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The Right to Exercise Objection of Conscience: Implications for Employers
C. W. Von Bergen
Southeastern Oklahoma State University
Key Words: conscience clauses, refusal clauses, right of conscience, conscientious objection,
objection of conscience, religious discrimination in Title VII of the 1964 Civil Rights Act
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The Right to Exercise Objection of Conscience: Implications for Employers
Abstract
A cultural and political battle rages over the conflict between women’s access to certain health
care services and medical professionals’ religious convictions which prevent them from
engaging in activities they feel violate their conscience. Recently pharmacists have been at the
forefront of this right of conscious debate and many states have initiated or are considering
regulatory provisions exempting healthcare providers from civil and criminal liability for
refusing to engage in morally controversial activities and procedures they believe infringe on
their right to act on personal convictions. After a brief history of such refusal and conscious
clauses, a discussion of the implications of such a debate for employers is presented.
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The Right to Exercise Objection of Conscience: Implications for Employers
The king of Egypt told the Hebrew midwives, one of whom was
called Shiphrah and the other Puah, ‘when you act as midwives
for the Hebrew women and see them giving birth, if it is a boy,
kill him; but if it is a girl, she may live.’ The midwives, however,
feared God; they did not do as the king of Egypt had ordered them,
but let the boys live.
--The Book of Exodus, Chapter 1, Verses 15-161
It is public policy of the State of Illinois to respect and protect the
right of conscience of all persons who refuse to obtain, receive or
accept, or who are engaged in, the delivery of, arrangement for, or
payment of health care services and medical care whether acting
individually, corporately, or in association with other persons; and
to prohibit all forms of discrimination, disqualification, coercion,
disability or imposition of liability upon such persons or entities by
reason of their refusing to act contrary to their conscience or conscientious
convictions in refusing to obtain, receive, accept, deliver, pay for, or
arrange for the payment of health care services and medical care.”
--Illinois Health Care Right of Conscience Act2
The question, of course, is whether the Hebrew midwives were justified some three
millennia ago in violating the law of Pharaoh [and thus the law of the land] to follow their
consciences. Are modern midwives and nurses, doctors and hospitals, pharmacists, and other
health care providers entitled to follow their consciences when compelled by the law to engage
in behavior they consider to be contrary to the commands of God and their moral convictions as
they understand them? Today health workers and patients are clashing when providers balk at
giving care that they feel violates their beliefs, sparking an intense, complex, and often bitter
1
2
The New American Bible (Saint Joseph Edition). (1970). New York: Catholic Book Publishing Company, p. 59.
745 ILCS 70/1, § 2
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debate over religious freedom vs. patients’ rights. For example, some anesthesiologists refuse to
assist in sterilization procedures, respiratory therapists sometimes object to removing ventilators
from terminally ill patients, and gynecologists around the country have declined to prescribe
birth control pills.
Do medical professionals today have the right to follow their conscience as did Shiphrah
and Puah in Exodus or should they follow the law as symbolized by Pharaoh and follow his
commands? A cultural and political battle rages over the conflict between women’s access to
emergency reproductive services and medical professionals’ right to exercise objections of
conscience based on their religious convictions. Legislation has passed or proposed giving
pharmacists and other medical professionals the right to refuse services or information
incongruous with their religious beliefs. Such laws are an expansion on so-called “right-ofconscience” legislation. On the other hand, Executive Director Lois Uttley of MergerWatch, a
national watchdog group working to monitor Catholic and secular hospitals and subsequent
campaigns to deny reproductive services, called the movement to block emergency
contraceptive services “a growing threat to patients’ rights.”3 Thus, there appears to be a
conflict of rights: professionals’ rights vs. patients’ rights. The question becomes that of whose
rights should trump the other. Should medical professionals remain free to act in accordance with
their conscience, or should the patient be free to obtain a legally permissible service from each
and every doctor? Either way, someone’s liberty will be violated.
History of right of conscious
In America, we believe in rights. We believe in the right of free speech, and the right to
choose our own religion. We believe in the right of peaceable assembly, to petition the
3
Kari Lydersen (2006, February 9). Pharmacists’ Lawsuits Highlight ‘Right of Conscience’ Rift. The NewStandard.
Retrieved July 16, 2006, from http://newstandardnews.net/content/index.cfm/items/2791
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Government for a redress of grievances, and freedom of the press. Many of these rights are
enshrined in the Declaration of Independence and others guaranteed in the first ten amendments
to the Constitution (Bill of Rights). Almost all of them, in one way or another, guarantee every
American’s right to act according to the dictates of his or her own conscience.4 Indeed, Former
Supreme Court Chief Justice Charles Evans Hughes called the quintessentially American custom
of respect for conscience a “happy tradition.”5
Historically, the right of conscience6 has applied not only to individuals such as
conscientious objectors to military service, but to private organizations as well. If a Catholic
school wants to teach human sexuality in a different way than public schools do, they have that
right. If a magazine does not want to advertise tobacco products, it does not have to. Similarly,
there is a right to privacy recognized by the Supreme Court. For example, in 1965, in Griswold v.
Connecticut,7 and in 1973 Doe v. Bolton8 and Roe v. Wade9 the Supreme Court recognized that
the right to privacy protected by the Constitution encompasses the right of every woman to
weigh the personal, moral, and religious considerations involved in deciding whether to begin,
prevent, continue, or terminate a pregnancy. These landmark decisions established that most
laws against abortion violate a constitutional right to privacy, overturning all state laws
outlawing or restricting abortion.
4
Joe Pitts, September 24, 2002, Protecting the Right of Conscience, Retrieved July 16, 2006, from http://www.
house.gov/pitts/press/commentary/020926c-anda.htm
5
United States v. Macintosh, 283 U.S. 605, 634 (1931) (Hughes, C.J., dissenting).
6
While there are many definitions of conscience we will use the one included in the Illinois Health Care Right of
Conscience Act, 745 ILCS 70/1, Section 3(e): “‘Conscience’ means a sincerely held set of moral convictions arising
from belief in and relation to God, or which, though not so derived, arises from a place in the life of its possessor
parallel to that filled by God among adherents to religious faiths.”
7
381 U.S. 479
8
410 U.S. 179
9
410 U.S. 113
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In response to Roe v. Wade a number of states have subsequently proposed legislation
and passed protection of conscious laws and conscience clauses10 designed to allow doctors and
other direct providers of health care to refuse to perform certain activities, chiefly abortions, and
hospitals to refuse to allow specific procedures, particularly abortions, on their premises. The
basic principle that no one ought to be forced to act in violation of his or her conscience is
recognized and protected by a vast body of international law. For example, recently the European
Union Network of Independent Experts on Fundamental Rights examined the right to religious
conscientious objection in the EU recognized either under concordats with the Vatican or under
constitutional or legislative provisions in member states in four key areas: military service; the
celebration of weddings, in particular in which one of the persons has divorced from a previous
marriage, same-sex marriage, or unions such as registered partnerships between two persons of
the same sex; the provision of health services, in particular abortion, euthanasia, artificial
fertilization; and medically assisted contraception. While there are differences between the
various countries, the overwhelming conclusion that can be drawn is that there are provisions in
most of these member states that give citizens, clergy, and medical professionals the right to
exercise objection of conscience on the basis of which they may refuse to perform military
service, weddings, and certain health-related services, respectively, based on (given the
individual state) ethical, moral, humanitarian, philosophical, political, or religious grounds.11
10
Protection of conscience laws ensure that people cannot be forced to facilitate practices or procedures to which
they object for reasons of conscience. These may include abortion, capital punishment, contraception, sterilization,
artificial reproduction, euthanasia, assisted suicide, human experimentation, torture, etc. An adequate protection of
conscience law should protect conscientious objectors from coercive hiring or employment practices, discrimination
and other forms of punishment or pressure. It generally also includes protection from civil liability. Conscience
clauses, on the other hand, are usually less comprehensive than protection of conscience laws and afford varying
degrees of protection for conscientious objectors. They may appear in statutes or in the policies of organizations or
institutions (The Protection of Conscience Project: Preserving Freedom of Choice for Everyone, Retrieved July 17,
2006, from http://www.consciencelaws.org/index.htm).
11
See E.U. Network of Independent Experts on Fundamental Rights Opinion Number 4-2005: The Right to
Conscientious Objection and the Conclusion by EU Member States of Concordats with the Holy See. December 14,
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Finally, the Universal Declaration of Human Rights, adopted by the United Nations in 1948
recognizes the right of conscience. Article 18 is the key text: “Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to change his religion or belief,
and freedom, either alone or in community with others and in public or private, to manifest his
religion or belief in teaching, practice, worship and observance.”12
In U.S. federal law, this principle is recognized in a number of provisions that protect
conscientious objection to a range of activities including abortion,13 sterilization,14
contraception,15 executions,16 and military service.17 There are additional federal laws having
protection of conscience provisions not listed earlier.18 Additionally, the Abortion Non-
2005 (Ref.: CFR-CDF. Opinion 4-2005.doc), Retrieved July 16, 2006, from http://www.crlp.org/pdf/CFR-CDF
opinion4-2005.pdf
12
Universal Declaration of Human Rights. (1948). Retrieved July 24, 2006, from
http://www.un.org/Overview/rights.html
13
See Public Health Service Act 42 U.S.C. § 300a-7(b); 42 U.S.C. § 300a-7(c); 42 U.S.C. § 300a-7(e); 42 U.S.C. §
238n; Legal Services Corporation on Abortion 42 U.S.C. § 2996f(b); Protecting Health Care Entities that Decline to
Perform or Refer for Abortions for Any Reason (1996) 42 USC § 238n; Neutrality With Respect to Abortion 20
U.S.C. § 1688.
14
See Public Health Service Act 42 U.S.C. § 300a-7(b); 42 U.S.C. § 300a-7(c); 42 U.S.C. § 300a-7(e).
15
See Treasury and General Government Appropriations Act, 2002, Pub. L. No. 107-67, § 641, 115 Stat. 514, 5545; Contraceptive Coverage (Federal Employees) Sec. 635(c) of Title VI of Division J(Treasury and General
Government Appropriations) of the Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, 117 Stat. 11,
472.
16
See Refusal to Participate in Executions or in Prosecution of a Capital Crime, 18 U.S.C. § 3597(b).
17
Conscientious objection is an extraordinary freedom. For however defensible it might be on other grounds,
conscientious objection frees certain select citizens from the most basic-and dangerous-of civic obligations: the duty
to defend one’s country. The Military Selective Service Act, 50 U.S.C.A. app. 451-471a, recognizes two types of
conscientious objectors: 1) Conscientious objectors: These are persons who, by reason of religious, ethical, or moral
belief, are “conscientiously opposed to participation in war in any form.” These people may be discharged from
military service. They are exempt from military service, in the event of a draft. If called up, they may perform
alternative service as civilians; and 2) Noncombat conscientious objectors: These are persons who, by reason of
religious, ethical or moral belief, are conscientiously opposed to killing in war in any form but who do not object to
performing noncombatant duties (such as being a medic) in the armed forces. These people are reassigned to noncombatant duties in the Armed Forces or, in the event of a draft, are trained without weapons and assigned to noncombatant service. See also Department of Defense Directive Number 1300.6. August 21, 1971, Conscientious
Objectors, Retrieved July 16, 2006, from http://www.dtic.mil/whs/directives/corres/pdf2/d13006p.pdf
18
Medicaid Counseling and Referral 42 U.S.C. § 1396u-2(b)(3); Regulation Prohibiting Compulsory Advocacy 48
CFR § 1609.7001 (c)(7); Civil Rights Restoration Act 20 U.S.C. §1688; Foreign Aid for Family Planning [Title II of
Division E (Foreign Operations, Export Financing And Related Programs Appropriations Resolution, 2003, Public
L. No. 108-7, 117 Stat.11, 163; Exemption from Vaccination Requirement 8 U.S.C. §1182 (g); United States
Leadership Against HIV/Aids, Tuberculosis, and Malaria Act of 2003 Pub. L. No. 108-25, 117 Stat. 711, at 733;
Congressional intent regarding a DC contraceptive mandate Sec. 127 of Title III of Division C (District of Columbia
Appropriations) of the Consolidated Appropriations Resolution, 2003, Pub. L No. 108-7, 117 Stat. 11, 126-27.
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Discrimination Act of 2005 (S.1983.IS) bill introduced by Senator Richard Santorum (R-PA) on
November 9, 2005 as an amendment to the Public Health Service Act, is intended to reaffirm the
basic principle that no health care provider should be forced to perform or participate in
abortions, and clarifies that the term “health care entity” in existing law to include a full range of
participants involved in providing health care, such as health care professionals, health plans,
hospitals and other health facilities. The bill also strengthens existing law by providing that
health care entities should not be forced by government to pay for abortions.
At the state level, all states except Alabama, New Hampshire and Vermont have
protection of conscience laws addressing a variety of issues.19 Over the years, state legislators
have moved to expand this legal right to a wider range of healthcare providers, types of service
and circumstances. Indeed, in recent years, at least twelve states have introduced right-ofconscience laws to expand the freedom of healthcare workers to refuse to provide services
conflicting with their religious beliefs. Some would even cover ambulance personnel, and some
extend not only to abortion and contraception but health care for gays and lesbians as well.20
Today almost all states provide some protection for the right of conscientious objection to
involvement in abortion. In at least five states, proposed bills would also allow insurers to refuse
to cover services they find objectionable, a move patients’ rights advocates find chilling since
there are financial incentives for insurers to invoke such a law.
Some states also protect providers who object to other kinds of procedures, including
euthanasia, sterilization, artificial insemination, abortifacient drugs, and contraception. The State
of Washington provides comprehensive conscience protection to individual health care providers
19
See United States: Protection of Conscience Laws. Retrieved July 17, 2006, from http://www.consciencelaws.
org/Conscience-Laws-USA/Conscience-Laws-USA-01a.html This web site offers a state by state listing of
protection of conscience laws.
20
Ibid.
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and to religiously affiliated health care plans and facilities. The State of Illinois has adopted a
comprehensive right of conscience law, under which the protection of physicians and other
health care personnel extends to any procedure “which is contrary to the conscience of such
physician or health care personnel”.21 And Oregon’s Death with Dignity Act broke new ground
in 1997 and became the only state in the nation to legalize physician assisted suicide yet allowed
individual medical professionals and medically-related organizations to withdraw from
participation in this practice without penalty.22
Suffice it to say that there appears to be a significant precedent for including provisions
giving certain classes of individuals the right to exercise objections of conscience.
Pharmacists and right of conscience
In past years, legislators from nearly two dozen states have taken “conscientious
objection”—an idea that grew out of wartime tension between religious freedom and national
obligation23 and was co-opted into the reproductive-rights debate of the 1970s24—and applied it
to pharmacists. Thus, pharmacists are currently at the forefront of the debate over such refusal of
service clauses and the issue is expanding as pharmacists are declining to fill emergency
contraception and contraception prescriptions.
This movement resulted in the term “conscience clause,” which gives pharmacists the
right to refuse to perform certain services based on a violation of personal beliefs or values. In
some states, legislators are introducing bills that would explicitly grant pharmacists the right to
21
745 ILCS 70/1, § 2. see footnote 1 too
Oregon Revised Statutes, 127.885 §4.01 (4). No health care provider shall be under any duty, whether by
contract, by statute or by any other legal requirement to participate in the provision to a qualified patient of
medication to end his or her life in a humane and dignified manner.
22
23
Robert A. Seeley (1998). Advice for conscientious objectors in the armed forces (5th ed.). Philadelphia: Central
Committee for Conscientious Objectors. Retrieved July 18, 2006, from
http://www.objector.org/Resources/adviceforcos.pdf
24
42 U.S.C. § 300a-7 (2004).
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refuse to dispense drugs related to contraception on moral grounds (see Table 1 that contains
2006 State Legislation Relating to Pharmacist Refusal Clauses). Most of the debate revolves
around pharmacists dispensing emergency contraception which is used to prevent a pregnancy,
not terminate a pregnancy, and is a general term used to describe several different types of birth
control pills that are used in increased doses within 72 hours of unprotected intercourse.
Emergency contraception25 is not the same thing as Mifeprex, which is the brand name of
mifepristone in the United States and is sometimes referred to as non-surgical abortion, medical
abortion, or RU-486. Pharmacists do not play a role in administering these medications.
Nationally, four states—Arkansas, Mississippi, South Dakota and Georgia—explicitly
permit pharmacists to deny patients emergency contraception, and nine other states have broad
right-of-refusal laws applying to healthcare providers.
Growing Attacks on Exercise of Rights of Conscience in Health Care
Increasingly, persons committed to public health goals involving the use of medial
procedures, medications, programs that raises issues of religious conscience and morality for
religious minorities in America are trying to use law as a tool to coerce health care providers
(individuals and institutions) to facilitate controversial public health care objectives.
Increasingly, they have sought to enact legal mandates to compel all persons and institutions to
comply with mandatory provision of abortion services, mandatory provision of hybrid
contraceptive-abortifacients, mandatory provision of insurance coverage for contraceptives and
abortion, mandatory cooperation in withdrawal of medically-assisted nutrition and hydration,
Emergency contraception—known commercially as “Plan B” and casually as the “morning-after pill”—acts
similarly to a high dose of birth-control pills. It generally prevents the release of an egg from the ovaries or the
uniting of sperm and egg. Prominent anti-abortion religious groups define emergency contraception as abortion
because in some cases it can also prevent the implantation of a fertilized egg in the uterus. Since the drug’s active
hormone, levonorgestrel, will only work within 72 hours of unprotected intercourse, its effectiveness gradually
decreasing over that period; even a short delay in obtaining emergency contraception can be too long for a woman
wanting to prevent pregnancy. If a woman is already pregnant, it will have no effect.
25
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mandatory cooperation in assisted suicide, mandatory cooperation in euthanasia, and a variety of
other government mandates.
At least twenty states requires employer health insurance to include coverage of
contraceptives; seven of these (nearly one-third) allow no exemption or only a very narrow
exemption that does not include church-owned-and-operated agencies set up to perform religious
missions such as caring for the sick, feeding the poor, serving the homeless, fatherless, victims of
domestic violence, and orphans.5
At least eight states now require hospitals to provide hybrid contraceptive-abortifacients
to victims of sexual assault.7 Bills with similar mandates were introduced in more than a dozen
states last year. In December 2005, Massachusetts Governor Mitt Romney threw in the towel and
withdrew his support for an apparently futile attempt to pass a bill that would have exempted
private hospitals from mandatory provision of new Massachusetts law requiring hospital
emergency rooms to offer the morning-after pill to victims of rape, and overruled a state
department of public health ruling a week earlier that private hospitals were exempt from the
new law.8 Romney, who just five month earlier had vetoed the bill, before the legislature overrode his veto, ordered all hospitals, even private hospitals, to comply with the new law
mandating provision of emergency hybrid contraceptive-abortifacients, to which many Catholic
health care providers have religious objection.9
Pharmacists also have been the center of attempts to override conscientious objection.
According to the National Conference of State Legislatures,10 in 2005 legislation was proposed
in four states (California, Missouri, New Jersey, and West Virginia) to compel pharmacists to fill
prescriptions including for hybrid contraceptive/abortifacients.11 In April 2005, Illinois Governor
Rod Blagojevich issued an emergency administrative order requiring all licensed pharmacists in
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the state to fill prescriptions for contraceptives, including hybrid contraceptive-abortifacients.12
A few months later, Walgreens placed four Illinois pharmacists on leave for refusing on religious
and moral grounds to fill prescriptions for the morning-after pill, a hybrid contraceptiveabortifacient.13
Also in April 2005, Senator Frank Lautenberg, D-N.J., and Rep. Carolyn Maloney, DN.Y., “introduced federal legislation, called the Access to Legal Pharmaceuticals Act, that would
require pharmacies to fill all valid prescriptions in a timely manner.”14
This summer, delegates at the American Medical Association annual meeting “adopted a
resolution saying that responsibility to the patient is ‘paramount’ and seeking authority to
dispense drugs to their own patients if an agreeable pharmacist cannot be found within a 30-mile
radius.15
Likewise, at the Midyear Meeting of the American Bar Association in February, 2005,
the ABA House of Delegates approved a resolution expressing opposition to any government
action or policies that interfere with a patient’s ability to receive “all of the relevant and
medically accurate information necessary for fully informed health care decision-making.”16
Throughout North America, nurses report have being required and coerced to participate
in abortions and sterilizations, despite their religious objections to doing so. For example, “[a]fter
ten years on the job, nurse Janice Turner, who refused to dispense the potentially abortifacient
'morning-after pill', was fired because a new supervisor believed that she was not a ‘complete
nurse.’”17 In 2003, an attorney (Frank Manion) with a public interest law firm specializing in
defense of religious freedom (the American Center for Law and Justice) reported that the number
of calls his organization received about right-of-conscience issues had escalated from about one
call every two months in 2000 to one call per week in 2003.18 “Most of the calls are from nurses,
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who usually don't have the professional independence and status enjoyed by physicians.”19 As
one Nurse wrote in 2003:
Intimidation, harassment and coercion are becoming increasingly
common as pro-life health care providers try to advocate for both their patients
and their professional ethics. For example, a nurse was threatened with firing after she refused to
follow a doctor’s verbal order to increase an intravenous morphine drip “until he stops
breathing” on a patient who continued to survive despite having a ventilator removed. . . . Three
California nurses were suspended after they reported a doctor who later admitted giving a lethal
injection to a child.20
There have been numerous public incidents in Canada involving the coercion of nurses to
perform abortions over their religious objections.21 Hospital reorganizations or acquisitions
resulting in changed corporate policies have often created such pressures.22
Sometimes doctors are also pressured. An OB/GYN physician was told by other doctors that
they would no longer refer patients to him if he continued to sign an annual pro-life ad. An
insurance company executive speaking on ethics committees at a conference recommended that
such committees avoid appointing “family values” members.23 One ethicist has noted that “[i]t
has already been seriously suggested that Catholic physicians should not become maternal child
specialists, since they cannot in good conscience, provide the whole range of reproductive,
pregnancy, and neonatal ‘services,’ such as selective abortion . . . or late-term abortions.”24
Institutionally, hospital expansions, mergers, sales, and acquisitions in many cases have been
opposed, defeated or made subject to conditions that abortion and other morally controversial
services be provided. Indeed, there are organizations and websited dedicated to forcing health
care institutions to facilitate abortion through governmental administrative regulation of
institutional development, corporate change, merger and transfer of ownership, and certificate of
need.
The attack on rights of conscience is reflected in the attempt by advocates of compulsory
provision by all health care providers of various controversial services and products to re-label
“conscience clauses” as “refusal clauses.”25 The success of that effort is reflected in the fact that
even the ostensibly bi-partisan National Conference of State Legislatures uses that terminology
in its website.26
Ironically, the positions taken by academics (who demand academic freedom) often are among
the most rigid and intolerant (perhaps this is because they are so abstractly intellectualized,
suggesting higher valuation of the intellectual over other aspects of the human and personal
experience). Increasingly, legal commentators are forcefully arguing that state conscience
(“refusal”) clauses “fail the undue burden test by presenting a substantial obstacle for women
seeking mifepristone or E[mergency] C[ontraception], particularly if the patient is in a rural area
with few or no alternatives.”27
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Nevertheless, a vigorous debate has recently developed that challenges an individual’s
right to conscious—particularly as it relates to women’s reproductive rights and specifically
emergency contraception. Abortion rights activists argue that denying emergency contraception
should carry the same legal consequences as blocking any other type of medical care.26 Key to
the debate over emergency contraception has been anti-abortion groups’ contention that the drug
is a form of abortion, while reproductive-rights groups and manufacturers define it as a
contraceptive.
On the other hand six states—Alaska, California, Hawaii, Maine, New Mexico and
Washington—already allow emergency contraception to be purchased without a prescription.27
This issue raises important questions about individual rights and public health. Who
prevails when the needs of patients and the morals of providers collide? Should pharmacists have
a right to reject prescriptions for emergency contraception? Researchers Cantor and Baum
provided a balanced summary of arguments in favor of a pharmacist’s right to object to refuse to
fill prescriptions for emergency contraception and arguments against a pharmacist’s right to
object. Briefly, arguments in favor of a pharmacist’s right to object include: 1) Pharmacists are
professionals and therefore can and should exercise independent judgment; 2) Pharmacists
should not forsake their morals as a condition of employment; lawyers, for example, choose
clients and issues to represent. 3) The right to refuse to participate in acts that conflict with
26
Kari Lydersen (2006, February 9). Pharmacists’ Lawsuits Highlight ‘Right of Conscience’ Rift. The
NewStandard. Retrieved July 16, 2006, from http://newstandardnews.net/content/index.cfm/items/2791
27
See footnote 16.
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personal ethical, moral, or religious convictions is accepted as an essential element of a
democratic society. Arguments against a pharmacist’s right to object include: 1) “Professionals
are expected to exercise special skill and care to place the interests of their clients above their
own immediate interests”28 and therefore when a pharmacist’s objection directly and
detrimentally affects a patient’s health, it follows that the patient should come first; 2)
Emergency contraception is not an abortifacient and have no effect on an established pregnancy;
3) Pharmacists’ objections significantly affect patients’ health and may place a
disproportionately heavy burden on those with few options, such as a poor teenager living in a
rural area that has a lone pharmacy; 4) Refusal has great potential for abuse and discrimination
because pharmacists are privy to personal information through prescriptions. For instance, a
customer who fills prescriptions for zidovudine, didanosine, and indinavir is logically assumed to
be infected with the human immunodeficiency virus (HIV) and a pharmacist who believes that
HIV-positive people must have engaged in immoral behavior could refuse to fill those
prescriptions.
With conscience laws on the books for nearly thirty years, what accounts for these renewed
efforts to undermine rights of conscience? Part of the answer lies in a desperate desire by
abortion proponents and others to legitimize procedures that carry a stigma in the medical
profession and society at large. Legalizing abortion has not made it respectable, and few doctors
28
Fassett, W. E., & Wicks, A. C. (1996). Is pharmacy a profession? In: B. D. Weinstein (Ed.), Ethical issues in
pharmacy (pp. 1-28). Vancouver, WA: Applied Therapeutics.
Page 16 of 40
want to train in or perform abortions. Half of Americans consider abortion equivalent to
murder.29
If abortion had to be provided in all hospitals, this would lend the impression that it is
basic health care. In 1995, when he called for intensified efforts to require abortion training for
all medical residents, abortion advocate Dr. David Grimes declared that "making abortion
training a routine part of any residency...will put abortion back in the mainstream of medicine."30
What you should ask yourself in this case is not whether you think people should have
access to birth control, but whether you should be required to do things that violate your
deepest convictions. Should an individual be compelled to serve in the military? Should
a soldier be required to torture prisoners, for example? Should he refuse to do so if
ordered? Should a liberal corporate peon be required to contribute to the Republican
Party? Put some other questions like about euthanasia, marrying folks, fertilization.
Should a pharmacist be required to serve black patrons even though it contradicts his or
her deeply held convictions? Should the government be able to force you to go about
your job in a certain way? Should your employer be able to force you to go about your
job in a certain way? Should a pharmacist who believes that homosexuality is immoral
have the right to refuse to fill a prescription for AZT? Even if a person who presents such
a prescription is homosexual there is no causal relationship between filling a
prescription for AZT and participating in a homosexual act.
29
30
NY Times/CBS Poll, N.Y. Times, Jan. 16, 1998, A1.
Med. & Health, Feb. 29, 1995.
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The right to religious conscientious objection has been most often frequently referred to in
relation to pharmacists refusing, on religious grounds, to deliver certain pharmaceutical products
to their patients, whether or not referred to them by medical doctors.
Protection of conscience laws (PCL’s) ensure that people cannot be forced to facilitate practices
or procedures to which they object for reasons of conscience. These may include abortion,
capital punishment, contraception, sterilization, artificial reproduction, euthanasia, assisted
suicide, human experimentation, torture, etc. An adequate protection of conscience law should
protect conscientious objectors from coercive hiring or employment practices, discrimination and
other forms of punishment or pressure. It should also include protection from civil liability.
Conscience clauses are usually less comprehensive than protection of conscience laws and afford
varying degrees of protection for conscientious objectors. They may appear in statutes or in the
policies of organizations or institutions.
Why are protection of conscience laws and conscience clauses needed?
Protection of conscience laws and conscience clauses are needed because powerful interests are
inclined to force health care workers and others to participate, directly or indirectly, in morally
controversial procedures. Physicians, nurses, pharmacists and others have been denied
employment, dismissed, or penalized because of objections to abortion, contraception or the
morning-after pill (See Repression of Conscience). The same pressure will almost certainly be
applied to force conscientious objectors to participate in reproductive technology, eugenic
screening, and in euthanasia and assisted suicide, particularly where such things are legal or are
tolerated.
Inadequacies in Current Legal Protection
While the principle of protection for conscience rights is widely acknowledged, its
implementation has been far from perfect, creating a need for more comprehensive and forwardlooking legislation.
Page 18 of 40
Most federal conscience protections apply only to specific federal programs or are tied to
the receipt of federal funds. Their scope is limited by this fact, and by the narrow range of
procedures covered.
Though the majority of states acknowledge and protects rights of conscience, their laws
suffer from similar inadequacies. Most of these laws are limited to abortion. Only a few states
protect health care providers from being forced to perform sterilizations. Few existing laws
protect the full range of individuals and institutions that may be involved in providing health care
in our increasingly complex health care system. Many states do not protect the rights of
conscience with respect to newly created technologies such as cloning or embryonic research, or
even current misuses of older technology such as “surrogate” motherhood. States have also not
addressed the need to protect providers with respect to new threats to human life at the end of
life, such as physician-assisted suicide and euthanasia. As noted by one commentator: “As the
range of medical technologies continues to expand..., the number of medical services involving
potentially serious conflicts of conscience is certain to increase.”
Finally, with new organized threats to conscience on the horizon, it is especially
important for states to expand and strengthen their existing protections now. These threats have
become especially apparent in recent years in the fields of abortion and contraception, as
reviewed below
Existing conscience laws are under increasing attack by abortion rights activists, who
want to require all health care personnel and hospitals to provide “the full range of reproductive
services,” including abortion. Several years ago, there was a bold and unsuccessful attempt at a
meeting of the American Medical Association’s (AMA) House of Delegates to win AMA
endorsement for legislation requiring all hospitals to provide a “full range of reproductive
Page 19 of 40
services.”31 Fortunately the delegates ultimately defeated this proposal, instead reaffirming AMA
policy supporting conscience which states that “neither physician, hospital, nor hospital
personnel shall be required to perform any act violative of personally held moral principles.”32
There have been other attempts to force hospitals to provide abortions and other morally
controversial services. In 1997, for example, the Alaska Supreme Court ordered a private nonsectarian hospital that had a policy against abortion to begin performing abortions.33 And in New
Hampshire in 1998, after “reproductive rights” groups learned that a newly merged hospital
would no longer perform elective abortions and sterilizations, they approached the New
Hampshire attorney general to challenge the merger. The New Hampshire attorney general
issued an opinion concluding on several grounds that the merger is subject to the law of
charitable trust and must be reviewed in probate court. Under the pressure of the attorney
general, the merger dissolved. Subsequently, abortion rights groups made this case a model for
one of their strategies to prevent mergers if such procedures will not be performed or to force
newly merged hospitals to perform them.34 The American Civil Liberties Union has published a
report and advocacy kit aimed at requiring all hospitals to perform abortions and other
procedures which violate their conscientious convictions.35
Why Are There Efforts to Undermine Conscience Now?
The procedures covered in the proposed Kansas legislation all have this dynamic
in common—that is, none of them is truly established on medical or ethical grounds as basic
health care, and so organized campaigns are required to make them so by requiring everyone to
31
AMA House of Delegates, Annual Meeting, 2000, Resolution 218
See Proceedings of the 2000 Annual Meeting of the AMA House of Delegates (American Medical Association,
Chicago, IL), June 2000, at 447.
33
Valley Hospital Association, Inc. v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997).
34
Hospital Mergers and the Threat to Women's Reproductive Health Services: Using Charitable Assets Laws to
Fight Back, National Women's Law Center, 2001.
35
ACLU, “Religious Refusals and Reproductive Rights,” January 2002.
32
Page 20 of 40
be involved in them. All these procedures are morally problematic or controversial; some of
them are illegal in all states (infanticide, euthanasia); some, though quite new, are already illegal
in a number of states (cloning, destructive embryo research); and none of them can claim to treat
or cure an illness.
In the case of abortion, renewed threats to conscience can also be explained by the
fiercely competitive and commercial nature of the abortion business. To generate the most
business, abortion clinics have located in urban areas almost exclusively, where there is a large
population base. “Abortion clinics are no different from other specialty services, said Dr.
William Ramos, who runs an abortion clinic in Las Vegas. ‘In the entire state of Nevada, there is
only one Lexus dealer and only one Acura dealer’, he said.” With abortion, Dr. Ramos
continued, “there is less work and more income.” But to achieve the income that most
abortionists expect, they must remain in cities. “Clinic owners say they have little choice but to
cluster in cities—that is the only way they can find enough patients.” Additionally, in order to
maintain their niche in the market, they often refuse to train other physicians. “One doctor in
Detroit....said that when he finished medical school, trained in obstetrics and gynecology, he
asked abortion doctors in the area to train him. He was turned away.”36
The reality is that public sentiment against abortion has grown even stronger in recent
years, and fewer women are seeking abortions. Hence clinic owners have become even more
protective of the “business” they already have, and less willing to extend their reach to rural
areas where few women seek abortion. Rather than “setting up shop” in such areas at a risk to
their profit margin, they are advocating that all hospitals be required to perform abortions.
36
Gina Kolata, As Abortion Rate Decreases, Clinics Compete for Patients, N.Y. Times, Dec. 30, 2000, at A1.
Page 21 of 40
Emergency contraception—known commercially as “Plan B” and casually as the
“morning-after pill”—acts similarly to a high dose of birth-control pills. It generally prevents the
release of an egg from the ovaries or the uniting of sperm and egg. Prominent anti-abortion
religious groups define emergency contraception as abortion because in somewhat rare cases, it
can also prevent the implantation of a fertilized egg in the uterus.37
ffect38 (Official, 2006).
People generally should not be forced to violate their consciences, whether religiously
grounded or not. However, that doesn’t mean that people can use their moral conscience to
ignore civil laws whenever they choose — and that includes cases where a person isn’t directly
and physically injured. Some laws exist to create uniform standards and support the principle of
For example, the United States Conference of Catholic Bishops noted: “‘Contraception’ is a misnomer in this
case, because this regimen commonly operates not to prevent conception but rather to ensure the death of an embryo
after conception by interfering with implantation in the womb. It is thought that ‘this mode of action could explain
the majority of cases where pregnancies are prevented by the morning after pill (F. Grou and I. Rodriguez, The
Morning After Pill, How Long After?, 171 American Journal of Obstetrics and Gynecology, 1529-34 (1994)’”
(Written Testimony of the Secretariat for Pro-Life Activities of the United States Conference of Catholic Bishops
On the Health Care Providers’ Rights of Conscience Act (HB 2711) submitted to the Committee on Federal and
State Affairs, Kansas House of Representatives, February 20, 2002. Retrieved July 16, 2006, from
http://www.usccb.org/ prolife/issues/abortion/kansas202.htm
38
Official: OTC ‘morning-after’ pill sales never off the table. (2006, June 14). Dallas Morning News, p. 8A.
37
Page 22 of 40
equal protection, meaning that everyone everywhere can expect to receive equal, fair treatment.
No one specific violation might be enough to create an easily identifiable harm, but widespread
violations (and exceptions) would.
In a civil, secular society where church and state are separated, no one’s religious
interests should be placed above the interests (secular or religious) of another. The woman
seeking her prescription had just as much legal, moral, and social right to her interests being
respected as the pharmacist did his. His interests do not suddenly become superior (especially as
far as the law is concerned) because they are religious or because he thinks that any manner of
helping her would be a “sin.”
Employer considerations with respect to the right to express objections to conscience
Policy.
Hiring.
Discipline.
Firing.
Scheduling.
Title VII and accommodation. The American Center for Law and Justice filed charges
with the Equal Employment Opportunity Commission (EEOC) in St. Louis alleging that
Walgreens, Inc. engaged in unlawful religious discrimination by effectively firing three Illinois
pharmacists who requested accommodations of their religious objections to dispensing the
“morning-after pill.”
The three pharmacists, John Menges, Richard Quayle, and Carol Muzzarelli, all worked as
pharmacists at Walgreens stores in the St. Louis Metro East area of Illinois. In April of this year,
Illinois Governor Rod J. Blagojevich issued an emergency regulation requiring all Illinois
pharmacies to dispense so-called “emergency contraceptives” to all customers “without delay.”
Menges, Quayle, and Muzzarelli object to dispensing such drugs on the grounds that, unlike
ordinary contraceptives, “emergency contraceptives”—also known as the “morning-after pill” or
“Plan-B”—are designed to work after conception has taken place. Since the pharmacists believe
Page 23 of 40
that human life begins at conception, they conclude that dispensing such drugs would require
them to participate in the moral equivalent of abortion.
Since the promulgation of the emergency rule, which became permanent in August, the three
pharmacists have let Walgreens know of their objections and have requested an accommodation
of their religious beliefs—a right guaranteed to them under the Civil Rights Act of 1964 (Title
VII), the Illinois Human Rights Act, and the Illinois Health Care Right of Conscience Act.
In early November, Walgreens demanded that all of their pharmacists agree in writing to a new
policy acknowledging the alleged legal duty of all Walgreens pharmacists and other pharmacy
employees to strictly comply with the Illinois “emergency contraception” rule. All three of the
ACLJ’s clients requested accommodations of their beliefs.
On Nov. 28, 2005, beginning at 4:00 a.m. Walgreens representatives went from store to store
demanding that the objecting pharmacists sign the new policy. Menges and Quayle refused to do
so. In response, Walgreens placed each of them on “unpaid indefinite suspension.” Carol
Muzzarelli, who was on a personal leave of absence at the time, was told that she could not come
back to work for Walgreens in Illinois unless she agreed to sign the policy.
Francis J. Manion, Senior Counsel of the American Center for Law and Justice said:
“Walgreens’ complete disregard of these pharmacists’ rights is shocking. The company made no
attempt to fulfill its legal obligation under federal and state law to respect the rights of these
dedicated health care professionals to decline to participate in practices that are contrary to their
beliefs. Instead, at the beginning of the Christmas holiday season, the company sent its
operatives on a nighttime raid, going from store to store to fire people who seek only to practice
their profession in a manner consistent with their moral convictions and the applicable law.”
Pharmacists have the clearly established right to request that an employer accommodate their
religious beliefs under Title VII as well as Illinois state law. The Illinois Health Care Right of
Conscience Act, for example, makes it “unlawful for any person, public or private institution . . .
to discriminate against any person in any manner . . . because of such person’s conscientious
refusal to . . . participate in any way in any particular form of health care services contrary to his
or her conscience.” The Act’s definition of “health care personnel” includes “professional,
paraprofessional, or any other person who furnishes, or assists in the furnishing of, health care
services.”
Page 24 of 40
Religion includes all aspects of religious observance and practice. A religious belief does not
have to be accepted by a religious group to constitute a religion under Title VII. Courts have
upheld atheism, white supremacy, and Wicca as forms of religion if the belief is sincerely held in
the employee’s “own scheme of things.” Title VII defines religion as “moral or ethical beliefs as
to what’s right or wrong which are sincerely held with the strength of traditional religious
views.” Companies should not discount a “religion” simply because the religion is not widely
recognized.
Profound moral issues going to the heart of individual religious beliefs and moral conscience are
arising in many aspects of health care. These include issues concerning the provision or assisting
the provision of many procedures, medications, and materials, including elective surgical
abortion, provision of pharmaceutical abortifacients and hybrid contraceptive-abortifacients
(medications that may operate to prevent conception and to prevent implantation of a conceived
human pre-embryo, assisted reproductive techniques for same-sex couples, sex change
procedures and therapies, assisted suicide, euthanasia, sterilization and other provision of other
birth control procedures, pharmaceuticals, materials, and equipment, cloning, pre-natal human
experimentation, stem cell research, harvesting of fetal and other organs and tissue, organ
transplantation, professional education (including medical, nursing, pharmaceutical, etc.), and
inter-species breeding, to mention just a few
Page 25 of 40
The attack on rights of conscience is reflected in the attempt by advocates of compulsory
provision by all health care providers of various controversial services and products to re-label
“conscience clauses” as “refusal clauses.”25 The success of that effort is reflected in the fact that
even the ostensibly bi-partisan National Conference of State Legislatures uses that terminology
in its website.26
Page 26 of 40
Table 1. 2006 State Legislation Relating to Pharmacist Refusal Clauses. (Data obtained from the
National Conference of State Legislatures. Pharmacist Conscience Clauses: Laws and
Legislation. Retrieved July 17, 2006, from http://www.ncsl.org/programs/health/conscience
clauses.htm)
Would give health care providers, health care institutions, and health care payers the authority to
AL
HB 609
refuse to perform or to participate in health care services that violate their conscience and would
Rep. McClurkin provide immunity from discrimination based on and liability for such refusal. Although a general
refusal clause, the bill defines “health care provider” to include pharmacists.
(Filed and referred to committee 2/9/06; did not pass by end of 2006 regular session)
CA
AB 2583
Rep. Nation
GA
HB 566
Rep.
Loudermilk
Would require the State Board of Pharmacy to create and provide a sign informing a patient of his
or her right to timely access to a prescribed drug or device that a licensed pharmacist has refused
to dispense based on ethical, moral, or religious grounds. The bill would require pharmacists
authorized to make such a refusal, or their employers, to visibly place the sign at or near the
entrance of the business.
(Filed and referred to committee 2/24/06; passed House 47y-31n, 5/25/06)
Would allow any employee of the agencies engaged in the administration of this chapter to refuse
to accept the duty of offering family-planning services to the extent that such duty is contrary to
such employee’s personal religious beliefs; would provide that such refusal not be grounds for any
disciplinary action, for dismissal, for any interdepartmental transfer, for any other discrimination
in employment, for suspension from employment, or for any loss in pay or other benefits. Would
authorize the directors or supervisors of such agencies to reassign the duties of any such
employees in order to carry out this chapter effectively. Would only apply to state employees.
(Filed and referred to committee 2/18/05; carried over from 2005 regular session; did not pass by
end of 2006 regular session)
Would allow a pharmacist who states in writing an objection to any abortion to be exempt from
GA
SB 123
filling a prescription for a drug if the pharmacist believes the drug would have the effect or
Sen. Whitehead possible effect of terminating a pregnancy.
(Filed and referred to committee 2/7/05; passed Senate 3/2/06; did not pass House by end of 2006
regular session)
IL
HB 4230
Rep. Granberg
IL
HB 4246
Rep. Stephens
IL
HB 4346
Rep. Granberg
Would amend the Pharmacy Practice Act of 1987. Would provide that a pharmacist licensed
under the Act may, based on his or her personal religious beliefs, refuse to fill a prescription for
and to dispense emergency contraception.
(Filed and referred to committee 12/5/05; re-referred to committee 1/4/06)
Would amend the Pharmacy Practice Act of 1987. Would provide that a pharmacist licensed
under the Act may, based on his or her personal religious beliefs, refuse to fill a prescription for
and to dispense emergency contraception.
(Filed and referred to committee 12/12/05; re-referred to committee 1/4/06)
Would amend the Pharmacy Practice Act of 1987. Would provide that a pharmacist licensed
under the Act may, based on his or her personal religious beliefes, refuse to fill a prescription for
and to dispense emergency contraception.
(Filed and referred to committee 1/3/06; first reading and referred to committee 1/4/06;
reassigned to committee 2/7/06)
Page 27 of 40
IL
HB 4786
Rep. Stephens
IL
SB 2343
Sen. Brady
IN
SB 4
Sen. Drozda
MI
HB 4741
Rep. Palmer
SB 938
Sen. George
Would amend the Pharmacy Practice Act of 1987 to provide that a pharmacist licensed under the
Act may, based on his or her personal religious beliefs, refuse to fill a prescription for and to
dispense emergency contraception. Amends the Health Care Right of Conscience Act to add the
dispensation of prescribed medication to the list of activities included in the definition of "health
care", adds pharmacist to the list of occupations included in the definition of "health care
personnel", and adds pharmacy to the list of facilities included in the definition of "health care
facility".
(Filed and referred to committee 1/18/06)
Would amend the Pharmacy Practice Act of 1987 to provide that a pharmacist licensed under the
Act may, based on his or her personal religious beliefs, refuse to fill a prescription for and to
dispense emergency contraception. Amends the Health Care Right of Conscience Act to add the
dispensation of prescribed medication to the list of activities included in the definition of "health
care", adds pharmacist to the list of occupations included in the definition of "health care
personnel", and adds pharmacy to the list of facilities included in the definition of "health care
facility".
(Filed and referred to committee 1/12/06)
Would provide that a person may not be required, as a condition of training, employment, pay,
promotion, or privileges, to dispense a medical device or drug that may result in an abortion or a
birth control device or medication.
(Filed and referred to committee 1/9/06)
Would provide standards for personnel policies to protect and accommodate the right of
conscience of health care providers who conscientiously object to providing or participating in
certain health care services under certain circumstances; would provide for protection from certain
liability; would provide for penalties and remedies.
(HB 4741 filed and referred to committee 5/5/05; SB 938 filed and referred to
committee 12/13/05; carried over from 2005 regular session)
MI
HB 5978
Rep. Gonzales
Would prohibit a pharmacist from refusing to dispense or transfer a prescription based solely on
his or her ethical, moral, or religious beliefs.
(Filed and referred to committee 4/25/06)
MN
HF 2597
Rep. Emmer
SF 2430
Sen. Wergin
Would authorize pharmacists to refuse to dispense medication that they find morally
objectionable.
(Filed and referred to committee 3/1/06; did not pass by end of 2006 regular session)
MN
HF 3032
Rep. Emmer
SF 2647
Sen. Kiscaden
MN
HF 3104
Rep. Goodwin
SF 3277
Sen. Lourey
MN
HF 3560
Rep. Goodwin
SF 3242
Sen. Lourey
Would prohibit pharmacists from refusing to dispense a prescription drug or device except under
certain circumstances.
(Filed and referred to committee 3/1/06; did not pass by end of 2006 regular session)
Would require the Board of Pharmacy to investigate and take appropriate discipline against a
registered pharmacy if pharmacy employees fail to compound or dispense a drug that is medically
appropriate for the patient for which it was prescribed, and the patient is denied a drug that may
reasonably be expected to be compounded or dispensed in pharmacies by pharmacists.
(Filed and referred to committee 3/2/06; did not pass by end of 2006 regular session)
Would prohibit pharmacists from refusing to dispense a prescription drug or device except under
certain circumstances.
(Filed and referred to committee 3/15/06; did not pass by end of 2006 regular session)
Page 28 of 40
Would establish the Health Care Rights of Conscience Act to protect the religious, moral, or
MO
HB 1539
ethical principles held by a health care provider, health care institution, or health care payer.
Rep. Stevenson Specifies that a health care provider is not required to participate in a health care service that
violates his or her conscience and will not be held liable for or descriminated against for refusing
to provide a health care service. Although a general refusal clause, the bill defines "health care
provider" to include pharmacists.
(Filed and referred to committee 2/2/06; favorable committee report 3/8/06)
Would protect the conscience rights of pharmaceutical professionals, who shall not be required to
MO
SB 609
perform, assist, recommend, refer for, or participate in any service involving a particular drug or
Sen. Crowell
device that they have a good faith belief is used for abortions. In these instances, the
pharmaceutical professional shall be immune from civil or criminal liability and will not have their
license suspended or revoked. Would provide that employers cannot refuse to hire, discriminate
against, segregate, or terminate a pharmaceutical professional because of their opposition to any
service involving a particular drug or device that they have a good faith belief is used for
abortions.
(Filed and referred to committee 1/4/06; committee hearing conducted 2/13/06; did not pass by
end of 2006 regular session)
NH
HB 1492
Rep. Hunter
Would grant immunity from liability to pharmacists who refuse to dispense an emergency
contraceptive pill.
(Filed and referred to committee 1/4/06; public hearing set for 2/14/06; did not pass by end of
2006 regular session)
Would establish a pharmacist conscience clause which shields pharmacists refusing to fill
NH
SB 343
emergency contraceptive prescriptions from civil liability and disciplinary action by the pharmacy
Sen. Letourneau board.
(Filed and referred to committee 1/4/06; did not pass by end of 2006 regular session)
NJ
AB 992
Rep. Stender
NY
A 9536
Rep. Seminario
NY
S 1873
Sen. Maltese
Would prohibit pharmacists from refusing to dispense medication solely for philosophical, moral
or religious reasons.
(Filed and referred to committee 1/10/06)
Would give complete and effective civil rights protection to health and human services workers
who have conscientious objections to morally offensive medical procedures and policies, including
pharmacists who provide contraception.
(Filed and referred to committee 1/17/06)
Would allow any individual to refuse to provide assistance or information, or refuse to refer a
person for such assistance or information, when providing a person with any form of assistance of
information about contraception or contraceptive devices would be contrary to the conscience or
religious beliefs of that individual; would prohibit discrimination by any public or private human
services or health care agency, hospital, person, firm, corporation or association against the person
so refusing to act.
(Filed and referred to committee 2/4/05; carried over from 2005 regular session; refiled and
referred to committee 1/4/06)
NY
S 5994
Sen.
Schneiderman
Would prohibit pharmacists from refusing to dispense medication solely for philosophical, moral,
or religious reasons.
(Filed and referred to committee 10/12/05; carried over from 2005 regular session; reassigned to
committee 1/4/06)
NY
S 7361
Sen. Duane
Would establish duties for pharmacies when pharmacists employed by such pharmacyrefuse to fill
prescriptions on the basis of personal beliefs and would require a pharmacy to ensure the
prescription is filled by another pharmacist.
(Filed and referred to committee 4/19/06)
Page 29 of 40
NC
HB 1407
Rep. Barnhart
Would allow a pharmacist who states an objection to abortion on moral, ethical, or religious
grounds, to refuse to prescribe or dispense drugs or devices that result in an abortion; such refusal
would not be a basis for damages or for any disciplinary or any other recriminatory action against
the pharmacist.
(Filed and referred to committee 4/20/05; carried over from 2005 regular session; no 2006 action
taken as of 7/1/06)
OK
HB 2884
Rep. Steele
PA
HB 2311
Rep. Kirkland
Would authorize a pharmacist's refusal to dispense medication.
(Filed and referred to committee 2/6/06; passed House 64y-34n, 3/14/06; did not pass Senate by
end of 2006 regular session)
Would make it illegal for any pharmacist to refuse to dispense or refill a prescription solely on the
grounds that dispensing or refilling the prescription would contravene the pharmacist's
philosophical, moral or religious beliefs.
(Filed and referred to committee 12/7/05; carried over from 2005 regular session)
PA
HB 2217
Rep. Frankel
Would establish certain duties for pharmacies when pharmacists employed by the pharmacies
refuse to fill valid prescriptions for drugs or devices on the basis of personal beliefs.
(Filed and referred to committee 11/14/05; carried over from 2005 regular session)
PA
SB 1089
Sen. Williams
RI
HB 5085
Rep. Corvese
Would establish certain duties for pharmacies when pharmacists employed by the pharmacies
refuse to fill valid prescriptions for drugs or devices on the basis of personal beliefs.
(Filed and referred to committee 3/16/06)
Would provide protection from discrimination to all health care providers who chose not to
participate in a health care service that violates the conscience of the health care provider. The act
would also provide a civil cause of action for damages in instances of violations of this act.
(Filed and referred to committee 1/13/05; carried over from 2005 regular session; did not pass by
end of 2006 regular session)
RI
HB 6793
Rep. Corvese
SB 2804
Sen. Alves
SD
HB 1184
Rep. Van Etten
Would provide protection from discrimination to all health care providers, including pharmacists,
who choose not to participate in a health care service that violates the conscience of the health care
provider.
(HB 6793 filed and referred to committee 1/17/06; SB 2804 filed and referred to committee
2/14/06; did not pass by end of 2006 regular session)
Would allow health care providers, including pharmacists, and institutions to refuse to participate
in certain health care services if those services violate the conscience of the health care provider;
would provide protection from discrimination and administrative and civil liability.
(Filed and referred to committee 1/23/06; did not pass House 2/6/06; reconsideration failed
2/7/06)
TN
HB 1383
Rep. Casada
Concerns pharmacy and pharmacists; enacts the "Pharmacist's Freedom of Conscience Act."
(Filed and referred to committee 2/9/05; carried over from 2005 regular session; did not pass by
end of 2006 regular session)
TN
SB 76
Sen. Finney
VT
HB 183
Rep. Donahue
Concerns pharmacy and pharmacists; enacts the "Pharmacist's Freedom of Conscience Act."
(Filed and referred to committee 1/13/05; carried over from 2005 regular session; did not pass by
end of 2006 regular session)
Would respect and protect the fundamental rights of conscience of all individuals who provide
health care services.
(Filed and referred to committee 2/8/05; carried over from 2005 regular session; did not pass by
end of 2006 regular session)
Would ensure health care provider and insurer right of conscience.
(Filed and referred to committee 2/1/05; carried over from 2005 regular session and reintroduced
1/9/06; did not pass by end of 2006 regular session)
WA
HB 1654
Rep. Ahern
Page 30 of 40
WA
SB 5851
Sen. Mulliken
WV
HB 2042
Rep. Schoen
WV
HB 2807
Rep. Hatfield
WV
HB 3030
Rep. Houston
Would ensure health care provider and insurer right of conscience.
(Filed and referred to committee 2/10/05; carried over from 2005 regular session and
reintroduced 1/9/06; did not pass by end of 2006 regular session)
Would allow pharmacists and other individuals involved in dispensing medicines to refuse to fill
prescriptions or dispense any substance that can be used as part of an abortion-related procedure.
(Filed and referred to committee 1/11/06; did not pass by end of 2006 regular session)
Would prohibit pharmacists and other persons involved in dispensing medicines from refusing to
fill prescriptions.
(Filed and referred to committee 1/11/06; did not pass by end of 2006 regular session)
Would provide that health care providers (including pharmacists), health care institutions, or
health care payers are not required to participate in abortion procedures that violate their respective
consciences.
(Filed and referred to committee 1/11/06; did not pass by end of 2006 regular session)
WV
HB 4449
Rep. Houston
SB 447
Sen. Sprouse
Would provide that health care providers (including pharmacists), health care institutions, or
health care payers are not required to participate in abortion procedures that violate their respective
consciences.
(Filed and referred to committee 2/7/06; did not pass by end of 2006 regular session)
WV
HB 4644
Rep. Kiss
Would provide that pharmacists may exercise moral discretion without legal consequence to refuse
to fill a prescription for "the morning after pill."
(Filed and referred to committee 2/20/06; did not pass by end of 2006 regular session)
WV
SB 29
Sen. Weeks
WV
SB 673
Sen. Barnes
Would allow pharmacists and others to refuse to dispense abortion-related prescriptions.
(Filed and referred to committee 1/11/06; did not pass by end of 2006 regular session)
WI
AB 285
Rep. Owens
Would provide that a pharmacist's refusal to dispense a prescribed drug or device because he or
she believes that the drug or device would be used for a purpose described above may not be the
basis for a claim for damages against the pharmacist or the pharmacist's pharmacy. Also, such a
refusal may not be the basis for disciplinary action.
(Filed and referred to committee 4/4/05; carried over from 2005 regular session; did not pass by
end of 2006 regular session)
WI
SB 155
Sen. Reynolds
Would relate to employment discrimination based on creed and exemption from liability and
discipline for pharmacists who refuse to dispense for abortions, assisted suicides, and euthanasia;
would provide that a pharmacist's refusal to dispense a prescribed drug or device because he or she
believes that the drug or device would be used for a purpose described above may not be the basis
for a claim for damages against the pharmacist or the pharmacist's pharmacy.
(Filed and referred to committee 4/1/05; carried over from 2005 regular session; did not pass by
end of 2006 regular session)
Would give pharmacists the right to refuse to provide services.
(Filed and referred to committee 3/21/05; carried over from 2005 regular session; did not pass by
end of 2006 regular session)
Page 31 of 40
Extra Stuff
Center for Reproductive Rights
---------------------------------------------------
Other state legislators are introducing legislation that would require pharmacies to fill any legal
prescription for birth control which, among other things, requires pharmacies to provide the
morning after pill (see Table 1). Recently, a trend has begun to try and force hospitals to perform
abortions even if doing so violates their mission statements, codes of ethics, or religious beliefs.
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With an appealing concept akin to “freedom of choice,” religious
conservatives have co-opted their pro-choice adversaries’ language
by arguing that healthcare workers should be “free” to follow their conscience.
deny providing
contraception.
--Kari Lydersen39
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From E.U. NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS
OPINION Number 4-2005: THE RIGHT TO CONSCIENTIOUS OBJECTION AND THE
CONCLUSION BY EU MEMBER STATES OF CONCORDATS WITH THE HOLY SEE
14 December 2005
Ref.: CFR-CDF.Opinion 4-2005.doc
Retrieved July 16, 2006, from http://www.crlp.org/pdf/CFR-CDFopinion4-2005.pdf
The E.U. Network of Independent Experts on Fundamental Rights has been set up by the
European Commission upon the request of the European Parliament. It monitors the situation of
fundamental rights in the Member States and in the Union, on the basis of the Charter of
Kari Lydersen (2006, February 9). Pharmacists’ Lawsuits Highlight ‘Right of Conscience’ Rift. The NewStandard.
Retrieved July 16, 2006, from http://newstandardnews.net/content/index.cfm/items/2791
39
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Fundamental Rights. It issues reports on the situation of fundamental rights in the Member States
and in the Union, as well as opinions on specific issues related to the protection of fundamental
rights in the Union.
The recognition of the right to religious conscientious objection in the EU Member States
Where it is recognized either under concordats or under constitutional or legislative provisions,
conscientious objection – which under these instruments may be invoked either by the members of the clergy alone,
or by all persons who thereby seek to manifest their religious beliefs – concerns especially four activities : military
service1; the celebration of weddings, in particular in which one of the persons has divorced from a previous
marriage, same-sex marriage or unions such as registered partnerships between two persons of the same sex ; the
provision of health services, in particular abortion, euthanasia, artificial fertilization; and medically assisted
contraception.
the right to religious conscientious objection with respect to military service. Neither will it
examine the issue of parents refusing life-saving medical treatment for their child, in particular
where this would require blood transfusion. This needs to be addressed.
Military service: from
In Austria, the right to refuse to perform military service and to opt instead for civilian or
community service is guaranteed as a constitutional right in Article 9a para. 3 of the Austrian
Constitution. In Cyprus, Article 10 of the Constitution refers to service exacted instead of
compulsory military service by conscientious objectors. The right to conscientious objection
towards military service on ethical, moral, humanitarian, philosophical, political or religious
grounds was further recognized in the National Guard Law L. 20/1964 as amended by L.
2/1992. In Denmark, see the Consolidated Act on Compulsory Military Service
(Værnepligtsloven , Bekendtgørelse af værnepligtsloven LBK nr 470, of 17.6.2002), and
Consolidated Act on Conscientious Objection to Military Service (Militærnægterloven,
Bekendtgørelse af lov om værnepligtens opfyldelse ved civilt arbejde LBK nr 1089, of
23.12.1998). In Germany, Article 4 para. 3 of the Grundgesetz guarantees that no person shall be
compelled against his conscience to perform military service involving the use of arms. In Italy,
the right to religious conscientious objection has been recognized by the Constitutional Court as
a limit of the duty to defend the homeland, which imposed by Article 52 of the Constitution.
the provision of health services, in particular abortion,
euthanasia, artificial fertilization
In Austria, whereas under Article 97 para. 1 of the Criminal Code voluntary termination of
pregnancy is allowed during the first three months of pregnancy without a need for a medical
indication (and this is a medical service which, in principle, physicians should perform as part of
their
obligations as partners of the national health insurance program : see Art. 338 to 342 of the
General
Social Security Act (Allgemeines Sozialversicherungsgesetz – ASVG)), Article 97 para. 2 states
that
no physician, nurse or paramedic is obliged to perform or to assist in such a voluntary abortion,
and
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Article 97 para. 3 adds that none may be discriminated against on the basis of him or her
carrying out
an abortion or refusing to do so. A similar exemption exists with respect to artificial and assisted
fertilization, which is permitted under Austrian law in certain conditions. According to Article 6
of the
Reproductive Medicine Act 1992 (Fortpflanzungsmedizingesetz, BGBl. No. 275/1992, as
amended),
no physician, nurse or paramedic is under a duty to perform or assist in a medically assisted
fertilization and he or she must not be discriminated against for carrying out such fertilization or
for
refusing to take part in it.
In Belgium, the right to conscientious objection has been explicitly recognized in the context
of abortion and euthanasia. Although the general regulations relating to the medical profession
and to the rights of the patient do not allude the right to conscientious objection by medical
practitioners, whether in the provision of certain medical services15 or in the information they
must give to the patient,16 specific clauses were inserted in the legislations which have partly
decriminalized abortion in 1990 and euthanasia in 2002. The Law of 3 April 1990
decriminalizing certain aspects of the voluntary interruption of pregnancy17 lists the conditions
under which abortion will be decriminalized (while the general principle of the criminal
prohibition is maintained in Article 348 of the Criminal Code). The Law provides explicitly that
no medical doctor, nor any nurse or aid to the doctor, will be obliged to take part in the abortion.
The Law however imposes on the medical doctor to inform the woman seeking abortion of his or
her refusal to perform abortion for reasons of conscience, at the first visit of the patient.18 The
Law of 28 May 2002 decriminalizing euthanasia19 entered into force on 22 September 2002.
This law decriminalizes euthanasia under certain well-defined conditions, which are to be
interpreted strictly, as the general prohibition remains in force. The law contains a provision
similar to the conscientious objection clause of the Law on abortion, although – apart from his or
her obligation to inform the patient immediately of his or her refusal to perform an euthanasia –,
the medical doctor also is imposed an obligation to transfer the medical file of the patient to any
other medical practitioner designated by either the patient him- or herself or the representative of
the patient.20 It may be added that, in the Law of 10 November 2005 completing the Law of 28
May 2002
with regard to the delivery of euthanazing drugs upon medical prescription,21 there is no right to
conscientious objection explicitly recognized to the pharmacologist. This does not necessarily
imply
that the individual pharmacologist may not refuse to deliver such drugs on religious grounds,
although
no case-law has recognized this yet.
In Denmark With regard to the provision of health services, according to the Consolidated Act
on induced abortion (Lovbekendtgørelse 2004-06-16 nr. 541 om svangerskabsafbrydelse og
fosterreduktion), Section 10 subparagraph 2, doctors, nurses, midwifes and social and health
assistants, or students in these professions, for whom it is contrary to their ethic or religious
beliefs to perform or assist in induced abortion, can apply for and be granted exemption.
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In France, Art. L.2212-8 of the Code of Public Health (Code de la santé publique) allows
medical physicians to invoke a ‘conscience clause’ on the basis of which they may refuse to
perform an abortion. However, they are obliged to inform the woman seeking abortion without
delay of their intention to invoke the clause. Although this clause also may be invoked by health
care practitioners employed in institutions, the heads of services in public health care institutions
and those which take part in the provision of public health care services may not invoke the
clause in order to oppose the performance of abortions within their service (Loi n°2001-588 du 4
juillet 2001 relative à l’interruption volontaire de grossesse et à la contraception).
In Germany, the Constitution guarantees freedom of conscience unconditionally. Pursuant to
Article 4 para. 1 Grundgesetz, ‘freedom of faith and of conscience ... shall be inviolable’.
Accordingly this means that no one can be obliged by State powers to act against his or her
conscience. Freedom of conscience is a norm of fundamental value and of high constitutional
status, which is to be respected in the framework of every activity of State authorities. This is a
continuous jurisprudence of the Federal Constitutional Court and of the Federal Administrative
Court31
In Portugal the right of a medical professional to refuse to perform an abortion if such an act
goes against his or her religious or philosophical beliefs, would be based on the Constitution
itself.
In the United Kingdom, the right to religious conscientious objection is recognized in specific
laws adopted in areas where it might be invoked (the same holds true of other Member States,
such as e.g. the Netherlands). The British Abortion Act 1967 permits doctors and nurses to refuse
to participate in terminations but obliges them to provide necessary treatment in an emergency
where a woman’s life is threatened. Furthermore this exemption has been interpreted as covering
only the administration of the treatment so conscience could not be invoked in order to refuse to
give advice or perform various participatory steps, including the signing of the certificate
required from a medical practitioner before an abortion can occur (Janaway v. Salford Health
Authority, 1988). Government guidance has indicated that the exemption should apply to
ancillary staff involved in the handling of fetuses and fetal tissue and that medical students
should be able to opt out of witnessing abortions. It should also be noted that the British Medical
Association (the body representing doctors) expects doctors with a conscientious objection to the
prescription of contraceptive devices to refer the patient to another doctor willing to do so. It also
would expect doctors with a conscientious objection to the withdrawal of treatment on moral
rather than clinical grounds to be moved to other duties without being marginalized but there is
no specific legal protection for this.
In sum, whether the right to religious conscientious objection is recognized explicitly in a
concordat, or whether it is derived from the guarantee of freedom of religion stipulated in
international human rights instruments, in the national Constitution or in specific legislation, this
right should be regulated in order to ensure that, in circumstances where abortion is legal, no
woman shall be deprived from having effective access to the medical service of abortion. In the
view of the
Network, this implies that the State concerned must ensure, first, that an effective remedy
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should be open to challenge any refusal to provide abortion ; second, that an obligation will be
imposed on the health care practitioner exercising his or her right to religious conscientious
objection to refer the woman seeking abortion to another qualified health care practitioner who
will agree to perform the abortion ; third, that another qualified health care practitioner will be
indeed available, including in rural areas or in areas which are geographically remote from the
centre. Such a regulation should thus accommodate the right to religious conscientious objection,
which is derived from the freedom of religion, while ensuring that the exercise of this right will
not
lead to others either being deprived of access to certain services in principle available to all in the
State
concerned, or being treated in a discriminatory fashion.
Marriages and weddings
In Denmark, the Act of Registered Partnership, Section 3 (Lov om registreret partnerskab)23 ,
provides that registered partnerships may be passed, which have essential the same legal
consequences, with some few exceptions, as traditional different sex marriages.24 However the
registered partnership ceremony can only be performed as civil marriage : Church wedding is not
an option, not even for religious communities willing to do so. In relation to civil marriage, no
right to conscientious objection for the official exists, and therefore he or she cannot as such
refuse to perform the wedding ceremony. However, if after the civil ceremony the registered
partnership is to receive an ecclesiastical blessing, the priest is not obliged to perform the
blessing and can refuse to do so.25 Moreover, according to the Administrative order on
weddings in the State Church26, priests are not obliged to marry divorced persons. Furthermore,
if it is of the opinion of the priest due to other religious reasons, that he or she is unable to marry
a couple, the priest must present the case before the Bishop. The Bishop will decide whether the
priest should be exempted or not.
In England the Gender Recognition Act 2004, which provides that an Anglican clergyman or a
clerk in Holy Orders of the Churc of Wales are not obliged to solemnise the marriage of a person
if it is reasonably believed that the person’s gender has become the acquired gender under the
Act.
Fertilization
In the United Kingdom Other examples of the right to conscientious objection being recognized
are the Human Fertilisation and Embryology Act 1990, which provides a right of conscientious
objection to participation in technological procedures to achieve contraception and pregnancy;
Euthansia
Page 36 of 40
Summary
The allowable restrictions to the right to religious conscientious objection
It is clear that the right to religious conscientious objection and the correlative obligation, as
described above, to offer reasonable accommodation to the religious beliefs of an individual, are
not unlimited.37 Indeed, the right to religious conscientious objection may conflict with other
rights, also recognized under international law. In such circumstances, an adequate balance must
be struck between these conflicting requirements, which may not lead to one right being
sacrificed to another.
“Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall
be guaranteed to every individual, and no one shall be molested or disturbed in person or
property on account of religion…” (Washington State Constitution, Article I, § 11)
Health care professionals do not have to check their conscience at the door when they
come to work Catholic hospitals don’t perform abortions, so pharmacists too should be
able to “just say no”. Pharmacists who exercise their right to
conscientious objection should counsel women where they CAN get their prescriptions
filled
------------The New England Journal of Medicine, 2004, November 4, p. 2008-2012. Retrieved July 16,
2006, from http://www.yale-university.org/opa/docs/campus/20041104_nejm.pdf
sounding board
The Limits of Conscientious Objection — May Pharmacists Refuse to Fill Prescriptions for
Emergency Contraception? By Julie Cantor, J.D., and Ken Baum, M.D., J.D.
arguments in favor of a pharmacist’s right to object
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1) pharmacists can and should exercise independent judgment
Pharmacists, like physicians, are professionals. They complete a graduate program to gain
expertise, obtain a state license to practice, and join a professional organization with its
own code of ethics. Society relies on pharmacists to instruct patients on the appropriate
use of medications and to ensure the safety of drugs prescribed in combination. Courts
have held that pharmacists, like other professionals, owe their customers a duty of
care.19 In short, pharmacists are not automatons completing tasks; they are integral
members of the health care team. Thus, it seems inappropriate and condescending to
question a pharmacist’s right to exercise personal judgment in refusing to fill certain
prescriptions.
2) professionals should not forsake their morals as a condition of employment
Society does not require professionals to abandon their morals. Lawyers, for example,
choose clients and issues to represent. Choice is also the norm in the health care setting.
Except in emergency departments, physicians may select their patients and procedures.
Ethics and law allow physicians, nurses, and physician assistants to refuse to participate
in abortions and other reproductive services.14,20
Although some observers argue that active participation in an abortion is distinct from
passively dispensing emergency contraception, others believe that making such a
distinction between active and passive participation is meaningless, because both forms
link the provider to the final outcome in the chain of causation.
3) conscientious objection is integral to democracy
More generally, the right to refuse to participate in acts that conflict with personal
ethical, moral, or religious convictions is accepted as an essential element of a
democratic society. Indeed, Oregon acknowledged this freedom in its Death with Dignity
Act,21 which allows health care providers, including pharmacists, who are disquieted by
physician-assisted suicide to refuse involvement without fear of retribution. Also, like the
draftee who conscientiously objects to perpetrating acts of death and violence, a
pharmacist should have the right not to be complicit in what they believe to be a morally
ambiguous endeavor, whether others agree with that position or not. The reproductiverights movement was built on the ideal of personal choice; denying choice for
pharmacists in matters of reproductive rights and abortion seems ironic.
arguments against a pharmacist’s right to object
1) pharmacists choose to enter a profession bound by fiduciary duties
Although pharmacists are professionals, professional autonomy has its limits. As experts
on the profession of pharmacy explain, “Professionals are expected to exercise special
skill and care to place the interests of their clients above their own immediate
interests.”22 When a pharmacist’s objection directly and detrimentally affects a
patient’s health, it follows that the patient should come first.
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Similarly, principles in the pharmacists’ code of ethics weigh against conscientious
objection. Given the effect on the patient if a pharmacist refuses to fill a prescription,
the code undermines the right to object with such broadly stated objectives as
“a pharmacist promotes the good of every patient in a caring, compassionate, and
confidential manner,” “a pharmacist respects the autonomy and dignity of each patient,”
and “a pharmacist serves individual, community, and societal needs.”23 Finally,
pharmacists understand these fiduciary obligations when they choose their profession.
Unlike conscientious objectors to a military draft, for whom choice is limited by
definition, pharmacists willingly enter their field and adopt its corresponding
obligations.
2) emergency contraception is not an abortifacient
Although the subject of emergency contraception is controversial, medical
associations,24 government agencies,25 and many religious groups agree
that it is not akin to abortion. Plan B and similar hormones have no effect on an
established pregnancy, and they may operate by more than one physiological mechanism,
such as by inhibiting ovulation or creating an unfavorable environment for implantation of
a blastocyst.26 This duality allowed the Catholic Health Association to reconcile its
religious beliefs with a mandate adopted by Washington State that emergency
contraception must be provided to rape survivors.27 According to the association, a
patient and a provider who aim only to prevent conception follow Catholic teachings
and state law. Also, whether one believes that pregnancy begins with fertilization or
implantation, emergency contraception cannot fit squarely within the concept of abortion
because one cannot be sure that conception has occurred.
3) pharmacists’ objections significantly affect patients’ health
Although religious and moral freedom is considered sacrosanct, that right should yield
when it hinders a patient’s ability to obtain timely medical treatment. Courts have held
that religious freedom does not give health care providers an unfettered right to object
to anything involving birth control, an embryo, or a fetus.28,29 Even though
the Constitution protects people’s beliefs, their actions may be regulated.30 An objection
must be balanced with the burden it imposes on others. In some cases, a pharmacist’s
objection imposes his or her religious beliefs on a patient. Pharmacists may decline to fill
prescriptions for emergency contraception because they believe that the drug
ends a life. Although the patient may disapprove of abortion, she may not share the
pharmacist’s beliefs about contraception. If she becomes pregnant, she may then face
the question of abortion — a dilemma she might have avoided with the morning-after pill.
Furthermore, the refusal of a pharmacist to fill a prescription may place a
disproportionately heavy burden on those with few options, such as a poor teenager living
in a rural area that has a lone pharmacy. Whereas the savvy urbanite can drive to another
pharmacy, a refusal to fill a prescription for a less advantaged patient may completely
bar her access to medication.
Finally, although Oregon does have an opt-out provision in its statute regulating
Page 39 of 40
assisted suicide, timing is much more important in emergency contraception than in
assisted suicide. Plan B is most effective when used within 12 to 24 hours after
unprotected intercourse.31 An unconditional right to refuse is less compelling when
the patient requests an intervention that is urgent.
4) refusal has great potential for abuse and discrimination
The limits to conscientious objection remain unclear. Pharmacists are privy to personal
information through prescriptions. For instance, a customer who fills prescriptions for
zidovudine, didanosine, and indinavir is logically assumed to be infected with the human
immunodeficiency virus (HIV). If pharmacists can reject prescriptions that conflict
with their morals, someone who believes that HIV-positive people must have engaged in
immoral behavior could refuse to fill those prescriptions. Similarly, a pharmacist who
does not condone extramarital sex might refuse to fill a sildenafil prescription for an
unmarried man. Such objections go beyond “conscientious” to become invasive.
Furthermore, because a pharmacist does not know a patient’s history on the basis of a
given prescription, judgments regarding the acceptability of a prescription may be
medically inappropriate. To a woman with Eisenmenger’s syndrome, for example,
pregnancy may mean death. The potential for abuse by pharmacists underscores the need
for policies ensuring that patients receive unbiased care.
19. Hooks Super X, Inc. v. McLaughlin, 642 N.E. 2d 514 (Ind. 1994).
20. Section 2.01. In: Council on Ethical and Judicial Affairs. Code of medical ethics:
current opinions with annotations. 2002-2003 ed. Chicago: American Medical Association,
2002.
21. Oregon Revised Statute § 127.885 § 4.01 (4) (2003).
22. Fassett WE, Wicks AC. Is pharmacy a profession? In: Weinstein BD, ed. Ethical issues in
pharmacy. Vancouver, Wash.: Applied Therapeutics,1996:1-28.
23. American Pharmacists Association. Code of ethics for pharmacists: preamble.
(Accessed October 14, 2004, at http://www.aphanet.org/pharmcare/ethics.html.)
24. Hughes EC, ed. Obstetric-gynecologic terminology, with section on neonatology and
glossary of congenital anomalies. Philadelphia: F.A. Davis, 1972.
25. Commodity Supplemental Food Program, 7 C.F.R. § 247.2 (2004).
26. Glasier A. Emergency postcoital contraception. N Engl J Med 1997;337:1058-64.
27. Daily reproductive health report: state politics & policy: Washington governor signs
law requiring hospitals to offer emergency contraception to rape survivors. Menlo Park,
Calif.: Kaiser-network, April 2, 2002. (Accessed October 14, 2004, at http://www.
kaisernetwork.org/daily_reports/rep_index.cfm?hint=2&DR_ID=10366.)
28. Brownfield v. Daniel Freeman Marina Hospital, 208 Cal. App. 3d 405 (Cal. Ct. App.
1989).
29. Shelton v. Univ. of Medicine & Dentistry, 223 F.3d 220 (3d Cir. 2000).
30. Tribe LH. American constitutional law. 2nd ed. Mineola, N.Y.: Foundation Press,
1988:1183.
31. Brody JE. The politics of emergency contraception. New York Times. August 24,
2004:F7.
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