6 Pharmacies

Given the morally controversial nature of developing medical technologies and the centrality of health care decisions to virtually all modern conceptions of individual autonomy, it is no surprise that health care is a primary battleground in today's conscience wars. Health care consumers are understandably concerned at the prospect of a provider's moral qualms limiting the available range of treatment options, even if the consumer finds the treatment to be morally permissible. Providers are understandably concerned at the prospect of the state, acting on the consumer's behalf, compelling them to violate their own moral convictions. Both consumer and provider seem to have conscience on their side. Little attention has been paid to the nature, much less the importance, of the relational dimension of these conscience claims.

This omission is exemplified glaringly by the well-publicized battle over the extent to which pharmacists may allow their religiously shaped moral judgments to narrow the range of services they offer. Both sides beseech the state to enshrine collectively a particular vision of the individual's prerogative.¹ On one side, conscience is invoked to justify legislation that would enable individual pharmacists to refuse to fill prescriptions on moral grounds without suffering any negative repercussions, whether in the form of government penalty, employment discrimination, or third-party liability. On the other side, conscience is invoked to justify legislation that would enable individual consumers to compel pharmacists to fill any legally obtained prescription without delay or inconvenience. For the most part, legislatures have embraced the zero-sum terms in which the combatants have framed the contest. Academics have done little to change the course of the conversation. As with most legal scholarship, the proffered resolutions are grounded in the law's coercive power: in the guise of insurmountable individual right, nonnegotiable state trump, or both.

The relational dimension of conscience asks us to step back from these two-dimensional terms of engagement and to contextualize both the pharmacists' and customers' moral claims. Taking conscience seriously suggests that the state should allow all sides in the pharmacist controversy to live out their convictions in the marketplace, maintaining a forum in which pharmacies craft their own particular conscience policies in response to the demands of their employees and customers. If a pharmacy wants to require all of its pharmacists to provide all legal pharmaceuticals, or to forbid all of its pharmacists from providing certain pharmaceuticals, or to leave it within the pharmacist's individual moral discretion whether to provide certain pharmaceuticals, so be it. The pharmacy must answer to the employee and the customer, not the state, and employees and customers must utilize market power to contest (or embrace) the moral norms of their choosing. Rather than making all pharmacies morally fungible via state edict, the market allows the flourishing of plural moral norms in the provision of pharmaceuticals.

PHARMACISTS ON THE FRONT LINES

In July 2002, Wisconsin pharmacist Neil Noesen rejected a college student's prescription for birth control pills and refused to refer her to another pharmacy.² A devout Roman Catholic, Noesen considered the facilitation of contraceptive use to be immoral. The state pharmacy board voted to discipline Noesen and required, as a condition of maintaining his license, that he provide written notice to prospective employers of the pharmaceuticals he declines to dispense and the steps he will take to ensure that a patient's access is not impeded.³ He was also required to pay for the costs of the proceeding (amounting to as much as $20,000) and to undergo six hours of continuing pharmacy education.⁴

A New Culture War Battleground

One's view of Noesen's conduct and subsequent punishment is a good indication of how one will view the broader controversy over pharmacists and conscience. In Wisconsin, the Noesen episode is frequently cited as a galvanizing impetus on both sides of the debate.⁵ For some, Noesen is a courageous figure standing against the onrushing tide of unfettered and self-centered reproductive choice. Although Noesen's refusal to dispense birth control pills failed to win legislative backing, his case helped drive both houses of the state legislature to pass a bill forbidding employment discrimination, state disciplinary action, or third-party liability based on a pharmacist's refusal to dispense drugs used for sterilization, abortion, the destruction of a human embryo, or euthanasia.⁶

From the opposite vantage point, Noesen is seen as a paternalistic zealot using his state-licensed power over pharmaceuticals to demean women and hinder lawful access to health care. In vetoing the bill, Governor Jim Doyle reflected this perspective, explaining, “you're moving into very dangerous precedent where doctors make moral decisions on what medical care they'll provide.”⁷ The governor's allies on the issue subsequently sought to enshrine their own consumer-driven moral claims, introducing legislation requiring “every pharmacist” to “administer, distribute, and dispense” all FDA-approved contraceptives unless a patient will be harmed.⁸ One of the bill's sponsors explained that a physician “must be assured that his or her medical judgment will not be overruled by a pharmacist's personal moral or religious beliefs.”⁹ Even if a woman's overall access to contraceptives is not jeopardized, another sponsor insisted that she should not “have to go through the humiliation of being denied her legal, safe contraception at the pharmacy counter.”¹⁰

As any casual observer of recent news coverage can attest, Noesen's story is not unique, and every reported incident of a pharmacist refusing to dispense FDA-approved drugs and/or being punished for such refusal is quickly assimilated by the culture war armies and unfurled as a battle flag to rally the troops. Eighteen states have laws that explicitly address the question of pharmacists and conscience.¹¹ Four states have enacted conscience clauses specifically protecting the exercise of conscience by pharmacists,¹² and other states encompass pharmacists within the conscience protection afforded health care providers in general.¹³ Mississippi's statute is held up as a template by the conscience movement because it protects pharmacists¹⁴ from being held “civilly, criminally, or administratively liable for declining to participate in a health care service that violates his or her conscience,” and forbids any employment discrimination based on such exercises of conscience.¹⁵

Other states have pursued rights claims from the opposite angle, enacting laws aimed at ensuring customer access to all drugs for which they have a valid prescription. California law forbids a pharmacist from refusing to fill a prescription on moral or religious grounds unless she notifies her employer in writing of her objections and the employer is able to ensure the patient's “timely access to the prescribed drug.”¹⁶ New Jersey requires a pharmacy to fill all lawful prescriptions for drugs that it carries, notwithstanding an employee's moral or religious objections. If a pharmacy does not carry a drug, it is required to help the customer locate another pharmacy that does carry the drug.¹⁷ As of 2009, fourteen states have some type of law aimed at ensuring that pharmacists' conscience claims do not threaten customer access. Other states have considered, or are considering, similar measures.¹⁸

State action on this issue is not waiting on the legislature. The Washington State Pharmacy Board, under pressure from the governor, has adopted a rule requiring pharmacies to fill all legally valid prescriptions on site, effectively ending a practice by which pharmacists could decline to fill a prescription on moral or religious grounds and refer the customer to another pharmacy. Now, an individual pharmacist can exercise a right of conscience, but only if another pharmacist is present to fill the prescription in question.¹⁹

In response to two incidents in Chicago in which pharmacists refused to dispense birth control pills, Illinois Governor Rod Blagojevich ordered all pharmacies serving the public²⁰ to dispense “all FDA-approved drugs or devices that prevent pregnancy” to the patient “without delay, consistent with the normal time frame for filling any other prescription.”²¹ The governor's stated justification for the order was pitched in the language of individual rights, albeit those of the customer, not the pharmacist.²² A significant motivation seemed not so much a perceived threat to contraceptive access itself but potential inconvenience and aggravation.²³ Efforts by pharmacy chains to carve out their own policies on the issue were immediately squelched.²⁴

This is a battle that has exploded in only the past few years, which shows no signs of abating. Indeed, as therapies utilizing embryonic stem cells become widely available, the conflict promises to escalate dramatically. In the states that have not taken up the issue, observers believe that “it is only a matter of time.”²⁵

And in a predictable turn, the battle was joined on the national stage. Competing bills were introduced in Congress. One bill, premised on honoring the consciences of individual pharmacists while requiring that every pharmacy ensure that all legal prescriptions are filled, would have guaranteed that all of the nation's pharmacies dispense all legal pharmaceuticals.²⁶ A more narrowly focused approach was taken by the proposed Workplace Religious Freedom Act, under which a pharmacy would accommodate the religious objections of a pharmacist by ensuring that another pharmacist is on duty to dispense the drug in question.²⁷

The national debate received a high-profile jolt when President George W. Bush issued a new conscience regulation in the closing days of his administration. The rule cut off federal funding from state and local governments, hospitals, health plans, or other entities that do not accommodate health care personnel – including pharmacists – who refuse to participate in research or services that are contrary to their religious beliefs or moral convictions.²⁸ As a condition of continued funding, more than 584,000 health care organizations were given until October 1, 2009, to provide written certification of compliance.²⁹ Supporters insisted that the regulation merely implemented existing law³⁰ and was necessary “to ensure that health-care professionals have the same civil rights enjoyed by all Americans.”³¹ Opponents claimed that the rule threatened patients' rights and women's health, and that it would “cause chaos among providers across the country.”³² Seven states and two family-planning groups sued to block the rule,³³ and the rule's critics pressured President Obama to revoke it.

The Pharmacist Wars in Context

So how and why did pharmacists so suddenly take center stage in our collective culture war drama? Conscience clauses have been common since Roe v. Wade, as the reigning political judgment since then has held that health care providers not be compelled to participate in a procedure as morally wrenching as abortion. Such clauses remain fairly uncontroversial as applied to physicians, but the advent of “Plan B” emergency contraception has driven pharmacists to seek the same protection enjoyed by physicians. Plan B prevents pregnancy for up to three days after intercourse, and some pharmacists believe that it functions as an abortifacient by blocking the fertilized egg's implantation in the uterus.³⁴ Coupled with pharmacists' gradually expanded discretionary role as gatekeepers to pharmaceutical care,³⁵ the widespread availability of Plan B brought the issue to a head. It has now spilled over to the dispensation of the more common birth control pills, and in a few documented incidents, to other medications such as antidepressants.³⁶ As pharmaceutical technology encompasses moral hot potatoes such as genetic screening tools, research derived from embryonic stem cells, or race-specific medications,³⁷ the stakes and passions will ratchet up accordingly.

That these emerging moral tensions have resulted in clumsily and rigidly drawn lines in the sand within the political arena may be understandable given the public discourse surrounding the issue. From one side of the cultural divide, objecting pharmacists appear as religious zealots seeking to turn the clock back on women's reproductive rights. A New York Times editorial, for example, pronounces any refusal by a pharmacist to dispense contraceptives to be “an intolerable abuse of power,” and asks that such pharmacists “find another line of work.”³⁸ Other commentators label the conscience movement a thinly veiled attempt by pharmacists to “be the arbiters of morality for their customers.”³⁹ Nationally syndicated columnist Ellen Goodman attempts to resolve the issue with the simplistic reminder that “the pharmacist's license [does] not include the right to dispense morality.”⁴⁰ Other newspaper editorials call the pharmacists' actions “a clear and simple abuse of power,” urge pharmacists who “do not want to fill legal prescriptions [to] quit” their jobs,⁴¹ and conclude that “[m]oralizing and dispensing medications don't mix.”⁴² An official from the National Organization of Women labels pharmacists who will not dispense contraceptives as “extremists…[who] are arrogantly playing the role of doctor and God.”⁴³

From the other side, critics see the monolithic state attempting to stifle freedom of religion in the service of the sexual revolution. In response, the conscience movement asks the monolithic state to ensure that individual pharmacists can act without the possibility of negative consequences, by effectively removing the pharmacist from the marketplace. The consumer's moral claim, we are repeatedly told, pales in comparison to the pharmacist's because allowing “one person's convenience [to] trump another person's moral conscience” is “obnoxious, offensive and un-American.”⁴⁴ After all, if Plan B is the evil its opponents claim, “[t]he only thing the pharmacist is objecting to is being forced to kill and being forced to do harm.”⁴⁵ Requiring an objecting pharmacist to refer the customer to a pharmacy where the drug in question is available is viewed by many within the conscience movement as a moral nonstarter. Karen Brauer, president of Pharmacists for Life, describes such referral requirements as forcing the pharmacist to say “I don't kill people myself but let me tell you about the guy down the street who does.”⁴⁶ Once health care providers are forced to disconnect their own moral judgments from their professional roles, we have, it is feared, embarked on the path infamously forged by Dr. Mengele.⁴⁷ The state must step in.

Unfortunately, academic commentators have fallen into the same two-dimensional template – presuming that the controversy is resolvable only with the rights-driven language of state power. State action is warranted given the unjustified oppression of the consumer or the pharmacist, depending on the commentator's perspective. Noted ethicist Anita Allen urges, “the medicine counter is no place for ad hoc moralizing,” insisting that pharmacists must “withhold their moral judgments at work.”⁴⁸ Health law specialists Susan Fogel and Lourdes Rivera urge that health care entities “should not be able to refuse, on religious or ‘moral’ grounds, to honor patients' informed health care decisions, or to provide medically appropriate services (including drugs, devices and procedures), as defined by the applicable standard of care.”⁴⁹

Moreover, like the popular discourse, the academic debate pays scant attention to the middle ground between the individual and the state: The prospect of institutional autonomy in these matters is given short shrift. Bioethicist Bernard Dickens has even equated efforts to protect hospitals’ religious autonomy as “ethically doubtful legal protection of religious fundamentalism.” “While conscientious objection is an important human right,” according to Dickens, “it is not a right that institutions can invoke” because “hospitals and clinic corporations are artificial legal bodies that have no eternal soul that they may claim an entitlement to protect.”⁵⁰ In Fogel and Rivera's terms, “[w]hile it is appropriate for individuals to decide what role religion will play in their personal health care decisions, it is not appropriate for corporate health care entities to impose those beliefs on physicians and patients and the communities they serve in a manner that supplants sound medical decision making and patients' rights.”⁵¹

This is true even of those who favor conscience legislation. A leading conservative scholar in the field, Lynn Wardle, has drafted model legislation providing that no one may:

discriminate against, penalize, discipline, or retaliate against any individual in employment, privileges, benefits, remuneration, promotion, [or] termination of employment…because of his or her refusal or unwillingness to counsel, advise, pay for, provide, perform, assist, or participate directly or indirectly in providing or performing health services that violate his or her conscience.”⁵²

Another scholar insists that legislation is needed to provide pharmacists “with protection against efforts to conform their actions to the employers’ views.”⁵³ On both sides, the individualist terms of the debate are amenable only to a resolution grounded in a rights-based conception of autonomy. Contestants urge that priority be placed on one conscience or the other – the consumer's or the pharmacist's – presuming together that such priority is to be realized through the bestowal of state power.

Such is the landscape against which the pharmacist controversy rages. The choices are stark: Favor the pharmacist and bring state power to bear on any entity that would retaliate against the pharmacist's conscience-shaped professional conduct, or favor the consumer and bring state power to bear on any entity that would stand in the way of their conscience-shaped health care decisions.

THE PHARMACY IN THE MORAL MARKETPLACE

As explained in chapter 4, the state honors the claims of conscience by ensuring the conditions necessary for the moral conversation to continue, not by imposing one set of claims over another. In seeking to protect their moral autonomy through state action, both the pharmacist and the pharmaceutical consumer are unnecessarily short-circuiting the conversation, isolating themselves in the process. In making their rights-based claims, the pharmacist and consumer have made the state the only relevant audience for moral persuasion. If both were instead left to operate within the moral marketplace, their sustenance would come from targeting the hearts and minds of their neighbors, joining together in common cause. Rather than short-term political advocacy aimed at one-time legislation, the moral marketplace enlists actors in an ongoing competition over the good. Pushing moral ideals upward through employment and consumer transactions fosters social ties in ways that the top-down enforcement of state-enshrined rules cannot.

Defining Liberty in the Pharmacy

Failing to recognize the hyperindividualist slant of our public discourse emanates, at least in part, from our broader failure to distinguish between positive and negative liberty in setting our expectations of the law's function in the social order. Negative, or “freedom from,” forms of liberty recognize claims of entitlement to noninterference with one's pursuit of the good, however the good is defined by the pursuer. Positive, or “freedom to,” forms of liberty contemplate claims of entitlement to affirmative support from the surrounding society for the pursuit of a particular good. In our morally pluralist society, individuals' conceptions of the good will often conflict, and thus attempts by the state to embrace all conceptions of positive liberty would be contradictory and self-defeating. Just as the state cannot support equal distribution of wealth and the right to private property, for example, the state cannot support an unfettered right among pharmacists to conscience along with an unfettered right among customers to all legal pharmaceuticals on demand. As a result, positive liberty usually requires the state to adopt certain conceptions of the good and reject others.

In the current dispute, the predominance of positive liberty is evident in the advocacy of both the consumers and the pharmacists. On the consumer side, the cause of reproductive rights has evolved from one of negative liberty – seeking to prevent the state from criminalizing abortion or contraception – to an extreme form of positive liberty – asking not only to have the full range of legal pharmaceuticals available at every pharmacy, but to insist on their availability with “no hassle, no delay, no lecture.”⁵⁴ The problem, in a society that values pluralism, is that positive liberty claims conflate legality with universal availability. The fact that the state does not forbid a drug's sale is taken to mean that every licensed pharmacist must sell that drug to every customer legally entitled to purchase it. This conflation renders the moral convictions of pharmacists and the moral identities of pharmacies irrelevant. The individual consumer does not just coexist with the morally divergent views of the provider; the individual, backed up by state power, trumps the provider. All pharmacists are enlisted in the service of a lowest-common-denominator approach to professional morality: All legal drugs are deemed morally permissible, and providers have no standing to object. The individual preference has become the collective norm. By no means is this to suggest that consumer access to morally controversial pharmaceutical products is not an important public value; the point is to emphasize that requiring universal provision of all pharmaceuticals, rather than meaningful access to all pharmaceuticals, imposes significant burdens on other public values, most notably a sense of moral agency among pharmacists.

On the provider side, the desire to exercise moral agency has led pharmacists to seek more than a negative liberty to protect themselves against coercive state requirements that they dispense certain drugs; they also seek a positive liberty to restrain nonstate private employers from punishing them for the professional byproducts of their moral convictions. In effect, pharmacists ask the state to shield them from the marketplace fallout that would otherwise accompany their marketplace conduct. The importance of professional space to exercise moral agency is beyond dispute, both in its public and personal aspects. As with consumer access, there are costs to an absolutist defense of a professional's moral agency. One's conscience cannot always be given authority over the contours of one's role; certain roles are not suited for certain consciences, and no one is compelled to become a pharmacist.

A path to resolution must acknowledge more nuance than is shown in either of these positions. Yes, a consumer's access to legal pharmaceutical products is, on balance, beneficial to society, as is a pharmacist's ability to take moral responsibility for her professional conduct, but the legal order's collective enshrinement of either quality is not. One essential element of a healthy civic life is acknowledging the relevance of our links to one another even (or especially) when those links are partial or embodying normative ideals that are opposed by other segments of society. The legal status of the individual should be a primary concern of, but not constitutive of, our ongoing conversations regarding the good.

Of course, the common identity that is facilitated by a for-profit pharmacy shaped in part by moral norms is hardly the stuff of Tocquevillian dreams. Our nation's robust history of associational life conjures up images of the Knights of Columbus or United Farm Workers, not monthly runs to refill a prescription. But the fact that consumers and pharmacists drawn to a particular moral stance on controversial pharmaceutical products are unlikely to give rise to “thick” communities does not negate the value of the collective life they do create. Ronald Dworkin gives the example of an orchestra's limited collective life, in which “[a]lthough the members view some of their individual activities as expressive of and constituted by the larger entity, they do not view all or indeed most of their individual activities that way.”⁵⁵ Pharmacy patrons might be pulled in several different directions. A Roman Catholic might choose a pharmacy that sells the morning-after pill despite what she hears from her bishop, as “different communities could each exert claims over different parts of the individual's identity and sometimes exert conflicting claims over the same ones.”⁵⁶ Most of today's associational life is messier and more complex than the straightforward, all-encompassing enclaves of the Amish, as most of us do not belong to a single community, but rather lie “at the intersection of many different ones.”⁵⁷ Even with the partial loyalties fostered by a morality-driven pharmacy landscape, the moral discourse is reinvigorated, and individuals become active participants in cultivating their own moral environments, not just constituents asking that their chosen norms be imposed on the whole.

To many, the travails of individualism do not pose a threat nearly as dire as the one posed by opening up pharmaceutical access to market forces. Transcending individualism is a fine idea, the skeptic concedes, but not at the price of commodifying something as personal as health care, especially because the most controversial pharmacy issues center on women's reproductive health care, and because the commodification takes the regulation of the issues out of a politically accountable central authority. As lawyer and bioethicist Alta Charo remarked at the prospect of some pharmacies declining to offer contraceptives, “We're talking about creating a separate universe of pharmacies that puts women at a disadvantage.”⁵⁸ In this regard, institutional liberty appears more threatening than individual liberty; as the American Civil Liberties Union recommended in a report advocating for laws requiring pharmacies to satisfy any lawful request for birth control, “institutions, when operating in the public world, ought to play by public rules.”⁵⁹

Further, the benefits to civil society may seem attenuated, as the cultivation of moral autonomy among what are primarily large corporations strikes modern sensibilities as being of dubious importance.⁶⁰ Indeed, generally “commercial entities are not included within the purview of civil society.”⁶¹ After all, unlike relationships that are “glued together by notions of reciprocal obligations and visions of common destinies…[c]ommodified relationships…are instrumental in nature.”⁶² Relationships centered in the pharmacy transaction may seem inescapably instrumental, especially because most large pharmacy chains are ill suited to function as mediating structures that would foster deeper connections or a sense of reciprocal obligation among consumers.

It is true that the moral discourse fostered by pharmacies’ profit-driven identities cannot match the richness of the discourse nurtured within thicker communities such as families, churches, and voluntary associations organized deliberately around a set of normative claims. That is not to say that the moral discourse occurring in the marketplace is somehow nonexistent or inauthentic. Timothy Fort's work has pointed out that although “businesses do not necessarily nourish solidarity, compassion, empathy, and respect for others,” “[s]aying that businesses are not necessarily mediating institutions does not mean…that they cannot become mediating institutions.”⁶³ Indeed, as Harold Laski famously put it nearly 100 years ago, a corporation has “a personality that is self-created, and not state-created,” and corporations are “in relations with the state, a part of it; but one with it they are not.”⁶⁴ This personality “follows from the corporation's mediating function: through incorporation individuals can achieve a sanctioned object, whether economic, moral or intellectual.”⁶⁵ The place of the corporation in a society that takes conscience seriously is the focus of the next chapter. For now, suffice to say that if we understand civil society as “an inherently moral term that implies the existence of social and moral obligations that exist independent of the individual and operate upon him,”⁶⁶ there is no reason that a pharmacy landscape defined in part by moral convictions cannot be encompassed within its reach.

If the state stays out of the battle over pharmacists and conscience, pharmacies – from small mom-and-pop operations to national chains such as CVS and Walgreen's – will have the space to build moral claims into their corporate identities. Customers and employees alike will have the opportunity to come together in support of a moral stance with which they agree. For the employee pharmacists, this coming together will be significant, dissipating the tension between their personal beliefs and professional calling. For customers, although the coming together will occupy only a small segment of their identities, it will represent a mediating function that is now largely absent. By supporting a pharmacy based at least in part on the pharmacy's treatment of controversial drugs and/or treatment of its pharmacists' moral qualms about such drugs, the customer's day-to-day existence will become more closely aligned with her beliefs and values, even if only incrementally. Especially to the extent that the pharmacist's and customer's beliefs and values are not predominant in the wider community, the pharmacy performs a mediating function in the purest sense, serving as a vehicle for shared expression, purpose, identity, and meaning. The distance between traditional civil society stalwarts and commercial health care providers dealing in morally charged products is not as great as it might seem.

The Moral Marketplace and Collective Power

Just as individual autonomy should not be the sole object of our conversations regarding the good, the state should not be the exclusive audience for, or arbiter of, those conversations. We must recognize that “[w]hen mediating and moderating associations collapse, human passion asserts itself through power, not reasoned argument and consensual interaction.”⁶⁷ In this regard, there is a necessary corollary to our recognition of the moral marketplace's power to transcend the domain of the atomistic individual: The moral marketplace does not subjugate the individual to the collective will. If anything, it creates space for individual human flourishing by reining in attempts to harness collective power to a particular conception of individual well-being.

Replacing collective political determinations with market determinations is not an obvious path to ideal policy outcomes. James Boyd White, for example, cautions us “not to abandon our collective powers of judgment, as the marketplace metaphor invites us to do,” because “[d]espite what we say about the ‘marketplace of ideas,’ we also know, if we allow ourselves to reflect on it, that we simply cannot trust any such process to winnow out the bad and promote the good.”⁶⁸

Nor can we rely on the marketplace to winnow out the false and promote the true, at least when it comes to religious and moral convictions. Justice Holmes, who pioneered the marketplace approach to free speech in his famous dissent in Abrams v. United States, presumed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”⁶⁹ The relative marketplace successes of pharmacies that do or do not offer the morning-after pill, or that do or do not force their employees to dispense the morning-after pill, will do little to bring consensus as to the “truth” of the moral claims made regarding the pill or the sanctity of pharmacists' consciences. As Stanley Ingber observes, “if the possibility of rational discourse and discovery is negated by [individuals'] entrenched and irreconcilable perceptions of truth, the dominant ‘truth’ discovered by the marketplace can result only from the triumph of power, rather than the triumph of reason.”⁷⁰ The ends of this market power are not always noble. After all, market forces catapulted “shock jock” Howard Stern to the heights of cultural influence; do we really want those same forces unleashed with respect to health care? Which values, in the end, will rule the marketplace, and which values will be marginalized once stripped of support from collective ordering?

One reassurance stems from the fact that the current project is not directed toward the establishment of communes devoted to the all-encompassing embodiment of a contested norm. Pharmacies are not equipped or positioned to transform wholly the worldviews of their customers. As such, the constraints on a pharmacy's mediating function are also constraints on the corrosive effects of a pharmacy's embrace of any particular norm. But a more fundamental reassessment of the marketplace threat requires us to recognize that the current trend toward collectively enshrining individual autonomy as an absolute value (on the consumer or pharmacist side) already reflects normative claims of dubious social value. The problem is that this trend merges the atomistic individual with the collective power of state authority, effectively barring divergent (i.e., nonindividualist) conceptions of meaningful autonomy. The pharmacist's conscience must be honored, period. The pharmacy customer must have maximum access to all legal pharmaceuticals, period. The space between the individual and the collective has been swallowed up.

This intermediate space is where the moral marketplace does its work, and much of that work is aimed at constructing bulwarks against the encroachments of the state. That this work may not result in a broader discernment of truth is immaterial because the state's elevation of a single contested conception of individual autonomy also has little relation to truth. Morally distinct pharmacies give individuals room to experience and act on divergent worldviews and priorities, whether or not their aim is to reach any consensus via the political apparatus of the collective.

Contrary to popular conceptions of the phrase's origins, Justice Holmes never actually used the phrase “marketplace of ideas,” in his landmark Abrams dissent, and his actual phrase, “competition of the market,” may suggest a concern not with markets’ “celebration of discretionary choice, but rather [with] the harsh fact that economic actors and their products are pitted against one another.”⁷¹ Vincent Blasi extrapolates from this to draw out the lesson for free speech theory:

An unregulated marketplace of ideas encourages free thought not so much by determining the equilibrium of the moment as by keeping low the barriers to entry, barriers that take the form not only of coercive sanctions but also social and intellectual peer pressures toward conformity. The sheer proliferation of ideas in a free market complicates perceptions in a manner that helps to weaken such barriers. In addition, the market metaphor makes a statement about the dynamic and chronically incomplete character of understanding and the value of intellectual contest and innovation.⁷²

Although pharmacists traffic in products, not ideas, our society's struggle with the moral dimension of modern pharmaceuticals displays a similar capacity for benefiting from a well-functioning and diverse marketplace. Understanding this diversity to warrant that a full range of consumer choices is available in every pharmacy eviscerates the concept because it presumes that the only relevant decision-maker in the provision of pharmaceuticals is the individual, and that the efficacy of individuals' moral convictions should extend no farther than themselves.

The widespread disregard of the moral marketplace in the pharmacist debate stems, at least in part, from a misunderstanding of pluralism – in particular, a failure to draw distinctions among different types of authority. The imposition of particular moral claims by nonstate actors cannot be held to the same normative standard to which the state's imposition of similar claims is held. Bernard Dickens, for example, asserts that “[g]overnments that enforce one version of conscience, such as [a health care institution's] prohibition of medically indicated sterilization or abortion, are ethically and in human rights law indistinguishable from those that enforce another, such as involuntary sterilization or forced abortion.”⁷³ If pluralism means anything, it means that a local pharmacy's decision not to sell the morning-after pill cannot be equated with the state's decision to prosecute criminally anyone found in possession of the morning-after pill. To disempower nonstate institutions from defying prevailing norms effectively disempowers individuals, exacerbating the problem of having “large numbers of people [who] do not participate in decisions that determine the conditions of their everyday lives, relying instead upon government officials, government institutions and government-funded institutions, and other outsiders to provide for their well-being.”⁷⁴

The checking power of the moral marketplace also is a function of the fact that pressure to conform emanates not just from the state, but from a marketplace stripped of ideological or moral diversity. There is something to be said for allowing institutions to promote a type of second-order diversity,⁷⁵ which also can be thought of as interinstitutional diversity rather than intrainstitutional diversity, by adopting distinctive morality-driven policies, even if those policies have the effect of repelling certain segments of the potential employee and customer pool.

To be sure, sprawling pharmacy chains will not always function as mediating structures. Any corporation can acquire sufficient power to oppress, particularly vis-à-vis its employees, and sometimes with greater efficiency than the state. Navigating the tension between the corporation's moral identity and the dissenting employee's conscience is a primary topic of chapter 7. Even beyond the employment relationship, it is not always obvious why replacing state power with corporate power will improve prospects for conscience in the pharmacy. Especially compared with small, owner-operated pharmacies,⁷⁶ a large nationwide pharmacy chain may not be a promising vehicle for accurately reflecting customers' moral convictions in pharmacy counter policies and practices. Nevertheless, state action shuts down those morally distinct owner-operated pharmacies; the existence of Walgreen's does not, even if it can make their market viability more precarious. Even large chains make meaningful moral claims that could be relevant to a customer's choice of pharmacy.⁷⁷

Pharmacies, as moral venues, are far from perfect; nevertheless, they are integral to the cause of conscience. Robust public discourse regarding the moral claims embedded in current and future pharmaceutical controversies will be fostered more directly by pharmacies representing a range of perspectives than by the current system in which the adherents to various moral perspectives are scattered randomly and anonymously among morally fungible pharmacies. Individuals are equipped to withstand the homogenizing force of uniform market norms when they can associate with like-minded others, which requires the accessibility of diverse associations. Again, the moral marketplace reflects the social reality of human beings and a reminder that those concerned with the cause of individual autonomy must do more than harness collective power to its realization; they must, to a certain degree, disconnect the individual and the state, rediscovering the social space between the two.

The State as Market Actor

Recognizing the relational dimension of conscience need not become some recycled libertarian take on the culture wars, for recognizing the importance of the market in our “culture war” debates is not meant to suggest an embrace of all market outcomes. The state's primary role will be to address market failure. As do traditional economic markets, markets composed of commercial firms trafficking not just in goods and services, but also in moral claims, will also fail. One essential safeguard is for individuals to be given the information necessary for their active and knowing participation in the market: the moral marketplace will not function as such unless consumers and employees know the moral claims on which the pharmacy's identity is based. If the state allows pharmacies to stake out their own positions on controversial drugs and pharmacists' obligations, it would be justified in requiring those positions to be publicized.⁷⁸

Markets also run into problems with externalities “when the full quantum of social costs generated by an activity cannot practically be observed, measured, or assessed against those who engage in the activity.”⁷⁹ The most glaring externality in the pharmacy debate stems from the individuals who might lack access to the pharmaceuticals they desire. In a given community, sufficient market power might reside with those who favor restrictions on contraceptives, for example, so as to block their availability even for those who seek to use them. Especially in rural areas, there might be so few individuals seeking contraceptives that economic incentives are insufficient to motivate a contraceptive-dispensing pharmacy to enter the market. Under these circumstances, individuals holding the minority view will be precluded from market participation because there is no pharmacy option reflecting their own moral claims.

But we must recognize the limited scope of the access problem, and the correspondingly limited scope of the justified government response. In most areas, rural or otherwise, access to widely relied on pharmaceuticals such as contraceptives will not be a problem. Most Americans support the availability of such products, and the market will reflect that.⁸⁰ The fact that individuals might have to drive across town, or switch pharmacies, or use a (potentially) higher-cost alternative does not necessarily mean that the market has failed. (Given the current lack of professional safeguards, it is arguable whether the widespread availability of drugs via the Internet should be considered a suitable measure of access.) If moral discourse regarding controversial pharmaceuticals is going to take place, we must discern between market-driven inconvenience and market-driven lack of access. The latter warrants state intervention; the former does not.

The distinction is reflected in the recent litigation battle over the Washington state rules requiring that all pharmacies dispense all legal pharmaceuticals, particularly the “Plan B” emergency contraception pill, which was the focus of the dispute. Two pharmacists and a family-owned pharmacy brought suit, claiming that their “rights of conscience” under the Constitution were violated by the rules’ enforcement. The federal district court granted a preliminary injunction against the state, ruling that the plaintiffs had demonstrated a likelihood of success in proving that their free exercise rights were violated.⁸¹

In light of binding Supreme Court precedent, the district court was on shaky ground in finding a constitutional violation.⁸² As expected, the Ninth Circuit vacated the injunction, finding that the rules at issue were neutral and reasoning that “The Free Exercise Clause is not violated even though a group motivated by religious reasons may be more likely to engage in the proscribed conduct.”⁸³ As a policy matter, the vitality of conscience is not necessarily strengthened by dressing up conscience claims in the workplace as constitutional rights. As misguided as the district court's reasoning might have been, the pharmacy board's rules were even more so, particularly when viewed through the lens offered by conscience's relational dimension.

Most legal commentators disregard this dimension. Marci Hamilton, for example, objected to the district court's ruling because we are dealing with a “right to obtain contraceptives free of state interference.”⁸⁴ It is not clear how such a right is at stake here. The state interference is coming at the request, not of the pharmacies and pharmacists, but of those who wish to obtain contraceptives, and it is not clear that the state needs to intervene in the marketplace unless the goal is to ensure that Plan B is available at every single pharmacy. If we embrace the more modest goal of access to Plan B, there should be a greater showing that state intervention is needed in a particular geographical area.

Hamilton also noted that “the woman seeking contraception has a set of religious beliefs, too, and they permit the use of contraception,” so it is not obvious why “the licensed pharmacist's beliefs get to trump the patient's beliefs.” She is undoubtedly correct that the pharmacist's beliefs should not trump the patient's, but they only function as a trump when the market is not providing alternative access points to the pharmaceutical at issue. Consider the five women who intervened in this litigation in support of the regulations:

• One woman who was out of town visited a pharmacy that did not carry Plan B; the pharmacist there indicated generally the location of another pharmacy for her to try, but did not provide specific directions. The woman returned home early and obtained Plan B at a pharmacy with which she was familiar.

• A second woman was refused Plan B by one pharmacist, but then another pharmacist on duty at the same pharmacy apologized to her and filled the prescription.

• A third woman obtained Plan B on two occasions from Planned Parenthood because she had “heard numerous accounts of pharmacists who refuse to fill emergency contraception prescriptions or otherwise act in a hostile or harassing manner to those seeking such prescriptions.”

• A fourth woman did not use Plan B, but participated in a Planned Parenthood testing program designed to identify pharmacists who refused to stock or distribute Plan B. She found that in the town of Wenatchee (population: 27,000), she could obtain Plan B at two of five pharmacies.

• The fifth woman had never used Plan B, but wanted to join the suit to ensure that “all women in Washington can get timely access to emergency contraception…without harassment or hostility.”

These accounts do not provide much evidence that the market has failed. As the Ninth Circuit observed in denying the state's motion to stay the injunction pending appeal, “there is no evidence that any woman who sought Plan B was unable to obtain it.”⁸⁵ A survey cited by the court showed that only two percent of pharmacies in Washington state did not stock Plan B because of personal, moral, or religious reasons.⁸⁶ Although not correcting for any apparent market failure, the regulations do preclude pharmacies from staking out any distinctive claim on the propriety of offering morally contested products and services, short-circuiting any possibility that pharmacies can function as venues for conscience. To reiterate, this does not mean that pharmacies should somehow be shielded from the marketplace fallout of their conduct. Prior to the adoption of the regulations, in fact, the family-owned pharmacy that ultimately brought suit was the target of a boycott because of its refusal to stock Plan B. We do not need to give pharmacists a constitutional right to make unilateral decisions about what services they will offer; we also do not need to make all pharmacies morally fungible via state edict absent a specific showing that access has been compromised.

Access cannot be trotted out as a bogeyman every time a pharmacy decides to carve out an identity for itself that diverges from the model of unlimited consumer choice. If the marketplace is going to be relevant, the state must restrain its regulatory ambition. Intervention should be precisely targeted. The state should be legislatively empowered to declare a market failure with respect to particular pharmaceuticals and to require, as a condition of licensing, the provision of those pharmaceuticals by pharmacies operating within that market. But the fear of market failures should not be invoked as the basis for constraining the moral marketplace before it has the chance to operate.

As a market actor, the state can do more than guard against market failure; the state can pursue its own normative claims, though self-restraint again is in order. The obvious mechanism is through licensing requirements and funding programs (e.g., the state-level equivalents of Medicare and Medicaid).⁸⁷ The marketplace's prospects turn on the substance and expansiveness of those normative claims. Stephen Macedo argues that a “liberal society…need not guarantee that its institutions and policies provide a level playing field for the different groups that compete for members in society,”⁸⁸ but, as David Cole has recognized in the First Amendment context, the danger of government-funded speech laden with coercive “strings” lies not “in the coercive effect of the benefit on speakers, but in the indoctrinating effect of a monopolized marketplace of ideas.”⁸⁹ The question of such regulation is a thorny one because “of the paradoxical nature of such speech: it is both necessary to and potentially subversive of democratic values.”⁹⁰

As an actor within (not over) the moral marketplace, the state must resist the tendency to regulate in favor of the least objectionable norms, which often results in the imposition of a lowest-common-denominator approach to contested values, ensuring that unfettered individual choice becomes the universal norm. Cole focuses on the federal government's abortion-related “gag rule” in advocating for a “spheres of neutrality” approach, which calls us to consider the role that certain institutions play in public debate and in checking government indoctrination. “Only by barring government control of the content of speech in critical public institutions,” Cole writes, “can the first amendment ensure an ‘uninhibited, robust, and wide-open’ public debate.”⁹¹ He focuses on public fora, the press, and public universities, while also acknowledging that institutions “such as medicine, education, and the law” are “critical to individual autonomy and choice.”⁹² Cole also wants government neutrality to reign in fiduciary relationships such as “doctor-patient,” given that “a counselee is the paradigmatic ‘captive audience,’ particularly vulnerable to indoctrination,” and “[o]ne of the first amendment's principal aims is to ensure that individuals are free to choose their own destinies free of the government's ideological intrusion.”⁹³

The need to guard against the government's “ideological intrusion” is equally applicable to the pharmacist controversy. Although Cole might resist the moral marketplace's deemphasis of an individualist understanding of moral autonomy, a similar impetus for a “‘wide-open’ public debate” on the provision of morally controversial pharmaceuticals exists in this context. As such, the normative claims pursued by the government should not impose particular substantive outcomes on the moral debate – the nonnegotiable sanctity of the pharmacist's conscience or the nonnegotiable sanctity of consumer choice – but should be geared toward facilitating participation within the market. The state is a facilitator, not an arbiter.

The professional provision of pharmaceuticals should not be regulated out of independence, co-opted by the collective will. As with other professions, pharmacists can be regulated “as a means of fostering the existence and integrity of the institution,” but also must be protected “from ready destruction at the hands of the State, whether by direct regulation or by selective funding.”⁹⁴ Organizations of pharmacists, especially when committed to common ideals and norms, can mediate “the isolated endeavors of individuals and the collective political decision making of universalizing government institutions.”⁹⁵ The normative claims to be pursued by the state as market actor thus boil down to questions of access. Whether to remedy market failures or to overcome deliberately exclusionary practices by key economic gatekeepers, the state's objective is not to impose a certain vision of the good, but to promote the public conversation(s) regarding the good.

CONSCIENCE AND HEALTH CARE

The operation of the moral marketplace, of course, is not limited to the pharmacy. A more deliberate effort to create space for the coexistence of plural and competing moral norms holds out hope for mitigating the alienation and intransigence fostered by the rights-driven, state-imposed solutions sought by culture war combatants on a range of contested issues. In much of our heated public discourse, the mere invocation of individual conscience does not bring clarity, much less the clarity presupposed by the zero-sum terms in which resolutions are framed.

To take another hot-button health care example, in the debate over the institutional autonomy of religious hospitals, the overriding concern has become patient choice and employee freedom, with little credit given to the societal benefits that divergent organizational identities might bring. Once the value of organizational identity is removed from the equation, the stakes of the public debates over controversial health care issues – emergency contraception, abortion, genetic screening, end-of-life treatment – can be communicated only in terms of the individual employee's or patient's interests. If all hospitals are morally fungible, then the state's judgment that a given treatment should be available is equivalent to a judgment that the treatment should be available everywhere. Physicians, administrators, nurses, patients, and financial donors who lose the public debate do not just face a community that makes available a treatment that defies their moral convictions, but they are precluded from even maintaining a subcommunity that enables them to live out their convictions. As the state increasingly requires that certain controversial treatments be made available at all hospitals, public and private, dissenting moral claims are effectively negated, and the moral marketplace is shut down.

In some contexts, however, a hospital's moral claims carry sufficient market power that state intervention may be appropriate. It is not enough to show that no other provider serves a particular community. For example, suppose that a Catholic health care provider operates the only medical facility in a community, but they would cease operations if forced to offer abortion services. Certainly there is no functioning market of abortion providers, but if the state acted to remedy that, there may very well be no functioning market of health care services, period. The state's market intervention is not guaranteed to expand choice in every circumstance, and tolerating some limits on morally controversial services may serve to maintain a health care presence in an otherwise underserved area.⁹⁶ There is a different set of considerations when the state is asked to permit a merger, for example, between a Catholic provider and a secular provider where the merger would result in the curtailment of controversial services. In those situations, the state may be justified in withholding permission for the merger if it threatens a currently viable market.

Regardless of the policy resolutions reached in a specific health care dispute, it is important to reorient the conversation toward what is at stake. The conscience-driven practices of providers are not inherently less legitimate than the conscience-driven needs and preferences of health care customers, provided that goods and services to meet customers' needs and preferences are accessible in the moral marketplace. In a functioning marketplace, the viability of conscience requires us to give providers and like-minded customers an opportunity to live out their ideals. If Tom Cruise wants to enter the pharmacy business without selling (highly profitable) antidepressant medications, the state should stand aside and let him. It is one thing for a true believer to try out his moral convictions in the public sphere and find them incapable of attracting sufficient interest and support to be viable; it is quite another for the state to forbid him from even trying. By more steadfastly defending space in which individuals and groups can live out the dictates of their consciences, even when those dictates have been rejected by the majority, we may reduce the bright-line vitriol and widespread alienation that has defined the culture wars and gradually introduce a more nuanced, contextual understanding of conscience and its role in our public life.

In health care as elsewhere, recognizing conscience's relational dimension equips us to resist the temptation to construct abstract visions of “conscience” and pit them against each other in a winner-take-all struggle for power in our legal system. Instead, we can place greater focus on the vital human associations that allow an individual's conscience to enjoy real-world traction. More often than not, this will require the state to step back and narrow its function to ensuring a vibrant and accessible marketplace. Making space for the unpopular exercise of conscience is an American tradition, but that tradition cannot be relegated to the Amish-style enclave and isolated military conscript; the tradition must extend to the heart of the American experience, where our moral convictions and daily existences intersect. If conscience is going to matter in today's society, it should matter at Walgreen's.

¹ See Rob Stein, Citing Religious Beliefs, Some Pharmacists Refusing to Fill Prescriptions, Wash. Post, Mar. 28, 2005, at A1 (reporting that battle over pharmacists “has triggered pitched political battles in State Houses across the nation as politicians seek to pass laws either to protect pharmacists from being penalized or force them to carry out their duties”).

² See Charisse Jones, Druggists refuse to give out pill, USA Today, Nov. 9, 2004, at 3A.

³ Apparently, Noesen had reached a verbal agreement with his supervisor to avoid filling birth control prescriptions, but had not provided written notice to the pharmacy itself. Legal battle over pharmacists' obligations is joined in Illinois, Chain Drug Rev., Jun. 6, 2005, at 248.

⁴ See id.

⁵ See, e.g., Stacy Forster, Lawmakers push for conscience clauses, Milw. J. Sentinel, Mar. 5, 2005, at B1 (“The Noesen case has pushed the issue of a pharmacists' ‘conscience clause’ to the forefront.”).

⁶ Assemb. B. 67, 95th Leg., Reg. Sess. (Wis. 2003), S.B. 155, 95th Leg., Reg. Sess. (Wis. 2005).

⁷ Stacy Forster, Women's Health Debate Intensifies, Milw. J. Sentinel, Apr. 21, 2004, at B1.

⁸ Assemb. B. 532, 97th Leg., Reg. Sess. (Wis. 2005). The opposing side introduced more narrowly tailored conscience legislation – covering only drugs believed by the pharmacist to cause abortion or other death – in an effort to overcome the governor's veto. See S.B. 155, 95th Leg., Reg. Sess. (Wis. 2003).

⁹ Democratic Leaders Announce Birth Control Protection Act, Press Release of State Senator Judy Robson, Jun. 7, 2005.

¹⁰ Judith Davidoff, Democrats Unveil Their Bill on the Pill, Capital Times, Jun. 7, 2005, at 3A (quoting state senator Christine Sinicki).

¹¹ National Women's Law Center, Pharmacy Refusals: State Laws, Regulations, and Policies (Jan. 2009) (available at http://www.nwlc.org/pdf/PharmacyRefusalPoliciesJanuary2008.pdf) (accessed Feb. 16, 2009).

¹² The states are Arkansas, Georgia, Mississippi, and South Dakota. See Ark. Code Ann. § 20–16–304; Ga. Comp. R. & Regs. § 480–5-.03(n); Miss. Code Ann. § 41–107–5; S.D. Codified Laws § 36–11–70. As this book went to press, Idaho was on the verge of enacting similar legislation. See Simon Shifrin, House Passes Bill to Give Idaho Pharmacists Conscience Protections, Idaho Bus. Rev., Mar. 30, 2009.

¹³ See, e.g., O.R.S. § 127.625 (Oregon law shielding health care providers from being required to participate in the withdrawal or withholding of life-sustaining procedures); Colo. Rev. Stat. § 25–6–102(9) (Colorado law providing that “[n]o private institution or physician, nor any agent or employee of such institution or physician, shall be prohibited from refusing to provide contraceptive procedures, supplies, and information when such refusal is based upon religious or conscientious objection”); Fla. Stat. Ann. § 381.0051(6) (statute “shall not be interpreted so as to prevent a physician or other person from refusing to furnish any contraceptive…for medical or religious reasons”); Wyo. Stat. § 42–5–101(d) (protecting refusals to offer “family planning and birth control services”); Tenn. Code § 68–34–104(5) (same as Colorado).

¹⁴ The statute covers all “health care providers,” which is explicitly defined to include pharmacists. See Miss. Stat. Ann. § 41–107–3.

¹⁵ Miss. Stat. § 41–107–5(2), (3).

¹⁶ Cal. Bus. & Prof. Code § 733.

¹⁷ N.J. Stat. § 45:14–67.1.

¹⁸ For example, Missouri's legislature considered a bill that would require a pharmacist to fill all prescriptions unless her employer could accommodate her objections without undue hardship to the consumer; “undue hardship” is defined in part as an inability to fill the prescription in “the equivalent time period” as the pharmacy fills other prescriptions of in-stock medications. Mo. Senate Bill No. 458 (2005).

¹⁹ In late 2007, a federal district court temporarily enjoined implementation of the new rule on the ground that its enforcement would violate the free exercise rights of pharmacists. Stormans, Inc. v. Selecky, 524 F. Supp.2d 1245 (W.D. Wash. 2007). The ruling was overturned by the Ninth Circuit. See Stormans, Inc. v. Selecky, 571 F.3d 960 (9th Cir. 2009).

²⁰ The order applies to Division I Pharmacies, defined as “any pharmacy that engages in general community pharmacy practice and that is open to, or offers pharmacy service to, the general public.” Pharmacy Practice Act, 68 ILCS 1330.5.

²¹ Governor Blagojevich moves to make emergency contraceptives rule permanent, State of Illinois, Department of Financial and Professional Regulation, Official Press Release, Apr. 18, 2005.

²² “Filling prescriptions for birth control is about protecting a woman's right to have access to medicine her doctor says she needs. Nothing more. Nothing less. We will vigorously protect that right.” Id. (press release).

²³ Dirk Johnson and Hilary Shenfeld, Swallowing a Bitter Pill in Illinois, Newsweek, Apr. 25, 2005, at 28 (reporting Blagojevich's assertion that women should be able to fill birth control prescriptions “without delay, without hassle and without a lecture”).

²⁴ See Four Pharmacists Suspended Over Morning-After Pill, Chi. Trib., Dec. 1, 2005, at 7 (reporting Walgreen's suspension of pharmacists for failing to comply with governor's rule); Legal Battle Over Pharmacists’ Obligations Is Joined in Illinois, Chain Drug Rev., Jun. 6, 2005 (reporting on claim that Albertson's accommodated a pharmacist's religious beliefs by having him “refer patients seeking emergency contraceptives to another pharmacy less than 500 yards” from the store “until it was required to comply with the governor's rule”). A legal challenge filed by pharmacists was still making its way through the courts as this book went to press. See Morr-Fitz, Inc. v. Blagojevich, No. 104692, 2008 WL 5246307 (Ill. Dec. 18, 2008) (ruling that pharmacists have standing to bring claim, but not reaching merits).

²⁵ Caryn Tamber, Conscience Clauses for Pharmacists Is Controversial Topic in MD and Other States, Daily Record, Jun. 10, 2005.

²⁶ Edward Epstein, Boxer Eyes Prescription Protection: Bill Would Secure Birth Control Rights, S.F. Chron., Apr. 19, 2005, at A1; Monica Davey and Pam Belluck, Pharmacies Balk on After-Sex Pill and Widen Fight, N.Y. Times, Apr. 19, 2005, at A1 (reporting that “bills requiring all legal prescriptions to be filled have been introduced in recent days [in both the Senate and the House]”).

²⁷ Senators Santorum and Kerry explain that under their Workplace Religious Freedom Act, a “pharmacist who does not wish to dispense certain medications would not have to do so long as another pharmacist is on duty and would dispense the medications.” See Letters, N.Y. Times, Apr. 12, 2005.

²⁸ See 45 C.F.R. § 88.4(d) (2009).

²⁹ Rob Stein, Rule Shields Health Workers Who Withhold Care Based on Beliefs, Wash. Post, Dec. 19, 2008, at A10; see also David G. Savage, “Conscience” Rule for Doctors May Spark Abortion Controversy, L.A. Times, Dec. 2, 2008 (reporting that proposed regulation would cover 4,800 hospitals, 234,000 doctor's offices, and 58,000 pharmacies).

³⁰ See, e.g., 42 U.S.C. § 300a-7 (2000).

³¹ Rob Stein, supra note 29, at A10.

³² Id.

³³ Rob Stein, Lawsuits Filed Over Rule That Lets Health Workers Deny Care, Wash. Post, Jan. 16, 2009, at A4.

³⁴ It is not clear whether Plan B actually does block the implantation of a fertilized egg. See, e.g., James Trussel and Elizabeth Raymond, Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy (Oct. 2008) (available at http://ec.princeton.edu/questions/ec-review.pdf) (accessed Feb. 16, 2009).

³⁵ Pharmacists do not function as clerks, especially in recent years, as the legal system has imposed on them a counseling role in many contexts. Alan Meisel, Pharmacists, Physician-Assisted Suicide, and Pain Control, 2 J. Health Care L. & Pol'y 211, 231 (1999); see also Molly M. Ginty, Pharmacists Dispense Anti-Choice Activism, Women's Enews, May 4, 2005 (“Today, [pharmacists] hold more power over our medical decisions than ever before.”) (quoting Adam Sonfield of the Adam Guttmacher Institute); William L. Allen and David B. Brushwood, Pharmaceutically Assisted Death and the Pharmacist's Right of Conscience, 5 J. Pharmacy & L. 1, 1 (1996) (“Pharmacists see themselves as drug managers whose duty it is to assure that patients' best interests are promoted.”).

³⁶ See Tresa Baldas, Fighting Refusal to Treat: Conscience Clauses Hit the Courts, Nat'l L.J., Feb. 7, 2005, at 1, 17.

³⁷ Nicholas Wade, Race-based Medicine Continued, N.Y. Times, Nov. 14, 2004, § 4 (Magazine), at 12 (“Researchers last week described a new drug, called BiDil, that sharply reduces death from heart disease among African-Americans…But not everyone is cheering unreservedly. Many people, including some African-Americans, have long been uneasy with the concept of race-based medicine, in part from fear that it may legitimize less benign ideas about race.”).

³⁸ Editorial, Moralists at the Pharmacy, N.Y. Times, Apr. 3, 2005, § 4, at 12.

³⁹ Governor Dispenses with Pharmacists’ Nonsense, Chi. Sun-Times, Apr. 5, 2005, at 37; see also Eric Ferkenhoff, U.S. News & World Report, Apr. 25, 2005, at 18.

⁴⁰ Ellen Goodman, Pharmacists and Morality, Bost. Globe, Apr. 14, 2005, at A14.

⁴¹ Editorial, Just Fill the Prescription, Palm Beach Post, Jun. 29, 2005, at 14A.

⁴² Editorial, Morals and Medicines Cause Bad Reactions, Greensboro News & Rec., May 1, 2005, at H2.

⁴³ Kirsten Singleton, Governor's Directive to Pharmacists Gets Support at Statehouse Rally, State J.-Reg., May 17, 2005, at 28.

⁴⁴ Sheila G. Liaugminas, Pharmacists Battling Lawsuits Over Conscience Issues, Nat'l Catholic Register Feb. 13–19, 2005, at 1.

⁴⁵ Shari Rudavsky, Pill Raises Concerns Over Ethics, Journal-Gazette, Jun. 12, 2005, at 7C (quoting Karen Brauer, president of Pharmacists for Life).

⁴⁶ Editorial, Prescription Politics Hard to Swallow, Balt. Sun, Apr. 22, 2005, at 13A.

⁴⁷ See Letters, Phila. Daily News, Apr. 19, 2005, at 16 (“I wonder how many of Buchenwald's victims were village pharmacists who refused on moral grounds to provide cyanide or other deadly poisons to local Nazi functionaries for ‘official use.’”).

⁴⁸ Anita L. Allen, Rx for Trouble: Just Give Us the Medicine, Please, Newark Star-Ledger, May 8, 2005, at 1.

⁴⁹ Susan Berke Fogel and Lourdes A. Rivera, Saving Roe is Not Enough: When Religion Controls Health Care, 31 Fordham Urb. L.J. 725, 748 (2004).

⁵⁰ Bernard M. Dickens, Reproductive Health Services and the Law and Ethics of Conscientious Objection, 20 Med. & L. 283, 291 (2001).

⁵¹ Fogel and Rivera, supra note 49, at 748–9.

⁵² Lynn D. Wardle, Protecting the Rights of Conscience of Health Care Providers, 14 J. Legal Med. 177, 228 (1993).

⁵³ Alan Meisel, Pharmacists, Physician-Assisted Suicide, and Pain Control, 2 J. Health Care L. & Pol'y 211, 236 (1999).

⁵⁴ Governor Blagojevich moves to make emergency contraceptives rule permanent, State of Illinois, Department of Financial and Professional Regulation, Official Press Release, Apr. 18, 2005.

⁵⁵ Ronald Dworkin, Law's Empire (discussed in Daniel R. Ortiz, Categorical Community, 51 Stan. L. Rev. 769, 782–83 (1999)).

⁵⁶ Ortiz, supra note 55, at 806.

⁵⁷ Id.

⁵⁸ Rob Stein, “Pro-Life” Drugstores Market Beliefs, Wash. Post, Jun. 16, 2008, at A1.

⁵⁹ ACLU Reproductive Freedom Project, Religious Refusals and Reproductive Rights: Assessing Birth Control at the Pharmacy (2007).

⁶⁰ “Clearly, corporations do not have the same kind of moral autonomy that humans do, and it would be a mistake to ‘anthropomorphize’ corporations for purposes of ethical analysis.” Don Mayer, Community, Business Ethics, and Global Capitalism, 38 Am. Bus. L.J. 215, 254 (2001).

⁶¹ Miriam Galston, Civic Renewal and the Regulation of Nonprofits, 13 Cornell J.L. & Pub. Pol'y 289, 294 (2004).

⁶² Jeremy Rifkin, The Age of Access: The New Culture of Hypercapitalism, Where All of Life is a Paid-for Experience, 11–12 (2000) (quoted in Mayer, supra note 60 at 235); Don E. Eberly, America's Promise: Civil Society and the Renewal of American Culture, 22 (1998) (“[C]ivil society self-consciously serves public purposes as it calls people beyond the minimalist obligations of the law and the narrow self-interest of the market's bottom line to a higher plane of social cooperation and generosity.”).

⁶³ Timothy L. Fort and Cindy A. Schipani, Corporate Governance in a Global Environment: The Search for the Best of All Worlds, 33 Vand. J. Transnat'l L. 829, 862 (2000); see also Eberly, supra note 62, at 23 (“Civil society…might include the economies of the local grocer, dentist, and shopkeeper, but probably not the international corporate conglomerate” because the latter are less likely, “by virtue of their scale, ownership, and function, to permit local loyalties to affect the bottom line.”).

⁶⁴ Harold J. Laski, The Personality of Associations, 29 Harv. L. Rev. 404, 413, 425 (1916).

⁶⁵ Joel Edan Friedlander, Corporation and Kulturkampf: Time Culture as Illegal Fiction, 29 Conn. L. Rev. 31, 39 (1996).

⁶⁶ Nancy L. Rosenblum, “The Moral Uses of Pluralism,” in Civil Society, Democracy and Civic Renewal, 255, 266 (R. Fullinwider, ed., 1999).

⁶⁷ Eberly, supra note 62, at 173.

⁶⁸ James Boyd White, Free Speech and Valuable Speech: Silence, Dante, and the “Marketplace of Ideas,” 51 UCLA L. Rev. 799, 813 (2004).

⁶⁹ 250 U.S. at 630 (Holmes & Brandeis, JJ., dissenting); Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 Duke L.J. 1, 3 (“This theory assumes that a process of robust debate, if uninhibited by governmental interference, will lead to the discovery of truth, or at least the best perspectives or solutions for societal problems. A properly functioning marketplace of ideas, in Holmes's perspective, ultimately assures the proper evolution of society, wherever that evolution might lead.”).

⁷⁰ Ingber, supra note 69, at 15.

⁷¹ Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 Sup. Ct. Rev. 1, ^*24.

⁷² Id. at ^*27.

⁷³ Bernard M. Dickens, Reproductive Health Services and the Law and Ethics of Conscientious Objection, 20 Med. & L. 283, 293 (2001).

⁷⁴ Miriam Galston, supra note 61, at 297.

⁷⁵ See Heather K. Gerken, Second-Order Diversity, 118 Harv. L. Rev. 1099 (2005).

⁷⁶ Rob Stein, “Pro-Life” Drugstores Market Beliefs, Jun. 16, 2008, Wash. Post, at A1.

⁷⁷ See Dean Olsen, Walgreen's Joins Suit Against Blagojevich, Springfield State J.-Reg., Jul. 23, 2006, at 5 (reporting that Walgreen's “hopes the judge allows the company to reinstate its ‘pharmacist conscience clause,’ which would allow pharmacists to decline to dispense emergency contraception but requires the pharmacists to refer patients to another pharmacist or pharmacy”).

⁷⁸ California, for example, is the “first state to require managed care organizations and insurance companies to warn consumers that some physicians and hospitals restrict access to covered reproductive health services and to offer consumers information about those restrictions.” Fogel & Rivera, supra note 49, at 741. Note, however, that the provision of information should not be turned into a government shaming mechanism. See, e.g., Chain Drug Rev., Apr. 18, 2005 (“Any drug store that employs a pharmacist unwilling on moral, not medical, grounds to fill certain prescriptions must identify that pharmacist by name by posting a sign at the pharmacy, in the store's front window, or in both locations, so that all patients know, in advance of bringing a prescription to the pharmacy counter, that the pharmacist has in the past taken it upon himself or herself to determine not to fill certain prescriptions for certain patients.”).

⁷⁹ Blasi, supra note 71, at 6–7.

⁸⁰ See Belden, Russonello and Stewart, Religion, Reproductive Health, and Access to Services: A National Survey of Women Conducted for Catholics for a Free Choice, Apr. 2000 (available at http://brspoll.com/Reports/CFFC-cons%20clause%20report.pdf) (accessed Feb. 16, 2009).

⁸¹ Stormans, Inc. v. Selecky, 524 F. Supp.2d 1245 (W.D. Wash. 2007).

⁸² See Employment Div. v. Smith, 494 U.S. 872 (1990) (law upheld if it is neutral on the subject of religion and is of general applicability).

⁸³ Stormans, Inc. v. Selecky, 571 F.3d 960, 983 (9th Cir. 2009).

⁸⁴ Marci Hamilton, Why A Federal District Court Was Wrong to Apply Strict Scrutiny to a Washington State Law Requiring Pharmacies, But Not Individual Pharmacists, to Fill “Plan B” Prescriptions (Nov. 15, 2007) (http://writ.news.findlaw.com/hamilton/20071115.html).

⁸⁵ Stormans, Inc. v. Selecky, 526 F.3d 406, 409 (9th Cir. 2008).

⁸⁶ Stormans, Inc. v. Selecky, 571 F.3d at 965.

⁸⁷ “[R]evenue sources of religious[ly] controlled health systems are not significantly different from those of any other private corporate interests in the health care industry,” as in 1998, “the combined Medicare and Medicaid funding for religiously-controlled hospitals accounted for roughly half of their revenues.” Fogel and Rivera, supra note 49, at 742.

⁸⁸ Stephen Macedo, The Constitution, Civic Virtue, and Civil Society: Social Capital as Substantive Morality, 69 Fordham L. Rev. 1573, 1592 (2001).

⁸⁹ David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. Rev. 675, 680 (1992).

⁹⁰ Id. at 681.

⁹¹ Id. at 711.

⁹² Id. at 716.

⁹³ Id. at 743.

⁹⁴ Daniel Halberstam, Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions, 147 U. Pa. L. Rev. 771, 873 (1999).

⁹⁵ Id.

⁹⁶ Similar forbearance by the state would not be as justified in the pharmacy context. Given that the cost of market entry is not as high for pharmacies as for hospitals, it will be easier – and, in all likelihood, more financially attractive given the established market demand – for another pharmacy to fill the void left by pharmacy owners who would cease operations if forced to provide a pharmaceutical that they find objectionable.