Crushed at the counter: protection for a pharmacist's right of conscience.

• Author: Kromhout, Nell O.

INTRODUCTION I. MENGES V. BLAGOJEVICH: A CASE STUDY A. Exploration of the Emergency Rule and Its Effect on Illinois Pharmacists B. Repercussions of the Emergency Rule for Rights Under the Free Exercise Clause and Title VII II. BACKGROUND ON PLAN B AND RIGHT OF CONSCIENCE A. Plan B: What It Is and Why It Is Controversial B. Status of a "Right of Conscience" III. MORAL IMPLICATIONS OF THE LAW FOR CATHOLIC PHARMACISTS A. Freedom of Conscience as a Moral Right B. Imperative Protection Against Formal or Material Cooperation in Wrongdoing IV. AS HEALTH CARE PROVIDERS, PHARMACISTS HAVE A RIGHT OF CONSCIENCE A. Protection Provided for Other Health Care Providers B. Pharmacists Are Members of the Health Care Profession C. Pharmacists' Right of Conscience Should Receive Protection V. COUNTER POSITIONS A. Negative Liberty B. Intolerance of Rights VI. PROPOSED SOLUTIONS A. Implementation of APhA's "Stepping Away" Policy B. Free Market Solution CONCLUSION INTRODUCTION

Increasingly, lawmakers are passing legislation hostile to the freedom of a pharmacist to act according to her conscience. This legislation forces the professional health care provider to check her conscience at the pharmacy's door and abdicate her responsibility to provide her patients the most complete care possible. (1) A pharmacist's "right of conscience" must be adequately protected in accordance with respect for her profession and for the welfare of her patients. Other medical professionals' right of conscience receives adequate protection, but that of a pharmacist's does not, perhaps because the issue did not surface until recently. (2)

The issue of protecting a pharmacist's right of conscience did not fully emerge until emergency contraceptives were approved by the Food and Drug Administration ("FDA") and made available by prescription in pharmacies. (3) A few years later, the FDA approved over-the-counter ("OTC") sales of the emergency contraceptive "Plan B." (4) Now, regardless of the drug's availability, many pharmacists decline to fill or dispense emergency contraceptives for moral reasons. (5) In response, hostile legislation has been implemented in violation of a pharmacist's right of conscience and, in turn, pharmacists have brought lawsuits requesting protection of their rights. (6) The result is a checkered approach to the protection of pharmacists' conscience rights.

States deal with pharmacists' conscience rights in a variety of ways. For example, some states protect a pharmacist's right of conscience to the same degree as that of other medical professionals. (7) Three states refuse to recognize the right of conscience and demand that pharmacies fill prescriptions for emergency contraceptives or face punitive measures. (8) Most states have pending legislation regarding this right, some protective, others dismissive.9 One case decided in the Central District of Illinois appears to open the path for judicially mandated protection for a pharmacist's right of conscience, in the face of legislation that is dismissive of that right. (10)

This Note adopts the position that the pharmacist's right of conscience is not adequately protected and that uniform protection for that right may begin with implementation of the "stepping away" policy advocated by the American Pharmacists Association ("APhA"). (11) Under this approach, policymakers must appropriately balance affirmative rights and negative liberties to protect pharmacists' conscience rights. Alternatively, a free market approach may prove effective.

In a six-part analysis, this Note explores the crisis of conscience at the counter and explains potential solutions for pharmacist conscience protection. Part I provides a case study of Menges v. Blagojevich, a federal district court case from Illinois, which demonstrates case-in-point the violation of pharmacists' conscience rights. (12) Part II supplies pertinent background information on both the emergency contraceptive at issue, Plan B, and the right of conscience on state and federal levels. Part III explains the moral basis for rights of conscience in general, and specifically the position of Catholic pharmacists in peril of cooperating in wrongdoing by dispensing Plan B. Part IV sets forth the argument that like other health care professionals, pharmacists have a conscience right that should be protected. Part V addresses specific counterarguments and defends the Note's position by asserting the public policy reason for safeguarding each pharmacist's right of conscience: United States law supports negative liberties and promotes tolerance of rights. The affirmative "right to treatment" should not be promoted at the expense of a pharmacist's right to be free from state coercion. Lastly, Part VI details two alternative proposed solutions: APhA's "stepping away" policy and a free market approach.

1. MENGES V. BLAGOJEVICH: A CASE STUDY

   The argument within Menges v. Blagojevich and its outcome offer insight into the impact of inadequate protection of a pharmacist's right of conscience. (13) Despite the Illinois Health Care Right of Conscience Act ("Illinois Conscience Act"), the Governor of Illinois strong-armed into legislation the mandatory dispersal of emergency contraceptives at pharmacies. (14) This blatant disregard for the individual pharmacist's right demonstrates that without adequate federal protection, it is open season on health care professionals' sacred right and valued ability to act in accordance with their consciences.

   A. Exploration of the Emergency Rule and Its Effect on Illinois Pharmacists

   Losing their jobs or experiencing sanctions at work as a result of following their consciences, at least five pharmacists suffered a violation of their rights of conscience by the enactment of the Emergency Rule ("the Rule") pushed forward by Illinois Governor Rod Blagojevich. (15) The Rule prohibits pharmacies from handling sensitive prescriptions or drug requests in accordance with their employees' conscientious objections. Enacted by the Governor in April 2005, the Rule requires that pharmacies act according to the following:

   j) Duty of Division I Pharmacy to Dispense Contraceptives

   1) Upon receipt of a valid, lawful prescription for a contraceptive, a pharmacy must dispense the contraceptive, or a suitable alternative permitted by the prescriber, to the patient or the patient's agent without delay, consistent with the normal timeframe for filling any other prescription. If the contraceptive, or a suitable alternative, is not in stock, the pharmacy must obtain the contraceptive under the pharmacy's standard procedures for ordering contraceptive drugs not in stock, including the procedures of any entity that is affiliated with, owns, or franchises the pharmacy. However, if the patient prefers, the prescription must be transferred to a local pharmacy of the patient's choice under the pharmacy's standard procedures for transferring prescriptions for contraceptive drugs, including the procedures of any entity that is affiliated with, owns, or franchises the pharmacy. Under any circumstances an unfilled prescription for contraceptive drugs must be returned to the patient if the patient so directs.

   2) For the purposes of this subsection (j), the term "contraceptive" shall refer to all FDA-approved drugs or devices that prevent pregnancy.

   3) Nothing in this subsection (j) shall interfere with a pharmacist's screening for potential drug therapy problems due to therapeutic duplication, drug-disease contraindications, drug-drug interactions (including serious interactions with nonprescription or over-the-counter drugs), drug-food interactions, incorrect drug dosage or duration of drug treatment, drug-allergy interactions, or clinical abuse or misuse, pursuant to 225 ILCS 85/3 (q). (16)

   Thus, the pharmacy must fill the prescription, order it, transfer it, or return it, with the last two options exercised only at the request of the patient. A later rule also requires signs to be hung in the pharmacy area containing information regarding the State's emergency contraceptive policies along with a phone number and web address where people may file complaints of pharmacies acting out of compliance with the Rule. (17) A pharmacy must set policies to ensure compliance with these Rules, which could include requiring its pharmacists to sign an agreement whereby they will dispense emergency contraceptives upon request. (18) In Menges, Walgreens issued an agreement of this nature to its employees. (19)

   Prior to the Governor's declaration of the Rule, the Illinois Conscience Act was already in effect, allowing for both patients and health care professionals to act as directed by their consciences. (20) The Illinois Conscience Act prohibited employers from discriminating against health care workers who refused to provide any type of health care because of conscience-related objections. (21) The Rule not only contradicts this Act, but arguably contradicts a host of other Illinois statutes, as a case being appealed to the Illinois Supreme Court asserts. (22)

   According to the Plaintiffs in Menges, after the adoption of the Rule, each pharmacist was required to agree in writing to dispense emergency contraceptives. (23) John Menges, one of the dedicated pharmacists who lost his job and livelihood as a result of the Rule's implementation, was fired when he failed to agree in writing to dispense emergency contraceptives. (24) Notably, this was not because he actually refused to fill a prescription. (25) Rather, he suffered discrimination based on a hypothetical situation, without regard to his excellent record as a health care provider.

   In promulgating the Rule, Governor Blagojevich stated that "[b]ecause the pharmacist refused to fill the prescription.... I have a sneaking suspicion that in all likelihood, this is part of a concerted effort to deny women access to birth control." (26) The Executive Director of the Illinois Pharmacy Association rebutted...