Wednesday, May 04, 2005

Slashing Prices On Sit-Ups and Jogging - Practically Free Exercise!

This post is dedicated to Zhubin. Normally I wouldn't break from my oh-so-strenuous finals study schedule to jot a quick post, but he like, demanded it, so I'm fulfilling my obligation.

On the frontiers of the First Amendment there is a giant storm brewing. Pharmacists in several states have refused to fill prescriptions for birth control, citing religious opposition. Some of the refusals have involved types of birth control which are arguably abortificiants, some have not. Regardless of the type of birth control, the issue centers on whether the Free Exercise clause allows an individual to refuse a legal service.

There are other ways of framing the issue, of course, and a series of variations on the main theme. Related questions would focus on the role of the government in requiring pharmacists to provide service. In fact, in Illinois such a law has already been passed. Is this Constitutional? That's a good question. Lawsuits are proceeding.

I for one would like to think that the Free Exercise clause trumps in this case. It seems to me that the freedom to practice religion trumps almost every single other right. It was, after all, the reason most people emigrated to this country. More essentially though, if the government can forcibly interfere with religious practice, we've crossed into a very dangerous realm. And yet, after a very cursory review of the case law (in a discussion with my roommate who is currently taking Constitutional Law II), the only pertinent language we could find said that so long as the governmental regulation was general and did not target the religious group, then the regulation was legitimate and any interference with the practice of religion was a tragic consequence that the individual had to deal with. It came up in a case where a religious ceremony involving the use of peyote led to a positive drug test, and a subsequent firing and denial of unemployment rights. And Scalia wrote the opinion. So it might not look so good for Free Exercise of Religion.

But if this really is the case, (and again, this was a cursory review, and I could easily be wrong (hopefully next year I can take a religion and law class and learn precisely about this sort of thing)), then this should really get some blood boiling. Because most government regulations are generally applicable. Just imagine the government requiring an Atheist to say the pledge. Or requiring Catholics to hire female priests. Or prohibiting religious jewelry in schools. These might be the next step - and that's a scary proposition.

But something doesn't quite sit right here, because it has already been resolved that Atheists don't have to say the pledge, so there must be something else going on in the case my roommate found. Does anyone know any more about this? What is the legal standard here? Is it an open question?

Regardless of the settled law, this is a really interesting problem. On the one hand, individuals shouldn't be denied medical treatment because of the religious beliefs of others (or probably more accurately they shouldn't be inconvenienced). On the other, free exercise of religion is one of our most treasured rights. I obviously come down strongly on the side of free exercise. But both sides have points in their favor. I'm interested in discussing this more, in exploring the nuances of the problem. It's a fun topic, but with very real implications for the world we live in. Let's hope Free Exercise emerges the victor.

So there you have it folks. Keep this topic on your radar screen. It's going to be a big battle. And a fun ride.

Some may have more cash than you
Others take a different view


Emily said...

Yes, very interesting problem. I don't know that I have anything to add though.

And I know that song. Really, I do. I just don't know what it's called or who sings it. But I know the

Matthew B. Novak said...

My response to both of your points is "Sure you do."

Are you and your family coming to my wedding?

Emily said...

I don't know!!! I hope so, I really wanted to. I should ask them..

And I do know the song it was in The Big Green...and just for that I'm going to look it up right now.....

..."You Gotta Be," by Des'ree. Ha.

And about the actual topic of your post: it's really a tough one. I mean, it's obviously the pharmacists job. So seeing as it IS their job they have an obligation to fulfill. But at the same time I can see why some would refuse, and I honestly don't know what I would do if in a position like that. I guess it's their tough cookies for choosing that profession. OH I don't know, it's just too hard and I don't know enough about it.

Zhubin said...

Well, I'm honored you dedicated a post entirely to me.

More specifically, you probably won't be surprised to know that my preferred response to a pharmacist who refuses to fill a prescription due to religious reasons is suspension of his license and civil liability for compensatory and punitive damages suffered by the victim. I wouldn't be against some sort of criminal penalty, either.

Regarding the current law, it looks more on my side for now. The decision in Smith, which was the peyote case, was somewhat of a reversal of precedent, and explicitly rejected strict scrutiny for a facially neutral law that has general applicability. It actually did generate a lot of opposition from both the left and right, and prompted Congress to pass the Religious Freedom Restoration Act, which the Court promptly declared unconstitutional.

But the situations you cite are not really applicable here. All of them target religious behavior, and so they are not facially neutral. You can keep your cross necklace.

But a law requiring pharmacies to promptly fill prescriptions if they have them in stock is facially neutral AND generally applicable. Under Smith, a pharmacist cannot claim free exercise protection when refusing to fill birth control pills.

If you ask me, this issue isn't a free exercise one at all, though. Refusing to fill prescriptions is not just free exercise; it's interference with the medical needs of others. Even if the court carved in protections for free exercise, surely it would not embrace this.

Matthew B. Novak said...

Zhubin - I think you're wrong about the situations I cite not being applicable. I can think of a way to word those laws so that they appear facially neutral. For example, "Everyone must recite the pledge". Bam! Facially neutral. Or, "Every employer must not deny positions on the basis of gender." Bam! Facially neutral. Or "Schools shall be free of any paraphanalia which identifies students with an outside organization." Bam! Facially neutral.

I guess maybe my point is, "facially neutral" is a bad standard because it doesn't allow consideration of the effects.

And let me ask you about doctors refusing to perform abortions. Would that be equally illegal? Can you distinguish them for me? Because I don't see any meaningful difference between the two.

Finally, I think you undersell the importance of Free Exercise. You say this amounts to interference of another person's medical needs. Needs? Seriously? Interference? Seriously? How about inconveinence of another persons' "medical" goals. And "medical" I look at suspiciously, because for most people birth control is not something which is improving their health.

I understand the cost of allowing a free exercise exception - there would even be times when more pressing needs would be implicated - and this is an unfortunate thing. But the cost of not protecting a First Amendment right is so much greater. People founded this country largely on the desire for freedom. Not the desire for agreeable service at the drug store.

Zhubin said...

We could have a debate on whether birth controls are a medical necessity or a convenience, and I can bring up the numerous reasons besides contraception for which a woman would need birth control, but we don't need to get there, because surely you would balk at having anyone but your doctor determine what your "medical needs" are, wouldn't you?

The issue of pharmacists following their conscience is precisely that they are blocking what a doctor has determined to be a medically appropriate drug for someone. That's a pretty serious interference, if you ask me.

Not only that, but the "Free Exercise" right here is practically nonexistent. Moving a set of pills from one bottle to another can hardly be considered a serious violation of free exercise. And let us remember that the pharmacist may quit at any time. These pharmacists have chosen a job that requires them to do things they don't agree with, and in this diverse nation of ours, employers cannot be expected to accommodate every religious preference of their employees.

Regardless, the Free Exercise Clause cannot be absolute, and it seems that those activities that directly impact others should be the first to lose protections.

As I see it, the balance here is a person's medical need as determined by a doctor versus the interest of a person who has voluntarily chosen to distribute drugs for a living not to distribute a specific drug, not because it harms him, but because he does not approve of the way that drug is used.

If the free exercise clause is nonabsolute, then surely this is the exact type of situation in which it must yield.

Matthew B. Novak said...

First off, I don't know of anyone who objects to birth control for any of the non-hedonist reasons (oh, I'm sorry, did I just reveal my objections there? All the same, they're astute). But, setting that aside, I don't see that it matters whether birth control is a necessity or a convenience. I still think free exercise is more important. In fact, I can think of very few things that are more important than free exercise.

Imagine for a minute that being a lawyer required you to affirm God's existence every time you went into court. Would you accept this? I mean, it's exactly the same situation. If you decide to practice your religion, it's sure gonna hurt your clients. Your free exercise would have a direct impact on others. Accordingly, you wouldn't be allowed the option of practicing atheisitic beliefs.

You don't really deal with the scenarios I pose. I wonder why? I'd presume it's because in those cases your same position looks a little more ridiculous. It seems more absurd to say doctors can't refuse abortions. It seems more absurd to say that atheists must say the pledge. But those are exactly the same situation. You need to explain your position in light of these cases.

I don't think you can really trivialize free exercise in the current case. Whether it's handing out pills or spitting on the cross, there are certain things that run contrary to people's faith - you don't get to pick and choose those that you feel actually implicate exercise of religion and those which don't. It's for the individual citizen to determine what is important to their practice.

Also, would you really propose to cut off an entire field of employment because of religious reasons? Yes, a person does not have to be a pharmacist, but if the reasons are religous, then we're essentially discriminating on the basis of religious affiliation. And that's about the worst thing that can happen.

I don't propose that free exercise is absolute. Only that it is nearly absolute. Only when something of more importance - like free speech, or the right to vote - is implicated should free exercise be relegated to a secondary position.

As I see it here, the balance is a person's right to practice their religious beliefs and the convienence of filling a prescription at the store of your choosing.

Even if the Free Excercise clause is not absolute, this is precisely the type of situation where religous freedom should still take precedence. Yes, it's sad that we have to choose between the two - it would be nice to have a gaurantee that our medical "needs" were easily fulfillable. But it's more important that our fundamental freedoms are protected.

Zhubin said...

Oh, I'm not saying that there aren't grays in this area, nor am I swearing adherence to Smith. There are certainly situations where people can reasonably differ on where the balance falls. And I agree that your first three scenarios are among them. I don't think the one you mention about lawyers having to affirm the existence of God is, though - that one clearly falls into Cantwell territory. The right to be free from adhering to a creed is absolute.

But the right to religious conduct is not absolute, and justifiably so. It would be far too costly to our society to accommodate every tenet of religious conduct, and compromising on some aspects of religious conduct is a natural price to pay for living in our society. Where is the line drawn? I'm not sure. It might be drawn to favor doctors who do not wish to perform abortions. But it strains credulity to think it falls on the side protecting pharmacists.

You seem to think that going to another pharmacy is a simple matter of walking down the block. But in many, many, areas, especially in the thousands of small towns, there is only one pharmacy. A refusal to fulfill a prescription there results in extremely lengthy delays and possibly an unfilled prescription.

I know you have a moral objection to birth control, but what you are essentially advocating here is a pharmacist's right to refuse to distribute medication based on his or her personal convictions. Where is that going to end? A pharmacist can just as easily refuse to distribute pills that ease arthritis suffering, on the strict conviction that God inflicts suffering for a divine reason.

The entire field of employment need not be cut off to a person with religious beliefs. A religious pharmacist can easily discuss the matter with the employer and provide for another pharmacist on hand to distribute such pills. But surely the burden is on the pharmacist here, as the exercise of his religious beliefs in this context directly harms someone else. That type of conduct, which directly and negatively affects others, can't possibly be within the FE clause's embrace.

Matthew B. Novak said...

Alright, thank you. A much better argument. I disagree that it strains credulity to extend this to pharmacists - I see the situation as very near to that of doctors. It seems a perfectly reasonable extension to me.

And I'm well aware of the difficulties that there can be for patients in small towns - but you've got to realize that in a small town the likelihood is also that the pharmicist won't be able to work around the problem, as you suggest. It's in a small town that the effect is magnified - on either side of the problem. And besides, there are always alternatives to a pharamcy, as inconvenient as they may be. There aren't any alternatives to Free Exercise.

I guess maybe it really is a problem of degree. I'm not quite comfortable with that, because degree will probably turn largely on who is affected - which means that minorities are more likely to get stepped on. And people with an opposition to birth control are certainly in the minority. But that doesn't mean that that opposition is any less valid than one to abortions. Or to saying the pledge.

And so degree becomes really really tricky. I'd err on the side of Free Exercise. After all, short of voting, it was probably the most meaningful right in the formation of our country. And if we didn't have any rights, it would probably be the most sorely missed. People might disagree, but I don't think history would.

Anonymous said...


The problem here, I think, is that you don't have a right to be a pharmacist. It's a violation of free exercise to require someone to kill, by your theory, if he's - say - a Quaker whose religion forbids it. At the same time, once he's voluntarily joined the army and gone on a dangerous mission deep in enemy territory, we don't think he can invoke his religious objection anymore. He has to invoke that objection before lives are at stake... and he doesn't get to say he doesn't think lives really are at stake, because commanders are in charge of making military decisions. Similarly, doctors are in charge of making medical decisions. It doesn't seem as if free exercise is sufficient to nullify a decision about necessity made by competent authority.

Philosophical stances on contraception aside, it's just too late in the game to invoke this objection. We wouldn't want a Buddhist soldier, a Quaker cop, or an Amish chauffeur, and we've got a reasonable expectation that when we rely on a soldier, cop, or chauffeur they'll do their job. Why would a pharmacist be any different?

Matthew B. Novak said...

Ah, but you're making a huge oversight in your assesment. In all those examples you give it is the profession itself which gives rise to the religious objection. There is something in the nature of driving a car which an Amish would object to. There's nothing about the nature of fulfilling prescriptions which offends someone who objects to birth control. A more precise parallel would be the doctor giving abortions, or the Jewish food tester being required to eat pork. It's the individual nature of a specific task, not the nature of the job as such, which creates the problem.

Moreover, why in world would we ever cut off an entire field of practice to a religious group. That'd be a horrible discrimination. Our society has decided that equal opportunity in the workplace is an important goal, and religious discrimination is not tolerable.

Anonymous said...


Actually, I think it's likely we'll decide that's not the case here. I bet a Jewish food tester, much as my sympathies would be with him, would be fired for not testing pork, and I can't think of a reason he shouldn't be.

But I'm curious, because you try to dodge two of my three examples: Do you think we should be okay with the Quaker infantryman or cop who decides he can't fire a gun a bit later than we would want him to? If he was covering you, would you be okay with it then?

Anonymous said...

In case it's not clear from the previous post, Matt, I think firing a gun is pretty obviously only one of the many tasks a police officer or infantryman will be called upon to perform, which is why I'm curious about your response.

Matthew B. Novak said...

I really don't think your parallel holds. Yes, firing a weapon is only one of the tasks, but the object of relgious objection is in the nature of both jobs. The job of an infantryman or police officer is to do those tasks which require violence or killing. Yes, that's only one of the tasks, but it certainly part of the job. If we had infantry who didn't kill people, it wouldn't be the same job. Thus, the religious objection is to the nature of the job.

For the pharmacist, the objection is to the specific varriation of the task. They don't object to filling perscriptions (which is the nature of the job), but to filling this particular prescription. It's not an objection to the type of task, it's an objection to the particular elements of an individual task. Objection to individual task, not to type of task. It really makes a big difference.