Cold comfort pharmacy: pharmacist tort liability for conscientious refusals to dispense emergency contraception.

• Author: Gast, Kristen Marttila

Kristen Marttila Gast, Cold Comfort Pharmacy: Pharmacist Tort Liability for Conscientious Refusals to Dispense Emergency Contraception, 16 TEX. J. WOMEN & L. 149 (2007).

Pharmacists on the whole are adamant that they have the ethical and legal right to refuse to dispense medications they find objectionable. Whether or not this is true has been the subject of debate. Very little scholarship exists analyzing how courts would likely construe pharmacists' duty of care in the context of emergency contraception--whether, in the absence of a medical justification for refusal, they must dispense the drug or whether they may act in accord with the dictates of their conscience without being subject to liability Ultimately this legal issue may be settled on a state-by-state basis as legislatures and licensing boards resolve the debate by either allowing pharmacists to refuse or requiring them to dispense emergency contraception. But in the meantime, what duty of care does a pharmacist owe to a woman seeking emergency contraception? What recourse, if any, does a woman have when a pharmacist's conscientious objection threatens to moot her right of access?

Wrongful conception, sometimes called "wrongful pregnancy," is one of the so-called "birth torts." Courts generally treat wrongful conception as a medical malpractice action brought under the theory of negligence and have assessed damages in accordance with traditional tort liability theory. Wrongful conception claims have arisen most frequently in the context of a failed sterilization procedure, whether a vasectomy or tubal ligation or cauterization, when conception and pregnancy resuits after sterilization. In such surgical sterilization cases, the traditional elements of negligence are straightforward: the doctor breaches the duty of care owed to his or her patient by improperly performing a surgical sterilization; this breach is the proximate cause of an unplanned pregnancy; and the unplanned pregnancy results in damages to the patient. This action is widely recognized with thirty-two of the thirty-three jurisdictions to consider the question treating wrongful conception as a cognizable tort.

Although wrongful conception claims have most frequently involved surgical sterilization procedures, two states have recognized the tort in the context of more temporary forms of birth control. In Jackson v. Bumgardner, the North Carolina Supreme Court held the plaintiff stated a cognizable claim against a...