Pharmacist Refusals in Ohio: A Compromise

AuthorMegan N. Nelson
PositionJ.D. Capital University Law School (2020) and Editor-in-Chief of the Volume 48 Capital University Law Review; M.H.A. Franklin University (2016); B.S. Biochemistry, The Ohio State University (2015)
“I promise to devote myself to a lifetime of service to others through the
profession of pharmacy.”
So begins the Oath of a Pharmacist
; but what is
the ethical pharmacist to do when his or her conscience conflicts with the
needs of a patient? At this cross-section of individual rights, how is the state
to protect both individuals? Should he refuse to fill the prescription? Should
she direct the patient to another pharmacist? How should pharmacists
protect their beliefs without compromising their patients’ health or violating
their patients’ rights?
Pharmacists’ refusals to fill prescriptions based on religious, moral, or
ethical objections have received national attention in recent years. Nicole
Arteaga of Arizona appeared in the New York Times in 2018 when her
pharmacist refused to provide an abortifacient, prescribed when her doctor
could no longer find a fetal heartbeat, doubling her suffering.
Similarly, in
Michigan, Rachel Peterson was turned away by a Meijer pharmacist when
she sought to fill a prescription for an abortifacient to complete a
These refusals are not new as evidenced by the National
Women’s Law Center’s numerou s examples of women being r efused
* J.D. Capital University Law School (2020) and Edit or-in-Chief of the Volume 48
Capital University Law Review; M.H.A. Franklin University (2016); B.S. Biochemistry, The
Ohio State University (2015). The author thanks everyone who provided support and
assistance in writing and publishing this comment. The views in this comment, as well as
any errors or omissions, are entirely my own.
Oath of a Pharmacist, AM. PHARMACISTS ASSN (last viewed Oct. 11, 2019), [].
Louis Lucero II, Walgreens Pharmacist Denies Woman wit h Unviable Pregnancy the
Medication Needed to End It, N.Y. TIMES (June 25, 2018),
2018/06/25/us/walgreens-pharmacist-pregnancy-miscarriage.html [
Elisha Fieldstadt, Mic higan Pharmacist Denies Woman Miscarriage Medicat ion Over
Religious Beliefs, NBC NEWS (Oct. 18, 2018),
beliefs-n921711 [].
contraception as far back as 2004.
Sometimes, these conflicts occur over
emergency contraception, when a patient seeks to purchase emergency
contraception but the pharmacist refuses to sell it because he believes he is
facilitating sin by doing so.
For example, a Wisconsin pharmacist called a
woman with a prescription for emergency contraception “a murderer” and
declined to fill it.
In Ohio, people seeking emergency contraception may legally be turned
away by pharmacists claiming a moral or religious objection to providing
the drug. This comment proposes a state statute prohibiting all Ohio
pharmacists working for privately owned pharmacies from refusing to fill
prescriptions for, or otherwise sell, emergency contraception for personal,
moral, eth ical, or religious reasons without either (1) a referral to another
pharmacist within the pharmacy within 72 hours or (2) a referral to another
pharmacist located within a reasonable distance from the pharmacy. Some
pharmacists may argue that any action they take against their consciences
would infringe their First Amendment rights. These pharmacists would
undoubtedly find this statute extraordinarily burdensome and would
challenge it in the court system, either under federal or Ohio law. The
legislature and courts, however, must balance pharmacists’ rights with the
rights of the patients they serve. As the United States Supreme Court has
Congress and the courts have been sensitive to the needs
flowing from the Free Exercise Clause, but every person
cannot be shielded from all the burdens incident to
exercising every aspect of the right to practice religious
beliefs. When followers of a particular sect enter into
commercial activit y as a matter of choice, the limits they
accept on their own conduct as a matter of conscience and
faith are not to be superimposed on the statutory schemes
which are binding on others in that activity.
Keeping this principle of balance in mind, the statute this comment
proposes seeks to establish a compromise between pharmacists and their
Pharmacy Refusals 101, NATL WOMENS L. CENTER (Dec. 28, 2017), [].
Douglas Nejaime & Reva B. Siege l, Featur e, Conscience Wars: Complicity-Based
Conscience Claims in Religion and Politics , 124 YALE L.J. 2516, 2576 (2015).
Id. He stated, “ You're a murderer! I will not help you kill this baby. I will not have
the blood on my hands.Id. (footnote omitted).
United States v. Lee, 455 U.S. 252, 261 (1982).
patients, giving equal r espect to both parties’ interests. It proceeds by first
giving background information on emergency contraception available in
pharmacies and explains why Ohio should prioritize passing a law to
reasonably limit pharmacist refusals. It proceeds by analyzing potential
challenges at the federal and state levels, ulti mately concluding that the
proposed statute should survive a challenge under either federal or state law.
A. Background
The United St ates Supreme Court has recognized the importance of
protecting women’s power to make their own choices about their
reproductive health, stating that “[t]he ability of women to participate
equally in the economic and social life of the Nation has been facilitated by
their ability to control their reproductive lives.”
This important interest
sometimes competes with othersinterest in freedom of religious exercise.
To adequately protect both parties’ rights, particularly in the healthcare
arena, the Ohio General Assembly should adopt a statute with clear
guidelines. Otherwise, pharmacists may continue to refuse to fill
prescriptions for or sell over-the-counter emergency contraception, an
experience that women across the country have suffered through.
this comment proposes a specific solution, however, it must first explain
what emergency contraception does, the controversy over its use, and why
pharmacist refusals cannot be allowed to continue.
1. Emergency ContraceptionAn Explanation
Women who have engaged in unprotected sexual intercourse can still
try to avoid pregnancy using emergency contraception.
Three types of
emergency contraception are medications that can be purchased at a
Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992) (citations omitted).
Pharmacy Refusals 101, NATL WOMENS L. CENTER (Dec. 2017), https://nwlc-
101.pdf [].
FAQ114 Contraception: Emergency Contraception, AM. C. OBSTETRICIANS &
Contraception []. Unprotected sexual intercourse may refer to
when a woman has failed to use a contraceptive, when a chosen form of contraception has
failed, or in the event of a sexual assault without, or with improper use of, contraception.
Emergency Contraception, WORLD HEALTH ORG. (Feb. 2, 2018),
room/fact-sheets/detail/emergency-contraception [].

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