Free Exercise Of Despotism: Ninth Circuit Tells Conscientious Pharmacists To Take A Hike

It’s Friday, which usually means there must be some really bad news out there. Sure enough, what the Ninth Circuit Court of Appeals did yesterday is about as bad as it can get. The news report that first caught my attention stated, “The federal Ninth Circuit Court of Appeals today overturned a lower court ruling that had temporarily put on hold a Washington State requirement that pharmacists dispense medications to which they are morally opposed. As a result, pharmacists may soon be forced to choose between dispensing abortifacients, including Plan B, or leaving the profession.”

Mind you, the basic language and meaning of the First Amendment to the Constitution of the United States is as clear as crystal. The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That means that “through its free exercise clause, the 1st Amendment protects the individual’s right to freedom of conscience and free expression of religious beliefs.”

But not so fast, “pardner”! The Ninth Circuit Court of Appeals begs to differ.

We spent some time reading the actual Ninth-Circuit decision just to get a feel for this overbroad and impudent exercise of judicial power. The decision examines the Washington State regulation  that sparked the original challenge. This regulation was challenged by a family-owned pharmacy and two individual pharmacists. A lower court agreed with the pharmacists’ argument, but maintained that a referral must be made when a pharmacist or pharmacy refuses to fill a particular prescription. However, now the Ninth Circuit has tossed out the lower court ruling, stating,

Under the rules, all pharmacies have a “duty to deliver” all medications “in a timely manner.” Neither regulation challenged in this case applies to refusals only for religious reasons. The new rules apply to all lawful medications, not just those that pharmacies or pharmacists may oppose for religious reasons. Pharmacies and pharmacists who do not have a religious objection to Plan B must comply with the rules to the same extent—no more and no less—as pharmacies and pharmacists who may have a religious objection to Plan B. Therefore, the rules are generally applicable.

The ruling opposes the lower court’s reasoning by asserting,

The district court failed to give proper weight to the rules’ distinction between pharmacies and pharmacists. The rules do not prohibit individual pharmacists from refusing to dispense a medication for religious reasons. A pharmacist may refuse to dispense Plan B on a religious ground because ultimately it is the duty of the pharmacy, not the pharmacist, to “deliver lawfully prescribed drugs.” …The record demonstrates that several different methods of accommodation are available. For example, the Board itself stated, in a post-adoption letter to pharmacists and pharmacy owners, that for females eighteen and over, “[a] pharmacy technician can sell Plan B as an over-the-counter product, but the pharmacist must be available to provide the patient with consultation and advice if requested.” It may also be sufficient to have a second pharmacist available by telephone if the onsite pharmacist objects to dispensing a medication or providing a requested consultation. Thus, the rules do not selectively impose an undue obligation on conduct motivated by religious belief because the rules actually provide for religious accommodation—an individual pharmacist can decide whether to dispense a particular medication based on his religious beliefs and a particular pharmacy may continue to employ that pharmacist by making appropriate accommodations.

The bottom line with the Ninth Circuit is quite clear. The Ninth Circuit denies that pharmacists with religious or ethical objections are being discriminated against and that their First Amendment rights are being violated.  Instead, it opines,

[A]ny refusal to dispense—regardless of whether it is motivated by religion, morals, conscience, ethics, discriminatory prejudices, or personal distaste for a patient—violates the rules. (emphasis added)

In other words, if a pharmacist objects to providing information or an actual prescription medication because he or she understands how the medication works and does not want to be a party to providing a chemical that could cause an innocent person’s death, that pharmacist could lose his or her job.

Further, the Ninth Circuit opines, “[T]he purpose of the new rules was not to eliminate religious objections to delivery of lawful medicines, but to eliminate all objections that do not ensure patient health, safety, and access to medication [emphasis added]."

If you are getting the impression that this opinion pits the patient’s desires against the pharmacist’s ethical concerns, then you are accurately understanding the Ninth Circuit’s mindset. The fact of the matter is really quite simple: If a patient is given a prescription for a deadly chemical and you, as a pharmacist, object to filling that prescription—on moral, ethical or religious grounds—you are wrong, because by refusing to accommodate the patient, you are not ensuring “patient health, safety, and access to medication.”

Drumming you out of the profession because you uphold your profession’s proper ethical practices could be the end game. Time will tell. But as Wesley Smith, expert attorney and noted physician-assisted suicide opponent, has pointed out, there is more danger in the Ninth Circuit’s decision than first meets the eye.

Smith analyzed this decision in the context of Washington State’s recent decriminalization of physician-assisted suicide. He noted that the state law does protect a physician’s conscience rights, but cleverly leaves the barn door wide open when a pharmacist raises objections. He therefore concludes that the Ninth Circuit’s opinion puts pharmacists directly in the line of fire when physician-assisted suicide is sought: 

That very narrow definition trickily takes away the non participation protection from pharmacists, since to “participate” only means to perform the duties of the attending (prescribing) physician, the consulting physician, or the mental health professional who consults in the case. It does not mean dispensing the lethal prescription or filling out the forms required of pharmacists.

Thus, under the reasoning of the court ruling, not only will pharmacists in WA have to dispense an overdose to patients knowing it is intended for use in suicide, even if they have a religious objection, but they will also have to perform the required bureaucratic functions. Ironically, one professional role pharmacists are supposed to play–which is why they do far more than merely count pills into bottles—is to protect patients from receiving prescriptions that could conflict with other prescribed drugs, resulting in their deaths.

We hope and pray that this ridiculous decision will be challenged immediately. For not only will pharmacists suffer dire consequences if the Ninth Circuit’s decision is allowed to stand, but many other health-care professionals could be pressured into actions they find morally objectionable. If they are required to leave their faith and ethical principles at the door, then leaving the profession will be their only alternative. And frankly, that is so un-American I can hardly fathom it.

When Pope Benedict XVI spoke to Catholic pharmacists a couple of years ago, he told them in no uncertain terms, 

“It is not possible to anesthetize the conscience, for example, when it comes to molecules whose aim is to stop an embryo implanting or to cut short someone’s life… I invite your federation [of pharmacists] to consider conscientious objection which is a right that must be recognized for your profession so you can avoid collaborating, directly or indirectly, in the supply of products which have clearly immoral aims, for example abortion or euthanasia.”

In fact, his predecessor, Pope John Paul II, was even more emphatic about this subject in The Gospel of Life (Evangelium Vitae):

 To refuse to take part in committing an injustice is not only a moral duty; it is also a basic human right. Were this not so, the human person would be forced to perform an action intrinsically incompatible with human dignity, and in this way human freedom itself, the authentic meaning and purpose of which are found in its orientation to the true and the good, would be radically compromised. What is at stake therefore is an essential right which, precisely as such, should be acknowledged and protected by civil law. (section 74)

For the sake of every man or woman who has taken up the mantle of being a health-care provider with principles, we hope, pray and, in fact, will demand that everything possible be done to unravel this oppressive ruling.