When Contraceptives Clash with Conscience, Whose Rights Prevail?

Vol. 33 No. 3

By

Julie D. Cantor, a graduate of the Yale University School of Medicine, practices law at Munger, Tolles & Olson LLP in Los Angeles. She also teaches a seminar entitled “Reproduction, Medical Ethics and the Law” at the UCLA School of Law.

When pharmacist Neil Noesen applied for a temporary position at a Wisconsin Wal-Mart, he was up-front about his religious objections to contraception. He had to be. The state’s Pharmacy Examining Board required Noesen to tell potential employers, in writing, just what he would and would not do. The board requirement was in response to a previous incident when, during a weekend, Noesen refused to process or transfer a customer’s birth control prescription. The patient was unable to get a replacement prescription until the following week, and she missed a dose of medication.

Wal-Mart hired Noesen, and it was no surprise that he refused to fill prescriptions for contraceptives. Wal-Mart had another pharmacist on duty for that. But it was surprising that Noesen refused to tell his colleague when customers needed help. If someone called in with a contraception issue, he would place the call on hold—indefinitely. If someone came to the store with a birth control prescription, he would leave her standing at the counter.

When told that his system of silence was unworkable, Noesen filed a harassment complaint with his employment agency, announced that filing to the staff, and, in front of those employees, accused his supervisor of lying. Wal- Mart fired him. In response, Noesen sued Wal-Mart, the employment agency, and the state on various grounds, including religious discrimination. All that after five days on the job.

Although Noesen’s tactics were unique, his decision to cordon off contraception from the scope of his employment was not. In fact, the advent of emergency contraception (EC) has coincided with an increase in the number of (or publicity about) similar refusals across the country. Recently, a Pennsylvania emergency medicine physician refused to prescribe EC to a rape victim. In Alabama, several nurses quit when the clinic that employed them began to offer EC. And three New York pharmacists refused to refill EC prescriptions. As one of them put it, using EC once was acceptable; using it twice was irresponsible.

EC has rekindled the debate over access to birth control. Although its exact mechanism is unknown, EC is thought to inhibit ovulation, fertilization, or implantation. Essentially a high dose of regular birth control pills, EC can significantly decrease the odds of becoming pregnant when taken within seventytwo hours of unprotected sex. The sooner it is used, the more effective it is.

Some health-care professionals have religious objections to all forms of contraception. Others believe that life begins at conception and object to the theoretical possibility that EC could halt embryonic implantation. Yet, a patient who needs EC has little time to bounce from clinic to clinic or pharmacy to pharmacy in search of someone willing to prescribe or dispense it.

Is it appropriate for health-care professionals to object to providing EC? When EC becomes available without a prescription, it will be “behind the counter,” and pharmacists will need to dispense it. May they refuse to do so? Supporters of a refusal right say that a free society must allow individuals to follow the dictates of conscience and that objections should be respected unless the patient faces a life-threatening situation. Critics argue that health-care professionals promise to provide care, not conscience, and that they should not abandon patients in a moment of need.

Some providers may find support for their objection under existing state laws. After Roe v. Wade, 410 U.S. 113 (1973), statutes protecting some health-care professionals who would not provide or participate in certain reproductive therapies proliferated. But those laws were not designed to handle the refusals that EC has wrought. Notably, only four states—Arkansas, Georgia, Mississippi, and South Dakota—have laws that specifically protect pharmacists who refuse to dispense EC. In other states, the situation is murky, and that has led to a flurry of legislation. In 2006, legislators in twenty-one states have introduced at least forty-seven bills to address some aspect of the issue.

While politicians debate, lawsuits on the issue are headed for court. In Illinois, a group of pharmacists filed suit over the governor’s emergency order that required all pharmacies that sell contraceptives to fill EC prescriptions. In Louisiana, a nurse who refused to dispense EC in a hospital’s new family-planning clinic or to accept another full-time position sued the hospital when it reassigned her to a part-time shift.

Courts hearing these cases may find guidance from Endres v. Indiana State Police, 349 F.3d 922 (7th Cir. 2003), in which a law enforcement officer was assigned to protect a casino but refused to show up for work because his religion condemned gambling. After he was fired for insubordination, he sued the state for religious discrimination. He lost. As the court put it, society must “hold police officers to their promise to enforce the law without favoritism. . . . Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical. Just so with police.” Id. at 927.

Could a duty to the public similarly circumscribe the rights of pharmacists, nurses, and even doctors? What are the limits for their objections? May a pharmacist refuse to dispense erectile dysfunction medications to unmarried men? May physicians and nurses refuse to treat patients with HIV if, unlike babies born with the virus, behavior played a role in viral transmission? Where do professionals’ rights end and patients’ rights begin?

At least one lawsuit will not be in court anytime soon. In June 2006, a federal judge dismissed Noesen’s case with prejudice. As for the other suits, the pace of progress may be too slow for patients who need EC now. What stands in their way is not science or even money. It is belief. Ironically, those with the keys to the medicine cabinet who aim to keep their souls unsullied end up imposing their own brand of morality on the very people they purport to serve. Until patients can access EC without traversing potential objectors, the best interim solution may be a healthy dose of compassion. And that should be a prescription worth filling under anyone’s gospel.

As published in Human Rights, Summer 2006, Vol. 33, No. 3, p.18-19.

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