Idaho Case of Pharmacist Refusal
Does Not Appear Proper Conscience Clause Case
Things - Second Hand Smoke
1 February, 2011
Reproduced with permission
I was asked by a commenter to reflect on the
following story and opine as to whether it would be
a proper conscience clause refusal. I do so here,
taking the facts stated in the story at face
value-and without judging the Idaho law in question
with which I am not familiar. Nor am I licensed to
practice law in Idaho, so this is not a legal
opinion on the matter. In other words, I am judging
the reported facts with what I have stated should be
the criteria for conscience clause protections, not
what actually happened or based on what the Idaho
law may or may not protect.
From the story:
A new Idaho law enacted in
2010 is designed to protect medical professionals by
allowing them to refuse health care services that
conflict with their religious, moral or ethical
principles. But Planned Parenthood says a Nampa
pharmacist acted in the wrong and was not protected
by the law when she refused to fill a prescription.
Planned Parenthood has responded by filing a
complaint with the state. The prescription at the
center of this is methergine. It's used to prevent
bleeding after childbirth or after an abortion.
In November, a Planned
Parenthood nurse called this Nampa Walgreen's for a
methergine prescription. According to Planned
Parenthood, the Walgreen's pharmacist asked if their
patient had an abortion. The nurse says she cited
federal patient privacy laws and refused to answer.
"The pharmacist said, 'Well, if you're not going to
tell me that and she had an abortion, I'm not going
to fill this prescription.' And then our
practitioner said, 'Why don't you tell me another
pharmacy that I can call or another pharmacist that
can dispense this medication for my patient?' And
the pharmacist hung up on her," said Kristen
Glundberg-Prosser of the Planned Parenthood of the
Here are the criteria I have written should be
applied to such cases.
First Things article, "Pulling the
Plug on Conscience Clauses:"
- The rights of conscience should apply to
medical facilities such as hospitals and nursing
homes as well as to individuals.
- Except in rare and compelling circumstances
in which a patient's life is at stake, no
medical professional should be compelled to
perform or participate in procedures or
treatments that take human life.
- The rights of conscience should apply most
strongly in elective procedures, that
is, medical treatments not required to extend
the life of, or prevent serious harm to, the
- It should be the procedure that is
objectionable, not the patient. In this way, for
example, physicians could not refuse to treat a
lung-cancer patient because the patient smoked
or to maintain the life of a patient in a
vegetative state because the physician believed
that people with profound impairments do not
have a life worth living.
- No medical professional should ever be
forced to participate in a medical procedure
intended primarily to facilitate the patient's
lifestyle preferences or desires (in contrast to
maintaining life or treating a disease or
- To avoid conflicts and respect patient
autonomy, patients should be advised, whenever
feasible, in advance of a professional's or
facility's conscientious objection to performing
or participating in legal medical procedures or
- The rights of conscience should be limited
to bona fide medical facilities such as
hospitals, skilled nursing centers, and hospices
and to licensed medical professionals such as
physicians, nurses, and pharmacists.
Now, let's apply the reported facts to the above
1. The medication is designed to prevent serious
harm to the patient, and hence, would not be
elective. That puts a greater onus on the
2. The medication didn't cause the abortion (if
one was involved here), and hence, could not be
construed as taking a human life.
3. The action of the drug-stopping bleeding-was
not objectionable per se to the pharmacist. That was
why he asked if it involved an abortion or a birth.
Thus it was not the procedure to which the
4. The procedure was not a matter of facilitating
lifestyle, but preventing serious physical injury or
5. There is no indication that advance notice was
given that the anti bleeding drug wouldn't be
dispensed. That is because the drug itself is not
what the pharmacist objected to.
6. The refusal was based on discrimination, not
the drug. The pharmacist thought the patient had an
abortion. He found that morally repugnant. But
refusing the prescription for that reason is no more
acceptable than refusing to dispense cancer
treatment medications to a lung cancer patient or
the anti bleeding medication for a bank robber who
was shot. Such moral judgments about patients
are unacceptable. It is the procedure that
must be objectionable.
So, based on the reporting of the story, this
isn't even a close call. This is not a proper
conscience clause (from my criteria) case and in
Wesley World, the pharmacist would not be protected.
further reflections on this case by Wesley J.