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Jan. 31, 2006
Copyright © Las Vegas Review-Journal


EDITORIAL: The medical right of conscience

Should doctors be compelled to provide services?

The main justification for government licensing boards is that they block incompetent fly-by-nights who might endanger people's health.

But there is a rarely contemplated risk to these regulatory structures.

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At the launching of the regulatory regime, politicians are usually careful to insist they have no intention of dictating how or when doctors will practice medicine, or swimming pool installers will lay their concrete, or whatever.

No, no, no. We here in the Legislature claim no expertise to tell a professional what antibiotic to prescribe for a given ailment. We simply aim to guarantee the public a certain level of expertise.

And the check is in the mail, and they'll still respect us in the morning.

Though modern practitioners are apparently now allowed to mumble certain parts inaudibly, the Hippocratic Oath, which famously instructs "First, do no harm," once extracted a voluntary commitment to not perform abortions. While more progressive standards now prevail, some doctors, pharmacists, and other "health workers" still decline to participate. As government has intruded further and further into micromanaging the practice of medicine, many states have found it advisable to pass laws guaranteeing them this right of conscience.

Upon the introduction of the "morning after" birth control pill, however, some of these professionals also expressed a conscientious objection to prescribing or selling this product.

Which takes us back to, "We would never tell these practitioners how to ... "

In fact, state licensing boards began sanctioning pharmacists who declined to fill such prescriptions, The Washington Post reports. An Illinois regulation enacted last year requires pharmacies to fill all prescriptions, a step that predictably led to a number of pharmacists being fired.

Nevada has no such law. But Planned Parenthood is now supporting efforts in at least six states to similarly make it illegal for a pharmacist to refuse to fill any prescription.

Jenny Pizer of the Lambda Legal Defense and Education Fund now takes this principle a step further. Ms. Pizer represents a California lesbian whose doctor refused to provide her with the artificial insemination she requested. "This is a very grave concern," Ms. Pizer told The Washington Post.

Mind you, the point at issue is not whether artificial insemination -- or the morning-after pill, for that matter -- should be banned by law. The question is whether the state shall require medical professionals to provide such services in violation of the dictates of their own conscience.

In response, at least 18 state legislatures are now considering 36 competing bills that would shield pharmacists -- and often doctors and other health employees -- from job loss or other repercussions if they refuse to provide birth control pills, or to aid in vitro fertilization, physician-assisted suicide, or perhaps even treatments that facilitate gay or lesbian activities. Lois Uttley of the MergerWatch project characterizes the debate as a struggle to protect "the patients' right to use their own religious or ethical values to make medical decisions."

But patients can make decisions only for themselves; those decisions cannot compel others. The right to marry does not mean the state should force your would-be bride to submit at gunpoint.

Simplify the problem into a confrontation between one patient, one pharmacist and one police officer. The officer asks what's wrong. The patient says the health professional will not provide the service he or she wants. Is the state -- in the person of the cop -- justified in pulling out his pistol, thumbing back the hammer and ordering the pharmacist to do something against his will?

In the real world, the answer must be "very rarely."

Requiring a doctor to perform artificial insemination? Requiring a pharmacist to sell a certain pill? When (barring government interference) the free market will quickly solve this problem in 99 percent of cases by creating an incentive for competing providers to spring up down the street or over the Internet?

In his 2005 book "The Assassin's Gate: America in Iraq," journalist George Packer reports on Uday, the son of Saddam Hussein who decided it would be an entertaining punishment for those who had displeased him to order a Baghdad physician to surgically remove one of their ears. The physician was required to inflict this punishment on dozens of people without benefit of trial -- or else he himself would have been killed.

This is what can happen when the state starts ordering health professionals to do its will.

Not only is it wrong, it may very well violate the 13th Amendment's prohibition on involuntary servitude.

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