Cakes, Conscience, and Contraceptives

A couple of days ago I blogged about a bakery at a ShopRite in Pennsylvania that refused — rightly, in my opinion — to make a birthday cake for a 3-year-old whose parents had given him the charming name, “Adolph Hitler.” I think it’s good, or at very least morally permissible, for a store to refuse to make a celebratory cake bearing the name of a man who symbolizes hatred and evil. It is a right of conscience, I submit, for a store (or even an individual baker) to refuse that request.

Now, I suspect exercise of rights of conscience are pretty rare at bakeries. But not so rare at pharmacies. In fact, at pharmacies, rights of conscience (or, if you prefer “so-called rights of conscience”) are a huge issue. Many pharmacists have objected, on moral & religious grounds, to filling prescriptions for abortifacients, or even for contraceptives. And there are often laws & regulations sanctifying that refusal.

See this story from The LA Times: Feds issue new ‘right of conscience’ rule

Federal law has protected doctors and nurses who don’t want to provide abortions for more than 30 years, affirming medical providers’ right to act according to the dictates of their conscience.

But still, anti-abortion advocates have been eager to see more far-reaching protections enacted.

They got their wish today when the outgoing Bush administration announced a new regulation that extends the “right of conscience” to a broader range of health care workers and activities.
The rule is so broadly written that it could end up affecting any health care worker who declines to provide contraception to patients, give information about birth control or make referrals to organizations willing to perform abortions or supply emergency contraception

The new rule is about workers (including but not limited to professionals) at health care facilities (in particular, ones that receive federal funding) not to businesses. But it’s sure to be cited as precedent in other contexts.

Now, I think there’s a good prima facie case to be made in favour of protecting people from having to participate in activities they find morally abhorrent. But it’s a defeasible case, and I think in the case of pharmacists it is easily defeated.

So, why do I think bakers get to stick to their principles when, e.g., pharmacists, don’t? (I’m picking on pharmacists, here, mostly because, like bakers, they are found in retail settings. ShopRite stores, for example, have pharmacy counters.)

Other than the retail setting, the differences are easier to name than the similarities. So, here are a few morally-significant differences:

  • Pharmacists have a legislated monopoly to do something for us that we can’t do for ourselves. Lots of people can bake & decorate cakes, totally legally. There’s practically zero chance that one baker (or one retail outlet) exercising a right of conscience is going to result in a consumer not getting what they want, somewhere.
  • No one believes cakes are essential. Contraceptives (including “Plan B,” the emergency contraceptive) are a legitimate health product, acknowledged as being appropriate under certain circumstances by, e.g., the American College of Obstetricians and Gynecologists.
  • Pharmacists — professionals in general — are members of large professional institutions (including both licensing bodies and professional societies/associations) that can, and should, play a mediating role. Technically, it is the profession as a whole that is given a monopoly over a field of practice, and the profession must promise, in return, to provide that service. So when members of the profession want to claim a right of conscience that conflicts with the needs of consumers, the profession as a whole — embodied in professional associations and boards of licensure — must assume some responsibility for solving the problem. It should be their problem, not the patient’s.

Previous blog posting on this topic:
Wal-Mart & the Morning After Pill (February 15, 2006)

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