States look at pharmacist 'conscience' laws regarding EC

As the FDA continues to debate whether to approve Barr Laboratories' Plan B emergency contraception for over-the-counter sales, states are actively looking at whether pharmacists should have the right to refuse to dispense a medication on religious or moral grounds.

The National Conference of State Legislatures (NCSL) reports that health provider "refusal clauses" also known as "conscience clauses," were first enacted in response to the U.S. Supreme Court's landmark decision in the Roe v. Wade abortion case that overturned all state laws outlawing or restricting the procedure.

Since that 1973 case, some states have proposed legislation or actually adopted laws designed to allow doctors and other direct providers of health care to refuse to perform or assist in an abortion, and hospitals to refuse to allow abortion on their premises.

The issue now is expanding as some pharmacists are refusing to fill emergency contraception and regular contraception prescriptions.

In some states, legislators are introducing bills that would explicitly grant pharmacists the right to refuse to dispense drugs related to contraception on moral grounds. Other legislatures are considering bills that would require pharmacists to fill any legal prescription for birth control.

Four states — Arkansas, Georgia, Mississippi, and South Dakota — have passed laws allowing a pharmacist to refuse to dispense emergency contraception drugs. Illinois passed an emergency rule that requires a pharmacist to dispense FDA-approved contraception. Colorado, Florida, Maine, and Tennessee have broad refusal clauses that don't specifically reference pharmacists, while California pharmacists have a duty to dispense prescriptions and only can refuse when their employer approves the refusal and the patient can still access the prescription in a timely manner.

By March 2006, 39 bills had been introduced in 19 states to give pharmacists the right to refuse to fill some prescriptions.

The Washington state pharmacy board has approved a rule clarifying that a pharmacist can refuse to fill a prescription on the grounds of conscience. Because the state has not had such a rule, it did not investigate complaints earlier this year from a regional abortion provider that pharmacists balked three times at filling prescriptions for its patients. The new rule allows pharmacists to refuse to fill prescriptions, but requires them to make a referral to another pharmacist who will fill the prescription.

"While there are many different types of patients who would be adversely impacted by allowing pharmacists to refuse to fill valid prescriptions, we are most concerned about the impact such a policy would have on women seeking birth control, especially emergency contraception," said NARAL Pro-Choice Washington leader Karen Cooper at a board hearing before the policy was adopted.

OTC Plan B allowed

Washington is one of only a few states that has acted on its own to approve over-the-counter sales of emergency contraception. Pro-life observers had said a conscience clause is even more important in such states. Washington Gov. Christine Gregoire said she opposed any measure to protect the right of pharmacists to refuse to fill a legal prescription. She was joined in opposition by 40 state legislators, NARAL, Planned Parenthood, and nearly 70 other organizations.

The executive director of the state Human Rights Commission warned the board that pharmacist refusals could be considered gender-based discrimination and could place pharmacies at risk for civil damages.

But Seattle pharmacist Daphne McBreen told the board it's not difficult for a customer to get another pharmacist to fill a prescription and Saint Francis Hospital, Federal Way, pharmacist Jeffery Williams said, "Suppression of conscience is coercion and discrimination."

Some activists testified that refusing to fill prescriptions could put a patient's health at risk or, in the event of a rape, lead to an unwanted pregnancy. Some said refusals could extend to AIDS medications and others said the biggest concern is for small towns or rural areas where prescription options are few.

The Washington State Pharmacy Association reportedly favored no board action after an internal task force that looked into the issue recommended that position. "We believe the patient comes first," said association CEO Rod Shafer. "But we also believe that if there is a way to accommodate a pharmacist who has a religious, moral, or ethical objection, it should be accommodated if possible. We think the current laws and regulations . . . are sufficient to meet patient needs."

Referring to the abortion provider complaints, Shafer said that if they are true, it would be considered professional misconduct and should be dealt with under existing disciplinary rules.

Oregon follows Washington lead

Shortly after the Washington board acted, Oregon's Board of Pharmacy adopted a similar policy, again angering pro-life groups.

"Fully respecting the consciences of pharmacists should extend to respecting the professional ethical integrity not to refer for prescriptions that violate the conscience of the individual pharmacist," said Oregon Catholic Conference executive director Bob Castagna. "Whether contained in administrative regulation or state statute, public policy should recognize that freedom of conscience is rooted in the federal and state constitutional protections of freedom of religion."

But the board said pharmacists who fail to refer would be guilty of unprofessional behavior. "Just as other health care professionals and practitioners in Oregon have a choice, so do pharmacists have a choice whether or not to participate in activities they find morally or ethically objectionable," the board position statement said. "Oregon pharmacists cannot, however, interfere with a patient's lawfully and appropriately prescribed therapy."

Meanwhile, the Minnesota legislature was considering a law that attempted to balance allowing pharmacists to follow their consciences and getting patients the drugs they have been prescribed. Separate bills in the state House and Senate would permit pharmacists to refuse to dispense medications to which they object for moral or religious reasons. Observers said the bills were prompted by at least two Minnesota cases in which pharmacists declined to give women birth control pills or emergency contraception.

"It is critical that, while protecting the ability of pharmacists to step away, patients are not abandoned," Minnesota Pharmacists Association president John Stevens told a Senate hearing.

"I did not want a bill that dealt with ideology in any way," said pharmacist Michael Barrett, who works at Long Prairie Memorial Hospital and has been pushing the issue with the pharmacists' association and legislators. Barrett said a few doctors have asked him to stock emergency contraception pills in the hospital pharmacy and he has refused because he believes that in some circumstances the pills can cause the abortion of an early-stage embryo and thus end life. "I don't want to stock it in the hospital but I have no problem if they get it from a clinic," he said. "We are trying to allow the pharmacists to exercise their consciences in a seamless and noncontentious way."

Under current Minnesota law, pharmacists can refuse to dispense medication without any guarantee that patients will get the drugs through other means.

Could have much broader impact

Neither version of the legislation specifies any prescription drug or type of drug pharmacies could reject for moral or religious reasons. Thus, observers said, it is conceivable a Muslim pharmacist could refuse to fill a prescription that includes alcohol, or a Hindu pharmacist could refuse to dispense a drug that has been tested on animals. Such issues have not come up in Minnesota and some say it is so unlikely that no change in current law is needed.

The American Society of Health-System Pharmacists (ASHP) has approved a new policy to 1) recognize the right of pharmacists and other pharmacy employees to decline to participate personally in morally, religiously, or ethically troubling therapies; 2) support the proactive establishment of systems that protect the patient's right to obtain legally prescribed and medically indicated treatments while reasonably accommodating in a nonpunitive manner the right of conscience; and 3) support the principle that a pharmacist exercising the right of conscience must respect and serve the legitimate health care needs and desires of the patient and must provide a referral without any actions to persuade, coerce, or otherwise impose on the patient the pharmacist's values, beliefs, or objections.

The new policy replaces one that said the society "recognizes a pharmacist's right to conscientious objection to morally, religiously, or ethically troubling therapies and supports the establishment of systems that protect the patient's right to obtain legally prescribed and medically indicated treatments while reasonably accommodating the pharmacist's right of conscientious objection."

(Editor's note: More information is available from the National Conference of State Legislatures on-line at www.ncsl.org. The ASHP drafts and background material are available at www.ashp.org.)