A Stitch in Haste

Yesterday I put my libertarian credentials on the line by asking whether public breastfeeding could rightfully be subject to regulation or prohibition.


Since I’m on a roll, I’m going to follow up by stepping into the latest libertarian minefield: Do pharmacists have the right to refuse to dispense drugs, particularly contraceptive pharmaceuticals, that offend their moral views?


My answer: Sorta kinda, but only sorta kinda.

Let’s start with first principles. In a free society comprising competent, consenting adults, the only valid laws restricting conduct are those that protect rights or correct for externalities. In the first iteration, one might argue for the standard “markets in everything” approach and allow the pharmaceutical industry to “sort itself out,” much the same way that most libertarians (myself included) would argue that smoking bans in bars are wrong — just let the property owners run their businesses as they see fit and see who makes the most money. Why not let pharmacists run their pharmacies the same way?


Here’s why: Such a policy imposes significant costs on customers. A “morning after pill” must be administered within a fairly brief window. There may not be enough time for the pharmacy market to “sort itself out,” at least with respect to a particular patient. The “conscientious objector” pharmacist is potentially imposing externalities on the potential customer by denying access to the pharmaceuticals, even temporarily. The externality therefore at least invites the possibility that “laissez faire” is inappropriate.


Even without the urgency of “morning after pills,” there is still an asymmetrical information problem that imposes costs: Is it fair to impose the added time and shoe leather of having someone make a trip to the pharmacy only to learn that they will be denied service and then have to find a second pharmacy? The externalities in that situation may seem trivial, but they would certainly arise.


Finally, there is the potential for an “adversarial externality” between a conscientious objector pharmacist and the customer. Imagine a young pregnant woman walking into a pharmacy, not only to be denied service, but also to be subjected to the confrontation of “I’m not helping you kill your baby!” Again, externalities argue against pure unregulated markets.


So is the answer compulsory pharmacology (i.e., requiring the conscientious objector pharmacist to suppress his morality and serve all customers)? I don’t think so — I think there’s a compromise approach.


Suppose pharmacists were allowed to deny service, either carte blanche based on the prescription or contingent on the circumstances (e.g., over-dispensing a narcotic painkiller). However, in order to qualify for “objector” status, the pharmacist would first be required to alert the pharmaceutical company and all third-party payors (e.g., insurance companies, HMOs, Medicaid) of their reservation of the right to deny service. Those entities would then be able to proactively provide that information to physicians and patients so they could decide in advance which pharmacies to patronize. Similarly, the pharmacist would have to provide actual notice to all customers at the time they fill their first prescription, even if the pharmacist does not object to that particular drug (i.e., “Please by advised that even though we are filling this prescription, we reserve the right to refuse to fill future prescriptions.”) Many people like to use the same pharmacy for all their prescriptions — they should be warned up front if they might someday be turned down. Perhaps even a large sign at the door or at the pharmacy counter explaining their policy.


The right to do business in accordance with one’s morality does not include the right to blindside someone. If pharmacists want the right to craft policies that allow them to sleep well at night, then they should be obliged to make those policies well-known beforehand, so others can also sleep well at night. In that way the externalities are accounted for, and libertarian principles are preserved.


Concurring and dissenting opinions welcome.



Recent thoughts at JurisPundit and Tom G. Palmer.

Similar Posts:

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• Healthcare Provider “Right to Refuse” Movement Gaining Momentum
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• Wonder Drugs are Now a “Negative Externality”?
• Another Over-the-Counter Propriety Debate

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