A Stitch in Haste

Yesterday I put my libertarian credentials on the line by asking whether public breastfeeding could rightfully be subject to regulation or prohibition.

Since I'm on a roll, I'm going to follow up by stepping into the latest libertarian minefield: Do pharmacists have the right to refuse to dispense drugs, particularly contraceptive pharmaceuticals, that offend their moral views?

My answer: Sorta kinda, but only sorta kinda.

Let's start with first principles. In a free society comprising competent, consenting adults, the only valid laws restricting conduct are those that protect rights or correct for externalities. In the first iteration, one might argue for the standard "markets in everything" approach and allow the pharmaceutical industry to "sort itself out," much the same way that most libertarians (myself included) would argue that smoking bans in bars are wrong — just let the property owners run their businesses as they see fit and see who makes the most money. Why not let pharmacists run their pharmacies the same way?

Here's why: Such a policy imposes significant costs on customers. A "morning after pill" must be administered within a fairly brief window. There may not be enough time for the pharmacy market to "sort itself out," at least with respect to a particular patient. The "conscientious objector" pharmacist is potentially imposing externalities on the potential customer by denying access to the pharmaceuticals, even temporarily. The externality therefore at least invites the possibility that "laissez faire" is inappropriate.

Even without the urgency of "morning after pills," there is still an asymmetrical information problem that imposes costs: Is it fair to impose the added time and shoe leather of having someone make a trip to the pharmacy only to learn that they will be denied service and then have to find a second pharmacy? The externalities in that situation may seem trivial, but they would certainly arise.

Finally, there is the potential for an "adversarial externality" between a conscientious objector pharmacist and the customer. Imagine a young pregnant woman walking into a pharmacy, not only to be denied service, but also to be subjected to the confrontation of "I'm not helping you kill your baby!" Again, externalities argue against pure unregulated markets.

So is the answer compulsory pharmacology (i.e., requiring the conscientious objector pharmacist to suppress his morality and serve all customers)? I don't think so — I think there's a compromise approach.

Suppose pharmacists were allowed to deny service, either carte blanche based on the prescription or contingent on the circumstances (e.g., over-dispensing a narcotic painkiller). However, in order to qualify for "objector" status, the pharmacist would first be required to alert the pharmaceutical company and all third-party payors (e.g., insurance companies, HMOs, Medicaid) of their reservation of the right to deny service. Those entities would then be able to proactively provide that information to physicians and patients so they could decide in advance which pharmacies to patronize. Similarly, the pharmacist would have to provide actual notice to all customers at the time they fill their first prescription, even if the pharmacist does not object to that particular drug (i.e., "Please by advised that even though we are filling this prescription, we reserve the right to refuse to fill future prescriptions.") Many people like to use the same pharmacy for all their prescriptions — they should be warned up front if they might someday be turned down. Perhaps even a large sign at the door or at the pharmacy counter explaining their policy.

The right to do business in accordance with one's morality does not include the right to blindside someone. If pharmacists want the right to craft policies that allow them to sleep well at night, then they should be obliged to make those policies well-known beforehand, so others can also sleep well at night. In that way the externalities are accounted for, and libertarian principles are preserved.

Concurring and dissenting opinions welcome.

Recent thoughts at JurisPundit and Tom G. Palmer.

Scientific American Blog points to a poll that suggests that over two-thirds of all pharmacists may feel entitled to deny emergency contraception (the so-called "Plan B" pill) on moral grounds alone:

--69% of the pharmacists indicated that pharmacists should have the authority to refuse filling prescriptions for emergency contraception such as the morning after pill.

--While 39% of pharmacists indicated that state laws should not require them to fill certain prescriptions, a significantly smaller percentage of pharmacists (23%) believe that the patient's rights should prevail if a legal drug is prescribed by a doctor.

--37% of pharmacists feel that although they should have the right to refuse, they should also be required to refer patients to another pharmacist who will fill the prescription.

I had no idea the number of "conscientious objector" pharmacists was so high. This is obviously not just a policy thought experiment.

I tackled this issue back in April, and my view is unchanged.

Putting aside questions of whether pharmacists are strictly private actors or whether licensing requirements and government reimbursement (or private insurance) can "attach strings" to a pharmacist's conduct, the real issue is whether pharmacists have a right to "blindside" customers by doing business with them by filling other "inoffensive" prescriptions but then suddenly turning them away, without prior notice, when it comes to Plan B.

It's neither costless nor trivial to fill a first-time prescription with a new pharmacy. A patient is entitled, once that relationship is established, not to face the unexpected hassle of having a prescription denied and thereby having to re-establish an entirely new relationship with an entirely new pharmacist.

A reasonable compromise would be to allow individual pharmacists, and entire pharmacy chains, the prerogative of declining prescriptions merely on "moral grounds," provided that they disclose this fact to potential customers before they fill the first prescription. This way customers have the option, upfront, to seek out "non-judgmental" pharmacists and avoid any potential for a future denial of service. Pharmacies would compete on "fill any prescription" pledges the same way they compete on location, hours, delivery options, non-pharmacy offerings and other factors.

Pharmacists may have a right to be "conscientious objectors," but if that's the case then customers have a right to know that fact upfront.

Preliminary disclosure of a "refuse to fill" policy is an ideal balancing of both sides' interests and an optimal policy to resolve the "Plan B" debate.

More thoughts at Disinterested Party.

I have blogged previously about the issue of pharmacists refusing to dispense the so-called "morning after pill" because the pharmaceutical could be viewed as an abortion-inducing agent.

Now what began as an intriguing hypothetical or isolated incident is gaining widespread political traction:

More than a dozen states are considering new laws to protect health workers who do not want to provide care that conflicts with their personal beliefs, a surge of legislation that reflects the intensifying tension between asserting individual religious values and defending patients' rights.

About half of the proposals would shield pharmacists who refuse to fill prescriptions for birth control and "morning-after" pills because they believe the drugs cause abortions. But many are far broader measures that would shelter a doctor, nurse, aide, technician or other employee who objects to any therapy. That might include in-vitro fertilization, physician-assisted suicide, embryonic stem cells and perhaps even providing treatment to gays and lesbians.

Refusing to treat gays? Remind me again how these people are trying to claim the moral high ground?

In any case, my position is unchanged. While it is tempting to side with the notion that the "right to practice in according with one's politics conscience" outweighs the "right to receive treatment" (or even to assert that the latter isn't even a true "right"), I still submit that there is, as a matter of contract law if not of ethics, a "right not to be blindsided." Choosing a pharmacy, let alone a health care provider, is often a lengthy, cumbersome task that takes into consideration a variety of factors, including the expectation that one will not later be turned away based solely on somebody else's "principles."

If pharmacists and other health care personnel want the legally protected ability to pass judgment on people, then is it really too much to ask that such prerogative be disclosed at the commencement of the professional relationship? So, for instance, when a customer tries to fill a first-time prescription, he is warned in advance that future prescriptions are subject to "pharmacist's discretion"? Or a fertility clinic being required to disclose, in its advertising, that gays need not call for an appointment?

Other industries include "full disclosure" as part of their ethical buffet. My industry is now manic about it. So if the concern is truly about "defending consciences," then why not adopt the simple, straightforward balancing of these solemn concerns of both providers and patients?

UPDATE: Here's an example of the issue in Illinois, where Walgreens is requiring its pharmacists to sign a pledge that they will dispense morning-after pills. The pledge reflects a new state law requiring all pharmacists to dispense any pharmaceuticals they have in stock regardless of any moral reservations they may have. Four Walgreens pharmacists are suing to have the law declared illegal.