Prescriptions denied: pharmacy refusal clauses have become the latest battleground in the provision of safe and legal medical services.
This scenario is becoming more common as part of a concerted assault on safe and legal reproductive health care services, seeking to enshrine the right to refuse a prescription into laws nationwide.
Standard refusal clauses are nothing new. Statutory barriers to women accessing legal reproductive health services proliferated across the country after the 1973 Roe v. Wade decision. First, Congress enacted the Church Amendment in 1973, which stated that the receipt of federal funds does not require health care providers to make abortion and sterilization services available. Since then, 46 states have passed laws modeling that legislation which allows certain medical professionals and entities to opt out of performing certain legal medical procedures, mostly, abortion.
The latest twist in the bat-tie over the provision of reproductive health services, commonly called "pharmacy refusals," has spawned legislative battles across the country. Often spurred on or heavily supported by either the US Conference of Catholic Bishops or local bishops' conferences, refusal dames have also received support from the Catholic Health Association (CHA). The CHA is the trade association of the Catholic health industry and, among other roles, represents the interests of Catholic health care providers on Capitol Hill and in local legislatures. It claims to be "the largest not-for-profit provider of health care services in the nation" and, according to its 2005-2006 advocacy agenda, the preservation of what it terms "conscience" clauses is deemed a priority.
THE BULLY PULPIT
In Illinois, Chicago Auxiliary Bishop Thomas Paprocki vehemently opposed an emergency rule filed by Democratic Governor Rod Blagojevich on April 1 requiring pharmacies "that stock and dispense contraceptives to fill birth control prescriptions without delay." The order mandates that out-of-stock contraceptives must be ordered according to standard procedures and protects patients by requiring that, if unfilled, a prescription must be transferred to another local pharmacy or returned to the patient if the patient so desires. Since the governor's emergency rule will expire after 150 days, he filed for a permanent rule on April 18, 2005.
The order provoked Bishop Paprocki to single out the governor during a mass at St. Hyacinth's Basilica in April. "Mr. Governor, out of respect for Pope John Paul II, please respect his wishes ... rescind your order. Let our pharmacists be free to follow their faith," he said. (Washington Times, April 4, 2005) Governor Blagojevich has not backed down, but three challenges have since been filed against the order.
Bishop Paprocki may have overplayed his hand. Using his pulpit to intervene in a political issue is not likely to earn him support from Catholics and further, Catholics overwhelmingly support family planning, including access to EC. A recent poll showed that 75 percent of US Catholics believe that the church should allow the use of contraception. (Baltimore Sun, April 10, 2005) Even the Ethical and Religious Directives governing Catholic health care facilities allow the provision of EC to women who have been raped. (USCCB, 4th Edition, 2001) Catholics in the US, like those in other countries, object to the pulpit being used to espouse political views. During the last election cycle, a full 70 percent of US Catholics did not believe the views of Catholic bishops were important in deciding for whom to vote. (Belden Russonello & Stewart poll for Catholics for a Free Choice, "The View from Mainstream America: The Catholic Voter in Summer 2004," July 2004)
AN UNFAIR FIGHT?
Public opinion on the issue of pharmacy refusals is solidly on the side of full access to prescribed pharmaceuticals. When Americans were asked whether or not pharmacists who personally oppose birth control for religious reasons should be able to refuse to fill an order for birth control, a full 80 percent say no. Only 16 percent believed that pharmacists should be able to refuse service. Even 74 percent of "prolifers" opposed giving pharmacists this power. (Lake Snell Perry Mermin/Decision Research poll for NARAL Pro-Choice America, June 6, 2005)
Despite this overwhelming public support, laws governing pharmacists vary considerably from state to state. According to the National Women's Law Center, legislators in 28 states have filed bills that would allow pharmacists to refuse to fill prescriptions based on their personal beliefs. In just the first half of 2005, refusal clause bills were introduced in Arizona, Arkansas, California, Georgia, Indiana, Maryland, Michigan, North Carolina, Rhode Island, South Dakota, Tennessee, Texas, Vermont, West Virginia and Wisconsin.
However, legislation has also been introduced in five states (California, Missouri, New Jersey, Nevada and West Virginia) to protect the rights of patients seeking legal, essential health care services.
In Arizona, Governor Janet Napolitano (D) vetoed a bill (HB 2541) that would have allowed pharmacists to refuse to fill a prescription for emergency contraception. Not surprisingly, this veto brought swift condemnation from the Arizona Catholic Conference: "With the veto of HB 2541, health care providers' inalienable civil rights are apparently deemed inconsequential.... [W]e are extremely disappointed that Governor Napolitano has rejected this important legislation." Napolitano, in her veto letter to lawmakers, said that pharmacies and other health care providers "have no right to interfere with the lawful personal medical decisions made by patients and their doctors."
Responsible governors understand that a pharmacist refusing to fill a prescription for EC will have a significant impact on public health. It is an incursion on patients' rights to make personal and moral medical decisions. This is particularly the case for women in rural areas who may have a difficult time even getting to their local pharmacy--never mind having to choose amongst them for better service.
Soon, it is expected that Wisconsin Governor Jim Doyle, a Democrat, will face a bill already passed by the Wisconsin Assembly that will expand "conscience" clause protections to include pharmacists and medical school students. Doyle, who opposes the measure, will most likely veto the legislation if it reaches his desk.
While Arizona and Illinois were success stories in terms of stopping the pharmacy refusal campaign, this was largely due to the fact that voters in those two states elected governors who are happy to use their power of a veto to protect the rights and consciences of women. States where voters have elected conservative chief executives do not have that luxury.
In June, the American Medical Association passed a resolution in support of state and federal legislation that requires pharmacists to fill prescriptions without delay or to make an immediate referral to another pharmacy. If no other willing pharmacist can be found within 30 miles, they must fill it themselves.
On the federal level, legislation has been introduced in the United States Congress to address pharmacy refusals. At press time, the "Access to Legal Pharmaceuticals Act" is sponsored in the Senate by Senator Frank Lautenberg (D-NJ) and in the House by Representative Carolyn Maloney (D-NY). Additionally, there is the "Pharmacy Consumer Protection Act of 2005," sponsored by Senator Barbara Boxer (D-Calif.), and HR 1539, sponsored by Representative Carolyn McCarthy (D-NY), requiring pharmacies to fill prescriptions within four hours if one pharmacist refuses to fill it on grounds of conscience.
(While not refusal or pharmaceutical specific, the Workplace Religious Freedom Act, introduced by Senators Rick Santorum (R-PA) and John Kerry (D-Mass.) could conceivably offer workplace protection for pharmacists who refuse to fill a prescription with which they disagree if it is based on religion. The bill is currently opposed by Catholics for a Free Choice, Americans United for Separation of Church and State and the American Civil Liberties Union.)
It is unfortunate that some health care providers seek to withhold medical treatment or services from a patient who has already made the decision that the treatment is both morally and medically necessary and acceptable. In effect, these providers have decided that their consciences trump those of patients. While we do need to balance the rights of individual providers and patients, a pharmacy must make provisions so that if an individual pharmacist refuses to fill a prescription, the patient is still able to obtain the prescription they need in a reasonable time frame.
Pharmacists who refuse to fill prescriptions, who hold a prescription hostage or publicly berate a woman for asking for a prescription to be filled are not only denying women their basic health care rights, but are also disregarding the religious freedom of that woman to make her own decisions. This problem gets compounded for rural women who may not have the means to travel to a different pharmacy.
The systemic campaign in support of legislative obstacles to safe and legal public health services is troubling. While we must recognize the right of individual medical professionals to decline to provide services they consider immoral, it goes too far to grant such rights to an institution or to permit individuals to refuse to refer the patient to another provider.
There will be times when the conscience of an individual doctor, nurse or pharmacist may conflict with the wishes or needs of a patient. There has, however, always been an ethical preference for ensuring that patients have the primary opportunity to act on their conscience.
In the case of refusal clauses, it is incumbent on the institution to ensure that the rights of both patients and providers are recognized and honored. The institution should be obliged to provide doctors and nurses and in these cases, pharmacists, who will provide services that patients deem moral and that are legal, while allowing those medical professionals who choose to opt out to do so.
When this is not possible, a reasonable ethical fall back is for the institution to provide the patient with "meaningful referral" that ensures that patients receive continuity of care without facing an undue burden, such as traveling long distances or encountering additional barriers.
State and federal legislators need to be mindful of and assimilate this ethical balancing act before they enshrine in law a system that does a disservice to both the medical profession and women seeking legal and necessary medical services.
Laws & Bills Governing Pharmacist Refusals
Most states in the US have statutes or regulations that implicitly impose a duty on the pharmacist to dispense all legally valid and medically appropriate prescriptions. However, several states have introduced, and some even enacted, measures that would permit pharmacists to refuse to fill prescriptions based on their personal beliefs.
ROGER J. LIMOGES is the senior policy analyst at Catholics for a Free Choice.