19 December 2004
Colleen M. Baird, Administrative Law Judge
Wisconsin Pharmacy Examining Board
1400 East Washington Avenue
P.O. Box 8935
Madison, WI 53708-8935
Concerning: Disciplinary proceedings against Mr. Neil Noesen,
LS-0310091-PHM
Dear Judge Baird and members of the Wisconsin Pharmacy Examining
Board,
Having not received a response to my request, sent by telefacsimile
a few days ago, for an extension to the deadline for filing amicus
curiae briefs, I herewith submit -- with apologies for any inadequacies
-- the attached brief, which represents the best effort I can
make under the circumstances. If the deadline is extended, I
may submit an expanded (and, I hope better) version.
It is my attention to personally deliver a copy of this document;
a telefacsimile will also have been sent previously to be used
in case something prevents delivery of printed copy.
Thank you for your attention.
Respectfully Submitted
Richard Bonomo
In the Matter of Disciplinary Proceedings )
Against )
)
NEIL T. NOESEN, RPH. ) Case No. LS-0310091-PHM
)
Respondent )
-------------------------------------------------------------
)
Introduction:
regarding myself:
I am a private citizen of the United States and of the State of
Wisconsin, and have resided in the state for approximately 26
years. Though I hope to intervene in a manor favorable to the
respondent, I represent no organization, and no person other than
myself. All opinions I may express in the document are my own.
regarding my relationship with and regard for the respondent:
I have known the respondent, Mr. Neil Noesen, as a friend for
a number of years. Also, he dwelled in my home for a number of
months during part of his latter academic program.
Mr. Noesen is, in my experience, a thoroughly upright, honest,
and responsible man, who has a strong moral sense and convictions,
and who takes his professional responsibilities very seriously.
It is my sense that Mr. Noesen entered the Pharmacy profession
in the hopes of doing some good for the world. As was noted in
the PPA/NARAL brief, this case has attracted a great deal of media
attention. It is with both distress and some awe that I view
my friend at least momentarily at the epicenter of a conflict
far more momentous in its consequences for our society than may
at first be obvious.
regarding this brief:
My becoming aware of the potential utility of amicus filing in
this case was quite recent. The time interval between developing
this awareness and the deadline for filing was quite short, and
was made shorter still by the time delays involved in establishing
contact with the judge's office and obtaining copies of the pertinent
filings. I requested an extension of the amicus filing deadline
via telefacsimile memorandum a few days ago. Having received
as yet no response, I elected to submit what I could assemble
in the little time available. If the deadline is later extended,
I may submit an expanded (and, I hope, improved) version of this
document, if permitted to do so.
My motivation in making this submission is to bring to the hearing,
and any subsequent proceedings, the viewpoint of a relatively
well-informed layman. It is my impression that those who deal
in "specialties" (whether it be Law, Medicine, -- in
my case -- Plasma Physics, or any other specialty) can become
so engaged in the microscopic details of their work that that
they lose sight of the overall thrust of what they are supposed
to doing. Sometimes a non-specialized observer can make useful
observations which can help in correcting errors caused by an
overly microscopic view.
The Principal Accusation:
I will not review the details of the event leading to the filing
of the complaint, as this has been done in other documents. My
understanding is that the respondent's refusal to process a refill-request
for a contraceptive substance lead to a complaint being filed
against the respondent under Wisconsin Administrative Code Phar
10.03 (2):
(2) Engaging in any pharmacy practice which
constitutes a danger to the health, welfare, or safety of patient
or public, including but not limited to, practicing in a manner
which substantially departs from the standard of care ordinarily
exercised by a pharmacist which harmed or could have harmed a
patient;
The Approach of this Brief:
Before delving into the accusation, I would like to address some
points of language and terminology. Differing groups employ subtly
different sets of linguistic conventions depending on the point
of view the group has, and what agenda it is trying to further.
After this, by way of aside, I will briefly make a correction
to what I believe is a "theological" error of sorts
in Dr. Spear's submission (paragraph 11).
Thereafter, I will deal with the accusation itself and with certain
"sub-accusations" in submitted third-party documents.
Finally, I will conclude with statements in an attempt to summarize
what I see as the fundamental issue in this dispute.
Language:
The words we use and how we use them are important not only in
the information they convey, but also in the way in which they
affect our thinking. The phrase "the adult bird of the accipiter
family navigated in a well-coördinated manner southward through
a clear sky at a high velocity" and the phrase "the
majestic eagle gracefully and speedily soared south through a
cloudless azure sky" both convey the same information, yet
one may produce a more pleasing impression in the mind of the
reader than the other.
In the ongoing debate about abortion, cloning, embryonic stem
cell research, etc., the different sides often use different sets
of terms, e.g. "unborn child" vs. "fetus"
in reference to a gestating human individual some weeks after
conception: They mean the same thing in context, but one is frequently
favored over the other by different groups as most people can
relate to "an unborn child" more easily than a "fetus."
With that I would like to review some basic terminology from the
perspective of someone who is a layman in matters of biology and
medicine, and comment, in some instances, on its use in the submitted
documents:
ovum -- (Latin for "egg."): A cell produced by a (woman's)
ovaries for the purpose of reproduction. The cell is complete
save for one set of chromosomes: the 23 chromosomes in a human
ovum are unpaired. I believe the ovum was discovered in the mid-nineteenth
century.
sperm -- (from Latin and Greek word meaning "to sow"):
An approximately virus-like unit produced by a (man's) testis
which contain 23 unpaired chromosomes in a self-propelled protein
enclosure. I do not recall when sperm was discovered, but it
would have been some time well after Aquinas and before the 19
century.
fertilization: the successful penetration of a single sperm into
an ovum, and the process of converting the ovum into a "zygote."
Fertilization usually takes place in a fallopian tube.
zygote: the complete single-celled individual formed as a consequence
of successful fertilization. The zygote undergoes mitosis (reproduction
by fission)
morula: a solid mass of cells produced by continuing mitosis.
I believe morula cells are initially all undifferentiated from
each other, and that the morula can undergo complete splitting
(twinning) and fusion (the re-merging or absorption of twins).
blastocyst: a hollow, spherical, multicellular entity which develops
after a number of subdivisions of cells of the morula. It is
during this stage that implantation usually occurs.
implantation: the attachment of the blastocyst to the uterine
wall.
embryo: a stage of gestation which begins roughly at the time
of tissue differentiation and extends for approximately 50 days.
conception -- (from Latin "conceptio") in common parlance
in this context it is used as synonym for "fertilization."
Abortion and contraceptive advocates tend to use this word to
refer to "implantation." In the 1980s I did some checking
of medical dictionaries at the Middleton Health Sciences Library
of this (and other) word(s). Somewhat to my surprise I found
that the older dictionaries had two definitions: 1) "implantation"
and 2) "fertilization." The newer dictionaries (at the
time) had only "fertilization." My sense is that the
use of "conception" to refer to "implantation"
is archaic, a remnant of the time before the ovum was discovered,
and the female was thought to be a passive receiver of the male-supplied
seed. As I noted, abortion and contraception advocates tend to
use -- actually almost always insist upon using -- the "implantation"
definition (to the point of acting as though this were the only
one), as implied in "morning-after contraceptive" which,
I think, would usually act AFTER fertilization, which most folks,
in my experience, call "conception."
pregnancy: in common parlance, this is synonymous with "being
'with child.'" It also can be used to indicate a condition
of a woman's body which is brought about when a gestating child
in the blastocyst stage implants in the uterine wall and secretes
hormones signaling his presence. This chemical signal triggers
the profound changes in the mother's body which prepares her for
the task of carrying a gestating child to term. Abortion and
contraception advocates insist on using the latter definition,
while others are ambivalent. In my opinion (and I think in that
of most people I know) if a woman is carrying a child at any
stage, she is properly described as "pregnant." However,
this is usually an academic matter: the mother does not know
she is a mother until the chemical signal associated with implantation
is given.
abortion: my understanding: the permanent interruption of human
gestation, if by natural causes in the first 12 weeks, if by artificial
means at any time. (Natural intrauterine death of the child after
12 weeks would more likely be known as a miscarriage.) Abortion
and contraception advocates will frequently limit the term "abortion"
to mean a natural or artificial expulsion or removal of a gestating
child (developing fetus) after implantation.
abortifacient: a chemical substance which induces an abortion.
Many "contraceptive" substances act in a secondary
way to make the uterine lining inhospitable for the blastocyst
-- thus preventing implantation. Those which do are properly
classified as "abortifacients" as well -- since they
disrupt gestation. Abortion and contraception advocates will
usually insist that since -- in their vocabulary -- "abortion"
is defined only after implantation, substances and devices which
prevent implantation may not be called this.
health care: my understanding: service rendered to an individual,
usually by professionals, to restore, as much as possible, normal
body functions which may be lost or impaired by injury or disease,
and to help preserve and maintain those functions at other times.
Before leaving this section I should note:
It seems to me that the fundamental difference in the vocabulary
differences we see in these discussions is a consequence of the
different perspectives from which the two sides observe. Abortion
and contraception advocates have completely gynecentric point
of view: everything is defined in terms of a woman's body alone:
conception -- only when implantation occurs, and the woman's
body is involved; pregnancy -- only when the mother's body is
signaled that the blastocyst is implanted; abortifacients: can
only be called that if they act after implantation. A pregnant
woman's motherhood is not acknowledged as such, as that would
admit that she is in relationship with another -- her gestating
offspring.
I think most people have a more inclusive view: we think of both
the woman, whom we acknowledge as being a party to a mother-child
relationship early on -- and her gestating offspring. Most people
in my experience equate "conception" with the beginning
of life -- which is observably at fertilization, and would commonly
regard the deliberate termination of the life, now matter how
early, as abortion.
As I noted, how we use language affects how we think. Abortion
and contraception advocates, by using -- and attempting to get
everyone else to use -- a gynecentric vocabulary are attempting
to affect how the rest of us think, and may well have already
affected how they themselves think.
Consider Dr. Spear's affidavit in which he states (paragraph 6):
"Contrary to the testimony of Dr. Ralph Miech, presented
by Mr. Noesen, birth control pills, including Lo-Estrin Fe 1/20
do not have 'abortifacient effects' [transcript reference]. This
position is not medically supportable and certainly is not shared
by the vast majority of health care experts in women's health
and obstetrics and gynecology." In paragraph 7 he notes
that Dr. Miech "alleges" that Lo-Estrin Fe 1/20 can
have an "abortifacient effect" by preventing implantation.
In paragraph 8 he claims that "There are several medically
incorrect statements made in this [Dr. Miech's] testimony",
and then goes on to complain that Dr. Miech uses the term "abortifacient."
He finds this objectionable because in his (Dr. Spear's) vocabulary,
an "abortion" can only occur after implantation (which
he calls "conception"). Note well: he is NOT disputing
Dr. Miech's pertinent assertion that the drug may prevent implantation
(in fact, Dr. Spear himself concedes, in paragraph 2, that the
drug may act in this way), he is, in effect, complaining that
Dr. Miech is not using the vocabulary of abortion and contraception
advocates. As Dr. Spear readily concedes the fact -- that the
drug and other oral "contraceptives" (ovulation inhibitors)
can act to prevent implantation -- what he otherwise says about
this aspect of the case strikes me as a largely irrelevant dispute
of terminology: he is actually confirming what Mr. Noesen and
Dr. Miech have said in this regard.
A Theological Note:
Dr. Spears, in paragraph 11 of his statement says: "Although
Dr. Miech's belief that combined hormonal contraception causes
an abortion may be consistent with his theology, it is medically
unsupportable and defies the preponderance of views of medical
science. The view that a fertilized ovum or pre-embryo deserves
the status of personhood is based on theology, not science."
As I noted, the first portion of this statement is irrelevant:
it is a dispute about terminology, not the biological facts.
The last sentence in this paragraph can, I think, be described
as an error. I have no acquaintance with either Dr. Spear or
Dr. Miech, so I cannot claim personal insight into their theologies.
However, if their comments fall into the usual categories, Dr.
Spear appears to imply that there is this religious doctrine which
states that "human life and human personhood begin at conception
(fertilization) and that willfully terminating that life is murder",
and that various bunches of religious nuts are trying to force
that doctrine on everyone without regard to science.
That is not quite correct.
There IS a religious doctrine involved, to be sure. The standard
thinking of moral theologians can be probably be summarized as:
"It is absolutely immoral to directly and intentionally take
the life of an innocent human being." This principal should
be familiar to most people: it is at the foundation of much of
our civil law regarding the protection of human life.
Science does not tell us what is "good" or "moral."
That comes from elsewhere.
Science DOES help answer the question "when did we begin?"
In the millennia preceding the discovery of the ovum in the western
word, this was generally thought to be at "animation"
or "quickening." Thomas Aquinas, in accord with the
science of his day, concluded that the ensoulment of the gestating
child was a gradual thing, as he developed from the male's seed
in the fertile soil of his mother. The "animation"
of the child was the dramatic event which seemed to mark the border
between a developing organism and a human child.
Today, however, embryology seems to be pointing very definitely
at a much earlier time: we now see that a new human individual
is started with the formation of a fully functional zygote, shortly
after fertilization (also known as "conception" for
most of us). When theologians say "it is murder to kill
a human zygote," they are simply applying a very basic and
old principal in the light of our current scientific knowledge.
It is not unreasonable to hold that every human individual must
be regarded as a person under the law and is entitled to the fundamental
protections of same, unless the contrary is proved beyond a reasonable
doubt.
The Accusations and "Sub-Accusations:"
Again, the complaints against the respondent are based on Wisconsin
Administrative Code Phar 10.03 (2):
(2) Engaging in any pharmacy practice which
constitutes a danger to the health, welfare, or safety of patient
or public, including but not limited to, practicing in a manner
which substantially departs from the standard of care ordinarily
exercised by a pharmacist which harmed or could have harmed a
patient;
Breaking this down, the first part would be:
"engaging in a pharmacy practice"
causing or being a danger to "health," or "welfare,"
or "safety"
of "patient" or "public"
Some of the third-part documentation go accuse the respondent of
"abandonment."
I have several problems with this. First, regarding the applicability
of the code itself:
"engaging in a pharmacy practice" -- the respondent,
that I can see, engaged in no practice at all. He declined to
"practice pharmacy" at all for this individual. It
seems to me that this paragraph was written to prohibit pharmacists
from doing things they should not do (for example, inappropriate
substitutions). You may argue that a pharmacist has an obligation
to act, but this paragraph would not appear to mandate that.
"Going limp" does not usually constitute resisting arrest.
Refusing to handle a prescription does not strike me as malpractice,
at least not under this paragraph.
Causing or being a danger to "health,"... -- the women's
"health" does not appear to have been endangered. She
was using the drug contraceptively, not to treat a medical condition.
Any danger one might posit she could experience if she became
pregnant could be averted simply by not engaging in sexual intercourse.
"welfare" or "safety" -- similar to "health":
where is the threat to either of these?
"patient" or "public" -- as the respondent
declined to enter into a pharmacist-patient relationship with
her, she never became his patient; the public was not a party
to this at all. (It seems to me the relevant question is: can
a health-care professional be compelled to establish a relationship
with a patient -- absent a true emergency -- which he would choose,
for grave reason, NOT to have?)
The second portion deals with departures from "standard of
care" which "harmed" or "could have harmed"
a "patient." Again, she was not his patient, and, even
if she were, what "harm" is caused? The "worst"
case scenario is that he would have to abstain from intercourse
for a time, if she wished to avoid reproducing.
In the submitted third party briefs, I see accusations against
the respondent which include such things as "abandonment"
and "breach of covenant" and paint a very ugly picture
of Mr. Noesen's decision to be non-involved. Anyone glancing
at this would think that the complainant was a patient who was
being denied treatment for a legitimate malady which, left untreated,
would cause her grave harm.
Again: it seems to me that Mr. Noesen never entered into "covenant"
with her, and so could not have breached it and could not have
abandoned her.
The "patient" was someone who wished to prevent her
body from doing what it naturally might do after an act of intercourse.
Refusing to assist in such an endeavor is not in the same category
as, say, refusing an antibiotic so to someone who has a severe
ear infection.
Question: If a physician is "covering" an office for
another physician who is away on an extended vacation, and a patient
comes in (a patient of the absent physician) and demands that
he install a stomach bypass so that he could eat without gaining
further weight, would that substitute physician be obliged to
follow through? Would he be so obliged if the absent physician
had already agreed that the patient could have it done? I suspect
not.
Law, Medicine, and Moral Convictions
We have, as a nation, backed ourselves into a corner. On the
one hand, we have, at the root of our law, the doctrine that the
powers of the State are limited: No arbitrary power of life and
death inheres in the power of government. The rights of individuals
and of societies are to be respected. We slowly and most painfully
rid ourselves of the institution of slavery which we inherited.
We slowly and painfully have been trying to bring not only our
laws, but our ways of acting into line with the principle that
all men are of equal dignity in the eyes of God.
We have as a nation adopted a level of religious toleration which
was not common in the world at the time of our founding. Our
social contract and law have us keeping the government out of
the inner workings of churches, not making religious affiliations
a condition to work for or receive the protection of government,
and respecting the religious conscience and practices of all.
We have most recently, by court fiat and by legislative action,
been pushed to a legal model which would have the government not
intervene in "private" matters. The natural and legal
rights of "privacy," -- that is to have privacy
and the freedom from government intrusions into one's papers and
possessions and homes -- absent good reason to suspect something
warranted investigation --, is in the process of being transformed
into a right to DO whatever one wills in private. This has not
yet been spread "across the board" (I do not think that
I can -- yet -- argue "privacy rights" if I want to
make and consume controlled substances in the privacy of my home,
for example.). It is being applied in the area of sexual behavior
to a great extent. Landlords (at least those owning multi-unit
buildings) are being told they cannot refuse rent to unmarried
couples. Grisswold vs. Connecticut (?) virtually defines a right,
at least for married couples, to obtain and use contraceptives.
Roe vs. Wade and Doe vs. Bolton prevent states from giving any
meaningful protection to gestating humans. Ordinances against
sodomy are being struck down or repealed. Ordinances against
fornication are generally being repealed, or have been long ago.
We have also developed the curious attitude that "anything
which is not prohibited is a right." It does not seem to
occur to people (or perhaps they refuse to acknowledge) that something
can be wrong and prohibited by society without that prohibition
being written into a civil code. This is perhaps a consequence
of efforts earlier in our nations history to, in fact, attempt
to transcribe the moral code into civil law. I am not sure.
However, I am sure that these various currents in our law
are coming into conflict.
What is at the basis of the dispute in this case?
One man tries to be of help to mankind through the practice of
pharmacy, without violating his conscience.
Along comes someone who -- to put it bluntly -- wants to have
sexual intercourse without substantial possibility of pregnancy.
The pharmacist feels right to not get involved, understanding
that natural and constitutional laws protect his right to exercise
(live by) his religion and maintain peace with his conscience.
Also, after all, he did not become a professional pharmacist
to pander to people's appetites, but to help alleviate suffering,
and help bring people who are not healthy back to health.
The "patient" feels that he has right to obtain and
use a contraceptive -- after all, he is an adult and there is
no law against using contraceptives. It is his business alone,
isn't it? Even if he is not married, so what? There is no law
against fornication any more, is there? It must be a right!,
no?
The basis of the dispute is a conflict between the advocates of
the long-established right to freedom of conscience (especially
freedom of exercise of religion) and the advocates of a newly-minted
de-facto "right" to sexual intercourse, even contraceptive
intercourse.
This is very much the issue in the matter of Neil Noesen and Amanda
Renz/Phiebe.
PPA and NARAL and those who joined in with them understand this,
and have carefully made their arguments with the assumption that
sexual intercourse -- including contraceptive sexual intercourse
-- is a right even for the single (as it is not illegal), and
are actively attempting to elevate contraceptive supply and management
(and also induced abortion) to the status of "health care,"
and very deliberately couch their arguments in terminology which
assumes that this is an established fact, rather than a relatively
recent idea which is a point of continuing contention.
A number of people have said (in letters to newspaper in conversations,
etc.) that, well, if someone is not willing to handle contraceptives
he ought not be a pharmacist, thus falling into a very recently
constructed line of thought that assisting people in inducing
a malfunction in their bodies to make it easier to follow
sexual pursuits is somehow of the essence of being a pharmacist.
It wasn't that many years ago that pharmacists could be prosecuted
for doing that. Now, some parties are trying to turn it into
a professional mandate.
In conclusion, Judge Baird, I recommend that you find in favor
of the respondent.
A decision against the respondent is tantamount to an official
declaration by the state that if you are going to practice pharmacy
in this state, you must check your conscience at the door (practicing
Catholics need not apply, certainly), and be prepared to give
whatever is demanded to whomever wants it and is able to produce
a prescription -- even if it means being party to what appears
to be potential homicide. A decision in favor of the respondent
is merely a declaration that sometimes individuals might have
to curb their recreation for a time out of respect for the sacred
conscience of their countrymen -- not an unreasonable thing to
ask at all, in my view.
Respectfully submitted,
Richard L. R. Bonomo
20 December 2004