AUG. 29, 2005

SCIENCE AND HEALTH
'Conscience clause' laws weigh moral values

It's a classic confrontation of values. A woman walks into a drugstore to fill a prescription - maybe an unmarried student who wants birth control, maybe a woman who requests emergency contraception to stop pregnancy. The pharmacist doesn't believe that what she's asking for is morally right, so refuses to provide the medicine - and in some cases, won't release the prescription so the woman can take it to another drugstore.

How much that's happening is a matter of debate, but the cases that have occurred have sparked a flood of "conscience clause" legislation being considered at the national level and in the statehouses. Some of those laws protect the right of a patient to have a legal prescription filled, while others protect the right of a pharmacist to follow his or her conscience. Meanwhile, some pharmacists who have lost their jobs or been disciplined are filing lawsuits.

A national debate is intensifying over whether health care professionals should be required to provide care even if they find it morally objectionable - a debate that extends far beyond pharmacists and emergency contraception. Ethics experts say it has implications for an expanding number of health care issues, from infertility to end-of-life care. Might a certain regimen of pain-relief medication hasten death? Can Catholic hospitals refuse to perform tubal ligations or vasectomies? Could pharmacists refuse to provide medication to treat depression or hyperactivity in children if they don't believe in treating those conditions with drugs?

Competing laws, increasing debate and more lawsuits. Together, they are asking a question that has yet to be settled: When there's a difference in moral views between a patient and a health care provider, whose beliefs should prevail? ReligionLink offers resources for covering this issue.

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Angles For Reporters
National Sources
Legislation
Definitions
Polls
Articles

Why it matters
Some consider conscience clause legislation to be an emerging front in the war in battle over abortion, and, as with abortion, religious beliefs are a determining factor. For some health care providers, withholding certain services is a non-negotiable matter of religious faith. The implications for patients are enormous: They may be denied access to treatment or medication even when it's legal and they can pay for it.

Angles For Reporters
• Talk to pharmacists and drugstores about how they approach emergency contraception. Do they routinely stock it? If they don't, are they willing to order it quickly if a patient asks for it, or to transfer the prescription to another pharmacy? Should a pharmacist be required to transfer the prescription even if he or she considers dispensing the medication to be morally wrong?
• If a pharmacist doesn't want to provide emergency contraception, how does the drugstore handle that? What instructions are the major pharmacy chains giving their employees? Must pharmacists divulge their unwillingness to prescribe certain medications in advance?
• How easy or difficult is it for women in your community to obtain emergency contraception? What's the picture like for rural areas and small towns as opposed to bigger cities?
• Are hospitals, clinics and pharmacists informing rape victims that emergency contraception is an option? Should they have to, even if they have moral objections? If the FDA decides to allow drugstores to provide emergency contraception without a prescription, how will local pharmacies handle that?
• What ethical dilemmas beyond contraceptive issues do pharmacists and other health care providers confront? What are the toughest matters of conscience they've dealt with in patient care? What are the moral questions posed for pharmacists, nurses and physicians in end-of-life care? What about treatment of mental health or infertility?
• What do women from your area have to say about emergency contraception? Do they think it should be readily available, or not, and why? What do local doctors, particularly those who treat women, have to say? Talk to college students and other young adults and check with campus health clinics.

  National sources

Click the map for interview sources in your state and region

FOR CONSCIENCE CLAUSES
• Karen L. Brauer of Indiana is president of Pharmacists for Life International, which says it has more than 1,600 members and works to make pharmacy "a lifesaving profession." In 1996, Brauer was fired from a Kmart pharmacy in the Cincinnati area for refusing to fill a prescription for a type of birth control pill that she contends can terminate a pregnancy (see an account she's written of what happened). Contact 812-537-3771, kbrauer@pfli.org.
• The U.S. Conference of Catholic Bishops has raised concern about a range of freedom of conscience questions related to protection of life issues. Its website summarizes federal legislation in this area, governing everything from hospitals that don't want to provide abortions to prison workers who don't want to be involved with capital punishment to whether health insurance plans should have to pay for contraception. Contact Sister Mary Ann Walsh, 202-541-3200, commdept@usccb.org.
• Jan LaRue is chief counsel of Concerned Women for America, which tries to bring biblical principles into public policy. She has written a commentary arguing that pharmacists shouldn't be forced to dispense medications in violation of their religious or moral beliefs. Contact 202-498-6571, jlarue@cwfa.org.
• Steven Aden is chief litigation counsel with the Center for Law & Religious Freedom in Annandale, Va., which has filed suit in Illinois on behalf of a Christian pharmacist, David Scimio, who is challenging an emergency order signed by Gov. Rod Blagojevich in April 2005 requiring pharmacists to provide contraceptives even if it violates their religious or moral beliefs. Aden also represented Neil Noesen, a Wisconsin pharmacist who was disciplined in April 2005 by the state's Pharmacy Examining Board for refusing to fill a college student's birth control prescription or to transfer it to another pharmacy. Contact 703-642-1070 ext. 3504, saden@clsnet.org.
• Francis J. Manion, a lawyer from Kentucky, is a senior counsel with the American Center for Law & Justice. He has represented pharmacists, including Karen Brauer, and other health care professionals who have refused on moral principle to provide certain services to patients. Contact 502-549-7020, fmanion@aol.com.
• Shahid Athar is a clinical associate professor of internal medicine and endocrinology at the University of Indiana School of Medicine and former chairman of the medical ethics committee of the Islamic Medical Association of North America. His writings can be read at Islam-USA.com. He is on the advisory board of the Protection of Conscience Project, which advocates for conscience clause legislation. Contact 317-872-5159, sathar3624@aol.com.

AGAINST CONSCIENCE CLAUSES
• Rebecca Wind is press contact for the Alan Guttmacher Institute, a nonprofit organization in New York and Washington, D.C., focused on sexual and reproductive health research and policy analysis. It argues that emergency contraception is not equivalent to abortion but prevents unwanted pregnancies, and that access to emergency contraception has played an important role in reducing abortions? Contact 212-248-1953, rwind@guttmacher.org.
• Nancy Keenan is president of NARAL Pro-Choice America. The nonprofit advocacy group is sending petitions to pharmacies across the country, saying they have an ethical and legal obligation to fill birth control prescriptions without delay, intimidation or inconvenience, and asking them to provide full access to birth control. Contact through David Seldin, 202-973-3032, dseldin@prochoiceamerica.org.
• The Religious Coalition for Reproductive Choice has called for the repeal of the 2004 Hyde-Weldon legislation, which protects health providers' rights to deny services due to issues of conscience. Its statement on the legislation lists 16 other religious groups that also oppose it. Contact Marjorie Signer, director of communications, 202-628-7700, ext. 12; msigner@rcrc.org.
• Rachel Laser is senior counsel at the National Women's Law Center in Washington, D.C. The center has started a pharmacy refusal project to track cases in which people could not get their prescriptions filled and to advocate for women's right to have their contraceptive prescriptions filled. Contact 202-588-5180, rlaser@nwlc.org.
• Louise Melling is director of the ACLU's Reproductive Rights Project, which has been involved in the debate over health care workers refusing to provide services to women. It published a 2002 report on the subject and a representative testified before a U.S. House subcommittee that year. Contact Melling through Lorraine Kenny, 212-549-2634, lkenny@aclu.org.

PROFESSIONAL ASSOCIATIONS
• Gail Street is director of public relations for the American Pharmacists Association, with 52,000 members. It says pharmacists should have the right to decline to fill prescriptions out of moral conviction, but if a pharmacist does so, a system should be in place - for example, by having another pharmacist fill the prescription or by referring the patient to another drugstore that will fill it - to ensure the patient is able to receive the medication. Contact 202-429-7558, gstreet@APHAnet.org.
• The American Medical Association passed a new policy in June 2005 to protect patients' ability to get medications that have been legally prescribed to them "without obstruction by pharmacists' conscientious objection to certain medications," the AMA's web site states. Contact Katherine M. Hatwell, senior public information officer, 202-789-7419, Katherine.hatwell@ama-assn.org.
• Ellen Wilcox is public affairs director for the American Society of Health-System Pharmacists in Bethesda, Md., which tracks legislation involving pharmacists. The association, representing more than 30,000 pharmacists who work in hospitals, long-term care facilities and other health care systems, supports both a pharmacist's right to refuse to fill prescriptions based on moral beliefs and a patient's right to have a prescription filled. Contact 301-664-8621, ewilcox@ashp.org.
• The American Bar Association in Chicago passed a 2005 resolution opposing governmental actions and policies that interfere with patients' abilities to receive in a timely manner all relevant information needed to make informed health care decisions and to determine their access to medically appropriate care.

Legislation

STATE
• Legislation regarding pharmacists and conscientious objection cuts both ways. Some states have introduced legislation or passed laws that would protect pharmacists who won't fill prescriptions because of their moral beliefs. Other states are considering bills that would require pharmacists to promptly fill all prescriptions that are valid and legal. The status of the proposed legislation is constantly changing (and different summaries offer different headcounts, so make sure the source is both accurate and up-to-date).
• The National Conference of State Legislatures has posted a summary of legislation both passed and being considered.
• The National Women's Law Center offers a map of conscience clause bills in the U.S.
• The Kaiser Family Foundation and the Alan Guttmacher Institute are tracking conscience clause legislation in the states.

FEDERAL
• In April 2005, Sen. Frank Lautenberg, D-N.J., and others introduced a bill, the Access to Legal Pharmaceuticals Act, which says that if a pharmacist refuses as a matter of conscience to fill a prescription for a medicine that's in stock, the drugstore must make sure that another pharmacist on duty provides the medication. Also, a pharmacist couldn't refuse to return the prescription to a patient who asks for it or to transfer it to another pharmacy.
• Rep. Carolyn Maloney, D-N.Y., and others proposed legislation in the House similar to the bill Lautenberg introduced in the Senate.
• Sen. Barbara Boxer, D-Calif., proposed legislation that would require pharmacies which receive payments from or have contracts with the Medicare or Medicaid programs to fill all valid prescriptions without unnecessary delay or interference.
• The Hyde-Weldon Conscience Protection Amendment was signed into law in December 2004 as part of the 2005 appropriation for Health & Human Services. It states that no funds available through that act would go to any government agency or program that discriminates against institutions or health care entities that do not provide, pay for, provide coverage for or refer patients for abortions. Those entities could include doctors, hospitals and health insurance plans. See a description posted by About.com. California Attorney General Bill Lockyer has filed suit challenging the amendment. The U.S. Conference of Catholic Bishops supports the legislation and the Religious Coalition for Reproductive Choice opposes it.

Definitions

EMERGENCY CONTRACEPTION: Medication, consisting of the same hormones found in birth-control pills but in higher doses, which can prevent pregnancy when taken within 72 hours of intercourse. The pill can contain either a combination of estrogen and progestin or only progestin. According to the U.S. Food and Drug Administration, emergency contraception can delay or inhibit ovulation; prevent sperm from fertilizing the egg; or prevent implantation of fertilized egg in the lining of the uterus. Emergency contraception typically is taken when birth control has failed or none was used. The sooner after intercourse it is taken, the more likely it will be effective -- usually one pill is taken and then a second one 12 hours later. It is not the same as RU-486, the French abortion pill. Emergency contraception requires a prescription, either from a physician or nurse prescriber or, in certain states that permit it, from specially trained pharmacists.

PLAN B: A type of progestin-only emergency contraception. It is the only product approved by the FDA that’s used only for emergency contraception. It is available by a physician’s prescription only. On Aug. 26, 2005, the FDA delayed a ruling on whether it could be sold over-the-counter to women age 16 and older. (See the FDA announcement.) If no prescription were required, that could provoke more confrontations between women who request the medication and pharmacists who won’t provide it because of moral concerns. For resources for covering Plan B, see the Aug. 26, 2005, Al’s Morning Meeting posted on Poynter.org.

The director of the FDA's Office of Women's Health, Dr. Susan F. Wood, resigned on August 31, 2005 to protest the FDA's decision to delay approving sales of Plan B without a physician's prescription. Wood said that scientifiic and clinical evidence involving Plan B was being ignored and the politics of abortion was affecting public health policy. See accounts of Wood's resignation in the Washington Post and from NPR.

ABORTIFACIENT: A medication or procedure that terminates an established pregnancy. Some pharmacists who oppose abortion refuse to provide certain forms of birth control because they contend that type of contraception is “abortifacient,” meaning that it can prevent a fertilized egg from implanting in the wall of the uterus. They consider that to be a form of abortion. That view does not follow the standard accepted definition of pregnancy – for example, both the National Institutes of Health and the American College of Obstetricians and Gynecologists define pregnancy as beginning when a fertilized egg is implanted into the wall of the uterus, not before. Some recent research indicates that Plan B works by preventing ovulation or by keeping the sperm from reaching the egg, not by preventing implantation. A May 2005 report from the Alan Guttmacher Institute explores some of the implications over the debate regarding when exactly pregnancy begins.

RU-486: Also known as mifepristone. A pill used to trigger abortions of implanted embryos in the early stages of pregnancy. This product is available only to physicians and is not available to pharmacists. The FDA approved it for use for termination of pregnancy in 2000 (see FDA statement.) It is available by prescription with certain restrictions.

Polls

• A CBS/New York Times poll from November 2004 found that nearly 8 out of 10 of those surveyed felt that pharmacists should not refuse to sell oral contraceptives for religious reasons.
• A poll of 828 physicians conducted by HCD Research in June 2005 found that 78 percent say state laws should require pharmacists to fill prescriptions for the morning-after pill regardless of their personal moral or religious beliefs.

Articles
• On Sept. 15, 2005, Massachusetts became the eighth state to allow pharmacists to dispense Plan B emergency contraception without a doctor’s prescription, according to a Sept. 16, 2005, Boston Globe article.
• Read an opinion piece by sociologist Florence A. Ruderman from the September 1, 2005 New York Times about a pharmacist who refused to fill her father's prescription for morphine when he was dying of cancer and in severe pain, and how that's affected her views of pharmacists' responsibilities.
• Read a February 2005 National Law Journal story posted by the law firm Gordon & Rees that summarizes the move by state legislatures to protect health care providers who decline to offer drugs or services on religious or moral grounds.
• Read a March 28, 2005, Washington Post story that describes "a new front in the nation's battle over reproductive rights."
• Listen to an NPR story from April 5, 2005, about a conscience clause bill being considered in Texas.
• Read a Nov. 8, 2004, USA Today story about the move toward conscience clause legislation.
• Read the transcript of a June 3, 2005, Religion & Ethics Newsweekly show about pharmacists refusing to provide emergency contraception.
• Read an April 13, 2005, story from Slate on the conscience clause debate.
• Read a transcript of the testimony that Paula Koch, a pharmacist from Kansas who refused to dispense the morning-after pill because of her religious beliefs, gave to a Kansas House of Representatives committee in March 2002.
• Read an April 1, 2005, Village Voice story about workplace religious freedom and the struggles some employees face between the requirements of their jobs and their own moral beliefs.
• Read a Sept. 13, 2004, BBC story about the growing number of doctors and pharmacists who now consider birth control pills to be a form of abortion.
• Read an account from the University of California, San Francisco web site of an ethics discussion in April 2005 about conscience refusal clauses.