Pharmacist Refusals in Ohio: A Compromise

• Author: Megan N. Nelson
• Position: J.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)
• Pages: 135-181

PHARMACIST REFUSALS IN OHIO: A COMPROMISE

MEGAN N. NELSON*

I. INTRODUCTION

“I promise to devote myself to a lifetime of service to others through the

profession of pharmacy.”

1

So begins the Oath of a Pharmacist

2

; 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.

3

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

miscarriage.

4

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.

1

Oath of a Pharmacist, AM. PHARMACISTS ASS’N (last viewed Oct. 11, 2019),

https://www.pharmacist.com/oath-pharmacist [https://perma.cc/Y828-S96Z].

2

Id.

3

Louis Lucero II, Walgreens Pharmacist Denies Woman wit h Unviable Pregnancy the

Medication Needed to End It, N.Y. TIMES (June 25, 2018), https://www.nytimes.com/

2018/06/25/us/walgreens-pharmacist-pregnancy-miscarriage.html [https://perma.cc/VY7J-

C8W7].

4

Elisha Fieldstadt, Mic higan Pharmacist Denies Woman Miscarriage Medicat ion Over

Religious Beliefs, NBC NEWS (Oct. 18, 2018), https://www.nbcnews.com/news/us-

news/meijer-pharmacist-denies-michigan-woman-miscarriage-medication-citing-religious-

beliefs-n921711 [https://perma.cc/QN8J-QXSK].

238 CAPITAL UNIVERSITY LAW REVIEW [48:237

contraception as far back as 2004.

5

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.

6

For example, a Wisconsin pharmacist called a

woman with a prescription for emergency contraception “a murderer” and

declined to fill it.

7

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

recognized:

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.

8

Keeping this principle of balance in mind, the statute this comment

proposes seeks to establish a compromise between pharmacists and their

5

Pharmacy Refusals 101, NAT’L WOMEN’S L. CENTER (Dec. 28, 2017),

https://nwlc.org/resources/pharmacy-refusals-101/ [https://perma.cc/6DFX-Y4GJ].

6

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).

7

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).

8

United States v. Lee, 455 U.S. 252, 261 (1982).

2020] PHARMACIST REFUSALS: A COMPROMISE 239

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.”

9

This important interest

sometimes competes with others’ interest 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.

10

Before

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 Contraception—An Explanation

Women who have engaged in unprotected sexual intercourse can still

try to avoid pregnancy using emergency contraception.

11

Three types of

emergency contraception are medications that can be purchased at a

9

Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992) (citations omitted).

10

Pharmacy Refusals 101, NAT’L WOMEN’S L. CENTER (Dec. 2017), https://nwlc-

ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2017/12/Pharmacy-Refusals-

101.pdf [https://perma.cc/BB2K-MMMY].

11

FAQ114 Contraception: Emergency Contraception, AM. C. OBSTETRICIANS &

GYNECOLOGISTS 1 (May 2019), https://www.acog.org/Patients/FAQs/Emergency-

Contraception [https://perma.cc/N3LL-X4GN]. 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), https://www.who.int/news-

room/fact-sheets/detail/emergency-contraception [https://perma.cc/ZZ4Q-LL45].