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Introduction:
AB 644 is not framed as a freedom of conscience measure, but as a law to
compel professionals to dispense legally prescribed drugs and devices
despite conscientious objections. However, the text of the bill
permits a pharmacist who has previously given his employer written notice of
his objections to decline to fill a prescription. The employer must
accommodate the pharmacist if doing so will not cause the employer undue
hardship (the usual standard for accommodation of religious freedom), and it
then becomes the duty of the employer to see that the patient can obtain the
drug or device. This appears to be an acceptable arrangement from the
perspective of an objecting pharmacist employed by someone else, and to this
extent can be considered a protection of conscience measure. A
weakness in this arrangement is that an objecting employer or an objecting pharmacist who is
operating his own pharmacy is denied the same freedom, since (if he does not
carry the product) he is obliged to obtain and dispense the product,
transfer the prescription or refer the patient to a pharmacy known to have
it. In consequence, persons with moral objections to a drug, device or
procedure will be denied either the freedom to engage in business or the
freedom to live and work according to their conscientious convictions,
freedoms which are not denied to those who think differently. It would be
possible to accommodate business owners and self-employed pharmacists by
requiring them to post notice of their objections and the fact that they do
not supply certain drugs or devices, perhaps requiring them to include the
notice in advertising and business or telephone directory listings.
Protective legislation will become increasingly important if California
legalizes assisted suicide, for this bill, as currently framed, would
then make facilitation of assisted suicide a condition for running a
pharmacy business in California.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
It is the intent of the Legislature that
health care professionals dispense prescription drugs and devices in a
timely way or provide appropriate referrals for patients to obtain the
necessary prescription drugs and devices, despite the health care
professional's objection to dispensing the drugs or devices on ethical,
moral, or religious grounds. SEC. 2
Section 733 is added to the
Business and Professions Code, to read:
733. Notwithstanding any other provision of
law, a licentiate shall dispense drugs and devices, as described in
subdivision (a) of Section 4024, pursuant to a lawful order or prescription
unless one of the following circumstances exists:
(a) Based on
the licentiate's professional training and judgment,
dispensing pursuant to the order or
the prescription is
contrary to law or is contraindicated for the patient. (b) The pharmacy
does not have the prescription drug or device
in its
stock. If an order or prescription can not be dispensed because the drug
or device is not in stock, the licentiate shall take one of the following
actions:
(1)
Immediately notify
the patient and arrange for the drug or device to be delivered to
the pharmacy or directly to the patient in a timely way.
(2)
Promptly transfer
the prescription to another pharmacy known to stock the prescription
drug or device and that is within a reasonable distance from the
pharmacy that is transferring the prescription or order to ensure the
patient has timely access to the drug or device.
(3)
Return the prescription to
the patient and refer the patient to a pharmacy known to stock the
prescription drug or device and that is
within a reasonable distance from the referring pharmacy to ensure that
the patient has timely access to the drug or device.
(c) The licentiate refuses on ethical, moral, or
religious grounds to dispense a drug or device
pursuant
to an order or prescription. A licentiate
may decline to
dispense a prescription drug or device
on this
basis only if the licentiate has previously notified
his
or her employer, in writing, of the drug or class of drugs to which he or
she objects, and the licentiate's employer can, without creating
undue hardship, provide a reasonable accommodation of the licentiate's
objection by establishing protocols that ensure that the patient
has timely access to the prescribed drug or device despite the licentiate's
refusal to dispense the prescription or
order.
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