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COMMENTARY: Women’s Right to Contraception and Pharmacists’ Religious Freedoms Must Be Protected

by Jeff Stanglin, J.D.
Aug. 27, 2008

Every day, millions of Americans take for granted the fact that they can go to their local pharmacy and get a prescription filled with little or no hassle. That is not the reality for some women, however, as some pharmacists refuse to fill certain prescriptions because of religious objections. It’s increasingly becoming a problem throughout the country, and it is at the heart of the clash between religious freedom and a woman’s access to proper medical care.

Refusal Clauses

Most states enacted refusal clauses, sometimes referred to as conscience clauses, in response to the Supreme Court’s decision in Roe v. Wade, which severely limited a state’s ability to prohibit abortion. What these clauses say is that certain medical providers may refuse to perform an abortion if doing so is against their religious or moral beliefs.

Now, more than a dozen states make refusal clauses applicable to pharmacists. These laws allow pharmacists or pharmacies to refuse to administer certain medication if doing so violates their religious or moral beliefs. The dispute over these laws largely revolves around emergency contraception, which is contraception to prevent a pregnancy after unprotected sex. However, some pharmacists and pharmacies have refused to administer any contraceptives, including condoms and birth control pills.

On the contrary, three states — California, Illinois and New Jersey — have enacted laws that require pharmacies to fill all prescriptions, regardless of personal or religious beliefs.

The Heart of the Conflict

The core of this debate hinges on proper medical care and the government’s (or an employer’s) need to accommodate the religious beliefs of pharmacists, whose primary purpose is to ensure proper medical care to “all humankind,” as the pharmacists’ oath says. So what is the solution? Does a woman’s right to contraception trump a pharmacist’s religious objections? The answer, like most answers to difficult issues, probably lies somewhere in the middle.

First, courts have routinely upheld refusal clauses. Currently, 47 states have refusal clauses, most of which pertain to a medical provider’s option to refuse to perform an abortion. These laws are constitutionally valid as long as they provide an exception if the mother’s life or health is at risk. Additionally, no court has overturned a refusal clause that applies to pharmacists.

So, as of now, states can restrict access to contraception in much the same way they can restrict abortions — in a roundabout way. That is, the laws are not labeled “restrictions,” for that would be unconstitutional; rather, they are restrictions in the sense that any pharmacists may refuse to provide certain medications they find objectionable.

This presents a problem on many fronts, not the least of which is that women, especially in rural areas, could find it extremely difficult to get the contraception they need. The problem is compounded when that contraception is of the emergency variety, which often is ineffective 72 hours after intercourse.

Luckily, most states that have pharmacy-refusal laws also have stipulations (or regulations enacted by state pharmacy boards) that require pharmacists who refuse to administer certain medications to refer customers to another pharmacy that will oblige their request. Four states, however — Arkansas, Georgia, Mississippi and South Dakota — not only give pharmacists a right to refuse but also place no duty on the pharmacist or pharmacy to refer a customer to another pharmacy that will fill the prescription.

Religious Discrimination

Like any legal argument, the proverbial coin has two sides, and pharmacists’ legitimate religious and moral objections should not be taken lightly. States with pharmacist-refusal laws have realized that, but pharmacists who are not afforded protection under state law might have to turn to federal law for protection.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion. Religion is broadly defined in the law and covers all aspects of religious practices and beliefs. So, an employer must accommodate an employee’s religion unless doing so would pose an undue hardship on the employer. Whether an accommodation is an undue hardship is a question of fact for a jury to decide, but courts have defined undue hardship in this context to mean a more-than-incidental cost to the employer of running the business.

It would seem, therefore, that allowing a pharmacist to opt out of dispensing contraception because of religious objections while having another pharmacist dispense it is a reasonable accommodation. That, however, would change if the only pharmacist on duty is one who refuses to dispense the medication or if a pharmacist refuses to perform any customer service duties related to contraception. Both likely would pose an undue hardship on the employer as the employer is losing business because of the pharmacist’s refusal to act. For example, in Noesen v. Medical Staffing Network, a federal appeals court refused to hold Wal-Mart liable for firing a pharmacist when the pharmacist flat-out ignored customers with birth control prescriptions.

A Slippery Slope?

A major fear that many have against pharmacists being able to refuse to dispense contraceptives is that no end might be in sight of what medications pharmacists actually can refuse to administer because of religious objections. Can a pharmacist refuse to fill a prescription used to treat a sexually transmitted disease because the customer “sinned” in contracting the disease? What about a pharmacist refusing to fill a prescription to a woman who has cervical cancer because she developed the cancer after acquiring a sexually transmitted disease?

These obviously are difficult questions, and, should the debate reach outside the realm of contraception, the courts undoubtedly will be called upon to strike a delicate balance between religion and medical care as it relates to pharmacists.

The Proper Balance

For now, however, the contraception debate rages on. Women need contraceptives, and some pharmacists have deeply held religious beliefs that must be addressed and, in many cases, protected. Some individuals believe that using contraception is a sin. Others believe that life begins at conception and that dispensing emergency contraception is tantamount to being an accessory to murder. If that seems ridiculous to the majority of the population, it is of no consequence; religious discrimination laws were enacted to protect those with minority viewpoints.

The danger, however, is not accommodating a religious belief or a woman’s right to contraception. The real threat to both women and pharmacists is extremism. This is seen in the four states that place no duty upon pharmacists to make a referral; extremism also is evident in a state such as New Jersey that forces pharmacists to fill a prescription regardless of any religious objection. The courts surely will be called upon to sort out the constitutionality of those laws.

In the meantime, states that plan to enact pharmacist-refusal laws should do so in the spirit of compromise by allowing pharmacists to refuse to dispense contraceptives but placing a referral duty upon them to ensure that women can get the contraception they need. Compromise is what allows a democracy to thrive, and it has served this country well for more than 200 years. There is no reason that it cannot work in the pharmacist-contraception debate as well.

Jeff Stanglin is a freelance writer based in Dallas. He previously practiced criminal law and personal injury law in Texas.

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