Sam Boyd Is a National Treasure

He reads Slate, so we don't have to poison our minds. And comments on William Saletan:

TAPPED Archive | The American Prospect: this is the same logic that people used to justify homeowners who didn't want to rent to minorities. That's just terrible, they clucked, but I wouldn't want to live in a world where the government told people who they could rent to. Well, as it turns out, that world is a lot better than the one it replaced...

It is a good point. Consider:

William Saletan on contraception:

William Saletan, 2008: You bring your scrip to the pharmacy, and the guy at the counter says, "Sorry, we don't stock contraceptives." That's annoying and, in my view, stupid. But nobody's walling you in. Your burden consists of finding another pharmacy...

William Saletan on fair housing:

William Saletan, 1978: You go to the open house, and the real estate broker says, "Sorry, we don't sell to Negroes." That's annoying and, in my view, stupid. But nobody's walling you in. Your burden consists of finding another house to buy...

Is there a difference between these two?

Why oh why can't we have a better press corps?

Comments

[trotsky]

The right to purchase and use contraception -- established, thank G-d, for many decades now -- does not imply an obligation on the part of others to sell it.

Should OB/GYNs be required to perform an abortion at their patients' request?

The anti-contraceptionists are downright Medieval in their outlook, but they still have First Amendment rights related to the free exercise of their religion.

[jerry]

"Is there a difference between these two?"

The answer is apparently, "there might be." The Supreme Court has decided that various acts you perform or might perform have differing free speech implications. And also that free speech itself is balanced by other rights.

I think that's worrisome, though I don't know anyway around that.

So for instance, denying service to Negroes at lunch counters is not an important act of free speech, or if it is, it is overridden by the rights of everyone else. But denying gays the ability to march in a parade is an act of free speech on the part of the parade organizers that must be respected.

In a world where needed medications were easily obtainable, I suspect the pharmacists would have a stronger free speech claim. In our world though, pharmacies are not always where we need them to be, and not always open when we need them to be open. Since a pharmacist has a state granted license and monopoly to conduct business, and since presumably people need their medication in a timely fashion I think it's perfectly reasonable for the state to say that as a condition of that license, the pharmacist must dispense prescribed contraceptives.

In that sense, I think Saletan would have been more correct to deny Negroes a housing purchase than to deny customers contraceptives.

"Should OB/GYNs be required to perform an abortion at their patients' request?" In an emergency, absolutely. If it's not an emergency, than I think it's up to the state and the courts to determine the free speech implications of the OB/GYNs acts vis a vis their licensing requirement.

I like to consider myself a free speech zealot but not overwhelmingly informed about free speech cases. It would be interesting to know what free speech zealots like Wendy Kaminer would have to say regarding these issues. I'm really not thrilled with the notion of limiting free speech, or especially making one person's free speech act seemingly less important than another person's. I don't see away around that, and as a software engineer, I am glad that Professor Ed Felton works to establish that writing software is a free speech act.

[Q the Enchanter]

I don't think the cases are very similar. The difference is that between (a) stocking a product but refusing to sell it to a certain class of customers and (b) refusing to stock or sell a product that is only consumed by a certain class of customers or used for a certain class of purposes. And of course there's nothing generally wrong with the latter sort of practice. (Cf. http://www.maccosmetics.com/, http://www.bigmen.com/, http://www.rainbow.coop/, and so forth.)

The problem here is that a professional duty arguably attaches and is being violated. (See, e.g., http://www.med.howard.edu/ethics/handouts/phar_code.htm.)

[Stuart Buck]

Is there a difference between these two?

Yes. Both the reason that Q points out, and this: One situation involves animus towards a particular race -- animus that has been the source of many great evils throughout our country's history. The other situation does not involve animus towards anyone; it instead involves a pharmacist's personal moral belief about what products she does or does not wish to participate in selling.

[Suppose somebody said: "I don't have any animus against Blacks--I just think societies are more peaceful when neighborhoods are ethnically pure." You'd be down with that?]

[Stuart Buck]

"The problem here is that a professional duty arguably attaches and is being violated."

The problem with that argument (which I've seen in many, many other places, to be sure) is that it's completely circular. "Why are you obligated to sell X? Because it's a professional duty. How do we know it's a professional duty? Because we have defined your duties as selling X." Not very satisfying to the person who questions why it is a duty (professional or otherwise) to sell X.

[Ken Houghton]

If you question that your oath is part of your professional duty, get another profession.

[Q the Enchanter]

Stuart, you're right that for the argument to be complete you'd have to show that the professional duty in question is grounded in sound policy. But I wouldn't think the code of ethics I linked to needed that kind of extended justification.

[Stuart Buck]

Q -- I don't see anything in that code of ethics, however, that plainly answers the question here. For example, there's no principle like this: "A pharmacist must dispense any conceivable medicine that exists, no matter for what purpose, and cannot interpose objections of conscience on any occasion." That would plainly apply to the emergency contraception issue, but then the question would merely be, "Well, why should THAT be the requirement?" It's circular to defend the existence of a requirement by saying that it is the requirement.

[Willy Slatern]

You get a job at a phramacy and your expected to sell contraceptives. That's annoying and, in my view, stupid. But nobody's walling you in. Your burden consists of finding another job...

[trotsky]

Willy,

Right, and pharmacists have been fired (justly, IMO) for refusing to sell contraceptives. Saletan's piece was based on an emerging microtrend of "pro-life" pharmacists opening their own pharmacies.

So, they're supposed to be forced to stock a product they have a moral objection to selling? That's preposterous.

[coriolis]

"So, they're supposed to be forced to stock a product they have a moral objection to selling? That's preposterous."
Not when the state denies another the right to sell that product.

[Bonnie]

When a pharmacist decides he or she cannot sell a legitimate prescription from a doctor to a patient solely because of his/her own personal religious beliefs, then, he/she is trying to shove his/her religious beliefs down the throats of other people; thus, infringing on other peoples' right to practice whatever religion they wish to practice. If an entire pharmacy decides to not fill contraceptive prescriptions, then it should be required to put a sign up in the front of the store informing customers of this before they even come in the pharmacy. If the pharmacy loses business this way, that is okay because it is a simple case of supply and demand. And, does this same pharmacist fill Viagra prescriptions????

[Q the Enchanter]

Stuart, I'd say that the canon that "a pharmacist consider[] needs stated by the patient as well as those defined by health science" is pretty on-point. The interposition of conscience is certainly consonant with the PCE, but it obviously can't be a catch-all. The licensing requirements are there in part so that patients can rely on a uniform standard of care. So the burden of proof must be on those who've accepted the benefits of membership but who would nonetheless buck the standards of their profession and the stated needs of their patients.

[jerry]

"If the pharmacy loses business this way, that is okay because it is a simple case of supply and demand. And, does this same pharmacist fill Viagra prescriptions????"

I keep seeing this argument being made. Is this an argument? How is it relevant? It is mainly a "men are teh evil suxxors" sexism, isn't it?

There are plenty of legitimate arguments to be made on either side of this, and I think the Pharmacist's state given license means he has to stock and sell contraception. Let's leave stupid sexism out of this, please?

(But if someone can explain to me how the viagra argument is relevant, I would truly be appreciative and retract this comment.)

[Stuart Buck]

Q -- I'm not sure what you mean by "burden of proof." Is it the case that, if you accept a particular profession, the state can force you to do anything at all and you bear the "burden of proof" as to why you shouldn't be forced to do it? I don't think that standard is applied equally (or at all) in many other situations. It's a longstanding ethical principle among lawyers that everyone has a right to legal representation, but surely (for example) a defense lawyer can decide that his conscience didn't allow him to represent John Yoo. Doctors have an obligation to provide treatment to their patients, but that doesn't begin to answer the question whether a surgeon can be required -- against her conscience -- to amputate the legs of a perfectly healthy person who has apotemnophilia. And if (to make up a hypothetical) a particular type of medicine were manufactured from some plant harvested by child slaves in the Congo, would you dismiss any claim of conscience on the part of pharmacists?

That's not to say, of course, that a request for contraception is akin to any of those hypotheticals. The point here is to think about whether claims of conscience can be so easily waved away just by saying, "It's a profession, so you are automatically required to satisfy the demands of any customer, no matter what."