Pharmacists Battling Lawsuits Over Conscience Issues

ST. PAUL, Minn. — This spring will see the 40th anniversary of the landmark U.S Supreme Court ruling in Griswold v. Connecticut, creating a “right to privacy” and legalization of contraception in the United States. Since then, many forms of birth control have become widely available by prescription and over the counter.

But Griswold did not require pharmacies to stock birth-control pills or contraceptive devices, or compel pharmacists to dispense them.

That has caused disputes over the years, but now the growing controversy over the availability of the “morning-after” pill is placing more attention — and pressure — on pharmacists.

Over the past three years, Minnesota pharmacist Neil Noesen has had several confrontations over his conscientious objection to filling contraceptive prescriptions. As an independent contractor in 2002, Noesen was assigned to a Kmart in Wisconsin with the understanding that facilitating contraception violated his Catholic beliefs and morals.

But when Noesen refused to fill a prescription for a college student, she filed a complaint against him with the Wisconsin Department of Regulation and Licensing. That agency launched disciplinary proceedings against him before the Pharmacy Examining Board, charging Noesen with engaging in a pharmacy practice “which constitutes a danger to the health, welfare or safety of patient or public.” The allegation included his failure to refer or transfer the prescription to another pharmacy.

“I have pro-life beliefs and believe that birth-control pills can be abortifacients,” Noesen said. “To transfer the prescription would make me part of a bucket brigade, just another step in facilitating the end result. It’s a link that would make me a party to selling something that demeans or endangers life.”

Noesen explained that the hormones in birth control work on three levels: to inhibit ovulation, fertilization and implantation. Each step backs up the potential failure of the one before it, making it possible that a conceived new life would be expelled.

“This should have been an open-and-shut, slam-dunk case,” said Noesen’s attorney, Krystal Williams-Oby. “Neil did not violate any statutes or standards, so why did the state bring these proceedings against him? You can’t violate a person’s conscience. The state should promulgate rules about what a pharmacist should do when they have a conscientious objection.”

In fact, Wisconsin legislators have authored such defining standards in the Conscience Clause Bill, which would protect medical professionals from being required to participate in procedures they find morally objectionable. It passed both houses of the Legislature, but was vetoed by Gov. Jim Doyle. The bill will be reintroduced in the spring session.

“There’s a lot of furor over this, but we’re not banning oral contraceptives; we’re simply trying to set up protection for pharmacists,” said Matt Sande, legislative affairs director of Pro-Life Wisconsin. “In the verbal games, the critical question is, when does human life begin? Embryologists say that life begins at fertilization, so preventing that is abortifacient by nature. Just as a woman’s legal right to surgical abortion does not compel a hospital to provide one, a woman’s legal right to abortion-causing drugs should not compel a pharmacist to dispense them.”

Duty to Do Good

Planned Parenthood of Wisconsin strongly disagrees and is promoting the Patient Protection Act. “Pharmacists have an ethical obligation not to take any action that could potentially harm the patient,” said attorney Chris Taylor, the group’s political director. “Withholding a woman’s birth control could cause her to risk an unintended pregnancy. Objections based on religious beliefs are outside the standard of care for pharmacists, and that’s troubling. They set themselves up as obstacles to patients receiving medicine that is legally prescribed and medically approved.”

The bill may be introduced in the spring session. Similar legislation was proposed in California in late December. No state currently requires health-care providers to dispense contraceptives; the president of Pharmacists for Life International, Karen Brauer, exhorts all states to keep it that way.

“These lawmakers don’t understand conscience,” Brauer said. “It’s a huge gray area. We’ll have a shortage of good health care in this country if they start forcing people to participate in killing. They would be abrogating the pharmacist’s clinical authority and responsibility.”

The nature of that responsibility is at the heart of the issue. When the California bill was proposed, Assembly leader Kevin McCarthy recognized the unprecedented step it would take. “Now the state government is going to start dictating what we have in pharmacies?” he was quoted as saying in the Los Angeles Daily News. “I’m not into telling pharmacies what they have to sell.”

Respecting the traditional authority of the profession is vital to the integrity — and supply — of pharmacists, according to Pharmacists for Life board member Lloyd DuPlantis Jr.

“Our duties override judicial and legislative considerations,” the Louisiana pharmacist said. “We have a professional relationship with the people we serve, and the duty to do what is right and good for them. The FDA posts warnings about drugs with dangerous chemicals that can do harm to patients. If I refuse to dispense them, then I’m a hero. But to argue for special immunity for some drugs that involve population control and eugenics, that’s very sinister.”

Birth control, DuPlantis contends, is dangerous. “It is a professional, scientific fact that these drugs are harmful,” he said. “Pharmacists hear a lot of rhetoric, but we’re the ones who have to put our name on the label and give it to patients and say it’s safe for them to take.”

Hippocratic Message

The bottom-line guide for that determination is basic, said Canadian Pharmacists for Life director Mike Izzotti. “We follow the Hippocratic message, ‘Do no harm,’” he said. “Medicines should restore or maintain health and serve no other purpose. Birth control is medication given to a healthy woman who doesn’t need it, and putting this into her body makes it non-functional instead of maintaining her health. And, as an abortifacient, it has the potential to kill a human being.”

Adding another wrinkle to the argument, the American Pharmacists Association, some state regulating bodies and Planned Parenthood accept the ethical refusal to fill these prescriptions, as long as pharmacists direct the patient to someone who will. That, however, violates those very ethics by requiring the pharmacist to facilitate the dispensing of the drugs in the end.

Many pharmacies will not stock the so-called “morning-after” pills — also called emergency contraception — which contain the same hormones that are in birth control, though in higher doses. But the line between the two can be blurry. Noesen was recently dismissed from a pharmacy in Minnesota for not dispensing birth control. Minnesota law states that “no person…shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion for any reason.”

And the Wisconsin Department of Regulation and Licensing has yet to decide whether to discipline or fine Noesen for his 2002 act of conscientious objection. “What the state is saying, without saying it, is, ‘Yes, the law allows you to exercise your judgment, but if that’s based on religious conscience, then you can’t do it,’” says Williams-Oby, his attorney. “The state is sending a message that traditional Catholics, or those with moral convictions, need not apply for a pharmacy license.”

Pro-Life Wisconsin’s Matt Sande hopes the state will enact protective legislation. “We should not be forced to act in ways contrary to our religious beliefs,” he said. “Should one person’s convenience trump another person’s moral conscience? That’s obnoxious, offensive and un-American. It all comes back to the Constitution and free exercise of religion.”

Sheila Gribben Liaugminas

writes from Chicago.

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