e-Profile Login and ID Quick Search
Conscience Clause Controversy on Back Burner, but Still Simmering
Originally published in the April 2011 NABP Newsletter
While public controversy over “conscience clauses” for health care providers, particularly pharmacists, has been muted in recent years, especially when compared to the furor that took place around 2005 and 2006, the issue has not disappeared. While technically a concern could arise over any drug a pharmacist feels he or she cannot dispense without violating a strongly held moral or ethical belief, the “right to refuse” (without disciplinary consequence) versus “must fill” controversy has centered primarily around medications related to reproduction, particularly contraception.
Reproductive rights activists remain concerned about patients’ ability to easily access needed medications (including emergency contraception), while right-to-life proponents worry that pharmacists could be punished for adhering to their moral beliefs. And every so often, controversy erupts into the headlines.
Recent Controversies
One recent eruption occurred in Idaho, when a pharmacist declined to fill a prescription called in by a Planned Parenthood nurse practitioner for Methergine® (methylergonovine maleate), a drug generally used, as its label states, “for the prevention and control of postpartum hemorrhage.” According to Planned Parenthood of the Great Northwest (PPGNW), the pharmacist asked if the drug was needed for post-abortion care; when the practitioner said she could not disclose that information for reasons of health information confidentiality, the pharmacist said she would not fill the prescription. The pharmacist hung up when requested for a referral to another pharmacy. PPGNW filed complaints with Walgreens (the pharmacist’s employer) and the Idaho State Board of Pharmacy.
Further controversy arose in January 2011, when the Board’s investigation into the incident found no violation “of state laws the board is tasked with enforcing.” Refusing to fill the prescription did not violate the Idaho Pharmacy Act, the Board found. Moreover, the Idaho legislature passed a law in 2010 granting health care providers, including pharmacists, the right to refuse to provide services or dispense medications that violate their conscience.
The Washington State Board of Pharmacy found itself in the news in late 2010, when it voted, in essence, to maintain a rule that prohibits pharmacies from refusing to dispense all legal drugs, including emergency contraception. A few months before, the Board had begun a rulemaking process to see “whether additional rules would improve and better assure patients have access to medications,” according to a Washington State Department of Health press release. The December decision, following topical research and review of thousands of public comments, stopped the rulemaking process, concluding that existing rules “adequately remove any barriers” to patients’ access to time-sensitive medications.
The Washington Board originally adopted the recently upheld rules on pharmacist and pharmacy responsibility in 2007. The rules require pharmacies to ensure that “all valid prescriptions in stock are delivered when needed for effective use.” Pharmacists may refuse to dispense medications, provided the pharmacy has in place policies and procedures “to provide timely access to medications”; these policies and procedures do not include referral to another pharmacy to avoid filling a prescription due to moral or ethical considerations. The rules had been challenged in a lawsuit that had been on hold during the rulemaking process.
Rights of Conscience, Nationwide
Despite various proposals discussed each year in state legislatures, not every state has laws that specifically address the legality of pharmacists or pharmacies refusing to dispense or carry a particular medication – but several do. According to the Guttmacher Institute, pharmacists in Arkansas, Georgia, Idaho, Mississippi, and South Dakota have the right to refuse to fill a prescription if doing so violates their firmly held moral beliefs. Similar legislation was passed in Arizona, but at press time was not in effect, pending the outcome of litigation challenging the law. Other states have broadly worded refusal clauses that might protect pharmacists or pharmacies, granting them the right to refuse to fill: Colorado, Florida, Maine, and Tennessee.
In California, a pharmacist may refuse to fill a prescription, provided his or her employer approves the refusal and the patient can still access the medication in a timely manner. Similarly, a number of states require pharmacists either to provide a referral if the pharmacist is unwilling to fill a prescription for reasons of conscience, or not to obstruct the patient’s access to his or her prescription; many simultaneously require pharmacies to accommodate a pharmacist’s conscience while ensuring delivery of services to the patient. According to the National Women’s Law Center (NWLC), these states include Alabama, Delaware, New York, North Carolina, Oregon, Pennsylvania, and Texas.
As this implies, states grant less leeway to pharmacies than to the individual pharmacists who work in them. According to the Guttmacher Institute, Wisconsin requires pharmacies to fill valid contraceptive prescriptions; Illinois and Washington require pharmacies to deliver FDA-approved drugs, specifically including emergency contraception. In the latter two states, along with Maine, Massachusetts, Nevada, and New Jersey, pharmacies must dispense valid prescriptions, according to the NWLC. In Mississippi, on the other hand, both pharmacists and pharmacies have a clear, legal right to refuse to dispense valid prescriptions because of reasons of conscience.
Some boards of pharmacy have adopted policies or guidance regarding conscience-related refusals to fill, in the absence of specific language in the laws or regulations. The North Carolina Board of Pharmacy, for example, encourages pharmacists to “discuss and resolve any questions about emergency contraception prior to employment… The Board notes that although pharmacists have a right to avoid moral or ethical conflict, they do not have a right to obstruct otherwise legitimate prescription dispensing or delivery solely on the basis of conscientious objection… If a pharmacist refuses to fill a prescription for emergency contraception then that pharmacist has an obligation to get the patient and the prescription to a pharmacist who will dispense that prescription in a timely manner.”
Survey Says. . .
On request from the Washington Board, NABP last September conducted a short survey of the state boards of pharmacy on issues related to refusal to fill and unprofessional conduct. Sixteen states responded.
Almost all respondents stated that their state did not require pharmacies to give patients a timely alternative when a prescribed drug was not available, although one respondent noted that failure to do so “could, however, be a basis for discipline as negligence in the practice of pharmacy.” A similar member indicated that their state allowed a pharmacy to refer a patient to another pharmacy to avoid filling a prescription due to moral or ethical objections; two of the responding states had dealt with a challenge to their rules on the subject.
Most of respondents answered “yes” when asked if their state provided grounds for discipline when a pharmacy engages in or permits unprofessional conduct; the same held true for unprofessional conduct on the part of pharmacists, pharmacy interns, or other pharmacy personnel. In comments, however, respondents indicated that, while some states’ laws and rules outline unprofessional conduct specifically, others leave the term more generally defined. Moreover, refusal to fill a prescription did not necessarily appear even in specified lists of unprofessional activities. Three-quarters of responding states said their state did not prohibit a pharmacist from delegating to pharmacy support staff the decision to not dispense a lawfully prescribed drug or device.
As the survey results show, boards of pharmacy have to address issues of conscience differently depending on the laws and rules in their states. And while conscience clause controversies have not become a major issue for every board of pharmacy, they will continue to crop up, as demonstrated by the flare-ups in Idaho and Washington. The difficulty of ensuring adequate patient access to care while respecting the rights of practitioners almost guarantees continued board involvement in this contentious issue.
