RxLegal - Pharmacist Conscience Clauses: Continuing Debate

After the 1973 Supreme Court decision in Roe v. Wade, which affirmed a constitutional right to privacy and thereby overturned several state laws curtailing abortion, many states enacted or proposed legislation that allowed health care providers or hospitals to refuse to participate in abortion procedures based upon moral or ethical objections. This type of legislation came to be known as a conscience clause, which has been defined as ‘‘the medical providers’ right to exercise conscientious refusal to provide services to which they have religious or moral objections.’’ Although initial conscience clause legislation was developed as a reaction to Roe v. Wade, the conscience clause debate has expanded over the ensuing decades due to the development of new medical practices such as in vitro fertilization, embryonic stem cell research, and assisted suicide. This debate more significantly embroiled pharmacists during the 1980s when physicians began to prescribe the contraceptive, Ovral, in doses that would ensure postcoital contraception. At that time, some pharmacists conscientiously refused to dispense legitimate prescription orders for this medication and other contraceptives, which they viewed as abortioninducing treatments. These rare instances of conscientious refusal continued into the 1990s with the arrival of mifepristone (RU-486) and the newer ‘‘morning after pills,’’ Plan B and Preven. Many of these pharmacists were fired for refusing to dispense a legitimate prescription despite their personal moral or ethical objections. In 1998, the American Pharmacists Association (APhA) adopted an official policy regarding pharmacist conscience clauses. This policy ‘‘recognizes the individual pharmacist’s right to exercise conscientious refusal and supports the establishment of systems to ensure the patient’s access to legally prescribed therapy without compromising the pharmacist’s right of conscientious refusal.’’ Basically, APhA supports allowing an individual pharmacist to step away from dispensing a medication to which he or she has an ethical or moral objection, but does not support allowing a pharmacist to interfere with such dispensing (ie, an appropriate alternative to ensure medication access must be provided to the patient). In 2005, the House of Delegates of the American Medical Association (AMA) adopted a similar resolution, which reaffirmed the importance of patient access to medical care and the immediate provision of alternative means to dispense a legal prescription if a pharmacist exercises conscientious refusal. One of the earliest cases involving the issue of a pharmacist’s conscientious refusal to dispense a legally prescribed medication is Brauer v. K-Mart. In 1999, Karen Brauer filed suit against K-Mart after she was terminated for refusing to sign an agreement, which stated that she ‘‘would dispense all lawfully prescribed medications regardless of her feelings or beliefs.’’ Ms Brauer conscientiously refused to dispense oral contraceptives as she personally believed that these medications prevented implantation of a fertilized ovum resulting in abortion. K-Mart attempted to have the case dismissed from the US District Court in Cincinnati; however, District Court Judge Weber disagreed with the narrow reading of the state conscience statue applied by K-Mart. Judge Weber declared that the conscience statute is obviously intended to allow individuals to refuse to participate in abortion procedures and because oral contraceptives can prevent implantation of a fertilized ovum, which Ms Brauer believed to result in abortion, the clause protected her conscientious refusal to dispense. Other notable legal cases involving pharmacist conscience clauses include Stormans v. Washington State Board of Pharmacy and the cases of Paula Koch and Neil Noesen. These cases aided in further delineating the nuances of such clauses when invoked by a pharmacist. First, courts and administrative bodies appear to prefer that pharmacists make timely, written, and substantive disclosures detailing pharmacy activities in which the objecting pharmacist chooses