With the news that CVS stopped stocking cigarettes, it was argued by some (though not many) that they shouldn’t be able to make consumers’ choices for them. James Taranto tried to tie it in to the PPACA’s mandate:

Here’s a thought experiment. Suppose Congress enacted the following statute: “Any drugstore that is part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership of the locations) shall offer cigarettes and other tobacco products available for sale to its customers.” Call it the Marlboro Mandate.

You may object that this would be a foolish law. We agree, but it would not be entirely without precedent for Congress to pass a foolish law. {…}

By contemporary liberal lights, however, the Marlboro Mandate would be a legitimate exercise of congressional power. The Supreme Court has long held to a highly expansive interpretation of the power to regulate interstate commerce. Thanks to the ObamaCare decision, Congress doesn’t have the power to mandate that individuals purchase a product, though even that would have been an open question if the liberal dissenters had prevailed on that point. But a command to retailers, especially to a nationwide retail chain like CVS, clearly qualifies. In fact, we borrowed the “20 or more locations” language from Section 4205 of ObamaCare, which mandates nutrition labeling on chain-restaurant menus.

He then goes on to try to tie it to health insurance contraception requirements.

The argument fails, though not for most obvious reason that cigarettes are bad and contraception is good. There is that reason, to be sure, though that’s going to fall mostly as a matter of perception, and therein lies the rub. No, I think the most straightforward differences are that neither the contraception requirement nor nutrition labeling actually fall into the level of coercion as forced sales (and stockage) no matter what we’re forcing sale and stockage of.

In the case of the contraception requirement, PPACA doesn’t actually require contraceptive coverage. Rather, they are setting a minimum bar for what constitutes sufficient insurance to justify (a) the tax-exemption and (b) avoiding the penalty for not insuring your employees. This is a distinction with a difference because employers are still free to allow their employees to purchase their own health insurance plans on the exchanges. Which isn’t really a punishment because some employers are voluntarily doing it.

Likewise, information disclosure is not exactly novel with the PPACA.

Where I initially thought Taranto was going with his argument, though, was more interesting where he actually did. Forced stockage actually is a contemporary issue. Even more closely tying in to the Marlboro Mandate, it even involves phamacies like CVS. I speak, of course, of the proposed (and in some places enforced) requirement that pharmacists dispense birth control regardless of any conscientious objections the pharmacists might have.

There are differences here, too. The main objection to the comparison really does fall under the “cigarettes bad contraception good” though I have the same objection as I mentioned above. I believe pretty strongly that contraception serves a valuable purpose that tobacco doesn’t, but others are going to disagree with that and it’s not particularly something that can be proven as it is a matter of morals and philosophy in addition to science. And I can think of other things with health benefits or medicinal uses that we also wouldn’t require stores to carry. Including, for that matter, some contraception like condoms.

The next argument for there being a difference is that pharmacies are pretty explicitly places we go to have prescriptions filled and not to be subject to the moral whims of the pharmacist. There is something to be said for this argument, but going to a pharmacy to have your prescription filled is not the same thing as it being guaranteed that such an item will be in stock.

One of the challenges of laws trying to force pharmacies to stock contraception is that pharmacies make the decision not to stock things on numerous bases. A law in Washington State was shot down by the courts. Why? The law had to make accommodations for the fact that there were pharmacies that didn’t want to stock certain drugs for “acceptable” reasons and the court reasoned (among other things) that disregarding religion as a rationale to decline to carry drugs but allowing non-religious reasoning was de-facto religious discrimination.

My objection to these laws are two-fold. First, the same logic that can be applied to pharmacists with regard to contraception can be applied to obstetricians and abortions. When I bring this up, the response I usually get is that there is a difference between having to perform an action that is immoral and giving someone something that you believe to be immoral. It’s true that there is a distinction there, but there are also distinctions in the other direction. A pharmacy that declines to dispense contraception will not likely be an effective barrier to a woman and contraception, but the lack of abortion providers does appear to have an effect on the abortion rate. I suspect that the real difference is that people are simply more understanding of opposition to abortion than of opposition to contraception.

The second objection is the extent to which this is a solution in search of a problem that justifies it. Here is where people like to lecture me on what I don’t understand about rural America, but the number of places where there is “only one pharmacy” is not one I have actually run across and I have looked extensively. What I’ve mostly seen is that there are places with multiple pharmacies and there are places with none. You could run into a place where there are two but neither offer contraception, but that strikes me as unlikely. If these places were remotely common, I suspect that I would actually hear about places instead of theoreticals.

And beyond that, one of the costs of living in rural America is that things such as pharmacies are more of a hassle. As I said, there are places with no pharmacies. These seem to take secondary importance, however, and I’m not sure why. Though I have my suspicions. If we were really interested in trying to universalize access to contraception, we should be looking more into telepharmacies and pharmacy-by-mail so that we can not only give contraception options to that theoretical place with only one or two pharmacies that don’t offer contraception, but those who simply don’t live near pharmacies.

So what are my suspicions as to why this hasn’t been a greater priority? Honestly, because I think forced stockage has as much to do with animosity towards judgmental pharmarcists than it is the logistical problems that this is actually causing.

Category: Hospital, Market

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