Conscience legislation, the personhood movement, and access to emergency contraception.

• Author: Will, Jonathan F.
• Position: Faulkner Law Review Symposium

INTRODUCTION

In the medical setting, conscience legislation serves to protect health care professionals who refuse to provide certain procedures or services that would violate their consciences. (1) The "Personhood Movement," on the other hand, is characterized by advocates' attempts to adopt legislation or constitutional amendments at the state and/or federal level that would extend the legal and moral protection associated with personhood to members of the human species at the earliest stages of biological development. (2) The relationship between conscience legislation and the Personhood Movement may not be self-evident, but the connection becomes apparent when considering trends in conscience legislation. (3) This is particularly true in the context of expanding legal protection to health care professionals who object to certain forms of birth control, such as emergency contraception (EC). (4)

Professor Elizabeth Sepper notes that instead of protecting a health care provider's conscience, a possible purpose behind broad conscience legislation is to "make abortions, family planning, and end-of-life care more difficult to obtain," and that the true goal of such legislation is "hostility to reproductive health and patients' interests." (5) Indeed, this essay will suggest that the adoption of a personhood framework could represent majoritarian approval of the very principles that cause certain people to conscientiously object to EC. While some have raised concerns that conscience legislation itself could lead to problems with access to EC (especially in rural communities), (6) adoption of a personhood framework seems to pose a much greater risk. This essay will first describe the expansion of conscience legislation in the medical setting, which reflects a trend toward authorizing the refusal of a broader range of procedures and services by a broader range of health care professionals. It will then draw a connection between Mississippi's very expansive conscience legislation and the decision by a national organization, Personhood USA, to propose a personhood amendment to the Mississippi Constitution. A brief discussion of the relevant biology will reveal the relationship between concepts of personhood and EC. This essay will suggest that even if a personhood framework is not officially adopted, legislatures that favor the movement and the broad protection of conscience-based refusals may be less inclined to enact measures that protect a woman's ability to obtain EC. This should be viewed as problematic given that many people, including physicians and pharmacists, may not have an accurate understanding of the reproductive biology associated with early human development and the

operation of EC, which may lead such professionals to make conscientious objections based on clinically false information.

EXPANDING CONSCIENCE PROTECTION AND THE PERSONHOOD MOVEMENT

Prior to Roe v. Wade, (7) discussions of conscientious objection were most often associated with refusals to participate in military service. (8) But given the controversial nature of the Roe decision, there was an appreciation of that fact that even if a woman has a right to choose to have an abortion, a physician should not be required to perform the procedure if to do so would violate his or her conscience. To that end, federal laws, such as the Church, Coats, and the Weldon Amendments, were enacted to prevent individuals from being required to participate in abortions (or sterilizations) or from being discriminated against due to their unwillingness to participate in those procedures. (9) Individual states quickly followed suit and enacted conscience legislation specifically related to abortion; forty-six of the fifty states currently protect individual providers and nearly as many protect institutions. (10)

In regard to reproductive health, (11) public discussion about the expansion of conscience legislation beyond the abortion procedure itself was ignited (12) in the early 2000s, following the United States Food and Drug Administration's (FDA) approval of mifepristone (RU-486, commonly referred to as the "abortion pill") and various forms of EC (such as "Plan B," commonly known as the "morning-after pill"). (13) Pharmacists soon began to fear that they might be required to dispense certain medications, like those with perceived abortifacient properties, in violation of their consciences. (14) This concern was largely unfounded as it related to RU-486, which can only be dispensed by physicians. (15) Further, because RU-486 is clearly an abortifacient, (16) previously enacted conscience legislation that already protected health care professionals in the abortion context would likely suffice to protect those who objected to RU-486. (17) However, concerns about stocking and dispensing EC proved to be very real.

The American Pharmacists Association (APhA) has been sensitive to concerns raised by pharmacists who have conscience-based objections to EC and contraception more generally, but the professional organization has also acknowledged the need of patients to have access to medication. For instance, the APhA "recognizes the individual pharmacist's right to exercise conscientious refusal and supports the establishment of systems to ensure [patients'] access to legally prescribed therapy without compromising the pharmacist's right of conscientious refusal." (18) But since FDA approval, states have struggled to establish such systems that deal with refusals by pharmacists and pharmacies to stock and dispense EC. (19) Several years after Wal-Mart made a "business decision" not to stock Preven (one type of EC), the Massachusetts Board of Registration in Pharmacy ordered the retailer to, instead, stock Plan B. (20) Other states, including Illinois, Washington, and Missouri, have laws that require their pharmacies to carry all FDA-approved drugs and devices, which includes EC. (21)

The FDA's decision to make certain forms of EC available over-the-counter has not eased the tension between the competing interests of providers' consciences and patient access to contraception. Plan B and Plan B One-Step, (22) which are effective when used within seventy-two hours after unprotected sex, (23) are now available without a prescription to women seventeen years of age and older; however, the medications may only be sold in pharmacies and health clinics and must be stored behind the counter so that age can be verified. (24) Women under the age of seventeen must still obtain a prescription for these forms of EC. (25) The FDA also approved ulipristal acetate-based EC (ella), which requires a prescription for all of its users and is effective up to 120 hours after unprotected sex. (26)

While there is no uniformity on how to handle the complex issues of patient access and protecting providers' consciences, some states have enacted broader conscience clauses that protect individual providers who refuse to dispense EC or contraception. As recently as August 2012, the Guttmacher Institute reported that fourteen states allow some health care providers to refuse to provide contraception, and six states explicitly permitted pharmacists to refuse to dispense contraceptives. (27)

But even where legislation appears to protect pharmacists, the level of protection is unclear. Certain "statutes protect pharmacists filling prescriptions while others protect pharmacists 'refusing to provide' or 'refusing to furnish' emergency contraception." (28) This distinction is an important one. On its face, a statute that protects only pharmacists who fill prescriptions of EC would not appear to protect a pharmacist who dispensed Plan B over-the-counter to an adult woman. In such situations, further clarification might be needed to extend protection to pharmacists who refuse to dispense over-the-counter EC. And when it comes to pharmacists, no state offers more protection for providers who refuse patient care because of a conscience based decision than Mississippi. (29)

Enacted in 2004, Mississippi's Health Care Rights of Conscience Act (the "Act") specifically covers both pharmacists and pharmacies (30) and permits these health care providers and institutions to refuse to participate in health care services that violate their consciences. (31) "Health-care service" is defined very broadly to include "patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment rendered by health care providers or health care institutions." (32) This would cover objections to over-the-counter EC, prescription EC, and hormonal contraception. The Act provides significant protection to such refusing providers and institutions by shielding them from civil, criminal, and administrative liability, (33) though there is no protection from liability for refusals that are based on the patient's "race, color, national origin, ethnicity, sex, religion, creed or sexual orientation." (34) Professor Jennifer Spreng has called Mississippi's law the "'gold standard' in pharmacist conscience protection," (35) and as many as fifteen other states are considering the adoption of similar language in their health care provider laws. (36)

Although the APhA advocates for the establishment of systems sensitive to both patient access and pharmacists' consciences, Mississippi's framework speaks only to permitting refusals without countervailing provisions that deal with potential issues of access. (37) For instance, there is no requirement that even a large pharmacy staff both willing and refusing pharmacists on a given shift to ensure patient access. (38) In fact, the Act makes clear that it would be an act of discrimination against the refusing pharmacist for the institution to reassign the person to a different shift in order to accommodate patient access. (39) Further, a pharmacy...