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The 7th U.S. Circuit Court of Appeals has rejected a Wisconsin pharmacist’s claim of a civil rights violation for Wal-Mart Stores Inc.’s partial accommodation of his refusal on religious grounds to dispense birth control. In addition, the 7th Circuit held that Title VII of the Civil Rights Act of 1964 cannot be used to compel states to enact a “conscience clause” exception into its standards of professional conduct. Such a clause would have allowed pharmacist Neil T. Noesen to refuse to dispense birth control without facing discipline. Conscience clauses have been a hotly contested issue in a number of states in recent years. “Courts are not particularly sympathetic to that under the civil rights law,” said Paul Linton, attorney with the Thomas More Society, a public interest law firm based in Chicago, who represents Noesen. Linton pointed out that Noesen currently has a separate state appeals court case pending that challenges on constitutional religious freedom grounds his discipline by the state pharmacy board for refusal to provide contraceptives. That case raises religious freedom claims head on, Linton said. Noesen’s case, Noesen v. Medical Staffing Network Inc., No. 06-2831, although unpublished, drew attention in 2005 by both supporters and opponents of abortion when the district court ruled against him because the state was in the midst of a battle over “conscience clause” legislation. Four states allow refusal Currently, Wisconsin has nothing on the books regarding conscientious refusal to provide contraceptives, though it considered the issue in 2005. Four states allow pharmacists to refuse to supply birth control without any further duty to refer customers to others, according to Gretchen Borchelt, counsel for the National Women’s Law Center in Washington. They are Arkansas, Georgia, Mississippi and South Dakota. Six states prohibit or severely limit pharmacy refusals to fill birth control prescriptions, according to Borchelt. Another five states have pharmacy board policies that allow pharmacists to refuse to dispense contraceptives but require them to transfer the requests to others. In March, a state appeals court in Illinois sidestepped ruling on the state’s prohibition on pharmacy refusals to dispense the “morning after pill” even if dispension would violate a pharmacist’s religious beliefs, holding the issue was not ripe. Morr-Fitz Inc. v. Blagojevich, 2007 WL 900463 (Ill. 4th App. Ct.) In Noesen’s case, he worked as an independent pharmacist through Medical Staffing Network Inc. and served as a fill-in pharmacist at Wal-Mart in Onalaska, Wis. The store agreed to accommodate his religious objections. He was not required to fill prescriptions for birth control or take orders from physicians over the phone, and medicine was sorted into a separate basket so he would not have to touch it. But Noesen was told he would still have to wait on customers and answer phones; however, when a request for contraceptives came, he walked away from the customer without explaining or left callers on hold without telling others about the call, according to the court. He declined the offer to wait only on customers who were male or not of childbearing age. He was subsequently fired, but refused to leave and lectured customers on Wal-Mart’s discriminatory conduct, according to the opinion. The 7th Circuit held that Noesen’s proposed accommodation of no telephone or customer contact would pose an undue hardship on Wal-Mart. The court also rejected Noesen’s claim that the state of Wisconsin had an obligation under Title VII to enact a “conscience clause exception” to its standards of professional conduct. The court held that Wisconsin is immune under the 11th Amendment of the U.S. Constitution, and that Title VII applies to states only in their role as employers. Attorneys for Wal-Mart and Medical Staffing Network did not respond to requests for comment.

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