Slouching toward theocracy

One of the challenges our republic has faced since its inception--and the reason we have a constitution--is how to respect the will of the majority while protecting the rights of the minority. And in a nation whose people often have conflicting values, how do we allow people to live by those values, to follow their conscience, without tramping on the values and rights of others?

This tension is manifested vividly on the issue of abortion, in which the autonomy of a woman over her own body would seem to be in conflict with the belief that the sanctity of life extends to humans conceived but not yet born. This is not a matter of personal conscience; people who believe abortion is tantamount to murder believe it is incumbent upon them to stop abortions from happening.

The Supreme Court, in its flawed decision to enshrine abortion as a constitutional right, decided that the state had a right to intervene after the second trimester. The court set a timeframe as the standard, rather than the nebulous concept of viability, recognizing that one day medical science may extend the viability of a fetus or embryo so far as to effectively nullify the right of a woman to seek an abortion.

That has not happened. But what has happened is that pharmacology has allowed us to prevent pregancy by preventing ovulation and fertilization, and now also by preventing a fertilized egg from implanting in the uterus. That would seem to be a way to prevent unwanted pregnancies without ending a life; even the so-called morning after pill does nothing more than what the female body often does on its own, spontaneously and without any outward signs.

Unfortunately, not everyone sees it that way. The Catholic Church, most famously, believes that birth control is immoral, and if abortion is tantamount to abortion, some anti-abortion zealots believe that the morning after pill is tantamount to abortion. Some pharmacists are refusing to fill prescriptions for woman seeking birth control and the morning after pill.

As Dahlia Lithwick explains in this cogent essay, this is unacceptable:

Emergency contraception inhibits ovulation, fertilization, or implantation. The accepted medical definition of abortion is that it can occur only after implantation. Whatever visceral appeal the "Life Begins When Sperm and Egg Walk Into a Bar" position may hold, it remains factually inaccurate; only a fringe of the medical community accepts the notion that emergency contraception is an abortifacient.

Second, whatever you may think of the morality of taking a morning-after pill, the incontrovertible fact is that it loses efficacy after 24 hours and becomes virtually useless after 72. So, one pharmacist's refusal to dispense them can rapidly morph into an unwanted pregnancy. That means—particularly in isolated or rural communities—the religious objections of the pharmacist can trump the mother's legal rights. This may well lead—as noted recently by the St. Petersburg Times—to an increased number of later-term abortions. Which would be ironic, were it not so sad.

In other words, reasonable people can disagree as to whether a fetus is human life; but it is much less reasonable to believe that a sperm or egg, or even a fertilized yet unimplanted egg, is human life. Now, plenty of religiously held beliefs are unreasonable; religion itself defies reason. But to the extent that the pharmacists are raising an objection that is almost wholly religious, they should not be allowed to impinge on a woman's right to receive legally available medical care.

Again, Lithwick:

Steve Chapman compares a pharmacist's refusal to dispense a drug to a bookstore owner's legitimate refusal to sell a book. Of course, the worst thing that can happen if I can't get a book within 24 hours is that I only pretend to have read it at the cocktail party. Whereas an unwanted pregnancy represents a fairly profound violation of self.

The law cannot always be called on to immunize us from our decisions to take the law into our own hands. That's why Ellen Goodman pointed out last week that the very definition of "conscientious objector" includes the proposition that you may well suffer consequences for your protest. "In a conflict between your job and your ethics, you can quit," she writes. If you don't believe an FDA-approved drug should be legal, work at the Dairy Queen. But if a pharmacist doesn't have to dispense birth control, or an EMT can refuse to drive someone to an abortion clinic, or a nurse can refuse a rape victim emergency contraception, none of us can really trust in the professionals around us at those moments when we need them the most.

Exactly.