Prescription Contraceptives and the Pharmacist's Right to Refuse: Examining the Efficacy of Conscience Laws

• Author: Dennis Rambaud
• Position: J.D. Benjamin N. Cardozo School of Law, 2006
• Pages: 195-231

Page 195

Introduction

Over the past two years, the news media has reported a number of instances of pharmacists refusing to fill valid prescriptions for birth control and emergency contraceptives on the basis of moral or religious objections to such drugs. In April 2004, a pharmacist refused to dispense birth control pills to a woman in Fort Worth, Texas, telling her that she did not believe in birth control.¹ In Ohio, Kmart fired a pharmacist for obstructing access to emergency contraception and other forms of prescription birth control that she believed had the potential to cause an abortion.² In September 2004, a New Hampshire pharmacist refused to fill a 21 year-old single mother's prescription for emergency contraception and further refused to direct her elsewhere for help.³ Although the total number of such incidents is unknown, news reports indicate that these types of refusals may be a growing trend.⁴ The Associated Press reports that "anti-abortion organizations and a group called Pharmacists for Life are encouraging pharmacists to refuse to distribute emergency contraceptives, which they consider a potential form of abortion."⁵Page 196

In states nationwide, pro-life activists are broadening efforts to support pharmacists who want to opt out of providing services linked to abortion and emergency contraception by encouraging state legislatures to adopt statutory refusal clauses, or "conscience laws."⁶ One such law, passed in Mississippi in July 2004, allows all types of health care workers, including pharmacists, to refuse to perform virtually any service they object to on religious or moral grounds.⁷ In South Dakota, a state conscience law provides that a pharmacist may refuse to dispense medication if the pharmacist believes that the prescribed medication could potentially cause an abortion.⁸ In 2004, at least thirteen state legislatures introduced similar bills,⁹ and other states may soon follow suit.

Commentators who argue in favor of the adoption of state conscience laws contend that these laws are necessary, because existing state and federal civil statutes prohibiting religious discrimination in employment provide inadequate protection to pharmacists who suffer adverse employment consequences as a result of their refusal to fill prescriptions for contraceptives on religious or moral grounds.¹⁰ Additionally, com-Page 197mentators argue that conscience laws are necessary to protect pharmacists from civil liability or disciplinary action resulting from their refusals.¹¹ These theories, however, are largely untested in the real word,¹² and debate exists as to whether state conscience laws actually provide significant protections to refusing pharmacists.

This note will examine the potential negative ramifications of a pharmacist's refusal to dispense prescription contraceptives, and will shed light on the extent to which conscience laws may not be necessary to protect the pharmacist's asserted right of conscientious objection. Part I examines the ethical obligations of pharmacists in order to determine the extent to which a pharmacist may refuse to fill valid prescriptions for contraceptives without violating his or her duties to the patient and the public at large. Part II offers a description of existing conscience laws, with an emphasis on two recently enacted statutes that provide explicit protections to pharmacists. This section describes the scope of protection afforded to pharmacists under conscience statutes, and the extent to which the conduct protected by these statutes comports with generally accepted standards of practice as described in Part I. Part III considers the three major types of negative ramifications to which arefusing pharmacist may be subject, as identified by commentators who support the adoption of conscience laws: employment ramifications, tort liability, and disciplinary action. This section considers the adequacy of existing statutory protections for a pharmacist's right of refusal in the context of employment, and concludes that conscience clauses may not provide any greater protections. This section also analyzes the extent to which a refusing pharmacist may actually be subject to tort liability or disciplinary action under current law, concluding that a pharmacist who follows the standards of care set out in Part I is unlikely to suffer any of these consequences.

I The Pharmacist's Ethical Obligations

Pharmacists traditionally have served as "guardians and gatekeepers of the nation's drug supply," and, as such, have been "granted a monop-Page 198oly over the distribution of prescription drugs."¹³ The granting of this monopoly imposes upon pharmacists special duties to the public at large and to individual patients. The public trusts that pharmacists will "use their monopoly wisely" by "withholding medications from those who have no authority to use them," and by "not withholding medications from those who do have authority to use them."¹⁴ This public trust is the basis of the confidence that individual patients place in their own pharmacists.¹⁵ A patient's trust in a pharmacist is a matter of necessity. As one court has noted, "a patient wishing to have a prescription filled is compelled to trust a pharmacist because the patient cannot legally have the prescription filled by a non-pharmacist."¹⁶ Further, a patient must put complete trust and confidence in a pharmacist because "[p]harmacists possess important specialized knowledge that is possessed by few, if any, non-pharmacists."¹⁷

A pharmacist's professional authority originates from this trust relationship.¹⁸ In return for the patient's trust, the pharmacist implicitly promises that he or she will act in the patient's best interests.¹⁹ Pharmacists are expected to hold "the patient's welfare paramount,"²⁰ and like all professionals, they have a duty to place the interests of their patients above their own immediate interests.²¹ Pharmacists accept these fiduciary obligations when they enter the profession and agree to conduct themselves according to a code of ethics.²² This code requires pharmacists to respect "the autonomy and dignity of each patient," and to respect "personal and cultural differences among patients."²³ Further, it imposes on pharmacists an obligation to promote "the good of everyPage 199 patient in a caring, compassionate, and confidential manner" by considering the "needs stated by the patient as well as those defined by health science."²⁴

While these requirements may be interpreted as imposing a duty on pharmacists to fill all valid prescriptions, other principles suggest that a pharmacist has a limited right to refuse to dispense medications to which he or she has moral or religious objections. In general, "the right to refuse to participate in acts that conflict with personal ethical, moral, or religious convictions is accepted as an essential element of a democratic society."²⁵ Further, pharmacists are professionals, and society does not require professionals to abandon their moral principals.²⁶ Lawyers, for example, choose which clients and issues to represent. Except in emergency situations, physicians may choose the patients they will treat and the procedures they are willing to perform.²⁷ Pharmacists have been described as "moral agents with the right and the responsibility to make moral assessments."²⁸ They are expected to apply moral and ethical principles conscientiously and consistently in making decisions.²⁹ Undoubtedly, for many pharmacists, moral principles derive largely from their religious beliefs. It seems inconsistent to argue that a pharmacist should be guided in his professional duties by moral principles, yet he or she should wholly abandon such principles whenever they conflict with the beliefs of a patient or a prescribing physician. Thus, many commentators argue that to the extent that a pharmacist can act according to his or her beliefs without violating the obligation to promote the good of the patient, such action should be accommodated.³⁰Page 200

This balanced approach to the issue of pharmacists' refusals has been adopted in policy statements of both the American Pharmaceutical Association (APhA) and the American Society of Health-System Pharmacists (ASHP).³¹ These policy statements recognize a pharmacist's right to conscientious refusal, and promote the establishment of systems which ensure that a patient's access to legally prescribed medications will not be compromised.³² The Policy Committee of the APhA has further recognized that pharmacists who refuse to fill prescriptions have a duty of "ensuring that the patient will be referred to another pharmacist or be channeled into another available health system."³³ The Committee notes that "[p]roviding alternative mechanisms for patients in this situation ensures patient access to drug products, without requiring the pharmacist or the patient to abide by personal decisions other than their own.³⁴

Many commentators have argued that these policy statements, as well as the ethical principals described above, counsel against the adoption of broad-based conscience laws, which protect a pharmacist's right to refuse to fill prescriptions for contraceptives but do not require a pharmacist to fulfill his or her duty to ensure that the patient's access to prescribed medication is not unduly impaired.³⁵ While the arguments of these commentators may have little effect on the course of action taken...