Pharmacies New Reproductive Rights Battleground

The local drugstore might be the newest battlefield for anti-abortion activists who want “conscience clauses” in place that would allow pharmacists to refuse to dispense prescription emergency contraception if they have religious or moral objections.

Catherine Weiss

(WOMENSENEWS)-One morning last October, Jessica Scerry made an urgent stop at her local Walgreens. She needed to talk to a pharmacist, quick.

The night before, the condom Scerry and her boyfriend were using had broken and "disappeared." Eight hours had already elapsed and Scerry, 30, knew that the "morning-after pill" needed to be taken within 72 hours. Scerry asked the pharmacist on duty at her Cleveland-area store if it carried the medication and whether she needed a prescription to get it. The pharmacist responded, "Yes, we have it, but for moral reasons I don't dispense it. I am the only one on shift so I can not help you."

There was no sign posted indicating that pharmacists might opt out of dispensing medications. There was no other pharmacist on duty. There was no referral system in place. Scerry left the pharmacy in a panic, furious at what had just occurred, but more concerned about her health.

"Conscience-clause" legislation that exempts medical providers from performing procedures or dispensing drugs they oppose is appearing on more and more legislature dockets across the country. At least 19 states considered bills with conscience clauses in the last legislative session, and two states, Arizona and Massachusetts, passed laws. In several states the proposed legislation specifically cited pharmacists for coverage, an inclusion that potentially puts a woman's reproductive health at risk, according to women's advocacy groups.

Pro-choice groups say the time sensitivity of emergency contraception-the drug most likely to be denied by pharmacists-makes for a dangerous mix of conflicting needs and rights: If a pharmacist refuses, a woman may not have enough time to secure the medication within 72 hours.

After quickly calling her boss at work and making excuses, Scerry began making other calls: her gynecologist (who had no appointments available), her family doctor (who also could not see her immediately), and, finally, Planned Parenthood, where she secured a prescription she was able to fill at another Cleveland-area pharmacy.

"I was embarrassed and angry," Scerry says. "But in the end I was lucky. What if I didn't have a car? What about women who live in rural areas? Will they have to become pregnant because of a pharmacist's personal beliefs? What if, while trying to get this time-sensitive drug, time simply ran out?"

Most states already have conscience-clause laws dating from the Roe v. Wade ruling in the 1970s, but each state's law is worded differently, covering different health-care providers and procedures. So far South Dakota and Arkansas are the only states that have explicit protections for the civil rights of pharmacists who object to dispensing certain medications. But now that emergency contraception is available at pharmacies, the issue has taken on special urgency.

Polls Show Lack of Support from Public, Pharmacists

Professor Lynn Wardle of Brigham Young University, a national expert on conscience-clause legislation, believes the recent increase in pharmacist-specific legislation is the result of the dramatic increase in reproductive medications that can be bought in a local pharmacy, rather than being dispensed at a doctor's office or in a hospital setting.

"Obviously, now there are more situations out there where pharmacists face moral dilemmas," Wardle says. "In this climate, biomedical ethical dilemmas have proliferated."

In 1998, the American Pharmaceutical Association endorsed a pharmacist's right to refusal with the provision that "systems of referral" be put in place so the patient's access to legally prescribed therapies is not completely blocked. A system of referral would be, for example, ensuring that another pharmacist willing to dispense the medications also be on duty.

Despite the standard medical definition that pregnancy begins when a fertilized egg implants in the uterine lining, many anti-abortion groups view emergency contraception pills-chemical agents that block fertilization and implantation of a fertilized egg-as abortion pills.

Carla Mahany, chief lobbyist for the Kansas and Mid-Missouri Planned Parenthood and an opponent of a Kansas bill that was defeated last session in the state senate, says the bill was dangerously over-broad (including all health-care institutions, payers, and professionals, including pharmacists and pharmacy employees, for example) and that it worked to withhold information from patients by not requiring a dissenting pharmacist to post a sign or be duty-bound to provide a referral.

"Pharmacists in the state didn't want it," Mahany said. "The Kansas Catholic Conference invited them to meetings and tried to get their endorsements, but there was not a lot of interest. There was no referral clause in place, no sign-posting clause, no advance notice to employers clause. At one point the bill even included blood transfusions as a potentially objectionable procedure."

Earlier this year, the American Civil Liberties Union's Reproductive Freedom Project assessed the landscape of conscience-clause legislation in a report called "Religious Refusals and Reproductive Rights." The report examined conscience clauses in all their myriad forms-as they apply to nurses, doctors, institutions, health insurance providers and hospitals-as well as pharmacists.

The report concluded that Americans overwhelmingly oppose allowing health-care providers to deny services on the basis of religious or moral objections. Those polled especially objected to refusals that would interfere with a woman's access to reproductive health-care services, with 86 percent opposed to allowing pharmacies to refuse to fill prescriptions they object to on religious grounds.

"It is practically very dangerous for victims of sexual assaults who might be in the position of having to find a pharmacist quickly," says Catherine Weiss, director of the ACLU project.

Others, including some pharmacists, support conscience clauses.

Paula Koch, a Kansas pharmacist who spoke to her state legislature's Federal and State Affairs Committee about losing her job at a clinic after refusing to dispense the morning-after pill, testified to the dilemma she faced when confronted with filling these prescriptions.

"As a pharmacist, I took an oath to protect life and not harm it. I, in good conscience, cannot dispense a prescription I believe has the potential to destroy a life," she said. "To do so would be to violate both my religious beliefs and my professional ethics."

Wendy Wright, the senior policy director at Concerned Women for America, an anti-abortion group that seeks to "protect traditional values that support the Biblical design of family." They believe that pro-choice camps are hypocritical in their platform that a patient's rights should override the rights of pharmacists to refuse to aid in what they consider abortion.

"The so-called pro-choice groups won't allow for people to exercise their rights of conscience; it's as if they wish to strip away people's rights, not protect them," Wright said. "This issue really shows the hypocrisy at the heart of their movement: They are only on the side of women seeking abortions. In their view, pharmacists have no rights. They simply want everyone to become complicit in abortions."

Emergency Contraception Has Driven the Debate

Some pro-choice advocates do not consider the bills much of a threat. Betsy Cavendish, legal director of the National Abortion and Reproductive Rights Action League, believes these bills are part of a movement to stir up the anti-abortion debate and to keep its agenda current within state legislatures and the national media.

"There's lots of rhetoric on how the anti-choice groups are gaining legislative ground and having ‘banner years,'" says Cavendish. "In fact, they are simply scoring political points but that doesn't mean there aren't real consequences for women if these bills are passed."

Women must be aware of pharmacist-refusal clauses, says Professor James Trussell of Princeton University's office of population research.

"Many big chains have policies that allow pharmacists to refuse to fill prescriptions so long as they refer the client to another pharmacist in the same store at the same time who will," Trussell says. "But clearly that strategy will not work unless there are multiple pharmacists on duty at any one time.

"The best advice to women is either to obtain the product in advance or get a prescription in advance and find a pharmacy that stocks it and a pharmacist willing to dispense it."

Regan Good is a writer based in Brooklyn, N.Y.

For more information:

American Civil Liberties Union
Reproductive Freedom Project:
"On 29th Anniversary of Roe v. Wade, New ACLU Report Considers Religious Refusals To Provide Reproductive Health Care":

Concerned Women for America
"Testimony on Kansas Health Care Provider's Right of
Conscience Act"
By Paula Koch: