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Pharmacists' Lawsuits Highlight 'Right of Conscience' Rift

The New Standard, 9 February, 2006
Reproduced with permission

Kari Lydersen

With an appealing concept akin to "freedom of choice," religious conservatives have co-opted their pro-choice adversaries' language by arguing that healthcare workers should be "free" to deny providing contraception.

Four Illinois pharmacists are suing Walgreens after the drug-store chain punished them for refusing to comply with Illinois law governing access to emergency contraception. The move comes as a cultural and political battle rages over the conflict between women's access to emergency reproductive services and medical professionals' religious convictions.

According to the lawsuit filed on his behalf by the groups Americans United for Life and the American Center for Law and Justice, plaintiff John Menges holds religious, moral and ethical beliefs, which prevent him, as a matter of conscience, from dispensing contraceptives.

To comply with a new Illinois law, Walgreens ordered Menges and his colleagues to promise in writing that they would provide emergency contraception to patients. According to the lawsuit, Walgreens told those who refused to sign that they could transfer out of state, take unpaid leave or accept a demotion. Menges was suspended without pay for refusing to comply with the policy.

Reproductive rights groups see the lawsuits against Walgreens as part of a campaign orchestrated by the Religious Right to interfere with women's access to health care. For the past few years, anti-abortion pharmacists around the country, backed by religious conservatives, have been refusing to fill emergency contraception prescriptions, saying they believe the pills can effectively cause an abortion.

Reproductive rights groups see the lawsuits against Walgreens as part of a campaign orchestrated by the Religious Right to interfere with women's access to health care.

Emergency contraception - known commercially as "Plan B" and casually as the "morning-after pill" - acts similarly to birth-control pills. It generally prevents the release of an egg from the ovaries or the uniting of sperm and egg. Prominent anti-abortion religious groups define emergency contraception as abortion because in somewhat rare cases, it can also prevent the implantation of a fertilized egg in the uterus.

Since the drug's active hormone, levonorgestrel, will only work within 72-hours of unprotected intercourse, its effectiveness gradually decreasing over that period; even a short delay in obtaining emergency contraception can be too long for a woman wanting to prevent pregnancy.

The NewStandard was unable to reach any women in Illinois who had been denied emergency contraception at pharmacies. But throughout the nation, women have reported being turned away or lectured by pharmacists about the ethics of their decision not to become pregnant.

For example, the Associated Press reported that Suzanne Richards, a New Hampshire woman, never had her emergency-contraception prescription filled after a pharmacist told her he was morally opposed to the drug.

"He said I was irresponsible," Richards later told the AP. "Well, I think it's irresponsible to have kids you can't take care of and raise."

"Angela," a 22-year-old from California, told the reproductive rights group Planned Parenthood that after a condom broke she searched in vain for a healthcare provider to fill her prescription. She said she was turned away at two pharmacies and two hospitals before she gave up. "I'll never forget how uncaring and nonchalant the pharmacists at those stores were," the organization quoted her as saying in a compilation of stories about pharmacist refusals. "[I felt] like my country hated me and viewed me like a baby-machine."

Abortion rights activists argue that denying emergency contraception should carry the same legal consequences as blocking any other type of medical care.

Steve Trombley, president of Planned Parenthood Chicago, said that for the past two years, Pharmacists for Life and other religious groups have orchestrated a campaign to convince pharmacists to refuse Plan B prescriptions.

"We saw an enormous increase in incidents anecdotally in both Illinois and around the country," he said. "We certainly respect the right of pharmacists to hold their own moral opinion, but when they put that lab coat on and go behind the counter they need to do their job."

Organized Campaign

In April 2005 Illinois Governor Rod Blagojevich introduced an emergency rule, ordering all pharmacies that carry contraception to stock it and provide it to all patients presenting prescriptions.

Menges' legal complaint says that after the order went into effect, the Edwardsville, IL Walgreens where he worked demanded its employees agree in writing to dispense the drug. His lawsuit asks for damages related to loss of employment, mental anguish, pain-and-suffering, and inconvenience.

Walgreens did not respond to requests for an interview before press time.

Abortion rights activists argue that denying emergency contraception should carry the same legal consequences as blocking any other type of medical care.

The national watchdog group MergerWatch is working to monitor Catholic and secular hospitals and subsequent campaigns to deny reproductive services. Executive Director Lois Uttley called the movement to block emergency contraceptive services "a growing threat to patients' rights."

Key to the debate over emergency contraception has been anti-abortion groups' contention that the drug is a form of abortion, while reproductive-rights groups and manufacturers define it as a contraceptive.

Last week, pro-choice groups working with three women in Massachusetts announced a lawsuit against retail giant Wal-Mart, for refusing to stock emergency contraceptives in its pharmacies. The women said the policy - which the company implements nationwide - violates Massachusetts law requiring pharmacies to stock all "commonly prescribed medicines."

In other states, the scales have tipped the other way, with legislation passed or proposed giving pharmacists and other medical professionals the right to refuse services or information incongruous with their religious beliefs. Such laws are an expansion on so-called "right-of-conscience" legislation, first passed by Congress in the wake of the Supreme Court's landmark legalization of abortions in 1973 in Roe v. Wade.

Over the years, state legislators have moved to expand this legal right to a wider range of healthcare providers, types of service and circumstances.

In recent years, at least twelve states have introduced right-of-conscience laws to expand the freedom of healthcare workers to refuse to provide services conflicting with their religious beliefs. Some would even cover ambulance personnel, and some extend not only to abortion and contraception but health care for gays and lesbians as well.

Nationally, four states - Arkansas, Mississippi, South Dakota and Georgia - explicitly permit pharmacists to deny patients emergency contraception, and nine other states have broad right-of-refusal laws applying to healthcare providers.

Legislation proposed in Washington State would allow pharmacists and other healthcare providers to not only deny certain drugs or services on moral grounds, but to withhold information that could help a patient find an alternative service provider. Under the proposed legislation, healthcare providers would be shielded from liability for harm resulting from the denial of services.

In at least five states, proposed bills would also allow insurers to refuse to cover services they find objectionable, a move patients' rights advocates find chilling since there are financial incentives for insurers to invoke such a law.

On the federal level, the issue of access to emergency contraception has rallied both sides of the abortion controversy recently as the Food and Drug Administration has stalled an attempt to make the emergency contraceptive Plan B available over the counter nationally. Though an FDA advisory panel overwhelmingly supported the manufacturer's application to make Plan B available without a prescription, affirming the effectiveness and safety of the drug, the FDA continues to deny the application.

Nevertheless, six states - Alaska, California, Hawaii, Maine, New Mexico and Washington - already allow emergency contraception to be purchased without a prescription.

A Broadening Definition

Key to the debate over emergency contraception has been anti-abortion groups' contention that the drug is a form of abortion, while reproductive-rights groups and manufacturers define it as a contraceptive. Unlike RU-486, the so-called "abortion pill" that has attracted similar controversy, emergency contraceptives will not affect a fertilized embryo already implanted in the uterus.

"The pill takes away the life of a developing human being," said Dr. David Stevens, executive director of the Christian Medical and Dental Association. "The fact that it's not implanted is inconsequential if you believe life begins at conception."

To Stevens, the concept of "right-of-conscience" is a fundamental principle. "This isn't about denying people services based on their behavior or who they are as a person," he said. "This is about asking me to participate in an action I don't agree with."

But Cristina Page, author of the recent book How the Pro-Choice Movement Saved America: Freedom, Politics and the War on Sex, takes issue with the Right's characterization of emergency contraception as abortion, defining pregnancy as the implantation of a fertilized egg.

"Their ultimate goal is to take away women's control of whether they become pregnant," said Page.

Page sees the right-of-conscience bills and the attacks on emergency contraception as part of a movement on the Religious Right to replace science with religion in national health policy.

Seeing an eagerness among anti-abortion groups to associate more forms of reproductive healthcare with the concept of "murder," Page said: "Now they're trying to say birth control is murder.... That's the incremental method they use. We're a fact-based movement, we deal in science. But they deal in science fiction - they just keep saying something long enough until people start to believe it's true."


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