Drug Wars

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In a debate over at Legal Affairs, Cato's David Boaz and Judy Waxman of the National Women's Law Center face off over whether pharmacists may refuse to fill birth control or morning-after pill prescriptions.

Kerry Howley noted earlier this month that this whole discussion would be deliciously moot if the FDA would get around to following its own expert panel's advice and approve emergency contraception for over the counter sales—and maybe mainstream pro-lifers have a reason to prefer it that way: Will Saletan at Slate observes that non-loony groups are mostly keeping their distance from this one.

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  1. “Will Saletan at Slate observes that non-loony groups are mostly keeping their distance from this one.”

    I guess that means we should be on this like a duck on a june bug.
    Uh, what is the issue again?

  2. Unfortunately, Boaz seems to completely ignore the fact that if a pharmacy were to terminate the employment of a pharmacist for refusing to dispense drugs based on ‘moral’ or ‘religious’ views, that employee can use the current laws to make life rather difficult for their former employer.

    So what is the proper action when government has already intruded upon the marketplace and we are unable to kick government out of it? Do we fall on the side of requiring professionals to only use their professional and non-personal judgements when doing their job? or do we allow them to freedom to express their biases when doing their job?

    Do we allow doctors to refuse medical care to HIV positive people because they don’t approve of their drug injecting lifestyle?

    I think it’s the same problem that is at the root of the whole gay marriage debate as well. We recognize that a social structure has been hijacked by the government. We are unable to get government out of it, so we support the fact that government must expand to include additional people into that social structure. Make no mistake, legalizing gay marriage is expanding governmental control of more people, yet many libertarians side with it.

    So what’s so different with in the case of government mandated gatekeepers of drugs refusing to dole them out to authorized persons?

  3. So what is the proper action when government has already intruded upon the marketplace and we are unable to kick government out of it?

    Say what? Granted, my libertarian commentaries often get me labeled as a pessemist by my friends and family, but…jeez, that is the most defeatist statement of the day. This is the same justification that so-called “realists” use in support of health care regulations, etc. “Well, my tax dollars are already forced to pay for other people’s health care, so, I should be able to have a say in how they treat their bodies!” This “justification”, as it were, holds no water, and only leads to the logical conclusion of: “Since government already intrudes, we should ask it to intrude some more“.

    Government intervention only begets more government intervention, and no matter how defeatist your outlook might be, it is a logically fallacious position to take. Government intervention does not justify more intervention to correct previous interventions.

  4. Make no mistake, legalizing gay marriage is expanding governmental control of more people, yet many libertarians side with it.

    This is primarily because the marriage laws in this country, while they do represent a modicum of “control”, are also a system of incentives paid for with taxpayer dollars. I personally know of no actual libertarians who prefer gay marriage over no state marriage at all. Yet, the logic is this: if the government is going to dole out fabulous prizes! with their exclusionary legislation, then it should legally include party X, not just party Y. These same laws govern things like who can visit you in the hospital, etc. While the government should have no say in this, they do, so it should not be restricted to heterosexuals.

    But, here I am, engaging in the same “as long as government is doing this, then it should also do this” crap. Ugh. Let me be painstakingly clear: getting government out of marraige is my first choice. Now, let us get back on topic.

  5. You know, I sometimes have sympathy for the notion that we should resign ourselves to the “least bad” option in the short run. But let’s keep in mind that with contraceptives there are more options on the table than more regulation or completely ending the pharmacist’s role as gate-keeper.

    For instance: Contraceptives could be made over-the-counter while other medications remain prescription-only.

    Emergency contraception could be prescribed in advance for women who want to keep it on hand in case of emergency. In that case, if it’s being bought as a precautionary measure then it isn’t crucial to get the prescription filled right away, and women could order it online if the local pharmacist won’t sell it. (And let’s keep in mind that MOST women live within easy driving distance of multiple pharmacies.) (And somebody said in a previous thread that it’s an oxymoron to stock up in advance on something that is only used in unplanned emergencies, but I keep bandages in the house even when I’m not injured.)

    Surely other options are available. The point is that there are solutions that involve less regulation rather than more, but don’t involve completely dismantling the gatekeeper system overnight. Since most of the problems seem to involve pharmacists refusing to sell contraceptives (I haven’t heard of any pharmacists refusing to sell heart medication, say) and since this is really only an issue for women who can’t get to another pharmacy easily (unless the pharmacist keeps the prescription, in which case he should be prosecuted for theft), why not thinking of patches that only deal with those situations? A problem will be solved, and the solution will be modest enough in scope that it might just be politically feasible.

  6. Ok, so maybe Catholic-enforcing mail carriers shouldn’t be “forced” to deliver birth control pills ordered through mail order. And they shouldn’t be forced to hand over the deliver, they should just be able to throw it out.

    Or maybe they Catholic-enforcer should refuse to sell a woman a bottle of water. She may use to help take her birth control pills.

    Catholic-enforcing stockboys at the grocery store don’t have to put condoms on the shelves. They should just poke holes in them to make sure no one else can stock them either.

    Pharmacists are high grade store clerks. They should just plunk the pills down. It would be “Anti-catholic” to force them to take them. It’s not to make them count out some or slap a sticker on a package.

    More faux “I’m a victim” moaning.

  7. “Pharmacists are high grade store clerks. They should just plunk the pills down. It would be “Anti-catholic” to force them to take them. It’s not to make them count out some or slap a sticker on a package.”

    We should be regulating what store clerks have to plunk down when asked? We should throw them in jail if they refuse?

  8. No, but we should let stores fire them and not pass laws that require stores keep them or face lawsuits if they do can their butts.

  9. Ok, so maybe Catholic-enforcing mail carriers shouldn’t be “forced” to deliver birth control pills ordered through mail order. And they shouldn’t be forced to hand over the deliver, they should just be able to throw it out.

    It isn’t up to the mail employee, it is up to the carrier (post office, UPS, etc). Carriers already limit what can and can’t be sent, usually targeting non-PC items like firearms.

    Certainly, the employee shouldn’t be forced to do anything, but if he wants to receive his paycheck he needs to comply with the agreement he made with his employeer when he signed on.

    As far as throwing something out, given that it is someone else’s property, that would be equivelent to theft.

    Or maybe they Catholic-enforcer should refuse to sell a woman a bottle of water. She may use to help take her birth control pills.

    No one should be forced to sell their private property.

    Catholic-enforcing stockboys at the grocery store don’t have to put condoms on the shelves. They should just poke holes in them to make sure no one else can stock them either.

    If the store doesn’t want to stock condoms, fine.

    If the stockboys don’t want to place them on the shelves, their employeer should have the right to terminate their employement, and if they destroy the condoms–the property of others–they should be subject to the same laws that restrict theft and vandalism.

    Pharmacists are high grade store clerks. They should just plunk the pills down. It would be “Anti-catholic” to force them to take them. It’s not to make them count out some or slap a sticker on a package.

    They are way more than just “high grade store clerks”, they typically know more about the drugs and their interactions than the prescribing physician.

    More faux “I’m a victim” moaning.

    Yes, from the idiots who think they have a right to force others to serve them.

  10. No, but we should let stores fire them and not pass laws that require stores keep them or face lawsuits if they do can their butts.

    Preach it, Doc!! The Choir is listening intently.

    So, um, who here made the argument that Pharmacies should prohibited from firing people who fail to perform their job duties? Just curious, because I never saw that argument being made.

    Additionally, the owner of said business shoudl also be allowed to fire their employees for any reason they can dream up. Ugly? You’re fired. Throw like a girl? You’re fired. Small penis? You’re fired. Caucasian? You’re fired. Seriously, the government should have no say in hiring/firing practices whatsoever—including those which have to do with religious beliefs.

  11. Wouldn’t forcing a Catholic pharmacy owner to supply bc be akin to forcing a vegan restaurant owner to serve meat?

  12. Wouldn’t forcing a Catholic pharmacy owner to supply bc be akin to forcing a vegan restaurant owner to serve meat?

    Or forcing a smoking bar to prohibit smoking. Or forcing dirty dives to achieve some groundless cleanliness standards. Same shizzle, different circumstizzles. All goes back to one of the biggest abuses of the definition of “public” that our culture has experienced: if you offer your wares/services to other people in exchange for currency or other goods/services, you can be regulated and lorded over by The Omnipresent State Machine, all in the name of whiny-ass consumer advocates who are too lazy to actually “vote with their dollars” and let the normal market forces sort out preferences accordingly.

  13. hear, hear, evan.

  14. all in the name of whiny-ass consumer advocates who are too lazy to actually “vote with their dollars” and let the normal market forces sort out preferences accordingly.

    Or who are upset that the market “failed” (i.e., didn’t select their desired outcome).

  15. They are way more than just “high grade store clerks”, they typically know more about the drugs and their interactions than the prescribing physician.

    Except that they aren’t the prescribing physicians, Don, so I don’t want them sticking their Taliban-USA noses in decisions that are private business between me and my physician.

    Also, maybe I should point out here that BC pills of all types are not merely prescribed to prevent rugrat infestations. They are also used to regulate hormone imbalances. As many as 20 million women in the U.S., for example, suffer from polycystic ovarian syndrome (PCOS), a cause of hormonal imbalances that certainly has the potential to be life-threatening. Mr./Ms. Fundie F*ckstick Farmacist might be cutting off drugs that are treating disease, not killing baybeez. Not that it matters what the @#$% they’re using it for; the point is, the pharmacist just doesn’t know, and it’s not his/her business to know.

    I’m happy to let the market sort this out, particularly since I live in a liberal, urban area, and me and most of my friends are mean, angry chicks who want our birth control without question, gadammit. If some pencilneck fundie f*ckstick tried to get between me and my Rx, I’d not only find a way to make his life difficult, I’d take my business elsewhere.

  16. It’s rather evident that you can all identify the problem. You go so far as to accuse me of being defeatist about it.

    Yet, you fail to realize that as long as government already has their hands in the market, your only decision is to pick a side:

    a. For forcing pharmacists/employees to sell what their employer wants them to sell, or
    b. Forcing employers to make even more exceptions to fabricated reasons why their employers don’t have to do their job, or
    c. Just complain or be defeatist and not give a flying f**k.

    I think we all agree that the employer should have the final say in whether they humor their employees irrational beliefs or not. Evan’s post perfectly illustrated this. The only real libertarian solution to this is for government to give back to the employer the ability to fire their employees or refuse service to those customers seeking certain medications without fear of government thuggery. But we all know that isn’t going to happen.


  17. b. Forcing employers to make even more exceptions to fabricated reasons why their employers don’t have to do their job, or

    Errm, that should read:

    b. Forcing employers to make even more exceptions to fabricated reasons why their employees don’t have to do their job, or

  18. Except that they aren’t the prescribing physicians, Don, so I don’t want them sticking their Taliban-USA noses in decisions that are private business between me and my physician.

    So, you are going to have them despense your medication without them knowing what it is and what is is for? Maybe we can come up with push-button automatic pill dispensers, so we don’t upset your sensibilities.

    Also, maybe I should point out here that BC pills of all types are not merely prescribed to prevent rugrat infestations. . . . Not that it matters what the @#$% they’re using it for; the point is, the pharmacist just doesn’t know, and it’s not his/her business to know.

    I don’t particularly care what the prescription is for . . . bottom line is that the pharmacist shouldn’t be forced to sell anything. Of course, if the pharmacist is goining against his employer’s wishes, he should face potential termination.

    I’m happy to let the market sort this out, particularly since I live in a liberal, urban area, and me and most of my friends are mean, angry chicks who want our birth control without question, gadammit. If some pencilneck fundie f*ckstick tried to get between me and my Rx, I’d not only find a way to make his life difficult, I’d take my business elsewhere.

    Taking your buisness elsewhere is fine, but the idea about making someone’s life difficult because they didn’t serve you in some manner is wrong, assuming you haven’t already paid for the service.

  19. Yet, you fail to realize that as long as government already has their hands in the market, your only decision is to pick a side:

    a. For forcing pharmacists/employees to sell what their employer wants them to sell, or

    b. Forcing employers to make even more exceptions to fabricated reasons why their employees don’t have to do their job, or

    First, it isn’t clear to me that the employeer can’t fire, say, a pharmacist who refuses to fill prescriptions on moral or ethical grounds. Certainly the property rights of employeers have degraded significantly, but they can fire employees who don’t perform on a consistant basis.

    c. Just complain or be defeatist and not give a flying f**k.

    One can let the market decide. That sort of rolls into “c”, in the sense that we won’t be taking government action.

    Frankly, pharmacies can select their employees and have them sign on the dotted line that they won’t restict BC (or whatever) based upon moral or ethical considerations. If the “woman denied BC by pencil-necked pharmacist” is really such a problem, the market will render judgment on pharmacies, and the problem will sort itself out — assuming the government doesn’t jump in and “force” a solution onto the market.

    Yet another solution is to remove the prescription requirement from BC devices.

  20. but the idea about making someone’s life difficult because they didn’t serve you in some manner is wrong,

    Don, you can’t have it both ways. Either pharmacists are glorified pill-counters and sales clerks, or they’re health professionals who know more about the meds in some cases than doctors, as you claim.

    If they’re pill-counter/sales clerks who have a right to refuse to sell any “merchandise” based on their personal views, and they tell me their religious views prevent them from filling my scrip, I’m going to write a fat nastygram to their employer, and their employer’s parent company, and do what I can to get them fired. Not because they hold what I think are repellent personal beliefs (although I admit that hating their medieval stupidity is a strong motivator for me), but because they’ve imposed those beliefs on my healthcare and made their beliefs my personal problem. And because those beliefs have inconvenienced me by forcing me to transfer my prescription elsewhere, which usually results in a delay of anywhere from a few hours to a day. In an extreme example, if Pencilneck refused to fill a scrip based on his constipated little morality, and forced a delay that endangered my life, we could have Pencilneck the Pharm Tech arrested for assault or attempted murder. That is, if, as you say, prescrips are just another form of merchandise that no one is obligated to sell me. Sure, they’re free to choose not to sell me meds, provided they assume the responsibility of what results from their choice.

    Basically, I don’t give a soft sh*t what their beliefs are, until they interfere with my healthcare. The force-to-sell-property argument simply doesn’t hold up: pharms/pharm techs don’t own the pills that they sort; their employer does.

    If they’re actually health professionals, as you argue, and they’re refusing care that’s been agreed upon between me and my doctor, and thus possibly endangering my health, I can sue their ass…for (just to carry this metaphor out to a ridiculous extreme) malpractice. Or file a complaint with the state pharmacy board and petition to have their license stripped. If they’re health professionals, they can’t merely be pill-peddlers, and what they’re selling wouldn’t merely be “merchandise.”

  21. In an extreme example, if Pencilneck refused to fill a scrip based on his constipated little morality, and forced a delay that endangered my life, we could have Pencilneck the Pharm Tech arrested for assault or attempted murder.

    Again, you don’t have any right to any other person’s service, and if he does delay providing something that results in your loss of life, that isn’t murder, that is simply excercising his property rights.

    The force-to-sell-property argument simply doesn’t hold up: pharms/pharm techs don’t own the pills that they sort; their employer does.

    Unless the pharmacist in question owns the store.

    I think all the libertarians here agree that the owner can (or at least should be able to) fire the pharmacist or clerk who refuses to act according to company policy.

    If they’re actually health professionals, as you argue, and they’re refusing care that’s been agreed upon between me and my doctor, and thus possibly endangering my health, I can sue their ass…for . . . malpractice.

    Given the expertise of pharmacists, I think it is probably worth having them as a “second opinion” who is able to review whatever the doctor has proscribed. In other words, their opinion as health professionals shouldn’t be discounted–they should have the freedom to use their knowledge when filling prescriptions and consulting, and that is inconsistent with them applying a “rubberstamp” to every prescription.

    In any case, I fail to see refusing service as grounds for malpractice.

  22. Don,

    Its one thing to give a professional opinion.
    Like this pill and this antibiotic will interact one way or another. That is where their “opinions” should end. Morals and judgement based on religious beliefs have nothing to contribute to the medical discussion.

    If you want us to respect the pharmacist as a medical professional fine, but he is not a moral leader and should not be allowed to make any judgement calls about the morality of the drugs I am taking.

    Furthermore your property arguments fall a little flat.

    If medications didn’t require a licensed professional to distribute them, then maybe I would agree with your assertions, but the fact is that these people have been sanctioned as the chosen few who are allowed to dispense medications. The government allows them to have more power over others than the average person. Therefore the government has every right to limit the scope of those powers and to tell those licensees how they can and can not act.
    Now if anyone could be a pharmacist, or if prescriptions weren’t needed, then I would completely agree with you.

    If you don’t want the government to tell you how to do your job, dont choose a job that REQUIRES government sanction!

    These arent commodities that everyone has equal access to. The moment access to these drugs are regulated at all, then the gatekeepers need to/can/should be regulated as well.

    That said, I don’t believe a pharmacy should be forced to stock anything in particular and should make it very clear what they dont carry and what they do. And whatever you stock, every pharmacist should fill.

  23. For clarity’s sake:

    The last line should actually read :

    “Pharmacists should HAVE to fill whatever the pharmacy that they work at stocks”

  24. If you want us to respect the pharmacist as a medical professional fine, but he is not a moral leader and should not be allowed to make any judgement calls about the morality of the drugs I am taking.

    I don’t believe a pharmacy should be forced to stock anything in particular and should make it very clear what they dont carry and what they do. And whatever you stock, every pharmacist should fill.

    You don’t see anything incongruous between these two statements?

    It is exactly the sole-proprietorship pharmacy in the Bible Belt small town that draws the greatest pragmatic whine. Which of your edicts must that proprietor follow? Must he fill every prescription that might be requested so he isn’t trumping medicine with morality? Or does he get to choose to stock only drugs he approves because he happens to own the store?

  25. If medications didn’t require a licensed professional to distribute them, then maybe I would agree with your assertions, but the fact is that these people have been sanctioned as the chosen few who are allowed to dispense medications. The government allows them to have more power over others than the average person. Therefore the government has every right to limit the scope of those powers and to tell those licensees how they can and can not act.
    Now if anyone could be a pharmacist, or if prescriptions weren’t needed, then I would completely agree with you.

    First, let’s assume that the pharmacist owns the pharmacy and the drugs he is selling (or that he is complying with the owner’s wishes).

    Under the above assumption, it is a violation of property rights for the government to require that the pharmacist sell his property. His property rights are already violated by the requirement that his customer have a prescription; in essense, you are arguing that, since the government has violated his property rights somewhat, it should go the rest of the way in violating his property rights. I don’t agree, and I think you are dead nuts wrong.

    Further, your argument is based upon the need of the consumer for the proscribed medication. No one has any rights based upon need. I don’t care how much need anyone has for anything, they have no right to it if someone else’s labor created it.

  26. To add to the above argument, the “regulation justifies further regulation” argument put forth by some in this thread can be used to justify any number of new regualtions. It is an argument that undermines libertarian princples, in essence a slippery slope.

    The proper solution from a libertarian perspective is to remove the legislation requiring the prescription, not to add further restrictions on property rights.

    One should also put this “problem” into perspective. I doubt many women in need are being denied this drug. If they are using it to control hormones, they can locate a reliable supply. The “solution” of forcing pharmacists to serve customers they don’t want to serve will violate the property rights of all pharmacists for as long as the legislation is in effect. And the women denied the drug are not having any rights violated.

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