their employment would be unconstitutional. The demand that they sell a certain item is in fact a test: a test that they do not have religious scruples against selling that item (this protects even people who do not have such a religion, one can’t be compelled to take a religious test just because they deny that they have the religion).
You would have to argue that this in fact is a religious test by showing that
(1) the law is not based on health concerns because the drugs to not enhance health –they reduce economic risk.
(2) pharmacies do not exist for the purpose of reducing economic risk and are not licensed for that purpose so this is not a standard licensing issue.
(3) there is, in fact, a great deal of political hostility against people of religions that oppose the item.
(4) you might have to show that the legislature was influenced by anti-religious factions which would probably be easy to do.
July 14th, 2009 at 10:46 am
Suppose a Muslim decides to take a job at his local supermarket’s meat department. Should he be able to refuse to sell any pork, and be protected from being fired by said supermarket because his refusal is based on his religion?
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July 14th, 2009 at 11:17 am
No, but he should be free to open a store of his own that does not carry pork.
July 14th, 2009 at 11:48 am
t,
I would say that depends. There are a couple of questions here that aren’t being dealt with individually.
Does he own the meat department?
That is, if a Muslim owns his own butcher shop, can the state compel him to sell pork against his religious views? Does that change if he won’t sell it because he just thinks it tastes bad? Do we really want the state to declare that only non-religious objections are legitimate?
If, however, he works at Kroger, well then I believe that Kroger get’s to decide what inventory they stock. If they choose to remove pork from their inventory, that is fine. If they decide that pork will stay but the employee will not have to touch nor sell the offending meat, that is fine. If they decide that since he is unwilling to perform the job required that they will not hire him, that also is fine.
Either way, it’s not a gov’t issue. Inventory is a business owner’s decision.
Thus it is with pharmacists.
I should point out that the case in question, the plaintiff is the pharmacy owner who is compelled to stock the morning after pill, and not an employee pharmacist who was fired for not dispensing said drug.
July 14th, 2009 at 11:56 am
How about a different tack?
Can the U.S. Supreme Court overturn a decision based on an improper application of the State Constitution?
If so, could it be argued instead that the WA state constitution does not give the state the power to regulate inventories in the first place?
In effect, can you turn the question around from “Where is the state prohibited from…” instead to “where is the state allowed to…”?
July 14th, 2009 at 12:31 pm
I’d say no, the state Constitution is outside SCOTUS’s jurisdiction.
July 14th, 2009 at 2:21 pm
Nah, that won’t work. The federal government has enumerated powers; states have broad “police power” instead. Besides, it’s up to the Washington State Supreme Court, not the U.S. Supreme Court, to determine what the Washington Constitution does or does not allow. And you can’t appeal federal court decisions to a state court.
July 14th, 2009 at 3:51 pm
Yeah, that’s what I thought, but I figured I’d ask.