Corvus wrote:ST88 wrote:Whose rights should be protected more, the right of the pharmacist to refuse or the right of the patient to receive?
But does the patient have a right to receive at all? From what I understand, the pharmacist is the owner or employee of a business, not the steward of a public service. It is responsible to its customers, and, like all private businesses, exists more or less for the express purpose of creating money. I don't particularly like this arrangement, but nevertheless, this is how the system works.
You have to ask what the purpose of the pharmacist is in the health care economy. If the pharmacist were a link in a chain of professionals that dispenses health care, that would be fine. But I would argue that the pharmacist is equivalent to a vending machine -- albeit a smart, sentient vending machine -- that dispenses the drugs the doctor prescribes. The harm, in my opinion, is restraint of trade. The pharmacist who objects to dispensing a drug on philosophical grounds is disallowing not only the doctor from prescribing the drug and the patient from recieving the drug, but also the company producing the drug from selling it and the government from regulating it.
Once the doctor prescribes the drug, it could be argued that it becomes a commercial transaction between the doctor and the patient. Health Care has special rules about how that transaction is handled -- the pharmacist, for example, can stop the transaction if it is discovered that the patient is taking an different drug or supplement that conflicts with the prescription. However, the courts do not recognize stopping a transaction like this for reasons that are not grounded in fact.
The pharmacist's first amendment right to exercise his religious beliefs, in my opinion, should not apply here because to do so would effectively declare that the company producing the drug was "morally incompetent". This is the definition of slander. This may be a legal reach of sorts, but if the pharmacist wants to assert first-amendment protection, s/he would have to abide by the provisos that the law gives it.
Corvus wrote:But what seems at first clear cut is obfuscated by numerous other issues. Society may not be able to force a person to act with philanthropy, but it has, in the past, forced private businesses not to discriminate against ethnicities and religions. It cannot force you to surrender an organ for your fellow - which is something I stand by - but it can force you to open your business to him. In that way, could it be claimed that a pharmacist that refuses to dispense a drug is discriminating against an opposing belief system, world view or ethical construct?
in most cases, a business has the right to refuse service to anyone without giving a reason. If the aggrieved party can PROVE that the reason was because of race, ethnicity, religion, etc., then the refusal of service is illegal. However, the burden is on the aggrieved party to prove it.
This is, however, a different situation, because the customer is not the party being discriminated against. Presumably the pharmacist would refuse to dispense RU-486 to the customer if s/he was a Christian or a non-Christian. In fact, the discrimination is against the pharmaceutical company
because of religion! The pharmaceutical company should have a
de facto case not only of slander and restraint of trade, but of discrimination based on religion. But this only works with pharmacists because of the odd position they are in with regards to the health care economy. For example, a retail store can refuse to carry the products of anyone it chooses.
Because doctors are the prescribing party, they are the "retailers" for the medicine. Because the pharmacy is the dispensing party, they are not "retailers" for the purposes of the transaction because they don't choose what to carry and not to carry -- they could be seen as brokers for the transaction if they were involved in the decision, but they aren't. Because they are dispensaries, they have as customers both the pharmaceutical companies and the general public, providing access to each for the other. Therefore, the pharmaceutical company can be seen as a customer and can be an aggrieved party.
Corvus wrote:The pharmacist also is held responsible to a statutory body, so perhaps the argument that pharmacies, as small businesses, can do as they like is not entirely correct...
I apologise for not really giving an answer, just asking more questions, but this one is a toughie, ST88.
I appreciate the trouble that you and other people on this board go to in order to formulate answers to these questions (or non-answer observations). My position is not quite settled either as these issues are not exactly set in stone in the law. But the discussion itself is interesting because religion holds such a strange position in our society.
