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Earlier this year in Texas, a pharmacist objected to a woman’s prescription for the morning-after pill because of his belief that such emergency contraception is a form of chemical abortion. Likewise, a pharmacist in Wisconsin refused to fill a woman’s prescription for birth control pills, again because of the belief that oral contraceptives can act as abortifacients. These events are not unique. During the past year, multiple pharmacists have refused to fill a prescription � often for emergency contraception but sometimes even for standard oral contraception � on moral grounds. In the Texas and Wisconsin cases, the pharmacists were ultimately disciplined, but had they been practicing in certain other states, their actions would have been protected by state law. These laws � referred to as refusal clauses, religious exemptions, or conscience clauses � are on the books in a few states and are being considered in many others. Since the Supreme Court legalized abortion in Roe v. Wade (1973), most states and the federal government have passed statutes that permit health care providers to refuse to provide or participate in certain medical procedures for moral or religious reasons. These statutes vary widely not only in terms of the persons and institutions that may be covered and the protection they receive but also in the types of procedures to which they apply, from sterilization and abortion to withdrawal of life support. Even today, most of these statutes do not cover pharmacists. During the past few months, at least 12 states have introduced legislation that would allow pharmacists to refuse to fill contraceptive prescriptions on moral or religious grounds. These statutes focus the debate squarely on the belief that hormonal contraceptives, including the morning-after pill, act as abortifacients by preventing implantation of a fertilized egg in the uterus. RELIGION AT WORK Under current law in most states, pharmacists may be fired or disciplined for refusing to fill birth control prescriptions. The legal precedents are relatively clear. Title VII of the Civil Rights Act of 1964 requires employers to provide a reasonable accommodation of the religious observance or practice of employees. But the Supreme Court in Trans World Airlines v. Hardison (1977) limited this obligation to accommodations that do not result in more than minimal costs to the employer. Applying this standard, courts have rejected claims such as those from police officers who requested that they be permitted to refuse to provide physical security at an abortion clinic and be permitted to refuse to arrest protesters blocking an abortion clinic entrance. Likewise, courts have not protected a delivery-room nurse who refused to assist in emergency Caesarean sections for women who were in danger of bleeding to death and a human resources employee who refused to counsel unmarried gay or lesbian employees on relationship issues. The new legislation may provide greater employment protection to pharmacists who wish to act on their religious beliefs. Although advocacy groups may challenge the constitutionality of such bills, the legislation will likely pass muster under the establishment clause. This clause states, “Congress shall make no law respecting an establishment of religion,” and it prohibits the government from preferring one set of religious beliefs over another, or from preferring religion over non-religion. Although legislation giving pharmacists the right to refuse to fill legal prescriptions for religious reasons might seem to violate the establishment clause, the Supreme Court has stated in Employment Division v. Smith (1990) that the establishment clause accepts nondiscriminatory religion-practice exemptions from generally applicable laws. RIGHT TO PRIVACY While this legislation may be found constitutional under the establishment clause, it potentially conflicts with a woman’s constitutionally protected privacy right under the due process clause of the 14th Amendment. It is unclear what balance the courts would strike between a pharmacist’s religious beliefs and a woman’s right to privacy. In Maher v. Roe (1977) and Harris v. McRae (1980), the Supreme Court has not interpreted the right to privacy to guarantee a woman access to comprehensive reproductive health services. But if a court views emergency contraceptives and the pill as abortifacients, conscience clause legislation may be found unconstitutional because it may act to prohibit a woman from making the decision to terminate her pregnancy before viability. (The Supreme Court was influenced by this consideration in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).) In addition, these conscience clause statutes may be subject to a successful equal protection challenge. Courts may find the laws treat women unequally because their lawfully written prescriptions are not being filled, while most, if not all, other prescriptions are being filled. Other issues outside of the constitutional framework also must be considered in any balancing of the patient’s rights to obtain contraceptives against the pharmacist’s religious beliefs. Pharmacists have always been expected to do more than just dispense prescription drugs. They often provide counseling to patients on appropriate use of medications and are empowered to question what may be inappropriate or unsafe prescriptions by physicians. They are not physicians, however, and frequently do not have the same familiarity with a patient’s personal health that a physician has. Indeed, by refusing to fill legal prescriptions, pharmacists are injecting themselves into the doctor-patient relationship without the benefit of the doctor’s medical knowledge and the patient’s medical history. Pharmacists may not even fully understand why a drug has been prescribed. For example, birth control pills may be prescribed for a variety of ailments, from acne to menstrual cramping to endometriosis. IMPACT ON PATIENTS Obviously, the new legislation could be drafted in a way that completely ignores the impact on patients. These measures may incorrectly assume that all or most patients can easily switch to a different pharmacist (or pharmacy) if a pharmacist refuses to fill their prescription. This assumption is erroneous, not only because many areas may not have multiple pharmacies but also because of the type of medication involved. Emergency contraceptive pills work best when taken within 24 hours of intercourse. Any delay can have a dramatic effect on the drug’s efficacy. The American Pharmacist Association, a national organization representing more than 50,000 pharmacists, has suggested that a conflicted individual can simply resolve this issue by referring the patient to another pharmacist on duty. But this assumes that another pharmacist will be available and, more important, that the conflicted pharmacist will be comfortable with the referral. By contrast, in response to these patient concerns, other states have bills pending that would require pharmacists to fill all legally written prescriptions. In April, Gov. Rod Blagojevich of Illinois put forth an emergency rule that ordered pharmacists to fill all contraceptive prescriptions without delay. On the federal level, at least two bills have been proposed that mandate that a pharmacist’s religious beliefs cannot obstruct an individual’s access to legal prescriptions. The American Pharmacists Association proposal suggests that the patient’s needs should prevail. NOT MUCH SUPPORT The debate about this issue will not die down soon, as it pits important principles against each other � the right of a patient to obtain legally prescribed medicine and the right of a pharmacist to act in accordance with his or her conscience. The core scientific justification for most advocates of the conscience clause, however, is not well-understood by the majority of Americans, and I suspect it is one that in the end will not draw much public support. Many of the pharmacists in question have objected to dispensing oral contraceptives because of the belief that these contraceptives can sometimes act in an abortifacient manner � that is, that they can act in a way that effectively terminates or aborts a pregnancy. The primary way oral contraceptives work is well-understood � they act to prevent ovulation (release of an egg from the ovaries) � and it is generally accepted that by this action, the drugs serve to prevent conception and not to terminate a pregnancy. But because it is still possible for women to ovulate while on the pill, some believe that oral contraceptives also have a “contragestive” effect � that is, in a small percentage of cases, they could also act to prevent implantation of the fertilized egg in the uterus (which typically occurs about a week after fertilization). The issue is further clouded by debate over when pregnancy begins � after fertilization of the egg, or after implantation of the fertilized egg in the uterus. The scientific debates, however, may be masking the more interesting social phenomena. There is almost certainly a great disparity between the number of Americans who are opposed to abortion and the number who are opposed to birth control pills and other forms of birth control that some claim cause abortion (e.g., the intrauterine device, or IUD, which acts only by preventing implantation of a fertilized egg). In other words, many who would oppose abortion of a fetus on moral grounds would not be opposed to the use of the pill or an IUD. For this reason, I think it is unlikely that public attitudes toward certain forms of contraception will shift dramatically. What effect this difference in attitudes will have on the enactment of conscience clauses is not clear, but it suggests that there will be a backlash if the legislation results in a significant restriction in the availability of regular or emergency hormonal contraceptives. One potential solution that would obviate the need for either new conscience clauses or access to prescription drug legislation, at least with respect to emergency contraception, would be to make more medications over-the-counter. The American Medical Association, the American Public Health Association, and a variety of other groups support a Food and Drug Administration reclassification of emergency contraception drugs as over-the-counter medication. If such status is granted, women will be able to obtain this medication without interference from any type of health care provider. Betsy Malloy is a professor at the University of Cincinnati College of Law and co-editor of the HealthLawProf Blog.

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