Pharmacists and the "duty" to dispense emergency contraceptives.

• Author: Spreng, Jennifer E.

ABSTRACT: Stories abound of both women with prescriptions turned away at the pharmacy door and members of the most trusted health care profession losing jobs and running afoul of ethics rules. Scholars have spilt much intellectual ink divining whether a pharmacist must dispense Plan B, the primary emergency contraceptive. Now, many are calling for a common law "duty to dispense" that could serve as a foundation for a wrongful pregnancy action against a dissenting pharmacist.

Such a duty simply does not arise from established tort principles or pharmacist-specific precedents. Only in rare circumstances will a pharmacist and customer have the type and quality of relationship giving rise to a duty to dispense.

Nevertheless, law changes over time and makes allowances for unique circumstances. Pharmacists are taking on more responsibility for drug therapy. They have an awkward role in the distribution of Plan B. Moreover, while the law may protect pharmacists' consciences, it may not be so receptive to pharmacists-as-activists. Dissenting pharmacists can take practical steps to protect themselves today, but tomorrow is another day.

"We're happy, but we're not thrilled," said Frank Manion, a senior attorney for the American Center for Law and Justice and the attorney for several southern Illinois pharmacists suspended without pay from their jobs at a Walgreens store after they refused to comply with the company policy to distribute Plan B, a form of emergency contraception. (1) Manion was referring to a mid-October 2007 settlement of a lawsuit against the state of Illinois, with Walgreens as intervening plaintiff, (2) challenging an Illinois regulation that some pharmacists believed virtually forced them to violate their religious beliefs. (1) "It's not exactly what we had looked for," Manion said to explain his enigmatic reaction. "What we had wanted was a full and unambiguous recognition of the right of conscience by the state." (4) Instead, the settlement will save many pharmacists' jobs, but it will not relieve pharmacies from their obligation under Illinois regulations to sell emergency contraception. (5)

The Illinois Pharmacists Association was perhaps even less thrilled than Manion about the half-way house result in this primary legal challenge to one of the strictest "must fill" regulations in the country. (6) Spokesman Michael Patton argued that the settlement circumvented the real issue: whether pharmacists have a legal right not to perform services that violate their religious beliefs. (7) Moreover, the settlement does little for small pharmacy owners lacking staff or colleagues to make sure women receive the drug. (8)

Contraceptives create complex legal and moral issues for many pharmacists. Evidence supports the claim that oral contraceptives taken daily or on an emergency basis are abortifacients, (9) but state statutes do not provide pharmacists with the same protection from participating in abortions that they do physicians, nurses and other health care professionals. (10) Refusing to dispense contraceptives based on religious scruples has cost many pharmacists their jobs. (11) Government leaders are pursuing "must fill" legislation and regulation that would force some pharmacists to choose between their careers and their consciences. (12) Some states find other ways to make practicing pharmacy consistent with sincerely held religious beliefs difficult. (13) Commentators argue refusal to dispense is sex discrimination actionable under public accommodations laws, which threatens pharmacy owners, many of whom are themselves women. (14) One pharmacist received professional discipline for refusing to dispense contraceptives. (15) Opinion-makers are often extremely hostile, (16) and abortion rights activists talk as though they would like to eliminate religious believers from the health care industry. (17)

Tort law is a brighter spot in the law for pharmacists. Some commentators argue that pharmacists are at risk of wrongful conception or other common law liability to potential customers if they refuse to sell the drugs. (18) Though fourteen states provide some conscience protection for pharmacists, (19) only six give them a defense to civil liability. (20) Some of these statutory conscience protections could run afoul of the Establishment Clause of the United States Constitution. (21) Nevertheless, despite uncertainty as to pharmacists' defenses, (22) a plaintiff's prima facie case is far more speculative, because as this article will discuss, there is no generalired common law duty to sell a woman a drug. Without a duty, there is no tort liability.

Protecting refusing pharmacists on both the front and back ends of civil litigation is also a critical public policy issue: pharmacies simply cannot be staffed without them. (23) They make up a huge portion of what is already a profession stretched thin. (24) National surveys from the past decade show that more than thirty-five percent of pharmacists say they would refuse to dispense an abortifacient, and the number increases to almost forty-five percent in certain regions, such as the midwest and southeast. (25) A 2000 study, conducted at approximately the same time the "emergency contraceptive" drug "Plan B" received approval from the Food and Drug Administration, showed that one-fourth of the pharmacists in New Jersey and one-fifth in Oregon had reservations about dispensing emergency contraceptives, though only four and ten percent respectively would refuse to dispense. (26) A more recent study conducted in 2005 in Atlanta, Philadelphia and Boston produced similar results. (27) These dissenting pharmacists are at serious risk of liability: when pharmacists use independent judgment when dispensing medication or deny a customer prescribed medication, they attract lawsuits. (28)

This article identifies key facts and crafts legal theories to support litigators' arguments that pharmacists do not have common law duties to sell emergency contraception that could leave them exposed to liability for torts such as wrongful conception. (29) Because tort law is always a moving target, the article also describes plausible counterarguments and strategies for meeting them. Part one describes the two forms of emergency contraception and their mechanisms of use. (30) Part two describes three variables that will drive pharmacists' legal duties arising from emergency contraception: continuing changes in the pharmacy profession (31); the Food and Drug Administration's recent decision that the primary emergency contraceptive regimen, Plan B, may be sold without a prescription (32); and the distinction between passive conscientious objection to the sale of emergency and daily oral contraceptives and actual civil disobedience or activism on the job. (33) Part three "clears away some of the brush" by showing how oft-cited cases of constitutional moment reveal no discernable duty to dispense. (34) Part four analyzes pharmacists' duties from leading cases, assessing their applicability in a tort action for wrongful conception/pregnancy. (35) Part five reviews statutory and regulatory duties and their applicability as sources for a duty to dispense. (36) The article concludes that many pharmacists can be confident in the short term that a wrongful conception/ pregnancy action will fail on the duty element, but as predictable circumstances change, courts might be inclined to impose duties. (37) Therefore, the article also suggests along the way several strategies refusing pharmacists may wish to consider to minimize their exposure.

Too many commentators create the false impression of a zero sum game where women's reproductive health care and the religious scruples of providers are involved. Most in the academic literature who write about pharmacists and contraceptives focus on winners and losers or rallying the faithful of whatever persuasion, (38) though a few are genuinely interested in determining the substance of the various players' rights and making realistic policy proposals. (39) Though this article focuses on defending those who refuse to dispense contraception based on conscience, it does not take the two-dimensional view that women's concerns are unimportant or need to be vanquished so that those of pharmacists can prevail. (40) Within a few years, most pharmacists will be women, (41) and women predominate among religious practitioners. (42) Protecting religious liberty protects liberty unmodified, including contraceptive rights. (43) Determining pharmacists' legal rights also indirectly elucidates those of their customers, rendering legal disputes between them less likely by making the outcome more predictable. (24) Only to those who seek to use courts to change public policy is this not a positive development.

Most importantly, however, one's views of women's infinite aspirations and how society could encourage and promote them are not functions of whether one has some sympathy for refusing pharmacists. It is tragic that those who purport to speak for women think that such a dynamic and diverse group of human beings who make up more than one-half of the world's population must smite the comparatively limited needs of refusing pharmacists in order to achieve their own fulfillment. This cannot be so. The same communitarian values that would respect the needs of refusing pharmacists are foundational to women's flourishing, too. (45)

Therefore, a foundational principle of this work is that protecting pharmacists' conscientious objection protects women: the women who are half of all pharmacists, (46) the women who are quite comfortable with a pharmacist whose ethics are consistent with their own, (47) and ironically, the women who value access to contraception, which is better protected when flourishing religious institutions and their members serve as mediating institutions to blunt the activities of a far-more-imposing state. (48) "Women" are not a...