Opinion
Contraceptives case no-brainer for Supreme Court
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Also by Ammar Al Marzouqi:
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If you believe abortion is immoral, would you work at an abortion clinic? If you believe smoking should be banned, would you work at Marlboro? If you miss the good old days of the Prohibition, would you work for Budweiser? If you answered “no” to any of these questions, brace yourself.
Neil Noesen is a Menomonie pharmacist who used to work for Kmart. When he applied for the job, he did not disclose the fact that he objected to the sale or use of contraceptives. In 2002, he was the only pharmacist on site during a night shift. A University of Wisconsin-Stout student came in to get her prescription of contraceptives filled, and Mr. Noesen refused to fill it.
Not only did he refuse to fill out the prescription himself, but he also refused to disclose the information necessary for the student to fill her prescription elsewhere. He insisted on his stance even after the police came with the student, claiming that filling the prescription would violate his “right of conscience.”
In 2005, The Pharmacy Examining Board reprimanded Mr. Noesen for unprofessional conduct and ordered him to, among other things, inform all his future employers of his objection to contraceptives and how he would deal with a similar situation, should it arise. He appealed the decision, it was upheld, and now he is appealing to the Wisconsin Supreme Court.
As the law stands, contraceptives are legal, and at pharmacies that sell contraceptives, a pharmacist is expected to fill prescriptions for them. So, what is a pharmacist to do if he or she has a moral objection to contraceptives? How about this novel solution: Don’t work at a pharmacy that sells contraceptives. Or, at the very least, a pharmacist should inform his employers of his objections so the situation can be appropriately accommodated.
Another option could be that Mr. Noesen could work to influence the legislative process by lobbying to have laws passed that favor his position on contraceptives. But what he did was completely unprofessional, as found by the Pharmacy Examining Board.
Yet Mr. Noesen and those who support him show no intention of backing down even though it’s been six years since the incident. This seems to be caused partly by the effect the rulings have had on Mr. Noesen’s career. He claims that due to the ruling, he has lost his malpractice insurance and that employers are reluctant to hire him. Was he expecting something else?
But this isn’t the only reason this fiasco has gone on for so long. It has also become a highly politicized issue, with anti-abortion organizations like the American Life League and Pharmacists for Life on Mr. Noesen’s side and Planned Parenthood on the other. It has been blown way out of proportion and into another battleground between anti-abortion and abortion rights groups. The involvement of these groups has only served to further inflame the situation and prolong this mess.
Even though this is a clear-cut case by all measures, anti-abortion groups just don’t seem to know when to pick their battles. Just because Mr. Noesen is anti-abortion does not mean that he is right, and anti-abortion groups should realize that. They should also realize that aligning themselves with Mr. Noesen weakens the credibility of all they stand for.
For example, Paul Linton of the Thomas More Society — the group that filed the appeal on behalf of Mr. Noesen — said: “Mr. Noesen is being punished for refusing to compromise his beliefs.” This is completely untrue, and the fact that Mr. Linton would say that just weakens the legitimacy of his organization.
What abortion rights groups did, which was to portray this ruling as a victory for their side, is not the correct decision either. Both these sides need to understand that this is not about anti-abortion or abortion rights, it’s about a person’s failure to perform his job to the standards of his employer.
The trend of anti-abortion and abortion rights groups jumping on every case and example that has the slightest relevance to their positions, and blindly advocating or opposing it, must stop. Not only for the sake of the strength of their positions, but also for the sake of taxpayers who have been footing the bill for these fiascos all the while.
Ammar Al Marzouqi (aalmarzouqi@wisc.edu) is a freshman majoring in computer engineering.
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This is NOT a clear-cut case like you say. While he should have disclosed his beliefs to his coworkers, there are laws that protect him and his beliefs. I don’t know the name of it, but WI does have a law that you do not have to sell something that you do not believe is right. And you make it sound easy that he could just work elsewhere, comparing it to working at an abortion clinic if you don’t believe in abortion. Well a doctor or nurse does have plenty of other options, but good luck finding a pharmacy that doesn’t sell contraceptives.
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The “conscience clause” has been in Wisconsin law since 1973. This portion: (4) protects “any person” from discrimination in employment, student status or staff status on the “ground that the person refuses to recommend, aid or perform procedures for sterilization or [abortion], if the refusal is based on religious or moral precepts” protects people who based on religion believe that contraceptive use as a form of abortion.
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It is good that Mr. Al Marzouqi’s opinion be published, but I feel it also good and necessary to revisit some key parts of Mr. Baumgardner’s publication in a 2004 Badger Herald story on the same topic:
OPINION & EDITORIAL ‘Rights’ v. rights
by Mark Baumgardner Wednesday, January 28, 2004
Noesen later received a stipulation from the Wisconsin Department of Regulation and Licensing with a total of eight charges that Noesen claims to be erroneous interpretations of the applicable provisions of law.
As part of the short-term contract of service between Noesen and the pharmacy, a reasonable accommodation was made in a good-faith effort that did not impose an undue burden for the pharmacy or for the couples using contraception. Despite this, the Department of Regulation and Licensing has decided to persist with its case against Noesen, setting a tentative hearing date of Feb. 26, 2004. From this case, it becomes clear that the freedom of “choice” does not include everyone.
In response to this case, Noesen compared his professional ideas to those of South American labor activist Gustavo Gutierrez. Noesen said, “Upon civil authorities’ failure to recognize our human dignity, the resulting victimized pharmacist is often deferred to enter into alternative practice environments for conscientious objectors. What will happen when these jobs are saturated? Then where will we go?” Noesen also expressed his desire to remain in the mainstream retail pharmacy economy through fair and reasonable accommodations.
Noesen continued in light of Gutierrez’s philosophy, “This oppression of our practice is allowed not only by unfair prejudice and unjust discrimination by our employers and our regulatory bodies but also by the assimilation of an oppressive societal consciousness. Our economic, legal, and social structures currently allow the laws of the marketplace to supersede our own American civil liberties as well as the moral code.”
“Someday [pharmacists] will be free to participate in the economy of this country. With perseverance, regulatory agencies will learn to recognize the dignity of the human person. Healthcare workers will continue to persevere together in solidarity motivated by love and a sincere beneficent duty to care for others,” Noesen said. He also remarked that healthcare practitioners are called to follow the timeless philosophy of practice reserving the allocation of scarce resources for the sick and the suffering.
Noesen concluded, “The oppressive societal consciousness will be eradicated through an attempt to personally liberate those persons who oppress us and hurt us. May they learn to practice tolerance and uphold those values that ennoble man from the moment of conception to natural death…”
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Hey Neil, way to selectively quote from a four-year-old BH editorial by a flaming right-winger as “evidence” that you’re being repressed. Are you such an attention whore that you have a Google alert set to your name, ready to comment whenever anyone mentions what a moron you are?
One of these days you’ll get it through your skull that you were disciplined not for refusing to dispense the prescription, but for being an arrogant bleating douche about it and not letting the girl find a pharmacist who would. And that no one will hire you because you’re a lawsuit waiting to happen.
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“but good luck finding a pharmacy that doesn’t sell contraceptives”
Makes me think that he should never have become a pharmacist. It’s not like contraceptives are some kind of new-fangled thing that he wouldn’t have know about beforehand.
Sounds like selling bibles door-to-door is what he should be doing.
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The title of your piece as being a “no brainer” indicates a disregard—or ignorance—of law. There is no such thing as a “no brainer” if it reaches the Supreme Court where the fine points or rights of a legal case are decided.
Just because you see this as the pharmacist being in the wrong does not mean it is true, else the pharmacist would have kept his mouth shut and filled her prescription.
I suggest you take an ethics course at UW and hope you never have to make a moral decision where your family and friends question your intelligence or sanity. Most likely, that is what this pharmacist has gone through.
The inconvenienced woman in this case could have gone to another drug store. She could have purchased condoms as an alternative. Her complaint caused this guy his job. I hope she (and you) feels good about this “no brainer.”
germantown_kid (an MSOE electrical engineer)
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“The inconvenienced woman in this case could have gone to another drug store.”
No, she couldn’t have; Noesen wouldn’t return the prescription to her. But don’t let your ignorance of the case keep you from drawing conclusions!
“She could have purchased condoms as an alternative.”
Do you even know how birth control pills work?
“Her complaint caused this guy his job.”
Good. I don’t want incompetent pharmacists putting themselves between me and my doctor.
Seriously, “germantown_kid,” do you have nothing to do with your life other than troll blogs and news sites in Madison?
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Actually, there are a good deal of no brainers that even reach the US Supreme Court. There have been a number of cases, especially in the commercial context, particularly where our two most populous circuits (2nd, New York, NJ, etc.) and 9th (CA, AZ, etc.) have very different tests for determining issues, and the Court comes down with a 9-0 decision. The 2d Cir. is almost always right.