The right to refuse: a call for adequate protection of a pharmacist's right to refuse facilitation of abortion and emergency contraception.

• Author: Herbe, Donald W.

1. INTRODUCTION II. SECTION I: ANTI-REPRODUCTION PILLS AND THE PHARMACIST'S ROLE A. The Pills B. The Pharmacist's Role III. SECTION II: THE NATURE OF THE MORAL DILEMMA A. Abortion Viewpoints B. Emergency Contraception: Abortion? 1. The Science of Life's Beginnings: The Impetus to the Debate 2. The Teachings of the Roman Catholic Church C. The Pharmacist's Professional Ethical Obligations IV. SECTION III: THE POTENTIAL RAMIFICATIONS OF CHOOSING CONSCIENCE A. Employment Ramifications B. Tort Liability C. Disciplinary Action V. SECTION IV: THE INADEQUACY OF CURRENT PROTECTIONS OF A PHARMACIST'S CONSCIENCE A. Religious Discrimination B. Wrongful Discharge C. Current State Conscience Clause Statutes VI. SECTION V: SOLUTION VII. CONCLUSION I. INTRODUCTION

   The ability to convince an individual, through the art of honest persuasion, of the righteousness of a belief is celebrated, however, in failure of such persuasion, compelling that person to act contradictory to their retained ideal is detestable. The free will to reject a movement or disagree with a practice is the sort of liberty this Nation was founded upon, yet today the potential exists that many in the pharmaceutical profession will be forced into behaviors repugnant to their basic standards of goodness and morality. The proliferation of abortive and contraceptive drug therapies has thrust many pharmacists into roles as facilitators of practices they oppose on fundamental levels without a corresponding ability to opt out of such action.

   When a patient desires drug therapies that, in the eyes of the pharmacist, are likely to destroy an unborn human life, the pro-life pharmacist is left in an unsettling position: accommodate the patient and breach basic moral principles or adhere to conscience and risk liability and disciplinary action. (1) Unlike physicians and nurses, who are protected by legislation passed in the wake of abortion's legalization, (2) pharmacists who follow their conscience by refusing to dispense controversial medications or referring to a willing pharmacist have no reliable legal or professional basis to prevent or rectify retaliatory action by employers, patients, and peers. (3) Solving this predicament is especially difficult in light of the pharmacist's professional ethical duty to promote the patient's best interests. (4)

   The purpose of this Note is not to argue for or against either the pro-life or pro-choice positions. The purpose of this Note is to shed light on a serious moral dilemma that faces many pharmacists today, to call for universal acceptance in the pharmacy profession of a right of conscience, and to suggest adequate state and national legislative measures that would protect and prevent pharmacists from having to act contrary to their basic moral convictions.

   Section I provides background regarding present day abortive and contraceptive drug therapies and the role of the pharmacist in providing such medications. Section II is presented to provide some perspective and background as to moral belief regarding abortion and emergency contraception (EC) and how such a belief may conflict with a pharmacist's professional duties. The discussion of the tension between moral and professional duties illustrates that the beliefs regarding abortion and EC of the pharmacist who chooses conscience over professional duty are genuinely fundamental and deserve respect. Section III illustrates the detrimental consequences that choosing conscience could wreak. Section IV sheds light on the inadequacy of current common and statutory law that could feasibly protect the pharmacist's moral convictions from retaliation or liability. Finally, Section V proposes that professional pharmaceutical organizations lead the way to recognizing a true right of conscience, which would eventually result in universal legislation protecting against all potential ramifications of choosing conscience.

2. SECTION I: ANTI-REPRODUCTION PILLS AND THE PHARMACIST'S ROLE

   1. The Pills

      On September 28, 2000, the Food and Drug Administration (FDA) approved the drug mifepristone, formerly known as RU-486, for use in the United States as an abortifacient. (5) Mifepristone had previously been approved and is currently used in some European countries, including France, England, and Sweden. (6) Although mifepristone has other potential uses, such as postcoital contraception and daily-use birth control, (7) its FDA approved use is as an early pregnancy abortifacient. (8)

      Mifepristone acts as an anti-hormone and precludes a woman's uterus from retaining an implanted fertilized egg. (9) The drug blocks progesterone, an essential hormone in the acceptance and retention of an implanted egg within a woman's uterus; and, when taken in concurrence with misoprostol, induces a spontaneous abortion. (10) The fact that the mifepristone abortion regimen acts to destroy an implanted egg as opposed to a fertilized yet not implanted egg, is what distinguishes it from emergency contraception.

      Drugs used post-coitally with the intent to prevent the development of a pregnancy are referred to as emergency contraception. (11) This labeling as emergency contraception is a bit conclusory, as the definition of whether use of such drugs is contraception or abortion lies at the heart of the controversy over them. (12) However, for purposes of convenience and clarity, this Note will refer to drug regimens consumed post-intercourse for the purpose of preventing the onset or continuance of pregnancy as emergency contraception (EC), as that is the term that has been attached to them in modern medical, social, and political arenas.

      Notwithstanding this controversy, the physical and biological effects of orally administered EC, often referred to as the morning-after pill, are not in dispute. EC may prevent the development of a pregnancy by inhibiting any of four successive biological events, either pre or post fertilization, necessary to establish and maintain a pregnancy. (13) EC works before fertilization by either suppressing ovulation, like regular birth-control pills, or preventing fertilization of an egg by inhibiting the movement of the sperm or the egg. (14) If an egg becomes fertilized, then EC may disrupt transport of the fertilized egg to the uterus or, if the transport through the fallopian tube is complete, prevent the implantation of the fertilized egg in the woman's uterus. (15) EC is most effective when used up to seventy-two hours after unprotected intercourse and becomes completely ineffective after implantation occurs, usually six or seven days after intercourse. (16)

   2. The Pharmacist's Role

      During the past twenty years emergency contraception pills (ECPs) have been available to and used by American women. (17) During this time frame non-emergency oral contraceptives (those taken as a daily pre-intercourse regimen) were used off-label as emergency contraception (18) and were distributed as such "primarily in hospital emergency rooms, reproductive health clinics, and university health centers." (19) These medical facilities would repackage oral contraceptives for use as emergency contraception; pharmacies associated with certain clinics would repackage oral contraceptives into EC regimens and label them as such; and private physicians would instruct patients to take a larger dosage of their regular birth control pills as EC. (20)

      In 1998 the FDA approved the Preven Emergency Contraceptive Kit, an EC based on the Yuzpe regimen. (21) In 1999, the FDA also approved Plan B, another EC regimen. (22) While different regimens of oral contraceptives had been distributed and used before 1998 as emergency contraceptives, Preven and Plan B are the first regimens specifically approved by the FDA as safe and effective emergency contraceptives, to be packaged and marketed as such. (23) Additionally, modified doses of oral contraceptives, not specifically packaged for use as an EC, can still be prescribed in doses that would effect emergency contraception if doctor and patient desire such a method. (24)

      Emergency contraception pills are classified as prescription drugs, (25) and "states are delegated the power and responsibility of determining which health care professionals ... have prescriptive authority." (26) Currently, many states have authorized collaborative practices that have expanded the role of pharmacists. (27) These collaborative practices generally authorize greater independence of the pharmacist to initiate drug therapies not specifically prescribed by a patient's physician or other authorized health care professional. (28) In other words, some patients may not require a prescription from their doctor before

      being distributed certain medications or drugs from a pharmacist. However, with the exception of Washington, California, and Alaska, (29) states do not authorize this expanded pharmacist role in the distribution of ECPs. Pharmacists are generally limited to dispensing ECPs specifically prescribed by some other authorized health care professional. Other general duties of a pharmacist in the distribution of ECPs may include counseling and educating women on EC use at the time the prescription is filled. (30)

      In Washington, California, and Alaska, pharmacists have the dual authority to prescribe and dispense ECPs under each state's respective collaborative practices. (31) Generally speaking, the pharmacist may dispense ECPs in accordance with "standardized procedures or protocols developed by the pharmacist and an authorized prescriber[.]" (32) Thus, a woman need not receive authorization from her doctor prior to buying ECPs; the pharmacist acts not as a third party or indirect provider of ECPs, but as a direct provider in accordance with a general collaborative protocol.

      If pro-choice groups and the American Medical Association have their way, pharmacists will have no future role in ECPs. This is because these groups support an FDA reclassification of ECPs as over-the-counter...