Wal-Mart And the Death Penalty

By Dahlia Lithwick
Sunday, February 26, 2006

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.

© 2006 The Washington Post Company