[Mb-civic] Wal-Mart And the Death Penalty - Dahlia Lithwick - Washington Post Op-Ed

[William Swiggard]

Wal-Mart And the Death Penalty

By Dahlia Lithwick
Sunday, February 26, 2006; B03

No one disputes that there are circumstances in which people have a 
fundamental right to assert a moral or religious objection to performing 
duties -- such as military service -- and thus cannot be pressed by law 
into performing them. The problem lies in sorting out who can opt out 
and when.

Consider, through that lens, the parallels between California physicians 
who refused last week to participate in the execution of a convicted 
killer and the growing numbers of pharmacists around the country who 
refuse to dispense morning-after pills.

Until last week, only prison employees served as executioners in 
California. But U.S. District Judge Jeremy Fogel ruled, in response to a 
challenge to California's lethal injection procedure, that physicians or 
other licensed medical personnel must participate in the execution of 
convicted rapist and murderer Angelo Michael Morales. The judge was 
troubled by testimony suggesting that prior lethal injections had 
resulted in excruciating deaths. He ordered that Morales's execution 
proceed with a doctor on hand to administer the sedative, and to 
intervene in the event Morales woke up or appeared to be in pain. Two 
doctors who had volunteered to participate withdrew at the last minute, 
upon learning they would need to do more than passively observe. When no 
replacements could be found, Morales's execution was postponed pending 
further hearings in May.

Meanwhile, the nation's pharmacists are starting to find themselves in 
court, arguing for the right to refuse to dispense emergency 
contraception. Several pharmacists have filed suit, under state 
conscience clauses, after they were fired for exercising such a right. 
Yet at the same time, pharmacies have been the target of suits, 
including several filed this month in Massachusetts against Wal-Mart 
pharmacies refusing to dispense birth control or morning-after pills.

The similarities between the doctors and the pharmacists are striking: 
Both are refusing to participate in the performance of services 
acknowledged to be lawful -- capital punishment and 
abortion/contraception. Both cite as grounds for refusal their 
professional interest in promoting, as opposed to ending, human life.

State legislatures are racing to enact legislation that would either 
condone or prohibit these professional objections. The California 
Medical Association is pushing for a bill that would bar any physician 
involvement in executions. Last week, Georgia went the other way, 
approving a bill to protect any doctor who administers a capital 
sentence from being sanctioned by its state medical board. Four states 
allow pharmacists to refuse to dispense emergency contraception, and 13 
others are considering such laws. Illinois and California have laws 
requiring pharmacists to dispense morning-after pills.

Are our varying, even conflicting, legislative responses to these 
professional choices ultimately about a distinction between abortion and 
the death penalty, or is there some principled difference between what 
doctors and pharmacists do?

It's facile to suggest that pharmacists merely count out pills while 
doctors are serious professionals. Each is a critical link in a 
health-providing chain. That's why, in a growing number of states, 
pharmacists are permitted to dispense morning-after pills without a 
prescription -- at the strong urging of advocates for choice. Many 
pharmacists argue, not without merit, that they entered their profession 
to heal people. Medical technology has simply outpaced them, they say, 
making it necessary to dispense drugs with moral consequences they never 
anticipated.

Still, critical differences between physicians and pharmacists may 
justify treating them differently. One distinction is the Hippocratic 
Oath: Physicians affirmatively swear an oath to do no harm. They say 
they are bound -- in a way pharmacists are not -- to heal and not to 
kill. That is one of the reasons physicians cannot be required to 
perform abortions, in the way that pharmacists may be pressed to 
dispense early contraception in some states. It's why the American 
Medical Association's guidelines forbid physicians from inspecting, 
supervising or monitoring the process or instruments of death. But an 
oath alone cannot explain the different legal treatment of doctors and 
pharmacists. If it did, pharmacists would just need an oath to be off 
the hook.

Perhaps a more significant difference lies in the amount of harm a 
physician is able to do. One reason doctors have generally been kept 
away from lethal injections is the historical anxiety about the past 
participation of physicians in state executions, from the guillotine to 
Nazi experiments. When medical expertise was pressed into aiding 
government murder, physicians became accomplices of the worst sort. 
Pharmacists, on the other hand, have no such history. The distinction 
between physicians and pharmacists, then, may simply come down to 
differences in their respective histories.

Physicians and pharmacists who refuse to participate in what they deem 
to be killing have more in common than many of us might like to admit. 
But the most important distinction between them has to do with their 
differing relationship with patients. The law recognizes that doctors' 
special relationship with their patients warrants a legal privilege: 
Their discussions are kept secret. You may like and trust your 
pharmacist. You may even trust him with intimate details about your 
yeast infection. But your pharmacist has neither the tools nor the right 
to probe details about rape and abuse, incest and health risks. Which is 
why pharmacists who interpose between decisions made by a doctor and her 
patient are overstepping not just moral but legal boundaries -- and 
undermining another professional relationship that is fundamentally 
different from their own.

The right of conscience is a subjective one. And no one disputes that a 
pharmacist's moral objection to dispensing certain drugs is as heartfelt 
or urgent as a physician's refusal to inject lethal doses of sodium 
thiopental. But as a legal or legislative matter, the inquiry should 
begin, not end, with that moral objection. Legal regimes that balance an 
individual's right to opt out against safeguards for patients (like 
making it the pharmacy's responsibility to provide timely alternatives) 
are good compromises. Similarly, if physicians cannot supervise 
executions consonant with their professional obligations, we may need to 
devise some new form of capital punishment that does not require a 
doctor's intervention to ensure against violent, painful death.

There should and will always be space in this country for conscientious 
objectors. But it cannot and should not follow that murder is murder is 
murder.

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/24/AR2006022402312.html?nav=hcmodule
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