Illusory Tenant wonders how the Wisconsin Supreme Court will rule in the case of Noesen v. Wisconsin Department of Regulation and Licensing. This is the one in which a pharmacist at K-Mart not only declined to participate in filling a prescription for oral contraceptives (K-Mart had made clear that he need not do so), he also refused to cooperate in it being filled by another pharmacist. The state Pharmacy Examining Board has reprimanded him and placed conditions on his practice.
There are due process and administrative law issues in the case, but I want to focus on Noesen's claim that the board's action impinged on his rights of conscience and free exercise.
There's irony upon irony here. IT has been a defender of New Federalism. If, in fact, the Wisconsin Supreme Court were to follow the standard adopted by the United States Supreme Court for analyzing this type of claim - a standard adopted in a decision written by none other than Antonin Scalia - Noesen would almost certainly lose (as IT believes that he should).
But in interpreting Wisconsin's right of conscience, the Wisconsin Supreme Court has chosen to go its own way. (The language in the state constitution is different from that in the federal, although that is not why the state supreme court has adopted from the federal test.) The tougher standard that it applies might make Noesen's case more of a horse race, but I suspect that he will still lose. If he had simply declined to fill the prescription and transferred it to someone else (which K-Mart would have permitted him to do), he might have a case. But he went too far.
12 comments:
Agreed he 'went too far.'
Good points. I'll be surprised if the court accepts the case. This is about the worst set of circumstances defenders of "religious conscience" could hang their hats on, but apparently the moral crusaders at the Thomas More Society beg to differ.
How would this situation have changed had it been a 14 year old daughter that was trying to get the prescription filled?
Or, the parent(s) of a 14 year old daughter telling the pharmicist not to fill it?
I know parents that were told by the doctor of their 14 year old daughter that it was none of their business and that they should keep their nose out of it.
I don't know the pharmicist but perhaps they see many things that do upset them and finally they try to make a stand.
Perhaps they see many things that do upset them and finally they try to make a stand.
I'm sure we all see things that upset us.
For me, it's killing people, which is why I never joined the Army. So for this guy it's women taking birth control, except he did join the Pharmacy.
"For me, it's killing people, which is why I never joined the Army. So for this guy it's women taking birth control, except he did join the Pharmacy."
I fully understand the arguments, but I do not think that the law should mandate indifference, at least not in everything. The example of the 14 year old daughter I think is one that we would like to see a pharmicist standup for the parents in.
The decision in this particular issue could be used in things unknown at this time. Sometimes it's good to have people refuse or to say wait a minute, which causes people to think.
I don't know about you, but it would never occur to me to say "wait a minute" to a grown woman in the act of expressing and receiving love but for whatever reason choosing not to be made with child at the time.
I have this crazy idea that's her business.
it -
if euthensia was legal and you worked in a hospital, would you follow an order to kill someone if it was against your beliefs?
I just think the implications must be considered.
Illusory Tennat,
I think most of what pharmacists do they can rightly claim is helping the sick get well.
I get nervous about the state inserting itself into employee/employer relations here. KMart was reasonable in giving the guy an out and he refused even that.
Minneapolis face the same quandary not too long ago. The Somali cabbies who refused service to those carrying "haram" items (service dogs, booze, etc). These people are following their religious convictions and I would say if their bosses would be justified in firing them.
If a person is so set against dispensing such medications then they must either ditch their convictions on the matter or ditch the line of work.
"If he had simply declined to fill the prescription and transferred it to someone else (which K-Mart would have permitted him to do), he might have a case."
From what I read, the other Pharmicist was on vacation. His agreement with K-Mart was that he didn't have to fill them and there was no-one else available. He was not responsible to make sure that someone else would be available to fill it.
It appears that the contract he had with his employer has been completely ignored.
Neil Noesen was appropriately disciplined for what he did. There is another pharmacy in Menomonie and he refused to give her the prescription so that she could walk down the street. She got a Menomonie police officer to go with her to ask for the prescription and again he refused.
Sorry, Nutty Neil, when you got the education and the license from the state you agreed to deliver legal pharmaceuticals to patients with prescriptions. Tough toenails!
Euthanasia ... I just think the implications must be considered.
Alright then, let's consider the implications. I said, "this is about the worst set of circumstances" through which to bring a "conscientious objector" case.
That these are the worst implies that there must be better. Would those involve euthanasia? Maybe, if I knew what in the name of Margaret Sanger birth control pills had to do with euthanasia. Did you just come from watching Expelled, or what?
By the way, Prof. Esenberg agrees with me on that account, that Loeson's particular case is a dog.
What he is saying is that there are two potentially applicable constitutional tests for the merits of this lawsuit: a federal test and a State test. The federal test was devised by Justice Scalia in Employment Div. v. Smith.
Rick agrees Loeson is a loser according to Employment Div. But he thinks Loeson would have a better shot according to a State test, for one thing because the related State constitutional provision is different than the First Amendment's Free Exercise of Religion Clause.
What Rick is saying is that depending on whether the Wisconsin Supreme Court looked to the State or the federal Constitution, that may raise the more academic question of "New Federalism."
Then Rick is noting what he perceives to be irony in the fact I once "defended" -- as he puts it -- New Federalism in another context, involving a different set of facts and a different series of State and federal cases: a different situation altogether.
His implication is that in this case I would gladly abandon my "defense" of New Federalism and rush the skirts of Antonin Scalia, because that is where I would more likely find the slam dunk that Noeson so richly deserves.
It's actually a clever point, and I said so.
His implication is that in this case I would gladly abandon my "defense" of New Federalism and rush the skirts of Antonin Scalia ...
I'm not so sure. We ought to celebrate the fact our freedom-of-conscience provision gives us greater rights than under the 1st A, regardless of the result. That Noesen got what he deserved is an added bonus, but ultimately neither here nor there. I guess I don't see any, let alone layered, irony in iT's defense of New Federalism and his embrace of the Noesen decision. (I suppose, though, it's ironic that iT sees the irony.)
The idea isn't to come to a predetermined conclusion, it's to apply settled principles to varying fact patterns. We either value heightened rights (in this instance, a heightened standard for justifying a particular burden on a matter of genuine conscience) or we don't. If we do, then we also have to accept outcomes we may not like. Granted, it's late (literally, for me) and I could easily be missing something, but I think iT -- a very rigorous thinker -- may be conceding too much.
If someone is looking for irony, let's wait and see whether, if review is granted, the self-described judicial "conservatives" fall in love with the doctrine whose very name they generally regard as an epithet.
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