Rx for drugstore discrimination: challenging pharmacy refusals to dispense prescription contraceptives under state public accommodations laws.

• Author: Chandrasekhar, Charu A.

1. INTRODUCTION

   In January 2005, a Wisconsin mother of six children who experienced condom failure after intercourse obtained a prescription for emergency contraception (1) and traveled to a Milwaukee Walgreens to fill the prescription. (2) Instead of honoring the physician's medical instructions, however, pharmacist Michelle Long refused to fill the prescription and "publicly berated" the customer, telling her, "You're a murderer. I will not help you kill this baby. I will not have the blood on my hands." (3) Although the customer tried to reason with the pharmacist, the pharmacist's castigation only escalated:

   "I tried to explain to her that it's emergency contraceptives, that it's not an abortion pill. She then snatched the form from me, that the prescription was attached to, telling me the paper was full of lies, and she won't be a part of it. I was crying, shaking, upset, so embarrassed. I wanted to run out of the store and hope[d] nobody else could get a good look at me." (4)

   The customer was too traumatized to locate another pharmacist to fill the prescription; subsequently, she discovered that she was pregnant and had, in the face of the unwanted pregnancy, an abortion. (5)

   While the actions of the pharmacist in this story were particularly objectionable, the underlying phenomenon of a refusal to dispense prescription contraceptives in a pharmacy has gained increasing visibility in recent years. Pharmacists in states from California to Massachusetts have refused to fill prescriptions for birth control pills. (6) Pharmacists have denied women emergency contraception following sexual assault as well as after contraceptive failure. For example, a pharmacist in Denton, Texas refused to fill a rape survivor's prescription for emergency contraception on the basis that dispensing the prescription would violate his moral beliefs. (7) Other pharmacists and pharmacies fail to stock emergency contraception at all. (8)

   Pharmacists who refuse to fill contraceptive prescriptions typically claim a moral, religious, or ethical right to refuse to fill these prescriptions. (9) Some such pharmacists erroneously believe that emergency contraception is not contraception, (10) but an abortifacient drug and thus refuse to stock or dispense this medicine. (11) Other pharmacists believe all hormonal contraceptives are potentially abortifacient drugs. (12) These refusals to dispense prescription contraceptives enjoy support from a small, but growing, nationwide anti-contraception movement. (13) Because millions of American women use prescription contraceptives, (14) such refusals have drawn widespread public attention and media scrutiny nationwide. (15)

   Federal and state lawmakers have waded into the waters of the debate and have advocated a range of legislative solutions, ranging from protections for women seeking to fill contraceptive prescriptions to "refusal clause" statutes granting pharmacists the right to refuse to honor these prescriptions. (16) While some legal nonprofit groups defend the rights of those pharmacists who have refused to fill contraceptive prescriptions, (17) other organizations strive to safeguard a woman's ability to fill a contraceptive prescription while working with pharmacies to accommodate the diverse beliefs of their pharmacist employees. (18) The controversy came to a head in August of 2006 when the federal government granted partial over-the-counter (OTC) status to emergency contraception after years of governmental delays and contentious debates. (19)

   Complicating the debate has been widespread ignorance and misunderstanding concerning emergency contraception. (20) The federal government, as well as leading medical organizations, such as the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Women's Association (AMWA), state that pregnancy begins when a fertilized egg is implanted in the lining of the uterus. (21) Just like other forms of birth control pills, emergency contraception acts by preventing ovulation, fertilization, or implantation. (22) Thus, emergency contraception does not disrupt an existing pregnancy, but prevents pregnancy altogether, completely distinguishing it from an abortifacent like mifepistrone, a medicine that ends established pregnancy. (23) Nonetheless, opponents of contraception and abortion rights regularly advance the misleading view that emergency contraception (and, indeed, all forms of hormonal contraception) is a form of abortion. (24)

   Refusals to dispense prescription contraceptives in pharmacies are deeply alarming on several fronts. Family planning and public health experts worldwide have definitively established that access to contraception is crucial to women's health and socioeconomic development: it enables women to prevent unwanted and high-risk pregnancies, avoid abortion (a particularly important consideration in regions where access to safe abortion is limited), manage reproductive health problems, space, and limit the number of children they choose to have, take advantage of opportunities for educational and economic advancement, and provide better lives for themselves and their families. (25) Similarly, millions of American women (26) depend upon contraception to plan their families by spacing and limiting births, reduce the number of unwanted and high-risk pregnancies, manage gynecological complications unrelated to pregnancy and prevent life-threatening complications, and pursue opportunities for personal and professional advancement. (27)

   Moreover, ACOG, AMWA, the American Academy of Pediatrics, the Guttmacher Institute, and medical scholars state that improved access to emergency contraception would annually reduce several thousand unintended pregnancies and abortions in the United States. (28) The National Women's Law Center also states that "[e]ach year 25,000 pregnancies occur as a result of sexual assault, and experts predict that timely access to [emergency contraception] could prevent up to 22,000 of these pregnancies." (29) To that end, ACOG has stated that improving women's access to emergency contraception is an important public health goal and has launched a nationwide campaign to educate women of reproductive age about the importance of emergency contraception and to encourage them to obtain an "advance prescription" for the medication that can be used in the event of contraceptive failure or sexual assault. (30)

   As such, refusals to dispense prescription contraceptives in pharmacies threaten to deny millions of American women an essential health care service. (31) The potential adverse impact of such refusals is vast: over sixty million American women are currently within their childbearing years, (32) and ninety-eight percent of those women who have ever been sexually active have used at least one contraceptive method. (33) Approximately thirty-eight million women are currently using a contraceptive method. (34) Refusals to dispense prescription contraceptives in pharmacies disproportionately impact certain demographic groups: a woman in a rural area or without ready access to transportation, child care, or leave from work who suffers a refusal may not be able to travel to another pharmacy or find a pharmacy that stocks the medicine she needs. (35) Refusals to fill prescriptions for emergency contraception in pharmacies are especially problematic because emergency contraception must typically be administered within 120 hours of unprotected intercourse in order to prevent pregnancy, (36) but is more effective the sooner it is used after intercourse. (37)

   Because access to contraception is central to women's health and right to self-determination, this Article contends that refusals to dispense prescription contraceptives in pharmacies constitute sex-based discrimination. This Article examines the possibility for legal redress against this sex discrimination through litigation or administrative action and contends that state public accommodation statutes are a promising vehicle for challenging such discrimination. (38) Many of these statutes explicitly prohibit sex-based discrimination and offer multiple forms of legal redress against such discriminatory acts and many define or can be interpreted to include pharmacies as places of public accommodation. (39)

   Moreover, federal law does not explicitly prohibit sex-based discrimination in places of public accommodation (40) or in contractual transactions. (41) Because the pharmacies where refusals to dispense prescription contraceptives have occurred are typically private actors unaffiliated with any governmental entity, federal constitutional safeguards such as equal protection are also inapplicable to them. (42) Thus, in order to seek redress in the courts for such pharmacy refusals, it is necessary to look beyond federal law. The road to bringing a refusal challenge under a state public accommodation statute is not perfectly smooth, however. Pharmacies as well as pharmacists who refuse to dispense prescription contraceptives on the basis of a moral or religious objection may have certain protections under federal and state law. (43) This Article discusses bringing a sex discrimination claim against a pharmacy and any defenses to such a claim that will need to be addressed.

   For purposes of this Article, "prescription contraceptives" include all forms of contraception that require a pharmacist to dispense the medicine to the patient. The term applies to all forms of birth control that can only be obtained with a prescription. It applies equally to emergency contraception sold OTC because such medicine is legally required to be housed behind the pharmacy counter, (44) a barrier that would enable a pharmacist to refuse to dispense the medicine to the patient. (45)

2. CONSTRUCTING A CLAIM OF SEX DISCRIMINATION IN PUBLIC ACCOMMODATIONS BASED ON A REFUSAL TO DISPENSE PRESCRIPTION CONTRACEPTIVES IN A PHARMACY

   Bringing a claim alleging sex...