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Archive for July 14th, 2010

I heard about this on my drive home from work today.    

Washington’s Board of Pharmacy initially allowed individual pharmacists to refuse to sell Plan B pills based on moral objections, as long as there was another pharmacist available who didn’t share the same moral reservations…unless there wasn’t another pharmacist on staff at the same time, in which case you were screwed.  And never mind that this meant that Pharmacy owners who might have moral objections to selling Plan B were essentially forced to sell the drug.  Their choice didn’t matter.    

As a result, they took the only course open to them.  They sued.  And now it appears that the Pharmacy Board has apparently come to its senses, and recognized that collective desires do not trump individual rights.    

A trial was set to begin July 26, but a judge postponed it indefinitely Monday at the request of lawyers for both sides, who cited the board’s June decision to begin a new rulemaking process.    

The deal surprised women’s-rights advocates who had watched the pharmacy board pass a rule in 2007 at the urging of Gov. Chris Gregoire that barred pharmacies from refusing to sell a legal drug out of a moral or religious objection. The rule never took effect, awaiting the outcome of the lawsuit.    

Elaine Rose, CEO of Planned Parenthood’s Washington political arm, said she’s “completely bewildered and baffled” by the moves by the board and its lawyers in Attorney General Rob McKenna’s office.         

But don’t tell Planned Parenthood.  They seem to believe that their choices are more important than the pharmacy owners.
Planned Parenthood says personal beliefs imposed on a patient are different from financial considerations. Advocates say women shouldn’t be delayed by a trip to another store when seeking the Plan B “morning after” pill, which can prevent fertilization or implantation of an egg if taken within 72 hours of sex. 
John Carlson, the host of KVI 570’s 3-6pm show was discussing it with Laura Einstein, who is counsel for Planned Parenthood Great Northwest.  Laura made some really poor analogies in trying to explain why it was ok for the pro-babykilling crowd to force pharmacists to sell a product that they may find morally objectionable.
 
I came in late, but the arguments made that I heard were:
 
1.  If we allow the new proposed rule to go through, what happens to the women who can’t get to a different pharmacy, because they don’t own a car?  This argument ignores the fact that in most of Washington, you can’t throw a rock without hitting a pharmacy, and that we pay exorbitant sums for public transportation.  The idea that someone will somehow have their life changed ignores the fact that anyone you can name knows someone who owns a car, or can catch a bus to stores and pharmacies.  This argument didn’t make any headway, and I really can’t fathom it going well with a Judge, either.
 
2.  Because Pharmacists are licensed by the state, they have a monopoly, and therefore it is appropriate for the state to force them to sell it.  This really is my favorite, because it is so dishonest and characterizes the reason for the license completely falsely.  The government doesn’t require licensure in order to provide a secure living for the licensee; the government requires that pharmacists be licensed in order to protect the public health.  That’s why in addition to all the schooling that pharmacists have to go through, they actually have to get tested by the state in order to prove that they actually learned something and understand things like which drugs might react very badly when taken with others…it is a public heath issue.  And counsel would know this if she simply looked at the RCWs on the subject:
RCW 18.64.005 State Board of Pharmacy- Powers and Duties
(7) Promulgate rules for the dispensing, distribution, wholesaling, and manufacturing of drugs and devices and the practice of pharmacy for the protection and promotion of the public health, safety, and welfare. Violation of any such rules shall constitute grounds for refusal, suspension, or revocation of licenses or any other authority to practice issued by the board;[Emp. Added].
This was an unbelievably stupid argument to make, even for a lawyer so clearly partisan on the subject, and Carlson rightly called it so, pointing out that if a pharmacy license is a monopoly issued by the State, someone is getting ripped off, as there are hundreds of pharmacies in Washington State, and many different ones often less than a mile from each other.  It also fails the laugh test based on the fact that Planned Parenthood itself offers Plan B as part of its contraceptive services in its 38 Washington “Health Centers” all across the state.  If it is a monopoly, it’s a poorly managed one.
 
He asked her if she also believed that if a woman in a rural area of the state wanted an abortion and the only nearby doctor did not want to perform it on the grounds of moral objection, shouldn’t he be forced to do so?  Afterall, if a pharmacist should be forced to sell a product, shouldn’t a doctor be forced to perform a procedure, especially it if would have the same result?  Ms. Einstein objected to this, stating that it was a horrible analogy because that doctor “might not be qualified to perform the abortion”.
 
I can understand why she might not want anyone thinking too hard about this analogy.  To start with, doctors in Washington can’t be forced to perform abortions.  From the Revised Code of Washington (RCW):
9.02.150
Refusing to perform.

No person or private medical facility may be required by law or contract in any circumstances to participate in the performance of an abortion if such person or private medical facility objects to so doing. No person may be discriminated against in employment or professional privileges because of the person’s participation or refusal to participate in the termination of a pregnancy.    

I wouldn’t want to have to explain why a doctor is allowed to not aid a woman in killing a baby, but a pharmacist is required to participate in such an act.

As for the “qualified to perform abortion”, there are two issues raised by this argument.   The first is whether or not a doctor needs to have a certification or special license to do so.  According to the RCWs, this does not appear to be the case:    

9.02.110
Right to have and provide.

The state may not deny or interfere with a woman’s right to choose to have an abortion prior to viability of the fetus, or to protect her life or health.    

     A physician may terminate and a health care provider may assist a physician in terminating a pregnancy as permitted by this section.    

The only obvious restriction on performing an abortion under this section is found in the very next subsection:

9.02.120
Unauthorized abortions — Penalty.

Unless authorized by RCW 9.02.110, any person who performs an abortion on another person shall be guilty of a class C felony punishable under chapter 9A.20 RCW.

The other issue is whether such a procedure should be performed by someone who doesn’t do so regularly.  She was a tad more honest with this argument, as she stated that while she was an attorney, she probably wouldn’t take a criminal case, because she may not be competent to do so.  I can understand and respect that, but at the same time, her example makes no allowances for variations in difficulty of such cases based on the offense.  A criminal traffic matter is not the same as a murder, and does not require the same level of expertise or skill to successfully defend.  I admit I am not a doctor, but physicians spend a lot of time learning their craft, and to make the argument that they could not handle a surgical procedure because they didn’t make a regular practice of it is less than honest.  It isn’t all neurosurgery.     

However, as her client, Planned Parenthood does perform abortions, and lots of them, I can understand her wanting to create the impression that only doctors who regularly perform abortions should be consulted to do so.  Blood Money addictions can be some of the hardest to break, and the cruelest to justify.
 
By now, I had called in, and was salivating for a shot at her, but she left before Carlson took callers, and I was far enough back in the call queue that they didn’t get to me before there were a few minutes remaining and I was home and had to hang up so I could be Dad.  Before she hung up, she and Carlson walked back through the facts and her arguments.  She expressed the belief that “they would manage to persuade the Board of Pharmacy to do the right thing.”  Carlson asked her “But didn’t the Board of Pharmacy vote unanimously to start new rule making procedures?  Isn’t that indicative of them having made up their mind to change the rule?”  Nonplussed, her response was something along the lines of “they still have to have public hearings on the proposed rule and besides, the Ninth Circuit already told the pharmacists that they have to sell it.”  Carlson’s last word was “The Ninth Circuit?  Well, we know what is likely to happen if it gets appealed to the Supreme Court, don’t we?”
 
But it is so much better than that, because once again, she mischaracterized what the Ninth Circuit said about it, because in the Opinion issued last week, the Ninth Circuit explicitly recognized the State Board of Pharmacy’s authority to set the policies regarding the dispensing of the drug.  It overturned the injunction placed on enforcement of the rules that the Pharmacy Board now seeks to change not because the Board of Pharmacy does not have the authority to change the rule and allow pharmacists to have a choice also, but because to not enforce the existing rule was not consistent with Federal precedent, which is much different from the Ninth Circuit telling them that they can’t do it.
 
I looked up Ms. Einstein’s bar information.  She was licensed to practice in Washington five and a half years after I was.  I have to confess that I’m torn.  On the one hand, I am disgusted that a member of my profession and my state’s bar could be so disingenuous, and on the other hand, I’m glad that she is representing “the right to kill babies at all costs” crowd, because if she represents the best they have to offer, then I have every confidence that those of us who understand that the “right to choose [death]” does not trump all other rights will eventually prevail, if only because we don’t kill our children.
 
 

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