Religious ‘freedom’: Judges bar pharmacies from withholding contraceptives

A federal appeals court has just struck back against the discreditable trend of healthcare professionals placing their personal beliefs ahead of their duties to patients.

In a case involving a family-owned pharmacy in Washington state that objects to “morning-after” contraceptives, a three-judge panel of the Ninth Circuit U.S. Court of Appeals upheld a state rule forbidding drugstores to deny any lawful drug to any customer for religious reasons.

No matter how sincere the pharmacy owners’ belief that dispensing the drugs amounts to the taking of human life, wrote Judge Susan Graber, “we are unconvinced that the right to own, operate, or work at a licensed professional business free from [such] regulations... is ‘fundamental.’”

The religious-exemption lobby is predictably up in arms about the ruling. Washington state “allows pharmacies to refer for all kinds of reasons,” the Alliance Defending Freedom, a Christian legal defense fund, asserted. “In practice, it only bans religiously motivated referrals.”

This isn’t exactly correct: The state law allows “referrals” -- drugstores sending customers elsewhere -- only when unavoidable business, legal or logistical reasons prevent them from filling a prescription. These include a customer failing to pay, the unavailability of the drug in stock, or suspicion of fraud.

The granting of religious exemptions from general laws started to show up in federal and state statutes in 1993. At first the rules were aimed chiefly at exempting certain religious observances--animal sacrifices or the taking of hallucinogenic drugs, for instance--from laws that would otherwise forbid them.

More recently, they’ve become all-purpose dodges from legal mandates, even when the result is a threat to public health or innocent people’s own rights. The multi-state measles outbreak earlier this year was partially the product of low vaccination rates among families claiming exemptions for religious reasons or “personal beliefs.” The Supreme Court advanced the cause of religious exemptions in a major way in its 2014 Hobby Lobby decision, upholding the right of family-owned businesses to deny their employees insurance coverage for contraceptives. Suddenly, not only individuals but corporations could hold religious beliefs.

These laws and rulings tend to focus on contraceptives and abortion, but as the appellate court observed this week, religious or moral scruples have been cited in refusing to dispense other drugs, including those for HIV and diabetes. Put together, these laws and rulings blur the line between the secular and religious world, allowing the latter to intrude on the former and religious claimants to impose their beliefs on bystanders.

Glimmers of a pushback have emerged only slowly. A nationwide uproar prompted Indiana to roll back a new “religious liberty” law that critics said would effectively permit discrimination against gays. And in June, California Gov. Jerry Brown signed a law ending religious and personal-belief exemptions for child vaccinations; only medical exemptions remain.

But religious exemptions allowing medical professionals to deny lawful care to patients still abound. Catholic hospitals in the U.S. routinely bar abortions, contraceptive services and other services to patients on their premises, citing the church’s Ethical and Religious Directives for Health Care, which are based much more on religious doctrine than medical standards. As we reported, California Atty. Gen. Kamala Harris aided and abetted this violation of patients’ rights in 2013 when she green-lighted the merger of Newport Beach’s Hoag Memorial Hospital with a Catholic hospital chain, which promptly banned abortions at Hoag. (She has since tightened up her standard for approval of such deals.)

Wherever such exemptions occur, they should be eradicated, argued Martha S. Swartz, an adjunct professor of law at Rutgers, in a 2013 article for the Yale Journal of Health Policy, Law, and Ethics. Healthcare professionals should be encouraged to refuse services that violate professional standards, she wrote. But “the monopolistic state-granted licenses that medical professionals receive should preclude these professionals from injecting their personal beliefs into their professional practices.” That’s because protecting medical care and upholding the professions’ fiduciary duties to patients requires “subordinating personal religious or moral beliefs to the needs of patients.” She’s right.

The Washington state regulations reviewed by the Ninth Circuit court try to strike a balance between individual scruples and professional duty. The rules allow individual pharmacists to refuse to deliver a drug on religious grounds, as long as another pharmacist is on hand to fill the prescription. But they don’t grant the same right to pharmacies; they’re required to fill all lawful prescriptions regardless of their owners’ feelings.

The rules were challenged by Stormans, the family-owned operator of an Olympia, Wash., drugstore, and two pharmacists who had refused to fill prescriptions for morning-after contraceptives. The plaintiffs say they’ll appeal.

The Becket Fund, another backer of religious-liberty lawsuits, argues that no one has been hurt by the Washington pharmacy’s refusal to stock morning-after prescriptions, since “30 pharmacies nearby” sell the pill. But that’s irrelevant; refusing a lawful prescription, especially one requiring urgency, interferes with a patient’s rights and health.

The fund further asserts that the state is “forcing” the two individual pharmacists “out of the pharmacy profession.” That’s sheer nonsense. The state rules protect individual pharmacists; if anything, they go too far, since anyone receiving a license to operate in a secular professional should meet all the standards of that profession, not just the ones they choose to honor. If the consequence for the two pharmacists of making their own rules is that they have to leave the profession, then that’s their choice. They’re at liberty to go.

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