Essay: The Limits of Conscience: Moral Clashes over Deeply Divisive Healthcare Procedures

Refusals by individual pharmacies and pharmacists to fill prescriptions for emergency contraceptives (“EC”) have dominated news headlines. The refusals reflect moral and religious concerns about facilitating an act that would cut-off a potential human life. Recently, conscience-based refusals have ballooned far beyond EC. Pharmacists are refusing to fill prescriptions for birth control, and other ancillary care professionals are asserting their own conscience concerns. Not surprisingly, these refusals have drawn complaints from civil liberties groups, which have urged regulators to discipline professionals refusing to perform requested medical services. Although refusals to dispense have been treated as a monolithic whole, they encompass a range of conduct, some of which is already illegal under existing law. Worried about access issues, some state legislatures have responded with special legislation. Other states protected the conscientious refusals of both individual pharmacists and pharmacies, bringing them within the scope of traditional conscience clauses that date back to Roe v. Wade. Significantly more states mandated the provision of EC, either by statute, executive order, or pharmacy board regulation. Approximately twenty states are actively considering what action, if any, to take. This Essay does not address the constitutionality of duties to fill prescriptions for Plan B. Instead it asks whether states should provide conscience clause protections even if they are not constitutionally mandated. In other words, this Essay asks whether such protections are good public policy. It begins in Part I by mapping the ethical terrain of competing interests and by explaining why the recent decision by the United States Food and Drug Administration (“FDA”) to make Plan B available behind the counter eases, but does not erase, the opportunities for conscientious refusals. Part II then reviews the rich history of conscience protections dating back to Roe v. Wade. This Part illustrates that conscience protections need not be all-or-nothing, winner-take-all accommodations. Instead, many traditional conscience clauses balance the patient’s need for access to a medical service with the need to respect a provider’s religious or moral convictions. Parts III and IV then examine how the policy trade-offs change when the policy focus is on pharmacies as opposed to individual pharmacists. Part V assesses the role that urgency should play when deciding how to proceed. It rejects as inadequate both regulatory directives to individual pharmacists to fill all valid prescriptions and laissez-faire, market-based approaches that impose no duties. Drawing on traditional conscience clauses, Part VI offers a live-and-let-live response to the collisions over EC and other divisive healthcare procedures. This approach addresses valid concerns about patient access while preserving an individual provider’s ability to step aside when the costs are minimal. This proposal rests on the core proposition that society should be more concerned with the autonomy of individual providers than the autonomy of pharmacies. Furthermore, placing duties on pharmacies is more likely to effectively address patient access issues than duties on individual pharmacists.