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Sunday, February 15, 2009

No moralizing in the pharmacy! Please moralize in the fertility clinic!

In recent years, there has been widespread resistance to the suggestion that a health care provider's own moral convictions should limit or otherwise shape the services she provides.  Whenever a pharmacist refuses to dispense the "morning after" pill, to cite a well-known example, most academic and media commentators have been quick to condemn the refusal.  As the governor of Wisconsin explained when vetoing a bill that would have extended conscience rights to pharmacists, "you're moving into very dangerous precedent where doctors make moral decisions on what medical care they'll provide."

The conversation has gotten more interesting with the news that a fertility doctor implanted a single parent of six with six more fertilized embryos (two became twins).  Some might insist that the criticism of the fertility doctor is different than the criticism of the pharmacist, because the pharmacist is engaged in paternalistic moralizing, while the fertility doctor violated the harm principle by disregarding the well-being of the children to be born.  It's not quite so simple, though, since concern for the children to be born also motivates the objecting pharmacist.  (Another stream of criticism focuses on the octuplet mom's "wasting" of taxpayers' money, which is another story.)

I'm not suggesting that there are no persuasive distinctions between the pharmacist and the octuplet mom's fertility doctor, but I do think we need to be careful before we diminish health care providers' own sense of moral agency.  I do not favor a legally cognizable conscience right for individual health care providers, but I also oppose efforts to render all health care providers morally fungible via state edict.  My own view, outlined in this paper and explored further in a forthcoming book, is that providers' moral claims should be free to operate in the marketplace as long as access to goods and services deemed essential by society is not threatened.  (For these purposes, I defer to the political process to determine which goods and services qualify as "essential.") 

One objection to my argument would be to say "We're not criticizing the octuplet mom's fertility doctor; we're just saying that the law needs to be changed so that what he did becomes illegal."  That's a coherent and logical argument, but I think we're headed down a troubling path if we reject the possibility of non-legal grounds on which to criticize a provider's exercise of professional judgment.

Posted by Rob Vischer on February 15, 2009 at 07:38 PM in Current Affairs | Permalink


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Jim -- yes, please read the paper. (And better yet, buy the book!) For examples of denial by a provider being portrayed as dignitary harms, you could look at the the recent Stormans case from the federal district court in Washington state. Several women intervened in support of a new rule clamping down on pharmacist denials of Plan B, but none of them actually had been deprived of access to Plan B. The harm was the denial by a particular provider, regardless of the fact that they obtained Plan B from another provider. Outside the pharmacy context, you can see denials as dignitary torts in several recent cases, perhaps most notably in the New Mexico case where a husband-and-wife photo agency declined to shoot a same-sex ceremony. You're correct that a blanket rule can avoid some of the fact-intensive inquiries necessary under my approach, but the simplicity comes at a huge cost in terms of providers' moral agency, the marketplace of diverse moral claims, institutional identity, etc.

Posted by: Rob Vischer | Feb 19, 2009 1:25:53 AM

A quick caveat to my prior comment: A legitimate answer to my questions may be read your paper and forthcoming book. And it occurs to me that one advantage of successfully making the argument that the dignitary harm of walking across the street outweighs the benefit of allowing pharmacists to exercise their own moral agency would be that at least on a theoretical level it avoids getting into evaluating the practical considerations-the icky sort of considerations which I think would require empirical evaluation, not just rational argument-I raised in my prior comment. Nevertheless, regardless of who seems to obtain the upper hand on the theoretical level I think it is impossible to resolve the issue without getting into at least some practical considerations.

Posted by: Jim Green | Feb 18, 2009 8:53:45 AM

I'd be interested in seeing who is making the argument that having to walk across the street is justification for prohibiting the pharmacist from exercising conscience. I have not seen that argument made (nor have I been looking for it) and it sounds like a straw man to me. Is the basis that the morning after pill in Chicago could have been bought across the street that there was another pharmacy there or did anyone actually inquire as to whether the pharmacists there would have similarly objected?

Where I grew up there was only one pharmacy for dozens of miles and the only available pharmacy to many people. How can one justify refusing moral agency to rural pharmacists while permitting it to urban or suburban pharmacists. If all pharmacists in an area densely populated with pharmacists have moral objections to a particular good how does one decide which pharmacist must ignore their moral beliefs and be the one to dispense the good? How do those who need the service find out which pharmacist has been so chosen? It seems to me that either the moral agency of the patient in deciding what is best for themselves and those over whom they have charge trumps that of the provider or vice versa.

The circles I run in, which are admittedly small, are concerned with the politicization of what is "essential" not that one might have to walk across the street. What my part of the world would conclude was essential through a political process would in all likelihood exclude many services I consider essential and that have thus far garnered constitutional protection.

Posted by: Jim Green | Feb 18, 2009 8:16:29 AM

No, they're not, as far as I know. But they're using the specter of what I consider dignitary harm (being rejected at one pharmacy, having to walk across the street to another pharmacy) as the justification for prohibiting the exercise of conscience by the pharmacist (or the cultivation of a distinct moral identity by the pharmacy itself).

Posted by: Rob Vischer | Feb 17, 2009 9:47:29 PM

Oh I see what you mean. My understanding of what you were saying was that, from a moral-theoretical point of view, it is reasonable to permit refusal of service up to the point at which actual availability of the service is threatened. I was not sure that this was a workable line, or even a line distinct from the decision to have a service legal in the first place.

So the Illinois case is one in which actual availability isn't threatened, and nevertheless there was an argument that there should be some sort of penalty on dignitary grounds. But no one is making the argument that state common law ALREADY provides dignitary torts of this kind, are they?

Posted by: AndyK | Feb 17, 2009 12:03:51 PM

Right now the conversation is not focused on threats to access -- e.g., the triggering incident for Gov. Blagojevich to require all pharmacies in Illinois to dispense all legal pharmaceuticals was a denial of contraceptives by a pharmacist in the Loop; the customer could have obtained the contraceptives at another pharmacy directly across the street. Right now the conversation, in my view, is viewing denials of service by a particular provider as a sort of dignitary tort, not a threat to access. Once the focus is on access, then I agree that the determination of "essential" products/services will carry a lot of weight, but we're not there at this point.

Posted by: Rob Vischer | Feb 16, 2009 6:27:42 PM

Isn't all the work done by what one deems "essential?" If a certain medical procedure is threatened, that can only be because some critical mass of doctors have refused to provide the service. At this point, demanding they provide the service is only a first-order moral judgment as to whether or not the service is deemed by society to be "essential," and this is identical to saying that there is no real space for the providers' moral claims.

At some level, the moral claim comes in: it's inevitable. And I don't think focusing on the technology is a feasible alternative to discussing whether or not the agent in question has an inviolable right to provide or not.

Posted by: AndyK | Feb 16, 2009 2:11:02 PM

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