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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
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California

Senate Bill 644 (2005)

Amending Business and Professions Code


Check on the status of this bill at the California State Assembly
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.

INTRODUCED BY: Senator Oritz (22 February, 2005) (As amended 7 April, 2005)


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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