The limits of conscientious objection--may pharmacists refuse to fill prescriptions for emergency contraception?

Health policy decisions are often controversial, and the recent determination by the Food and Drug Administration (FDA) not to grant over-the-counter status to the emergency contraceptive Plan B was no exception. Some physicians decried the decision as a troubling clash of science, politics, and morality. 1 Other practitioners, citing safety, heralded the agency’s prudence. 2 Public sentiment mirrored both views. Regardless, the decision preserved a major barrier to the acquisition of emergency contraception — the need to obtain and fill a prescription within a narrow window of efficacy. Six states have lowered that hurdle by allowing pharmacists to dispense emergency contraception without a prescription. 3-8 In those states, patients can simply bypass physicians. But the FDA’s decision means that patients cannot avoid pharmacists. Because emergency contraception remains behind the counter, pharmacists can block access to it. And some have done just that. Across the country, some pharmacists have refused to honor valid prescriptions for emergency contraception. In Texas, a pharmacist, citing personal moral grounds, rejected a rape survivor’s prescription for emergency contraception. 9 A pharmacist in rural Missouri also refused to sell such a drug, 10 and in Ohio, Kmart fired a pharmacist for obstructing access to emergency and other birth control. 11 This fall, a New Hampshire pharmacist refused to fill a prescription for emergency contraception or to direct the patron elsewhere for help. Instead, he berated the 21-year-old single mother, who then, in her words, “pulled the car over in the parking lot and just cried.” 12 Although the total number of incidents is unknown, reports of pharmacists who refused to dispense emergency contraception date back to 1991 13 and show no sign of abating. Though nearly all states offer some level of legal protection for health care professionals who refuse to provide certain reproductive services, only Arkansas, Mississippi, and South Dakota explicitly protect pharmacists who refuse to dispense emergency and other contraception. 14 But that list may grow. 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 obligation 15 and was co-opted into the reproductive-rights debate of the 1970s 16 — and applied it to pharmacists. One proposed law offers pharmacists immunity from civil lawsuits, criminal liability, professional sanctions, and employment repercussions. 17 Another bill, which was not passed, would have protected pharmacists who refused to transfer prescriptions. 18