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Testimony of
Pharmacist Noesen

Disciplinary Proceedings
Against Neil Noesen, RPH
Final Decision and Order

Pharmacist appeals Wisconsin
 Pharmacy Examining Board’s
 Final Disciplinary Decision

Brief

STATEMENT OF THE ISSUES
Whether or not Mr. Noesen violated a professional standard in refusing to participate in the provision of Loestrin FE 1/20 that he was reasonably certain would cause the destruction of an unborn child.

STATEMENT OF THE CASE
Mr. Noesen stated a conscientious objection to participation in the provision of artificial birth control to patients, when he was hired by RPh on the Go, a firm that contracts pharmacist’s services to pharmacies. When Mr. Noesen refused to transfer a prescription for Loestrin, an artificial birth control medication, patient AR filed a complaint with the Wisconsin Pharmacy examining board. Mr. Noesen here alleges that the Final Decision and Order imposed by the State of Wisconsin Pharmacy Examining Board does not adhere to the timeless philosophy of the practice of pharmacy, is unprofessional in nature, and furthermore is unlawful.  Mr. Noesen petitions the Honorable Circuit Court Judge in this judicial review to set aside, modify, or remand LS031009PHM under the provisions of Wisconsin Statutes 227.57.

STATEMENT OF FACTS
The events referred to in the Findings of Fact of the Final Decision and Order LS031009PHM fail to truthfully acknowledge the good-faith effort of Mr. Noesen to inform both his agent RPh on the Go as well as their client Kmart about Mr. Noesen’s conscientious objection to participate in any way in the provision of a contraceptive article.

STANDARD OF REVIEW  
De novo review is appropriate if any of the following is true: (1) the issue before the agency is clearly one of first impression, (2) a legal question is presented and there is no evidence of any special agency expertise or experience, or (3) the agency's position on an issue has been so inconsistent that it provides no real guidance. Brauneis v. State, 2000 WI 69, ¶18, 236 Wis. 2d 27, 612 N.W.2d 635.

ARGUMENT
Mr. Noesen alleges that he is not in violation of the proposed standard of care which was not clearly set forth before the hearing.

It is reasonable to expect Mr. Noesen to be consistent in his conscientious objection. It is not reasonable to expect Mr. Noesen to provide an accommodation himself for his own objection. It is much more reasonable to expect him to exercise the same consistent conscientious objection to participation in any way not only for the dispensing of a contraceptive article but also for a transfer of or referral for a contraceptive article. 

Participating in the provision of a contraceptive article that inhibits the implantation of an unborn child, thereby causing the destruction of an unborn child, is unlawful and can never be considered a standard of care. There is no duty to provide this type of service. No prior accommodation is needed for a pharmacist who refuses to participate in the provision of a contraceptive article that makes the implantation of an unborn child less likely. No prior accommodation is needed for a pharmacist who conscientiously refuses to participate in the transfer of an order for a contraceptive article to another pharmacy for a contraceptive article that makes the implantation of an unborn child less likely. Participation in any way in the provision of a contraceptive article that inhibits the implantation of an unborn child, thereby causing the destruction of an unborn child, is to be party to an action forbidden under Wisconsin law.

The ALJ’s insistence that Mr. Noesen’s professional obligations required him to provide the patient with information on how to obtain her prescription renders meaningless any protection of conscience purportedly derived from Wisconsin Constitution Article I section 18, and the Federal Constitution’s Free Exercise Clause of the 1^st Amendment.

While the practice of pharmacy has greatly evolved from the medicinal theories of antiquity, the philosophy of the practice of pharmacy remains the same. To induce a structural and functional abnormality in a patient with hormonal contraceptives without a valid indication or to harm an unborn child can never be considered to be in conformity with the philosophy of pharmacy practice and must therefore always be excluded from the scope of the practice of pharmacy.

Highly-effective fertility-awareness methods of family planning are available as alternatives to contraceptive articles for enabling couples to practice responsible parenthood. These methods do not contradict the philosophy of pharmacy practice and are certainly not in violation of any state or federal laws. Fertility-awareness methods help to foster communication between couples and empower them to plan their families naturally.

If Loestrin FE 1/20 is being used with the intent to impair fertility, implantation of an unborn child to the uterus is less likely. This pharmacological action constitutes reckless endangerment of the safety of the unborn child. In the case where a couple is provided informed consent fully aware of the anti-implantative effects of hormonal contraceptives, this endangerment to the unborn child may occur under circumstances which show utter disregard for human life. The destruction of an unborn child is contrary to the timeless philosophy of the practice of pharmacy.

CONCLUSION
The ALJ failed to acknowledge the depth of Mr. Noesen’s conscientious objection, that Mr. Noesen cannot be expected to participate in any way in the provision of Loestrin FE 1/20 or other hormonal contraceptives that may result in the destruction of an unborn child. The ALJ’s insistence that the pharmacy standard of care required him to so participate, is violative of Mr. Noesen’s conscience rights, under the Wisconsin Constitution Article I section 18, and the Federal Constitution’s Free Exercise Clause of the 1^st Amendment. Mr. Noesen respectfully requests that this Court set aside, modify, or remand the decision of the ALJ under the provisions of Wisconsin Statutes 227.57.  

Respectfully submitted ____ of November, 2005.

612.605.3672

CERTIFICATE OF SERVICE

I certify that true and correct copy of the foregoing Brief was sent by United States mail, postage pre-paid, to the following individuals: 

Bruce Olsen, Esq.
Assistant Attorney General
State of Wisconsin Department of Justice
17 W. Main Street
P.O. Box 7857
Madison, WI  53707-7857

Pharmacy Examining Board
Department of Regulation and Licensing
1400 East Washington Avenue
P.O. Box 8935
Madison, WI 53708-8935

____ of November, 2005 

 ________________________________ 
Neil Noesen 
P.O. Box 771
Cumberland, WI  54829-0771
612.605.3672