Sex, Values and Pharmacy
Steven Miles, MD
Miles001@umn.edu
Sexual Medicine: Contraception, Assisting Reproduction,
Preventing Disease, Enhancing Sexual Experience
Deeply Held Values
Where do pharmacists’ values fit in?
A brief history of legal ‘coming to
terms’ with controversial sexuality.
Comstock Law: 1873-1936
• Whoever shall offer to sell, loan,
give away, exhibit, publish, or
possess
• an obscene book, pamphlet, advertisement, print, picture, or drawing or
• any article for the prevention of
conception, or for causing abortion,
• or shall advertise the same for sale,
• or shall write or print any circular,
book, or pamphlet stating how such
articles can be obtained,
• shall be imprisoned at hard labor for
not less than six months nor more
than five years for each offense…
Anthony Comstock
Postal Inspector
Politician
Griswold v Connecticut-1965
•
•
•
•
•
•
Supreme Court rules that a Comstock law barring
married people from using contraceptives was
unconstitutional.
“Would we allow the police to search the sacred
precincts of marital bedrooms for telltale signs of the
use of contraceptives? The very idea is repulsive to the
notions of privacy surrounding the marriage
relationship.”
The 1st Amendment has a penumbra of privacy as
protected "associations" that are not political in the
customary sense, but pertain to the social, legal, and
economic benefit of the members.
The 3rd Amendment, in prohibiting the quartering of
soldiers "in any house" in time of peace without the
consent of the owner, is another facet of privacy.
The 4th Amendment affirms the "right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures."
The Fifth Amendment, in its Self-Incrimination Clause,
enables the citizen to create a zone of privacy which
government may not force him to surrender to his
detriment. …
Estelle Griswold
Loving vs State of Virginia 1967
• Supreme Court voids laws
barring the inter-racial
marriage of Mildred and
Richard Loving.
• Almighty God created the races
white, black, yellow, Malay and
red, and he placed them on
separate continents. And but
for the interference with his
arrangement there would be no
cause for such marriages. The
fact that he separated the races
shows that he did not intend for
the races to mix. Trial Judge.
“Surrounded as I am now by
wonderful children and
grandchildren, not a day goes
by that I don't think of
Richard and our love, our
right to marry, and how much
it meant to me to have that
freedom to marry the person
precious to me, even if others
thought he was the "wrong
kind of person" for me to
marry.” ML 2007
Eisenstadt v. Baird, 1972
• Supreme Court establishes the right of unmarried people
to possess contraception on the same basis as married
couples.
• “If the right of privacy
means anything, it is the
right of the individual,
married or single, to be
free from unwarranted
government intrusion into
matters so fundamentally
affecting a person as the
decision whether to bear
or beget a child."
Frames for the debate:
-Conscience vs conscience.
-Pharmacist in a pluralistic
society where diverse values are
protected.
Plan B
Emergency contraceptive to reduce chance of pregnancy after
barrier failure, unprotected sex, or sexual assault.
Should be taken within 72 hours of unprotected sex
Efficacy of up to 89% quickly declines with time.
Monopoly Legal Power and Personal Values
• Pharmacists have a legal
monopoly on the right to
dispense certain goods.
• In some areas, there may be
only one pharmacy.
• Should pharmacists be able
to use personal values to
selectively dispense goods
that society allows it to
collectively control for the
benefit of a diverse society?
Cases
• North Richland Hills, Texas, phamracists
refused to fill a prescription for birth
control.
• Denton, Texas pharmacist fired after
refusing to fill a rape victim's prescription
for emergency contraception.
• Dallas pharmacist refused to fill a mother's
prescription for her son's Ritalin.
Monopoly on Goods=Monopoly on Values?
• Some Islamic Taxi Drivers with airport contracts do not
want to transport persons who have alcohol with them.
• Infringement of personal religion for fares, for drivers?
• How does this compare to the pharmacy debate?
• Is a ‘conscience clause,’ empowering the devout drivers
the solution?
Some Muslim
Cashiers at Target
Refuse to Scan Pork
Products
Personal Conscience and Public Health
• Health laws express
public health priorities.
• Should pharmacists’
personal values (on
vaccines, contraception)
affect the dispensing of
public health materials
that it controls?
Civil Rights Act of 1964
• TITLE II--All persons shall be entitled
to the full and equal enjoyment of the
goods, services, facilities, and privileges,
advantages, and accommodations of
…premises of any retail establishment.
Minnesota Human Rights Act
• It is an unfair discriminatory practice to deny any
person the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and
accommodations of a place of public
accommodation because of race, color, creed,
religion, disability, national origin, marital status,
sexual orientation, or sex,
• Place of public accommodation: a business …
whether licensed or not, whose goods, services,
facilities, privileges, advantages or
accommodations are extended, offered, sold, or
otherwise made available to the public.
Lesbian Woman Sues Fertility Clinic.
• Physician refuses to provide intrauterine
insemination to a lesbian woman because of
his religious objections.
• He said that he would not inseminate any
single woman, and that it was not sexual
orientation discrimination.
• Court found against physician on grounds that
he discriminated by violating a law (all people
get services equally) of general applicability.
• North Coast Womens Care v Benitez. Calif. Supreme Ct
2008
Pharmacist Conscience Clauses: 2007
• IL, NJ bar pharmacists from refusing to fill
prescriptions on moral, religious or ethical grounds.
• Ark, GA, ME, MS, SD, TN, ID allow pharmacists to
refuse to dispense various contraceptives.
• CA: pharmacists may refuse to dispense
contraceptives if their employer approves and the pt
can access her Rx in a timely manner.
• CO, FL: No pharmacy or employees may be held
liable for refusing to dispense contraceptive supplies,
procedures or information if their refusal is based on
a moral or religious objection.
• http://www.ncsl.org/default.aspx?tabid=14380
The Federal Battle
• President Bush:
• health care workers (MDs, RNs, Clerks)
hospitals and insurance companies can refuse
to provide services, information or advice to
patients on subjects such as
• abortions, contraception, blood transfusions
and vaccines counseling if they are morally
opposed or if that service that violates a
"religious belief or moral conviction.”
• President Obama: narrowed this to
abortions and sterilization.
St. Joseph’s Hospital in Phoenix
•
A 27-year-old pregnant woman rushed to hospital with
heart and lung failure from pulmonary hypertension.
Doctors conclude they could only save her life by
aborting 11-week-old fetus; patient consents.
•
St. Joseph’s, a Catholic institution, is governed by the
Ethical and Religious Directives for Catholic Health
Care Services of the U.S. Conference of Catholic
Bishops. Those directives forbid abortion for any
reason – even to save the life of the mother.
•
Sister Margaret McBride, nun and longtime
administrator at St. Joseph’s, convenes the hospital’s
ethics committee. It votes to approve the abortion,
saving the woman’s life.
•
The Bishop excommunicates and demotes McBride and
says that St. Joseph’s may no longer call itself Catholic.
•
“Morally, ethically, and legally we simply cannot stand
by and let someone die whose life we might be able to
save,” said hospital officials in a statement.
Wisconsin: Abandonment
• Pharmacist disciplined
Pharmacy Examining Board:
for refusing to fill or
• Engaged in practices that
transfer a woman's birth
endangered the health, welfare
control prescription.
or safety of a patient
• Departed from standard of
care ordinarily exercised by a
pharmacist.
• Failed to inform managing
pharmacist that he would not
transfer a prescription for oral
contraceptives
• Failed to inform patient
regarding her options for
obtaining a refill.
Idaho Pharmacist Denies Anti-Bleeding Medication
Because Woman Might Have Had an Abortion
• November 2011: a woman took a prescription or Methergine, a
drug that stops uterine bleeding regardless of cause, to Walgreens.
• The pharmacist, suspicious that the woman's uncontrolled bleeding
may have been from an abortion, asked the nurse practitioner why
the patient needed it. The NP refused to answer citing the patient's
confidentiality.
• The pharmacist refused to dispense medication because she
suspected woman may have had an abortion. The pharmacist's also
refused to refer the bleeding woman to another pharmacy.
• Walgreens disciplined the pharmacist.
• The State Board did not punish pharmacist because Idaho
Pharmacy Act does not require a pharmacist to fill a prescription.
American Pharmacists Association
• Recognizes the pharmacist’s right to exercise
conscientious refusal
• Supports systems to ensure patient’s access to
legally prescribed therapy without compromising
the pharmacist’s right of conscientious refusal.
When this policy is implemented correctly, and
proactively, it is seamless to the patient, and the
patient is not aware that the pharmacist is stepping
away from the situation.
• APhA policy does not support lecturing a patient or
taking any action to obstruct patient access to
clinically appropriate, legally prescribed therapy.
RESOLVED, That our AMA
• support laws requiring individual pharmacists or pharmacy chains to
fill legally valid prescriptions or to provide immediate referral to an
appropriate alternative dispensing pharmacy without interference
• support laws to protect patients’ ability to have legally valid
prescriptions filled.
• discuss with relevant associations to guarantee that, if an individual
pharmacist exercises a conscientious refusal to dispense a legal
prescription, a patient’s right to obtain legal prescriptions will be
protected by immediate referral to an appropriate dispensing
pharmacy.
• in the absence of all other remedies, work with state medical societies
to adopt state legislation to allow physicians to dispense medication to
their own patients when there is no pharmacist within a thirty mile
radius who is able and willing to dispense that medication.”