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Protection of Conscience Project

Service, not Servitude
Legal Commentary

Emergency plan overturned

An Illinois court has struck down a 2005 measure that would force pharmacists to provide the morning after pill.

Mercatornet, 6 June, 2011
Reproduced under Creative Commons Licence

Cristina Alarcon*

Clearly, the state's concept of "emergency" was fabricated in order to justify the imposition of a moral ideology on unwilling citizens.

An Illinois court has struck down a 2005 measure that would force pharmacists to provide Plan B.

In 2005, the then-governor of Illinois, Rod Blagojevich, enacted an "emergency" measure intended to force pharmacists to fill all prescriptions for the Plan B morning after pill, regardless of their ethical or moral beliefs. The state's "right-of-conscience" law, he claimed, applied only to physicians. Two pharmacists subsequently took the case to court, suing the state to overturn the ruling, and, after six years, they succeeded.

On April 5th this year the court struck down the governor's measure on three counts: "as a violation of the Illinois Healthcare Right of Conscience Act, the IL Religious Freedom Restoration Act, and the Free Exercise Clause of the First Amendment."

Imagine the horror now overtaking the state: women in the wilds of Chicago frantically dashing about, unable to find a doctor or pharmacist to give them this pill. Yes, time to call on the National Guard, perhaps the Red Cross too -- surely they could navigate the treacherous byways of Springfield to reach the panic-stricken women? But wait a minute -- perhaps it's the S.W.A.T. team we need…

Surely, the refusal by a handful of pharmacists to dispense one small product is but a small inconvenience that does not warrant emergency measures.

Strangely enough, the governor was not concerned that healthcare professionals might refuse treatment to the needy or poor of his state, as is happening amongst a growing number of physicians in the US who are refusing new Medicare patients because of low government payments. A USA TODAY survey shows that 18 per cent of doctors in Illinois restrict the number of Medicare patients in their practice.

It is interesting to speculate on what Mr. Blagojevich might have done if some Illinois pharmacists refused to provide other types of drugs or services when the customer could not pay. This has happened in Canada, where British Columbia pharmacists threatened to withdraw provision of Methadone to First Nations and Inuit peoples because of inadequate reimbursement by Health Canada. Most recently, pharmacies in Ontario have made headlines for threatening closure and reduced patient services over government cuts.

And things can always get worse. Imagine if the former governor were faced with service-disrupting protests such as those in Islamabad where over 900 pharmacists took to the streets -- presumably halting services -- in protest over unfair treatment, and threatening a countrywide movement if demands were not accepted; or if he were confronted by angry pharmacists threatening to close shop over government cutbacks, as in South Africa, in Ireland, or in Canada. What would he have done then?

Patients are inconvenienced for various reasons every day. In Staten Island, New York, pharmacies are refusing to stock certain pain-killers because of the area's drug abuse problem, thus forcing legitimate users to go on frustrating and sometimes fruitless hunts for their medication.

Was it more likely that Illinois women would be denied access to Plan B than to other medications or health services? No. The judge in last month's ruling said that the state provided"no evidence of a single person who ever was unable to obtain emergency contraception because of a religious objection. … Nor did the government provide any evidence that anyone was having difficulties finding willing sellers of over-the-counter Plan B, either at pharmacies or over the Internet."

It seems that in enacting his emergency measure, Governor Blagojevich was only concerned about one thing: appeasing the birth control lobby at the expense of the conscience rights of a very small group of pharmacists.

Clearly, the state's concept of "emergency" was fabricated in order to justify the imposition of a moral ideology on unwilling citizens. In this case, the target happened to be religious believers, or for that matter, any pharmacist who believes that life begins at conception and is worthy of respect, or any pharmacist who has come to realize that the morning after pill may in fact not be reducing the number of unwanted pregnancies as it is purported to do. But such an attack on human rights by state authorities can be turned against any group of believers.

There are those who firmly believe that vaccinations are dangerous, but there is a trend in the United States as well as worldwide of governments mandating vaccination for the public at large and strictly limiting exemptions.

Again, there are those who believe that a woman has an absolute right to an abortion, but there is now anti-abortion legislation in some US states requiring that a woman be offered an ultrasound first. Last month the governor of Texas signed a law requiring women to have the ultrasound (not just be offered it), and then to have the option of seeing it and listening to the fetal heartbeat.

Those who object to the Texas law as an intrusion into a woman's privacy should be able also to appreciate the resistance of some health professionals to the mandating of certain services and procedures which would violate their conscience.

As we have seen, the exercise of conscience rights in Illinois had no discernable effect on access to Plan B. In Canada, too, women have no problem accessing this drug, which is available at pharmacies across the country without a doctor's prescription. It is kept behind the counter in Saskatchewan and is available under a prescription by pharmacists in Quebec. It is available over the counter in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Nunavut, the Northwest Territories, Ontario, Prince Edward Island, and the Yukon.

To date, five out of nine Canadian Anglophone pharmacy jurisdictions enforce mandatory dispensing or referral for prescription items or services that go against a pharmacist's moral or ethical beliefs, but there is no law mandating that a pharmacist must stock or offer a particular product. And although when it comes to all other non-prescription items, there is no specific requirement to refer, most pharmacists will tell a woman where to get Plan B.

In other words, unlike those affected by the draconian emergency measures of Blagojevich, pharmacists in Canada are free not to stock Plan B. This is most certainly a sign of our political rulers' superior intelligence.

Creative Commons Licence

This article is published by Cristina Alarcon, and under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation. Commercial media must contact MercatorNet for permission and fees. Some articles on this site are published under different terms.

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