The Drug War
Will Washington State Join Arkansas, Georgia, Mississippi, and South Dakota as the Fifth State That Allows Pharmacists to Just Say No to Women?
A friendly staffer from the Sand Point Pharmacy phoned twice on Saturday morning to let Sarah know the pharmacy was closing at 1:00 p.m. Given that the pharmacy wouldn't be open on Sunday, and that Sarah needed to pick up her Plan B prescription—Plan B needs to be taken within 72 hours of unprotected sex—the calls weren't mere courtesy. They were attentive reminders from a conscientious Seattle pharmacy that takes its customers seriously.
The pharmacy is a well-stocked tidy drugstore in a low-slung brick building set back on a grassy slope along Sand Point Way Northeast. With its teal carpet, bright fluorescent lights, and gigantic gumball machine, the pharmacy resembles nothing so much as a kindergarten classroom.
Sarah, a college student who lives two miles away in the U-District, got to the pharmacy right at one. A round-faced, dark-haired young woman in a pink shirt glided up to the counter from the back. Sarah told her why she was there, and the woman quickly retrieved the medication. As she rang Sarah up, the pharmacist slowed down for a reassuring and informative chat. As the conversation got intimate, the clerk recognized the need for privacy, and lowered her voice.
"Do you get nauseous? You should take it with food. This doesn't prevent STDs. It can cause some spotting. We won't be open tomorrow, but if you have any problems, there are some places that dispense Plan B without a prescription, and they could help you with any questions."
Five minutes and $31.50 later, Sand Point Pharmacy—its doors still open for a few customers who had suddenly arrived— had filled Sarah's Plan B prescription.
It's not surprising that a pharmacy in Seattle would fill a Plan B prescription with zero hassles. Sarah's experience at Sand Point is a far cry from the experiences women have had in places like Walla Walla, where Planned Parenthood reports that a 34-year-old woman went to a pharmacy last year to get emergency contraception after her boyfriend's condom broke and was accosted by the pharmacist for trying to "kill her fetus." When the customer asked for a referral to another pharmacy, the pharmacist yelled, "We are good people in Walla Walla." It also isn't surprising that Seattle's Sand Point Pharmacy's employees are thorough and conscientious. Sand Point Pharmacy, after all, is owned by a member of the Washington State Board of Pharmacy (WSBP).
What's startling is this: The state pharmacy board member who owns Sand Point Pharmacy is Seattle pharmacist Donna Dockter, the same board member who derailed board rules that would have guaranteed unimpeded access to Plan B prescriptions at pharmacies throughout the state. On June 1, Dockter pushed through a substitute rule that will allow pharmacists to refuse to fill prescriptions for drugs like Plan B.
Dockter's proposal generated shocked front-page headlines in the Seattle Times and the P-I: "Board says drugstores can refuse to sell 'morning-after' pill," blared the P-I headline. The proposed rule also generated an attack on Dockter's character in comments on the P-I's blog: "Let us take a moment to pray for Dockter and her Christian conservative ilk: Most powerful Lucifer, please impart your wisdom upon your unwitting servant, Donna Dockter. She mistakenly believes she is doing the work of God."
The reaction in liberal Seattle is understandable. If Dockter's rule stands, access to birth control will be thrown into jeopardy. But judging from the seamless service that Sarah got at Sand Point Pharmacy, Dockter is not the fundie that some Seattle residents think she is.
Dockter was appointed to the pharmacy board by Democratic Governor Gary Locke in 1999 and reappointed in 2003. And while she is active in a church, it's hardly the right-wing brand: Dockter is a member of the University Temple United Methodist Church, the super-liberal church in the U-District, whose dovish pastor, Reverend Jack Olive, recently convened a Seattle peace summit on the Middle East. The church also partners with a sustainable-environment advocacy group called the Maasai Environmental Resource Coalition whose mission is to "support a movement toward a sustainable environment, to support an indigenous culture, and to work toward human rights and justice." Dockter's church also houses an organization called ROOTS, a lefty homeless-youth advocacy organization whose board and staffers include a Real Change organizing director and a part-time Nick Licata staffer. Dockter, along with indie rockers Death Cab for Cutie and Ralph Nader's WashPIRG, is a consistent financial contributor to ROOTS. "I was brought up in a liberal religious tradition, and I'm still an active member in that tradition," Dockter tells me.
I had called Dockter repeatedly for an interview. And I stopped by her pharmacy hoping to catch her. She wasn't there. I wanted to ask her why she is willing to jeopardize women's access to health care across the state, when she's committed to providing it at her own pharmacy in Seattle.
She finally spoke with me briefly on the phone to say tersely that her proposal "had nothing to do with religion. There are business reasons, technical reasons, and expertise reasons," she said, that make it bad policy for a pharmacist to be required to fill every prescription.
Judging from accounts of the April 21, May 2, and June 1 pharmacy board hearings where her proposals were debated, and after talking briefly with the young woman who works at Dockter's pharmacy, I have a good sense of Dockter's position. And it's true: Her proposal is not tied to moral objections.
She believes the "must-fill" mandate that was also under consideration by the board would interfere with a pharmacist's ability to practice his or her profession responsibly. What if a pharmacist feels they don't have the training or expertise to safely administer a new drug? What if they suspect that the customer has a fraudulent prescription? What if the customer's insurance doesn't cover the drug?
Dockter seems to believe that a must-fill order was an affront to her profession. "Their concern," says Steven Saxe, executive director of the pharmacy board, "was that a lot of professional judgment goes into what's best for the patient, and any 'shall-fill' proposal creates problems. They looked at other professions that have the right to make judgments."
While moral objections to Plan B may motivate pharmacists in Walla Walla, the morality of morning-after pills, which the religious right views as the equivalent of abortion, did not come up at the hearings.
The only substantive quote I've seen from Dockter on her reasons for pushing her proposal ran on Oregon's public radio. She told Oregon Public Broadcasting: "There are too many situations that we cannot foresee that pharmacists face everyday that have nothing to do with religious objection."
And as Dockter, a class of '72 alumni from the UW School of Pharmacy, told me: "I don't fit the stereotype, do I? I'm not an Evangelical. I never was, and I never will be."
Whether Dockter thinks her proposal is about moral objections or not, if her proposal is adopted into law on August 31, Washington State will be added to the short list of only four other states—Arkansas, Georgia, Mississippi, and South Dakota—that allow pharmacists to refuse to fill prescriptions. The laws in those states—let me repeat them: Arkansas, Georgia, Mississippi, and South Dakota—specifically reference "moral grounds."
Dockter's language, passed 5-0 at a June 1 WSBP hearing after the initial proposal for a must-fill rule was shot down 3-2, begins deceptively: "A pharmacist shall not obstruct a patient in obtaining a lawfully prescribed drug or device. If a pharmacist cannot dispense a prescribed drug or device, then the pharmacist must provide timely alternatives for the patient to obtain treatment."
Without defining the parameters that would justify when and why a pharmacist "cannot dispense," the open-ended rule goes on to nullify its assurances that pharmacists must try to fill those prescriptions. "These alternatives may include... return prescription to the patient... [and] if requested by patient, transfer the prescription" to another pharmacy.
"This does allow a pharmacist to turn down a prescription for any number of potential reasons," says Saxe, "including a moral objection."
"The proposal that came out of the pharmacy board is utterly unacceptable," says Amy Luftig, deputy director of public policy at Planned Parenthood Network of Washington. "It is the worst kind of policy—one that does nothing to clarify the responsibilities of pharmacists while at the same time doing nothing to protect the needs of patients." (I'd say it opts to protect a pharmacist's feelings instead of protecting a patient's health.)
Among religious conservatives, these types of rules are known as "conscience clauses." The conscience-clause movement is largely being waged in the courts by right-wing legal groups like Pat Robertson's American Center for Law and Justice and James Dobson's Alliance Defense Fund (ADF)—which weighed in on the debate here.
Pharmacist "conscience clauses" are modeled on existing rules for physicians that grant doctors the right not to perform abortions. A physician's conscience clause, ironically enough, was tacked onto Washington State's liberal 1992 law guaranteeing a woman's right to abortion. Locally, supporters and detractors of conscience clauses for pharmacists now both point to the 1992 law to make their cases.
The push for conscience clauses represents a dramatic new front in the culture wars. The religious right is transforming their successful fight against abortion rights (South Dakota, Alito, Roberts, Louisiana) into a fight against contraception. At a cursory glance this seems inconsistent. As Cristina Page, vice president of the Institute for Reproductive Health Access at NARAL Pro-Choice New York, writes, "The pro-life groups are leading campaigns against one of the only proven ways to prevent abortion: contraception."
Indeed, a May 7 New York Times Magazine cover story, "Contra-Contraception," quoted Judie Brown, president of the prominent antiabortion group American Life League (ALL), saying, "We see a direct connection between contraception and abortion. We oppose all forms of contraception." ALL's website greets viewers with the slogan, "The Pill Kills," and maintains that, "Oral contraceptives, emergency contraception, contraceptive injectables, contraceptive implants, [and] IUDs result in the deaths of an untold number of tiny human beings."
This is alarming. But it's not inconsistent. The right is revealing its real agenda: They don't want people to have sex unless they're married, and even then, only if the goal is to reproduce.
Again, from ALL's website: "It is immoral to promote and distribute products, such as those listed above, as well as condoms, which artificially attempt to render procreation impossible, even to those who are married."
Brown told The Stranger, "The reason you use contraception is to say no to a child, and a child is a gift from God. If a couple is not ready to have a child, but still wants to express their love," Brown says, "they can learn the woman's fertility cycle and not have sex for three or four days out of the month."
She describes this as "natural family planning" and adds, "it does require sacrifice. Artificial contraception," she says derisively, "doesn't require sacrifice. It's saying 'I'm going to have sex whenever I feel like it.'"
Evidence of the right's expansive antisex agenda, and its success, is everywhere: President Bush has increased abstinence-only education spending from $80 million in 2001 to $204 million today (a 155 percent increase); the FDA's advisory committee, under the sway of Bush's committee appointee Dr. W. David Hager, an outspoken Christian conservative, rejected the FDA's own scientific studies on Plan B's safety and thus refused to make Plan B available over the counter; and at the state level, the GOP-controlled state house in Missouri recently voted to ban state-funded family-planning clinics from dispensing birth control. Meanwhile, pharmacist conscience clauses are pending in 14 states from Vermont to New York to Alabama.
In a maddening development for liberals, the conscience-clause movement employs the rhetoric of civil liberties. Parroting the U.S. Supreme Court's landmark 1969 Tinker v. Des Moines School District ruling (Tinker famously held that students could wear antiwar symbols at school because students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gates"), the religious right argues today that employees shouldn't be forced to surrender their First Amendment religious freedoms at the factory gates.
"It's a really un-American idea to condition a profession on a willingness to leave your moral and religious conviction in the car," Byron Babione, legal counsel for the Arizona-based ADF, tells me. ADF sent a letter to the WSBP in March supporting the board's push for a conscience clause. (The ADF is most famous for winning 2000's U.S. Supreme Court decision in Boy Scouts of America v. Dale, which overturned a New Jersey law that had mandated the Boy Scouts to admit gays.)
"Our argument is not that people shouldn't be able to get their prescriptions," Babione says. "It's that pharmacists with a sincere objection based on moral conviction should not be forced to dispense medication that strikes at the core of their beliefs."
Babione believes conscience clauses protect minority views. "Americans talk a good game on accommodation and toleration, so why not accommodate pharmacists on this very narrow area, especially when there's an abundance of pharmacists that will fill the prescription?" he asks. "In this case there's no imminent harm [to the patient] because there are so many alternative pharmacies willing to fill Plan B prescriptions." (Try telling that to a woman who lives in Walla Walla.)
Would Babione's argument change, I ask him, if there came a time when a majority of pharmacists didn't want to fill prescriptions for Plan B. Babione said the question was irrelevant because if Christian conservatives were ever in the majority, Plan B would be illegal anyway.
I guess the ADF's commitment to minority rights isn't set in stone. They want to grant Christians the privilege of being excused from the law when Christians don't believe in the law, but they want to set the rules for others when Christians are in control. And Dockter is playing into the hands of groups like the ADF.
It is true, however, according to Title VII of the 1964 Civil Rights Act, that employers are required to make reasonable accommodations for employees. The ADF's March 10 letter to the pharmacy board states, "Adopting a conscience clause recognizes the federal policy... which requires employers to make reasonable accommodations of sincerely held religious, moral, and ethical beliefs and practices. The pharmacy board cannot adopt a policy that conflicts with Title VII."
The key word, though, is "reasonable." And there is something known as a bona fide occupational qualification, which means, while employers have to make reasonable accommodations to respect an employee's religion, they can force employees to do things that are essential to the job—like, say, requiring a pharmacist to fill prescriptions.
Additionally, the Northwest Women's Law Center (NWLC), which has been lobbying against the conscience-clause proposal (they prefer the term "refusal clause"), distinguishes between religious freedom and lawlessness. "A very important distinction [ADF] fails to make," says NWLC's Nancy Sapiro, "is that while the government can't tell you what to believe, they can regulate your actions."
Indeed, a landmark 1990 Supreme Court ruling found that smoking peyote, even though it was part of a religious ritual, wasn't kosher. The Court stated: "the Free Exercise Clause does not relieve an individual of the obligation to comply with the law."
Babione concedes that protection for "behavior that tracks your religious beliefs is not absolute," but he asks, "Where is the line drawn?" His answer? "Where the behavior presents grave and imminent danger. In the case of a conscience clause," he argues (unconvincingly, I think), "there is not imminent harm. Especially when there are other places to get the prescription filled."
It's disingenuous to argue that giving pharmacists the leeway to refuse to fill prescriptions (any prescription for any reason) doesn't endanger health-care customers. Indeed, the June 1 proposal from the pharmacy board accommodates dissident pharmacists at the expense of everyone else involved in the equation—especially the customer. "Everything about this seems to focus on the needs of pharmacist rather than on the needs of individuals to have access to health care," Sapiro says.
Women's rights are a specific concern for Sapiro. The final proposal passed by the pharmacy board excised important language that had appeared in the earlier must-fill proposal that was voted down. Here's the language that's gone missing: "Pharmacists shall not: violate a patient's privacy; or discriminate against patients or their agent in a manner prohibited by state or federal antidiscrimination laws."
Sapiro thinks the omission reflects the board's clunky recognition that its proposal is antithetical to a number of antidiscrimination laws. State law says that, "Every individual possesses a fundamental right of privacy with respect to personal reproductive decisions... every individual has the fundamental right to choose or refuse birth control." State law also mandates that all public accommodations, like stores and pharmacies, must serve all people regardless of race, religion, or gender. The NWLC argues that refusal clauses amount to discrimination against female customers in public places because of a woman's guaranteed right to birth control.
Saxe, the pharmacy board executive director, explains that the board felt the antidiscrimination language was redundant with law that's already on the books, and so it didn't need to be restated in the conscience or refusal clause.
The board's final proposal also iced this original tidbit: "Pharmacists shall not: destroy or refuse to return unfilled lawful prescriptions." Again, Saxe says the board believed the language was redundant. The board, he says, felt that a warning against confiscating or destroying a prescription was already conveyed in the proposal's insistence that the "pharmacist must provide timely alternatives for the patient to obtain treatment."
"Under these rules, if a customer brought a complaint, and there was an investigation," Saxe reasons, "the pharmacist would have a hard time proving that throwing out a prescription met the standard for providing a timely alternative."
True, but given that the list of "timely alternatives" approved by the board "may include, but are not limited to" options like refusing to fill the prescription, it's not hard to imagine a self-righteous pharmacist seizing or destroying a prescription as well. And getting away with it.
Women's advocates like Planned Parenthood's Luftig and NWLC's Sapiro are now relying on Governor Christine Gregoire—the governor appoints the pharmacy board—to save the day. That premise seems a bit like drinking vodka to cure your hangover: Women's rights advocates have been meeting with Gregoire's staff for months, pressing Gregoire to act on this issue. To their dismay, they were told that Gregoire wanted to take a hands-off approach.
It seemed like a betrayal to liberal groups like NARAL that had gone to the mat for Gregoire in 2004. During her lackluster campaign for governor in 2004, she resorted to painting Republican Dino Rossi as a social conservative who opposed blue-state litmus tests like reproductive rights. Practically on this issue alone, Gregoire managed to eke out a victory; she won—not on who she was, but on who she wasn't. But during the pharmacy debate, women's rights groups started to feel that Gregoire wasn't who she'd said she wasn't.
As it became clear to the advocates that the pharmacy board was moving toward a refusal clause, they finally went public, sending Gregoire a desperate petition on April 21, signed by over 70 groups pleading with the governor "to do everything in [her] power" to protect patients' rights.
While the advocates are reluctant to go on record directly criticizing Gregoire, Sapiro offered a bit of criticism by way of contrast—singing the praises of Illinois Governor Rod Blagojevich who, last year, famously used his bully pulpit to strong-arm his state rules board into guaranteeing a woman's right to prescription contraceptives with "no delays, no hassles, no lecture." (Conscience-clause activists refer to Blagojevich as "Slobodan Blagojevich" for his "war crimes" against the unborn.)
"In Illinois," says Sapiro, "the governor was very clear, 'I want a rule, and this is what it's gonna be like.' I'm assuming he called people into his office and had some come-to-Jesus meetings. He used his bully pulpit to make sure the policy he wanted was put in place. Gregoire has taken a hands-off approach. That was how she wanted to do it."
And look where it's brought us.
The Blagojevich comparison is fair. While Illinois (population 12 million) is twice as big as Washington (population 6 million), the two states have similar political leanings. Illinois has two Democratic senators and a Democratic governor. So does Washington. Illinois voted for Kerry 55 to 44. Washington went for Kerry 53 to 46. Over half of Illinois's congressional delegation is Democratic. Two-thirds of Washington's is Democratic.
In Illinois, Blagojevich did a poll and found that 66 percent were opposed to rules that would allow pharmacists to refuse to fill prescriptions for emergency contraception. (Only 26 percent favored refusal or conscience clauses.) In short, timid Gregoire could have rest assured that, in a blue state, this one's a no-brainer, and she could have had some "come-to-Jesus meetings" with her board months before Washington came to the brink of joining Arkansas, Georgia, Mississippi, and South Dakota as a poster child for the religious right.
When Gregoire finally came out with a high-octane letter on June 1, calling proposed rules "unacceptable," and saying, "Let me be clear: A lawful prescription should be filled unless there are clinical or patient safety issues... from a patient's perspective that is the bottom line" (a far cry from the perfunctory letter she sent to the board last January), Luftig added: "Some people are asking why the second letter wasn't the first letter."
A team of women's rights leaders including Luftig and Sapiro—along with Planned Parenthood Affiliates of Washington Executive Director Elaine Rose, NARAL Pro-Choice Washington Executive Director Karen Cooper, and NWLC lobbyist Pam Crone—had an emergency meeting with Gregoire's staff last Friday afternoon. "The governor's staff left that meeting taking this very seriously," says Luftig. "It was clear to us that the governor did not want this policy to stand, and knew she needed to do something drastic."
Despite Gregoire's new rhetoric (she held a press conference on Monday, June 5, calling the board's proposal "a mistake" that "fails to protect families from pharmacists who refuse to dispense lawful prescriptions"), it remains to be seen how proactive Gregoire will be.
Indeed, last week Gregoire discovered that none of the seven pharmacy board members had ever been confirmed—a technicality that means, while the board members are still legitimate, Gregoire can ask the legislature to withdraw their names in January and replace the entire board. However, asked if the governor would commit to getting rid of the board if they didn't change the rule at their August 31 meeting, Gregoire spokesperson Holly Armstrong would only say: "She's committed to working through the process. She doesn't want to get past August and still be dealing with this. What she's hoping is for the pharmacy board to do what's right."
But what if the board doesn't "do what's right"—its 5-0 vote for a refusal clause is convincing evidence that it won't. Armstrong says that removing the board is "one option on the table." The other, she said, is working with the legislature to undo the rule.
Dockter's only other widely published quote was a reaction to Gregoire's denunciation of the proposal. Dockter said: "The governor is not a pharmacist."
That's true. But the governor is the governor. It's high time she started acting like one.