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Bioethics Research LibraryThe Joseph and Rose Kennedy Institute of Ethics

Box 571212, Georgetown UniversityWashington, DC 20057-1212

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http://bioethics.georgetown.edu

Pharmacists andConscientious Objection

Richard M. AndersonLaura Jane BishopMartina Darragh

Harriet GrayAnita Nolen

Susan Cartier PolandDecember, 2006

In March 2005, a Wisconsin pharmacist’s act of conscience garneredheadlines across the United States. After a married woman with fourchildren submitted a prescription for the morning-after pill, the pharmacist,Neil Noesen, not only refused to fill it, but also refused to transfer theprescription to another pharmacist or to return the prescription to thecustomer. As more such incidents occurred, many states “. . . decided toconsider and enact laws setting the bounds of pharmacists’ and other healthcare workers’ professional obligations” (III, Grady 2006, p. 327).Discussions of objector legislation, also referred to as “conscience clauses,”“refusal clauses,” and “abandonment laws” (III, Appel 2005, p. 279), are notlimited to professional ethics, but also draw from philosophical, theological,and legal perspectives. The purpose of this Scope Note is to present a widevariety of viewpoints on the health provider’s right to conscience.

More than 40 years ago the development of “The Pill” as the first reliablemethod of birth control not only ushered in a feminist revolution, but alsoprovided a new focus for concerns of conscience for those who were partof the anti-abortion movement based on religious belief in the sanctity oflife. Similarly, in the past ten years, worldwide, and seven years (1999)since the emergency contraception “morning after” pill first becameavailable as a prescription item, there has been an upsurge in the number ofmedical personnel who refuse to prescribe or dispense it on grounds ofpersonal conscience, whether for religious reasons or not. Their actions

bring into play issues of power and control forhealth care personnel and for patients—in thiscase women, which also raises women’s rightsissues. Ironically, studies in France, Sweden, andthe United Kingdom have shown that emergencycontraception does not reduce the abortionrate—it is too infrequently used (II, Glasier 2006).

It is important to underline the difference betweenthe “morning-after” pill or “Plan B,” which ismade up of two progestin pills containinglevonorgestrel (a synthetic derivative of thefemale hormone progesterone), and RU-486(Mifiprex or mifipristone with misoprostol). PlanB, if taken within 72 hours post-coitus preventsimplantation, and therefore pregnancy, bysuppressing the output of luteinizing hormone, thehormone that triggers the ovulation process.Scientists have been unable to determine whetherthis action could destroy already fertilized eggs,but even if it does, it uses the same mechanism asoccurs with the birth control pill, that wasdeveloped some 45 years ago. By contrast,RU-486 acts up to 49 days after implantation byblocking the action of progesterone in order toterminate the pregnancy and as such is anabortifacient (II, US FDA 1).

On 24 August 2006, the U.S. Food and DrugAdministration announced approval of the Plan Bpill for over-the-counter (OTC ) sales (II, US FDA2). Although this action makes the drug morewidely available, it remains to be seen whetherpharmacists who are conscientious objectors andwho refuse to dispense it also will refuse toprovide it OTC.

A survey article by Rebecca Dresser (II, 2005, p.9) succinctly sums up the problem forconscientious objectors: “Because emergencycontraception can act to block implantation of afertilized egg, people who believe in protection ofhuman life after conception find it morallyobjectionable.”

When conscientious objections are raised overabortion or birth control services performed,prescribed, or dispensed, they affect not only thehealth professionals—physicians, pharmacists,nurses, and health technicians—who may object,as well as their colleagues and/or managers, butalso the consumers: the female patients who are

then forced to reconsider or to seek an alternativesupplier, as well as their spouses or partners. AltaCharo (II, 2005, p. 2473) makes the point that thepatient needs to have access to a system ofcounseling and referral “so that every patient canact according to his or her own conscience just asreadily as the professional.”

The literature and online resources cited belowinclude (1) policy statements and codes byprofessional organizations; (2) review essays onconscientious objection in health care and articleson the current debate regarding the field ofpharmacy; and (3) legal perspectives and cases.

I. OFFICIAL POSITIONSTATEMENTS AND CODES

American Pharmacists Association (APhA). Codeof Ethics for Pharmacists. Washington, DC:APhA. 27 October 1994. 2 p. [Online.] Availableat http://www.aphanet.org/AM/Template.cfm?Section=Search&template=/CM/HTMLDisplay.cfm&ContentID=2809. Accessed 20 October2006.

Eight principles and interpretation include “[a]pharmacist respects the autonomy and dignity ofeach patient” and “[a] pharmacist promotes thegood of every patient in a caring, compassion-ate, and confidential manner.” This Code alsowas endorsed and reviewed by the AmericanSociety of Health-System Pharmacists [ASHP]in June 1996 and 2002, respectively (seehttp://www.ashp.org/bestpractices/ethics/Ethics_End_Code.pdf, accessed 20 October2006).

American Medical Association (AMA). AMAPolicy Finder. Chicago, IL: American MedicalAssociation, ongoing. [Online.] Available athttp://www.ama-assn.org/go/policyfinder.Accessed 19 October 2006.

The AMA has no single statement onconscientious objection but addresses itsvarious facets and issues through a combinationof policy documents, which can be accessedthrough its Policy Finder. Documents includethe AMA Code of Medical Ethics, its Principlesand Opinions, Opinion E-9.12 “Patient-Physician Relationship: Respect for Law andHuman Rights” (updated 1994), Opinion

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E-10.05 “Potential Patients,” and PolicyH-296.896 “Conscience Clause: Final Report”(1998–for medical students.) Proceedings of theAMA House of Delegates also provideadditional information. As a detailed example,Policy D-120.975 (2005), “Preserving Patient’sAbility to Have Legally Valid PrescriptionsFilled,” indicates the AMA’s resolve to workwith state medical societies and relevantassociations to ensure that patients receive animmediate referral to another dispensingpharmacy if a pharmacist makes a conscientiousrefusal to fill. It also states that, in the absenceof other remedies, the AMA plans to seek statelegislation to permit physicians to dispensemedication to their own patients if nopharmacist within a 30 mile radius will do so.

American Pharmacists Association (APhA).Pharmacists & Physicians: Not Just a Matter ofConscience. Statement by John A. Gans,Executive Vice President and CEO APhA, 23June 2005. [Onl ine .] Avai lable a th t t p : / / w w w . a p h a n e t .org/AM/Template.cfm?Section=Search&section=June6&template=/CM/ContentDisplay.cfm&ContentFileID=686 Accessed 14 November 2006.

Responding to the AMA’s June 2005 policystatement regarding patients’ rights to havelegally valid prescriptions filled, Gans reiteratesthe APhA’s policy that “supports the ability ofthe pharmacist to step away from participatingin an activity to which they have personalobjections—but not to step in the way.” He saysthat seamless systems exist due to the efforts ofindividual pharmacists and pharmacies, andtheir ongoing collaboration with physicians,such that most patients receive theirprescriptions without being aware of apharmacist’s choice to step away.

American Pharmacists Association (APhA).APhA Statement on FDA’s Recent Approval ofPlan B or OTC Status. 24 August 2005. 1 p.[ O n l i n e . ] A v a i l a b l e a th t t p : / / w w w . a p h a n e t . o r g / A M /Template.cfm?Section=Search&template=/CM/HTMLDisplay.cfm&ContentID=6569 Accessed14 November 2006.

APhA “applauds” the FDA’s decision becauseit expands access to medications in a way that issafe and provides individuals with access to

pharmacists able to answer questions aboutemergency contraception. This statement alsooutlines the novel approach in nine states inwhich women under 18 can seek informationand emergency contraception directly frompharmacists.

American Society of Health-System Pharmacists(ASHP). Pharmacist’s Right of Conscience andPatient’s Right of Access to Therapy, Policy No.0610. [Online.] Available at http://www.ashp.org/bestpractices/ethics/Ethics_Positions.pdf .Accessed 20 October 2006.

Recognizing the right of pharmacists and otherpharmacy employees not to participate “intherapies they consider to be morally,religiously, or ethically troubling,” this policyalso supports systems that protect the patient’sright to obtain legally prescribed treatments andreasonably accommodate rights of conscience.Pharmacists must be respectful of patients andmake referrals without trying to impose theirviews on patients.

Canadian Healthcare Association (CHA),Canadian Medical Association (CMA), CanadianNurses Association (CNA), and Catholic HealthAssociation of Canada (CHAC). Joint Statementon Preventing and Resolving Ethical ConflictsInvolving Health Care Providers and PersonsReceiving Care, 1998 December 4-5; 4 p.[Online.] Available at http://www.cna-aiic.ca/CNA/documents/pdf/publications/prevent_resolv_ethical_conflict_e.pdf. Accessed 26 September2006.

All health care organizations ought to have aconflict resolution policy in place thatincorporates the 12 elements identified in thejoint statement in ways appropriate for thehealth care setting and the situation. Elementsinvolve gathering those in conflict together withfacilitation and outside resources if necessary.Health care providers who cannot support thedecision made should be allowed “to withdrawwithout reprisal from participation in carryingout the decision, after ensuring that the personreceiving care is not at risk of harm orabandonment.”

Canadian Pharmacists Association (CHA). CHAGuidelines for the Provision of Plan B(levonorgestrel 0.75 mg) as a Schedule II Product,

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2003. Available at http://www.pharmacists.ca/content/about_cpha/whats_happening/cpha_in_ac t ion /pd f /ECP_CPhAGuide l inesforProvisionECPasSchII.pdf. Accessed 8 November2006.

As of 19 April 2005, Plan B is available towomen directly from a pharmacist without aphysician’s prescription as a Schedule II orbehind the counter product. The 2003 guidelinesstill serve “as a template that pharmacists canuse or adapt, in conjunction with other trainingand support materials to conduct individualconsultations with women requestingemergency contraception” (p. 1).

Christian Medical & Dental Society. HealthcareRight of Conscience: Protecting the Freedom toHeal. [Online.] Available at http://www.cmawashington.org/index.cgi?CONTEXT=art&art=2183&BISKIT=8598249 Accessed 6November 2006.

This statement links the Hippocratic Oath withJudeo-Christian principles, and holds thatadherence to these values is the basis of medicalprofessionalism.

Royal Pharmaceutical Society of Great Britain.Codes of Ethics. Available at http://www.rpsgb.org.uk/protectingthepublic/ethics/. Accessed 18October 2006.

“Consultation on the Structure of the RevisedCode of Ethics for Pharmacists and PharmacyTechnicians,” dated June 2006, looks at the RPSCode of Ethics and Standards, now underreview by the Society. The document advisespharmacists to “ensure your professionaljudgment is not impaired by personal or professional interests, incentives, targets orsimilar measures; declare any personal orprofessional interests to those who may beaffected;” and “ensure that, if you have aconscientious objection to particular services,this is clearly known by your patients andemployer, and have in place the means to makea referral to another relevant professional withinan appropriate time frame.” [See also II.Bramstedt 2006; Balmer 2006.]

II. GENERAL LITERATURE

Benn, Piers. The Role of Conscience in Medical

Ethics. In Philosophical Reflections on MedicalEthics, ed. Nafsika Athanassoulis, pp. 160-79.Basingstoke [England]/New York: Palgrave/Macmillan, 2005.

After reviewing philosophical arguments onconscience from Thomas Aquinas to RichardM. Hare, the author focuses on conscientiousrefusal in the health care context. Contrasting adoctor who objects to performing abortions witha doctor who refuses to provide pain relief,Benn posits that “. . . [t]he question of whetherto allow conscientious objection may well turnon whether the ethical position of the doctor ornurse connects intelligibly with the core valuesof medicine” (p. 177). The chapter concludeswith a discussion of the “. . . fact of reasonablepluralism—that when well-informed andwell-intentioned people disagree about [an issueof conscience], laws and institutions should nottake extreme stances” (pp. 177-78).

Bramstedt, Katrina A. When Pharmacists Refuseto Dispense Prescriptions. Lancet 367(9518):1219-20, 15-21 April 2006.

In this comment piece, the author states that“the question of what constitutes a moralobjection is a valid one” and points out thatlegalizing the refusal to prescribe emergencycontraception may be a precedent for allowingobjections to other drugs prescribed for otherreasons, such as, for example, human growthhormone for short stature. She discusses thesituation in Illinois, where a state law that aimsto deal with current refusals to dispenseemergency contraception shifts the duty todispense from the individual pharmacist to thepharmacy as a business.

Balmer, Lynsey. Royal Society of Pharmacistsand Conscientious Objectors. [Letter, Reply]Lancet 367(9527):1980, 17 June 2006. [See I.Royal Pharmaceutical Society of Great Britain2006.]

Brodsho, Kelsey C. Patient Expectations andAccess to Prescription Medication Are Threatenedby Pharmacist Conscience Clauses. MinnesotaJournal of Law, Science & Technology 7(1): 327-36, December 2005.

Brodsho asserts that the professional duties ofthe physician are distinct from those of thepharmacist, because the central patient-provider

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relationship is between physician and patient.The physician creates and develops a treatmentplan with the patient; the pharmacist is one ofpossibly many health providers who effectuatesan established plan. “[T]he needs of the patientmust trump the pharmacist’s moral objection”(p. 331).

Cahill, Judith A.; Maddux, Michael S.; Gans,John A.; and Manasse, Henri R. PharmacistCritique Woefully Outdated and Uninformed.Available online from the Academy of ManagedCare Pharmacy. Statement from AMCP;American College of Clinical Pharmacy;American Pharmacists Association; AmericanSociety of Health-System Pharmacists ath t t p : / / w w w . a m c p .org/data/nav_content/Letter%20to%20the%20Editor%20%2D%20OBGYN%20final%2Epdf.Accessed 28 September 2006.

Cahill and her colleagues attack the critique byWall and Brown (see below), calling it “mixingapples with oranges,” and argue thatpharmacists are professionals skilled in takingmedication histories and giving medicationadvice, not merely dispensing.

Canadian Pharmaceutical Association letter to theCanadian Medical Association, 8 December 2006.Available at http://www.pharmacists.ca/content/about_cpha/Whats_Happening/CPhA_in_Action/pdf/CMAJECP_CPhADec8-05.pdf. Accessed 2November 2006.

The Canadian Pharmaceutical Associationprotested in this letter what they saw as theCMAJ’s “need to create controversy at theexpense of another health profession.” Theystate that “[O]n December 6, CMAJ dedicatedtwo full pages to present its position thatpharmacists’ services are not professional orkept confidential, and that pharmacists shouldnot be paid for the services they provide (CMAJ2005, 173(12): 1435-36).” They added that theCMAJ’s “editorial position last April regardsthe consultation a pharmacist providesregarding emergency contraception (EC) assubjecting women to ‘. . . fair game forunwanted questioning and unsought advice—attheir own expense’ and refers to ‘. . . a lingeringpaternalism in matters affecting women'sreproductive health . . . still hiding behind thecounter’ (CMAJ 2005, 172(7): 845). These two

articles certainly come across as part of acontinued campaign by CMAJ againstpharmacists.” A chronology entitled “CHATakes Action: Emergency Contraception” canbe found at http://www.pharmacists.ca/content/about_cpha/whats_happening/cpha_in_action/emerge_contra.cfm. Accessed 2 November2006. (See also Eggertson and Sibbald 2005below.)

Cantor, Julie, and Baum, Ken. The Limits ofConscientious Objection: May PharmacistsRefuse to Fill Prescriptions for EmergencyContra-ception? New England Journal ofMedicine 351(19): 2008-12, 4 November 2004.

Although noting that “. . . [f]ormer SupremeCourt Chief Justice Charles Evans Hughescalled the quintessentially American custom ofrespect for conscience a “happy tradition” (p.2012), the authors depict the seriousconsequences of conscientious refusal for bothhealth care providers and patients beforepresenting arguments on both sides of the issue.

CBS News. The Early Show: Health-Watch: “ArePharmacists Right to Choose? Debate over LettingThem Refuse to Provide Birth Control Pills,” 29March 2005. [Online.] Available at http://www.cbsnews.com/stories/2005/03/29/earlyshow/health/main683753.shtml. 7 November 2006.

Karen Pearl, President of Planned Parenthood,and Karen Brauer, President of Pharmacists forLife International, discuss their opposing viewson the right of pharmacists to refuse to fillprescriptions for birth control. Viewers can linkto a related video on “Druggists’ Right toChoose” in which Steven H. Aden of theChristian Legal Society also appears.

Charo, R. Alta. The Celestial Fire of Conscience:Refusing to Deliver Medical Care. New EnglandJournal of Medicine 352(24): 2471-73, 16 June2005.

Echoing Ellen Goodman’s description of refusalclauses as “conscience without consequence,”the author sees the conscience clause argumentas a subset of the current debate about what itmeans to be a health care professional. Charonotes that “[w]ith autonomy and rights as thepreeminent social values comes a devaluing ofrelationships and a diminution of the differencebetween [health care providers’] personal lives

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and our professional duties” (p. 2472). Theauthor proposes that “. . . a genuine system forcounseling and referring patients [be put] inplace, so that every patient can act according tohis or her own conscience just as readily as theprofessional can” (p. 2473).

Chervenak, Frank A., and McCullough, LaurenceB. A Group Practice Disagrees about OfferingContraception. American Family Physician65(6):1230, 1233, 15 March 2002. [Online.]Available at http://www.aafp.org/afp/20020315/curbside.html. Accessed 6 November 2006.

The authors discuss a case in which the pro-lifebeliefs of some physicians in a group practiceare adopted as the standard of care for thepractice as a whole. Chervenak and McCulloughdetail the implications of this decision forinformed consent and physician-patientrelations and describe other options foraddressing issues of conscience in clinical care.

Davis, John K. Conscientious Refusal and aDoctor’s Right to Quit. Journal of Medicine andPhilosophy 29(1): 75-91, 2004.

Davis argues that a doctor may refuse to treat apatient who requests a procedure the doctorfinds morally objectionable only if quitting thephysician-patient relationship leaves the patient“not worse off than she would have been if shehad not gone to that doctor in the first place” (p.75). He addresses the duty to refer, moralcounseling from a physician, whether the doctorshould provide these services if no otherphysician is available, moral consensus amongphysicians, and the responsibility of a doctor tostay out of fields where the standard of careincludes objectionable procedures.

Dowling, Katherine, and Sonfield, Adam. ShouldPro-Life Health Providers Be Allowed to DenyPrescriptions on the Basis of Conscience? InTaking Sides: Clashing Views in Health andSociety, 7th ed., ed. Eileen L. Daniel, pp. 242-54,Dubuque, IA: McGraw Hill, 2006. 393 p.

Dowling, a physician, describes the reactionsshe receives from other health professionalswhen expressing her pro-life positions andacting on her right to conscientious refusal.Sonfield, a journalist, focuses on the harm topatients that can result when healthprofessionals invoke the right to conscience.

Dresser, Rebecca. Professionals, Conformity, andConscience. Hastings Center Report 35(6): 9-10,November-December 2005.

Dresser enumerates five models for handlingconflicts over conscientious objection by healthprofessionals: the contract; the duty to refer toanother health professional; the obligation toperform certain treatments as part of theprofession’s basic standards; the “draft board”;and the compromise. The drawbacks of each areenumerated. She writes “many laws protecthealth professionals from employment penaltiesif they refuse to assist with abortion orsterilization procedures” (p. 9). She goes on toadd that other laws allow professionals to refuseto perform such actions as forgoinglife-sustaining treatment, giving “futile”treatment, supplying life-ending medication(Oregon), doing prenatal diagnosis (in theinterests of disability rights) or sex selection,administering infertility treatment, procuringcadaver organs, or using animals in education orresearch.

Eggertson, Laura, and Sibbald, Barbara. PrivacyIssues Raised over Plan B: Women Asked forNames, Addresses, Sexual History [news].CMAJ/JAMC: Canadian Medical AssociationJournal 173(12): 1435-36, 6 December 2005.

Although not a case of conscientious objectionto dispensing of Plan B (levonorgestrel), asituation that may have hindered its availabilityin Canada arose in April 2005, after it changedfrom being a prescription drug to abehind-the-counter medication. The CanadianPharmacists Association (CHA) postedguidel ines for pharmacis t s onl ine(www.pharmacists.ca) on distributing the drug,including instructions on the need to counselwomen and a form to guide this counseling. Acounseling fee—e.g., $25 a pill—could becharged, although it is not clear that Canada’spublic health system would pay for it.Following a CHA complaint to the CMA aboutthe above CMAJ news story while it was underpreparation, the editors were instructed by aCMA executive to suppress the details of thestories the journalists had gathered from 13women from across Canada, who had gone totheir local pharmacist to request emergencycontraception and experienced frustratingeffects resulting from the guidelines. A

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subsequent editorial on editorial autonomy ofthe CMAJ presumably led to the “withoutcause” dismissal of the CMAJ editor, Dr. JohnHoey, and the Senior Deputy Editor, AnneMarie Todkill, as well as the resignations ofother CMAJ journalists. The controversy can befollowed by Letters to the Editor that cite theoriginal story in the online edition available ath t t p : / / w w w .cmaj.ca/cgi/content/full/173/12/1435, and by achronology by Barbara Sibbald available athttp://www.caj.ca/mediamag/awards2006/pages/Magazine.htm. (Both accessed 2November 2006) (See also above: CanadianPharmaceutical Association letter to theCanadian Medical Association, 8 December2006.)

Fenton, Elizabeth, and Lomasky, Loren.Dispensing with Liberty: Conscientious Refusaland the “Morning-After Pill.” Journal of Medicineand Philosophy 30(6): 579-92, December 2005.

The authors argue that, although “the liberty ofconscientious refusal grounds a strong moralclaim” and five arguments for requiringpharmacists to fill prescriptions can be defeated,nevertheless, “moral equality does not obtain,”because “the pharmacist is in a privilegedposition vis-à-vis potential clients.” However,they use the economics “Theory of SecondBest” to suggest that the best compromisebetween conscientiously-objecting pharmacistsand their clients—women seeking emergencycontraception—could be “a geographicallyrestricted policy of requiring prescriptionfulfillment.”

Furton, Edward J. Vaccines and the Right toConscience. National Catholic BioethicsQuarterly 4(1): 53-62, Spring 2004.

Furton discusses the ramifications of broaderinterpretations of exercising one’s right toobject to medical procedures, even ifparticipation is mandated by state legislation.Seeking an exemption to state mandatedvaccinations for their children, parents argue anappeal to conscience. The argument is groundedin their rejection of the use of tissue fromaborted fetuses which are reputed to be thesource of tissue used by researchers andpharmaceutical companies for the creation andproduction of vaccines. “Can this appeal for an

exemption be valid when there is no specificCatholic teaching on this topic?” (p. 54). Furtonargues that the facts of the development andproduction of vaccines are unfortunate, but theburden to act in good conscience is on theresearchers and drug producers, rather than theparents. Citing the continuum of moral theologyfrom Aquinas to Pope John Paul II, Furtonmaintains that justice for the most vulnerableprevails over the conscience of the parents.Protecting the children, born and unborn, fromthese dangerous diseases is more compellingthan disassociating oneself from abortion, nomatter how remote the connection. In thisinstance, seeking an exemption to the rule is notjustified by the conscience of the individualparent.

Glasier, Anna. Emergency contraception.[Editorial.] BMJ: British Medical Journal333(7568): 560-61, 16 September 2006.

Glasier editorializes on the effectiveness ofemergency contraception in reducing abortionrates in Sweden, France, and the U.K., where ithas been used for 10 years. Only smallproportions of women undergoing abortion haveclaimed to have used emergency contraceptionin the past—the greatest being 12 percent, in theU.K. However, in Sweden and the U.K., theabortion rate actually has increased in the last10 years.

Greenberger, Marcia D., and Vogelstein, Rachel.Pharmacist Refusals: A Threat to Women’sHealth. Science 308(5728): 1557-58, 10 June2005. [Online.] Available at http://www.sciencemag.org/cgi/reprint/308/5728/1557.pdf.Accessed 20 October 2006.

In a “Policy Forum” piece, the authors, who arewith the National Women’s Law Center, reviewlegal and professional standards for pharmacistsin the United States and recommend that“women . . . be provided timely access toprescription medication” (p. 1558).

Imbody, Jonathan. Doctors in the Lion's Den.Today’s Christian Doctor: The Journal of theChristian Medical & Dental Society 32(3):19-23,Fall 2001.

The author asserts that the December 2000decision of the Equal Employment OpportunityCommission (EEOC) holding that health

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insurance coverage for contraception is a civilright violates health care providers’ ability torefuse to prescribe contraception as their humanright. The article includes the Christian Medical& Dental Society position statement “Protectingthe Freedom to Heal,” which observes that “. .. many within the medical and scientific communities appear to be moving further awayfrom . . . absolute values and truth. Theresulting clash of values has made professionalswho hold [such values] vulnerable todiscrimination, ostracism and punishment” (p.22).

Manasse, Henri R., Jr. Conscientious Objectionand the Pharmacist. Science 308(5728): 1558-59,10 June 2005. [Online.] Available at http://www.sciencemag.org/cgi/reprint/308/5728/1558.pdf.Accessed 20 October 2006.

Manasse, the executive vice president of theAmerican Society of Health-SystemPharmacists, views the extreme actions of somepharmacists and the equally extreme reactionsof some policymakers as “not the appropriateanswer to the dilemma we face” ( p.1559). Hesuggests a variety of solutions to address theproblem.

May, Thomas. Conscience, Rights of. InEncyclopedia of Bioethics, 3d ed., ed. Stephen G.Post, vol. 1, pp. 517-19. New York: MacmillanReference USA/Thomson/Gale, 2004.

Calling matters of conscience “. . . a balancingof autonomy rights and social harm,” Maydelineates the conditions that must exist for thelegitimate exercise of a right to conscience.

National Public Radio (NPR), Programs Archive.Washington, DC, multiple dates. [Online.]Available at http://www.npr.org. Accessed 23October 2006.

NPR has broadcast a number of audio programsrelated to the emergency contraceptive calledPlan B, or “the morning after pill,” and issues ofconscience for pharmacists and nurses. Theseprograms, which can be accessed free online,range from brief news reports to extendedonline discussions of the topic, such as “Newsand Notes” with Ed Gordon, 31 March 2005(16:41), and “Talk of the Nation: Pharmacistsand Contraceptive Prescriptions,” 7 April 2005(29:40). Search for pharmacists, conscience,

Plan B, Alabama nurses, etc. Additionalinformation and links are sometimes provided.

Pellegrino, Edmund D. The Physician’sConscience, Conscience Clauses, and ReligiousBelief: A Catholic Perspective. Fordham UrbanLaw Journal 30(1): 221-44, November 2002.

Within a symposium volume on religious valuesand legal dilemmas in bioethics, Pellegrino setsphysician conflict of conscience within thelarger context of changes in America’sdemocratic and pluralistic society and society’sunderstanding and structuring of its medicalsystem and care providers. Drawing onAquinas, Pellegrino describes how, for aCatholic, conscience is divinely inserted so that“to ignore, repress, or act against conscience forany reason is a violation of philosophical aswell as theological ethics, an error in moralagency and a sin against God” (pp. 227-28).Pellegrino states that society is obliged toprotect both physician and patient conscientiousobjection, without empowering one over theother. He rejects as unsatisfactory the commonproposals to resolve or limit conflicts ofconscience, namely, he argues that physicianscannot separate or rank their professional andpersonal commitments because such a valuedichotomy is incompatible with personalintegrity; physicians cannot refrain but refer toanother physician because doing so would be tocooperate in a morally wrong act; and thepractice, study, or provision of health care by aCatholic (or other religious) physician orhospital cannot be circumscribed without a lossto society. Therefore, “the only ethically viablecourse for the religious physician is to maintainfidelity to moral integrity and dictates ofconscience while practicing in a secular world”(p. 242). Physicians must inform their patientsof what they can and cannot in good consciencedo before any crisis occurs. Althoughconscience cannot be compromised even in anemergency or when provider choice is limited,a physician must care for a patient until areferral or transfer can be arranged by thepatient, a family member, or social services andmust always “treat her patients with respect,avoid moralizing condemnations, explainreasons for her moral objections . . . andrecognize that not all matters of conscience areof equal gravity” (p. 243).

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Savulescu, Julian. Conscientious Objection inMedicine. BMJ: British Medical Journal332(7536): 294-97, 4 February 2006.

Savulescu offers that not allowing conscientiousobjection constrains the liberty of the healthcare professional. Nevertheless, he marshalsmore arguments against it: the inefficiency,inequity, and inconsistency of services offered;the questions it raises about the commitment ofa doctor to his or her specialty of medical care;and the specter of discrimination, religious vs.secular. He suggests that “doctors who claim it[conscientious objection] should be prepared torefer the patient to someone else who canperform the services in a timely manner” andadds that “if people are not prepared to offerlegally permitted, efficient, and beneficial careto a patient because it conflicts with theirvalues, they should not be doctors.”(Savulescu’s article stimulated much discussion,posted at the Rapid Responses section of BMJ’sw e b s i t e , a v a i l a b l e a t :http://bmj.bmjjournals.com/cgi/eletters/332/7536/294#127992. Accessed 6 November2006.)

Swartz, Martha S. “Conscience Clauses” or“Unconscionable Clauses”: Personal BeliefsVersus Professional Responsibilities. YaleJournal of Health Policy, Law, and Ethics 6(2):269-350, Summer 2006.

Swartz argues that because medicalprofessionals essentially are granted monopoliesdue to state licensing regulations, they shouldbe precluded from injecting personal beliefsinto professional practice. Thus shedistinguishes professional integrity based onmedical ethics from personal morality for tworeasons: one, protection of patient access tohealth care, and two, implementation of thefiduciary obligation health care professionalsowe to patients. She concludes that by doingthis, patients will have increased trust in healthcare and the health care system.

[US FDA 1.] U.S. Food and Drug Administration.Center for Drug Evaluation and Research. DrugInformation: Mifeprex (mifepristone) Questionsand Answers. August 2005. Available athttp: / /www.fda.gov/cder/drug/ infopage/mifepristone/mifepristone-qa.htm and 10 April2006 update at http://www.fda.gov/cder/drug/

infopage/mifepristone/default.htm. Both accessed16 October 2006.

[US FDA 2.] U.S. Food and Drug Administration.Center for Drug Evaluation and Research. DrugInformation. FDA Approves Over-the-CounterAccess for Plan B for Women 18 and Older,Prescription Remains Required for Those 17 andUnder. 24 August 2006. Available athttp://www.fda.gov/bbs/topics/NEWS/2006/NEW01436.html. Accessed 7 November 2006.

Wall, L. Lewis, and Brown, Douglas. Refusals byPharmacists to Dispense EmergencyContraception: A Crit ique. [CurrentCommentary.] Obstetrics & Gynecology 107(5):1148-51, May 2006.

In a controversial article that drew strong repliesfrom pharmacists, the authors contend thatpharmacists should not be permitted “[toexercise their] personal opinions and values [indispensing] medications to patients” since“[emergency] contraception does not interferewith an implanted pregnancy and therefore doesnot cause abortion” and “because pharmacistsdo not control the therapeutic decision toprescribe medication.” In addition, “pharmacistsat the counter . . . [are not trained to] makeclinically sound ethical decisions” since theylack “access to the patient’s complete medicalbackground . . . [and] do not understand thecontext in which the patient’s clinical problemis occurring.” (See Cahill et al. (above) for areply.)

Wicclair, Mark R. Pharmacies, Pharmacists, andConscientious Objection. Kennedy Institute ofEthics Journal 16(3): 225-50, September 2006.

Noting that “. . . the recognized principle thatphysicians are not obligated to participate inpractices that violate their ethical beliefs islimited by obligations to the ill, such as a dutyto provide medically indicated emergency care. . .” (p. 240), Wicclair holds that pharmacistswho refuse to fulfill and/or transferprescriptions for emergency contraception havecrossed the line “. . . from [conscientious]objection to obstruction . . . ” (p. 242).

Winckler, Susan C., and Gans, John A.Conscientious Objection and CollaborativePractice: Conflicting or Complementary

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Initiatives? Journal of the American PharmacistsAssociation 46(1): 12-13, January-February 2006.

Winckler and Gans discuss the relationship ofconscience clauses and collaborative practiceagreements in relation to prescribing anddispensing emergency contraceptives bypharmacists, arguing that they complementrather than conflict with each other. Conscienceclauses allow pharmacists to opt out of activitiesto which they morally object while thecollaborative practices ensure patient access tolegally prescribed emergency contraceptives.

Wood, Susan F. The Role of Science in HealthPolicy Decisionmaking: The Case of EmergencyContraception. The Oliver C. Schroeder, Jr.,Scholar-in-Residence Lecture, Case WesternReserve University School of Law; 27 September2006. Webcast available at http://law.case.edu/lectures. Accessed 20 October 2006.

Wood, former Assistant Commissioner forWomen’s Health and Director of the Food andDrug Administration Office of Women’sHealth, addresses the following questions: Wasclinical and scientific evidence ignored indeliberations concerning approval of Plan Bemergency contraception as an over-the-counterdrug? What impact do the decisions of the Foodand Drug Administration have on women andfamilies? And what impact do they have on itsown credibility?

Zellmer, William A., and American Society ofHealth-System Pharmacists. The Conscience of aPharmacist: Essays on Vision and Leadership fora Profession. Bethesda, MD: American Society ofHealth-System Pharmacists, 2002.

Editorials published in the American Journal ofHealth-System Pharmacy from 1978 to 2000focusing on professionalism in pharmaceuticalpractice comprise this collection of reprints.

III. LEGAL PERSPECTIVES ANDCASES

Appel, Jacob M. Judicial Diagnosis: “Conscience”vs. Care: How Refusal Clauses are Reshaping theRights Revolution. Medicine and Health, RhodeIsland 88(8): 279-81, August 2005. [Online.]Available at http://www.rimed.org/documents/RIMedAugust2005.pdf. Accessed 6 November

2006.Appel describes how refusal legislation which“. . . once seemed benign to many pro-choicelawmakers—and to some a crucial part of thepersonal freedom championed by civillibertarians” is “. . . now shielding insurancecompanies and major hospital networks” (pp.279-80). Cautioning that “[t]he door opened byrefusal legislation may prove wider than manyadvocates imagined” (p. 280), the authorsuggests that standard care, such as theimplementation of advance directives and thecare of HIV-infected patients, could be deniedby providers invoking their right to conscience.

Bleich, J. David. The Physician as ConscientiousObjector. Fordham Urban Law Journal 30(1):245-65, November 2002.

Bleich first argues that conscientious objectionmerits serious consideration despite the loss ofrespect for the role of religion in society and inindividual lives and a general ignorance of thehistorical and practical reasons behind theprinciple of religious freedom. He thendescribes the existing legal commentary onphysician conscientious objection using a seriesof cases. Bleich concludes that furtherlegislative action could help clarify bothprotection for physicians and their obligationstoward patients.

Collins, Mary K. Conscience Clauses and OralContraceptives: Conscientious Objection orCalculated Obstruction? Annals of Health Law 15:37-60, Winter 2006.

Collins traces the scientific and religious bases or the state conscience clause legislation. Shediscusses the rights of the health care providerand the health care consumer before examiningareas where those rights can be compromisedand reconciled.

Davey, Monica, and Belluck, Pam. PharmaciesBalk on After-Sex Pill and Widen Fight; Right ofRefusal Cited; Many States Take up the Issue,Citing Religious and Moral Concerns. New YorkTimes (19 April 2005): A1, A16.

In this front page story, reporters Davey andBelluck focus on the wide range of state andfederal responses to the controversialmorning-after pill and the refusal of somepharmacists to fill such prescriptions. The story

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continues with a discussion of the legislativelandscape in various states and includes a mapidentifying states with legislation either enactedor pending that would either limit or promoteaccessibility of the morning-after pill. (See alsoKreischer below.)

Dickens, Bernard M. Ethical Misconduct byAbuse of Conscientious Objection Laws.Medicine and Law: The World Association forMedical Law, 25(3): 513-22, September 2006.

Dickens begins by distinguishing conscientiousobjection (refusal to undertake a legal act) fromcivil disobedience (refusal to act in compliancewith mandatory public law). The overlap occurswhen health care providers refuse to referpatients to alternatives for lawful health careservices, thus defying private laws that protecta patient’s right to care. He compares balancedlaws on conscientious objection in Britain toabusive laws on it in the U.S. Dickens sees theright to conscience abused when it extendsbeyond protection of an individual’s religiousrights to compel others to comply involuntarilywith religious doctrines that they do not believein.

Duvall, Melissa. Pharmacy Conscience ClauseStatutes: Constitutional Religious “Accommo-dations” or Unconstitutional “SubstantialBurdens” on Women? American University LawReview 55(5): 1485-1522, June 2006.

Duvall begins with a background section on theevolution of conscience clause legislation andthe judicial response, which began in themid-1970s following the United States SupremeCourt abortion decision in Roe v. Wade.Pharmacists are the latest group seekingconscience clause protection. She surmises howthe Supreme Court could decide in applyinggovernment accommodation to religious beliefsunder the First Amendment on conscienceclause statutes.

Eide, Karissa. Can a Pharmacist Refuse to FillBirth Control Prescriptions on Moral or ReligiousGrounds? California Western Law Review 42(1):121-48, Fall 2005.

Eide surveys in detail current and proposedconscience clause legislation among the states.She also examines the position of the AmericanPharmacists Association, which adopted in 1998

its official policy recognizing “the individualpharmacist’s right to exercise conscientiousrefusal” and supporting “the establishment ofsystems to ensure patient access to legallyprescribed therapy without compromising thepharmacist’s right of conscientious refusal”(p. 144).

Grady, Allison. Legal Protection forConscientious Objection by Health Professionals.Virtual Mentor: Ethics Journal of the AmericanMedical Association 8(5): 327-31, May 2006.[Online.] Available at http://www.ama-assn.org/ama1/pub/upload/mm/384/healthlaw_16187.pdf.Accessed 6 November 2006.

Using Michigan’s proposed refusal clauselegislation as an example, Grady reviews therange of opinions on health care providerconscientious objection from individualpractitioners and professional associations.

Kreischer, Madeline, comp. PharmacistConscience Clauses: Laws and Legislation,updated October 2006. National Conference ofState Legislatures. [Online.] Available athttp://www.ncsl.org/programs/health/conscienceclauses.htm. Accessed 6 November 2006.

This website has two entries on legislation, theone referenced above for 2006 and anotherbelow it updated for 2006 and for all of 2005,entitled Pharmacist Refusal Clause. Currentlyonly four states—Arkansas, Georgia,Mississippi, and South Dakota—have lawsallowing pharmacists to refuse to dispenseemergency contraceptive drugs; Illinois is thelone state requiring them to dispense such; andfour others—Colorado, Florida, Maine, andTennessee—have broader conscience clauselaws. California has a hybrid, where apharmacist can only refuse to dispense aprescription if the employer approves therefusal and if the woman can get herprescription in a timely manner. The websitelinks to the laws as well as to pending bills inother states and their status.

Lowell, Staci D. Striking a Balance: Finding aPlace for Religious Conscience Clauses inContraceptive Equity Legislation. Cleveland StateLaw Review 52: 441-65, 2004-2005.

Lowell looks at the intersection of theConstitution, specifically the First and

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Fourteenth Amendments, with the PregnancyDiscrimination Act within Title VII of the 1964Civil Rights Act concerning access tocontraception. She asserts that the mostequitable solution would be “to tailor statutoryconscience clause language to cover onlyorganizations that primarily employ and servethose who are their own adherents,” or, in otherwords, a narrow religious exemption.

Lumpkin, Cristina Arana. Does a Pharmacist Havethe Right to Refuse to Fill a Prescription for BirthControl? University of Miami Law Review 60:105-30, 2005-2006.

Lumpkin writes about pharmacists andconscience clauses within the broader topic ofcontraception, specifically birth controlrequiring prescription. Her article frames thedebate as one of rights: the right to usecontraceptives generally versus the right torefuse to dispense oral contraceptives. She alsotouches on the disciplinary powers of the statelicensing board and the options of thepharmacist’s employer.

Miller, Courtney. Reflections on ProtectingConscience for Health Care Providers: A Call forMore Inclusive Statutory Protection in Light ofConstitutional Considerations. SouthernCalifornia Review of Law and Social Justice15(2): 327-62, Spring 2006.

Miller briefly summarizes the history ofconscience clause legislation and then analyzesthe forces behind the conscience clausemovement. She looks at justification of “theright of conscience” under the FourteenthAmendment’s due process involving autonomyand privacy and under the First Amendment’sright to the establishment and free exercise ofreligion.

Nikas, Nikolas T. Law and Public Policy toProtect Health-Care Rights of Conscience.National Catholic Bioethics Quarterly 4(1): 41-52, Spring 2004.

Catholic medical ethics conflicts with somemodern medical practices, particularly thoserelated to the beginning and ending of humanlife. The Catholic health care provider practicesin the midst of this conflict and must have theright to refuse to provide care s/he finds morallyobjectionable. This discussion outlines the

necessity for legislation on a state and federallevel to protect the rights of health careproviders especially in light of a growinginstitutional protection for which the right tochoose becomes the right to coerce.

Protection of Conscience Project (PCP), BritishColumbia, Canada. [Online.] Available athttp://www.consciencelaws.org. Accessed 26September 2006.

PCP, a “non-denominational, nonprofitinitiative,” advocates for protection ofconscience legislation for health careprofessionals and serves as an informationresource for professionals and the public via itswebsite. The site includes an extensiveliterature archive of news stories, commentaries,and journal articles on issues of conscience;position papers and policies from medicalorganizations; and links to a text collection ofinternational, national, and state proposedlegislation to protect conscience. PCP collectsinformation across the range of issues that havethe potential for conflicts of conscienceincluding abortion, birth control, assistedsuicide, human and embryonic experimentation,and interspecies breeding.

United States. Congress. House. Committee onSmall Business. Freedom of Conscience for SmallPharmacies, 25 July 2005. [Online.] Available athttp://wwwc.house.gov/smbiz/hearings/databaseDrivenHearingsSystem/hearingPage.asp?hearingIdDateFormat=050725. Accessed 18 September2006.

Inspired by Illinois Governor Rod Blagojevich’s1 April 2005 emergency rule requiring allIllinois pharmacies selling contraceptives to fillall prescriptions for FDA-approvedcontraceptives “without delay,” this hearingfocused on the effect of “duty-to-fill” laws onsmall pharmacies. Online testimony is availablefrom: Luke Van der Bleek, a pharmacist, whofiled suit against the Governor; Linda GarreltsMacLean, on behalf of the AmericanPharmacist Association (APhA), a formerpharmacy owner instrumental in developingWashington State’s emergency contraceptiveplan; J. Michael Patton, executive director ofthe Illinois Pharmacists Association; Sheila Nix,senior policy advisor to Governor Blagojevich;and Megan Kelly, a patient, who was referred

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away from her primary pharmacy to obtaincontraceptive medications.

United States District Court, Western District ofWashington. Erickson v. Bartell Drug Co. Date ofDecision, 12 June 2001. Federal Supplement, 2dSeries 141: 1266-77, 2001.

Erickson v. Bartell is the first case in the federalcourts on the issue of sexual discrimination dueto an employer’s prescription drug planexcluding prescribed contraceptives, which areavailable only to women. This unequaltreatment is unlawful under the 1964 CivilRights Act. By not offering coverage forcontraceptives like birth control pills anddevices, the employer created “a gaping hole inthe coverage offered to female employees,leaving a fundamental and immediate healthcareneed uncovered” (p. 1277).

United States District Court, Western District ofWisconsin. Noesen v. Medical Staffing Network.Memorandum and Order, 1 June 2006. Case No.06-C-071-S. Available at http://www.wiwd.uscourts.gov/bcgi-bin/opinions/district_opinions/C/06/06-C-071-S-06-01-06.PDF. Accessed 7November 2006.

This case comes after the disciplinary hearingbelow [Wisconsin Pharmacy Examining Board].Noesen claimed that Wal-Mart violated his civilrights because he was terminated for his refusalto distribute contraceptives. The court foundthat Wal-Mart had reasonably accommodatedNoesen by having another pharmacist availableto fill birth control prescriptions and to answercustomer questions. Instead of notifying theother pharmacist about a customer for birthcontrol, Noesen either ignored such a customerby walking away or leaving them on hold. Thecourt dismissed the claim against the State ofWisconsin and granted summary judgment infavor of Medical Staffing Network andWal-Mart.

White, Matthew. Conscience Clauses forPharmacists: The Struggle to Balance ConscienceRights with the Rights of Patients and Institutions.Wisconsin Law Review 2005(6): 1611-48, 2005.

White begins with a brief history of conscienceclauses and then surveys the current legislation.He looks at conscience from two viewpoints,that of the individual and that of the institution,

along with the patient’s privacy rights and theemployer’s right to conduct business as theemployer sees fit. After analyzing conscienceclauses, both narrow and broad, White proposesstronger and broader patient protection asnecessary to preserve the conscience rights ofthe pharmacist. Some of his suggestions includepharmacist-provided notice to both the patientand the employer, along with mandatoryreferral.

Wisconsin Pharmacy Examining Board. In theMatter of the Disciplinary Proceedings AgainstNoesen. Final Decision and Order, 13 April 2005.Case No. LS0310091PHM. Available at http://drl.wi.gov/dept/decisions/docs/0405070.htm.Accessed 7 November 2006.

The Pharmacy Board’s decision begins with anextensive factual background. Essentially, NeilNoesen, a pharmacist who objects to birthcontrol and abortion in accordance with hisCatholic faith, refused to refill the birth controlprescription of customer AR. Furthermore, herefused to transfer her prescription so thatanother pharmacy could refill it. The boardfound Noesen’s refusal to transfer and hisrefusal to inform AR of her options forobtaining a refill to constitute a danger to herhealth, safety, and welfare. Noesen wasreprimanded, and his license limited, meaninghe is required to provide written notice of hisconscientious objections to a pharmacy fivedays prior to his employment.

This publication was produced by staff membersof the National Reference Center for BioethicsLiterature (Richard M. Anderson, M.L.S.; LauraJane Bishop, Ph.D.; Martina Darragh, M.L.S.;Harriet H. Gray, M.T.S., M.S.L.S.; Anita L.Nolen, M.A., C.A.; and Susan Cartier Poland,J.D.), Kennedy Institute of Ethics, GeorgetownUniversity.

Produced at the National Reference Center forBioethics Literature, Kennedy Institute of Ethics,Georgetown University, Box 571212,Washington, DC 20057-1212. The Centeroperates on a contract with the National Libraryof Medicine, National Institutes of Health.

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Additional support is provided by the NationalCenter for Human Genome Research, NationalInstitutes of Health, and by other public andprivate sources.

© 2006 by the National Reference Center forBioethics Literature.

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