Jack Pharmacist receives a prescription from a patient that he finds morally objectionable. Jack explains this in a polite tone, acknowledges the prescription is legitimate, and asks the patient to return later that day when another pharmacist, who has no such objection, will be on duty. Patient becomes upset but leaves and returns later, filling the prescription. Patient also files a complaint with XTX Pharmacy Chain corporate, who investigates and then terminates Jack for “refusing” the prescription. Jack sues XTX to force them to return him to work or, in the alternative, pay him damages.
A conscience clause is a statute, regulation, executive order, policy, etc, that permits a pharmacist or other health care worker the right to not engage in professional activities that the pharmacist or health care worker considers to be morally, ethically, or spiritually against his or her solidly held beliefs. The best and usual example of this is a pharmacist refusing to dispense medications that have an abortifacent effect.
Under such a clause, a pharmacist could refuse to dispense a medication that is against his or her beliefs without liability and/or retaliation from the employer. Indeed, many employers set up systems by which pharmacists could find another store with another pharmacist with no such issue and ask the patient to go there. These usually but not always resolved the issue. And those exceptions made for good news stories. The result—unwanted pregnancies due to the inability to obtain Plan B or another such drug in the applicable time period–that was reported in the news painted a picture that pharmacists were putting their morals ahead of patient concerns (and morals). Patient advocacy groups, relying on the US Supreme Court’s decision in Roe v Wade, said that prescribed drugs were a personal choice for the patient and the pharmacist had no right to interfere with what a person decided to do or not do to his or her body. Others claimed the patient right was protected under the freedom of expression, a penumbra under the First Amendment. Still others opined that the First Amendment’s freedom of religion clause did not extend to forcing one’s beliefs upon another in the health care environment.
The arguments worked. Court cases followed and speedily pharmacists were 0 for 7, the courts holding that Roe did indeed extend to these situations. Some of the pharmacists were reassigned and a few were terminated (though one was returned to her position after a public outcry).
The message was clear: the decision to take medication for whatever purpose was a patient choice, in both the health and moral apsects. Pharmacists, in an opinion oft stated and restated, had a duty to aid in accomplishing that patient’s choice; that was what they went to school for, not to spread their personal beliefs in the workplace. The freedoms granted under the Constitution did not extend to refusing desired medication and/or therapy.
Events took over. Governor Ron B of Illinois signed an executive order demanding that pharmacists in that state fill all legitimate prescriptions. A few other states followed. One of the Big Three Chains ordered its pharmacy personnel to sign a paper agreeing to sell Plan B or face termination (many signed and ignored the paper, others never signed, the company saw the writing on the wall and let the issue fade away). A few pharmacists got publicity for being fired over the issue, but this time no outcry got their jobs reinstated.
The profession took over. Pharmacy groups and associations jumped in and went to the state Boards. Pharmacists are humans too, they claimed, and their morals and ethics should be as regarded as anyone else’s. The associations sought publicity (and got some) for a few pharmacists who quit or retired rather than face these moral decisions. Many Boards took up the issue of conscience clauses…
And then nothing happened. The Boards and the states’ attorneys general reviewed the court cases and came to a pretty inescapable conclusion: if a conscience clause was enacted or promulgated, it would be most likely be declared unconstitutional in the first legal case filed against it. The court cases previously had relied on the US Constitution and a state law was far below that on the law ladder. Therefore, there was no use wasting time and effort and money on writing and getting into the law something that would last no longer than the first court case. Additionally, as part of the state government, there were political considerations. What would almost be a sure loss would be embarrassing to those who supported it.
Worse yet, one of the issues was pharmacists supplying drugs for executions. While pharmacy advocacy groups held out for a pharmacist’s right to not supply drugs for use in executions, it turns out a number of pro-death penalty pharmacists were more than ready to provide the medications, in some cases for free. Also, prisons often tied in drugs for executions with a contract for providing all the prison population’s prescription needs, a boon to any pharmacy’s business. Instead of running from prisons, pharmacists were lining up outside. The groups have about-faced their position and now ask pharmacists to refuse to take part.
So, currently, there are very few such clauses still in existence, almost none under government approval. Employers, with the pharmacist shortage ending and Plan B now available OTC, are now taking a harder stance against refusing to fill morally questionable prescriptions, though not all support for pharmacists with these issues has disappeared.
Is the issue dead? There is some slim hope, but it is slim. There are cases in the federal courts against provisions in the ACA which would force some health care providers to take part in activities from which they were previously exempt, an example being Catholic pharmacies being required to dispense birth control. Should the courts find that these exemptions should be permitted to continue, pharmacists might—might—be able to find an extension of the court’s holding to revive conscience clauses.
So, in the final analysis, the issue of conscience clauses is not dead, but it is on life support and not doing well. Support is mainly within the professional community, and it is there pharmacists should seek assistance when ethically and morally questionable prescriptions are presented. In the scenario that started this post, Jack is likely to lose his lawsuit.