25 February 2012

There Is No Conflict

U.S. District Judge Ronald Leighton heard closing arguments earlier this month in a lawsuit that claimed state rules violate the constitutional rights of pharmacists by requiring them to dispense such medicine. The state requires pharmacies to dispense any medication for which there is a community need and to stock a representative assortment of drugs needed by their patients.
This is bullshit. The state had a very compelling reason for the requirement: As we all know, EC gets less effective over time and in rural areas there may not be another pharmacy for miles. And pharmacists who don’t believe in birth control or erroneously think that EC is an abortifacient were free to pass the prescription off to coworker who would fill it. As the Seattle Times wrote in an editorial calling on the state to appeal the ruling, this decision “sends a message that pharmacists’ personal views can take priority over patients’ rights.”

A couple of qualifications are in order.  First, there is no need for EC if one does not have sex, which means that any need that arises is voluntarily inflicted.  Second, it would more accurate to say that some pharmacists and/or pharmacy owners may not believe EC to moral, and therefore believe that they should not personally sell EC, or have it stocked and available for sale in their store.  Third, there is no inherent conflict between patients’ rights and other people’s personal views.

Quite simply, no one ever has the right to force someone else to do something that would (tautologically) be against their will.  If it’s wrong to force someone to, say, pay for Bibles to be delivered to atheists, then it is wrong to force someone to, say, pay for birth control pills.  If it is wrong to, say, be forced to stock and sell Bibles against their will, then it is also wrong to, say, be forced to stock and sell birth control pills.  Since there is basically no one who takes a positive-rights approach to both of extremes (seeing as how everyone picks one extreme or the other), the positive-rights approach falls apart on its own inconsistency of application.*

That leaves the negativist view of rights, which means that one owns oneself (and all attendant property, wherein ownership is generally well-defined by longstanding legal tradition), and therefore no one has the right to interfere with your self-ownership.  The basics of this approach is summarized in the non-aggression principle.  At any rate, one can act on one’s personal views in whatever way one sees fit, provided that one’s actions do not violate the non-aggression principle and, consequently, others’ rights.

As such, if one does not wish to sell, say, either Bibles or birth control, one cannot be forced to do so.  By the same token, one has no right to prevent other from purchasing or rightfully acquiring either Bibles or birth control.  Therefore, an unwillingness to trade certain items with others violates no one’s rights because no one can be compelled to engage in trade.  If a given person does not wish to engage in trade with someone else, they are certainly within their rights to refuse.  It would be just as wrong to force someone to buy something as it would be to force someone to sell something.  Therefore, the hand-wringing over the violation of patients’’ rights is simply unmerited.

* In the first place, it can be argued that everyone has the right to whatever they desire.  The finite limits of the temporal realm make it immediately obvious that this ideal is unattainable.  In the second place, positive rights have no permanency.  This means that, unless a right has existed from the beginning of time, no rights actually exist with any degree of certainty.  If rights can evolve into being, they can also evolve out of being.  And if rights are granted on the basis of majority rule, as would generally be the case in a democracy, there can be no logical calls for ex ante oughtness.  There are other issues with the positivist view of rights, but such are beyond the scope of this post.


  1. One could argue that the state has a greater right to impose upon pharmacies than upon, say, grocery stores, because pharmacies largely exist at the pleasure of the state, namely through prescription law. If there were truly a free market for drugs, then this would be a non-issue, because the instant the pharmacy decided to stop stocking whatever drug, the gas station next door would happily pick up the slack.

  2. @GFM- as a consequentialist, I will certainly agree that regulation is the natural and correct response to grants of special market privileges (e.g.. I have no problem with corporations being regulated since corporations are government-created market distortions that give unnatural power to certain groups).

    I do not, however, think that mandating the selling of certain drugs follows from the general grant of government protection, at least in this case, because it is not the patent owner who is refusing to sell but the distributor.

  3. It is wrong for the government to tell any business what products they must stock or sell. Will the government guarantee that the supplier will deliver sufficient quantities on time so that the store never runs out?

    If the law requires stockage, then the store owner would be foolish to sell their last bottle and risk running afoul of the law. If the law requires them to sell the product, can they also require the customers to buy the product? Every new product requires shelf space and a shelf life. Only business owners are in teh right position to decide what goes on the shelf and for how long.

    Whether they use religious beliefs, goat entrails, or what they learned in MBA school to make that choice is completely up to them. Where is their freedom of choice? Because their choice is religiously based, it is invalid? What if it were economically based? Can the store owner decide to charge astronomical rates for his products?

    If the state sets the terms for every sale, how is this a free market?

  4. @Prof. Hale- If the state sets the terms of every sale, then it is definitely not the free market. The problem that we run into is that there are always some who don't like the underlying reality of the market, and so the wish to tweak it in some way. But once you accept the premise that the government can interfere in the market in some way, you naturally have to accept the premise that the government can interfere in the market in any way, which is where this mess gets started.