The featured article in this edition of Issues in Law & Medicine, by law professor Jennifer E. Spreng, searches for a common law "duty" of pharmacists to dispense emergency contraceptives. Stories abound of women with prescriptions turned away and pharmacists losing their jobs and running afoul of ethics rules for refusal to dispense "emergency contraceptives." Some pharmacists object to dispensing emergency contraceptives, or Plan B, because it may have an abortifacient effect, causing a human embryo to fail to implant in the womb. Scholars have tried to find a duty requiring pharmacists to dispense Plan B. Many are calling for a common law "duty to dispense" that could serve as a foundation for a "wrongful pregnancy" cause of action against a dissenting pharmacist.
Professor Spreng thoroughly analyzes the law and concludes that such a duty simply does not arise from established tort principles or pharmacist-specific precedents. Only in rare circumstances will a pharmacist and customer have the type and quality of relationship giving rise to a duty to dispense.
Nevertheless, the law changes over time and evolves to accommodate new or unique circumstances, including new duties, created by statute, or assumed by pharmacists. Pharmacists have an awkward role in the distribution of Plan B, which by law is available to adult women without prescription, but must be kept behind the counter. Moreover, while the law may protect pharmacists' consciences, it may not be so receptive to pharmacists-as-activists. But, as explained in the article, there are steps dissenting pharmacists may take to protect themselves from potential legal liability for refusing to prescribe emergency contraceptives.
The Verbatim section is the introduction and chapters one and two of a new book by Richard Fenigsen, M.D., Ph.D. Dr. Fenigsen is a retired cardiologist from the Netherlands, where he observed many changes in...