Pharmacists and the "Duty" to Dispense Emergency Contraceptives

Article excerpt

ABSTRACT: Stories abound of both women with prescriptions turned away at the pharmacy door and members of the most trusted health care profession losing jobs and running afoul of ethics rules. Scholars have spilt much intellectual ink divining whether a pharmacist must dispense Plan B, the primary emergency contraceptive. Now, many are calling for a common law "duty to dispense" that could serve as a foundation for a wrongful pregnancy action against a dissenting pharmacist.

Such a duty simply does not arise from established tort principles or pharmacist-specific precedents. Only in rare circumstances will a pharmacist and customer have the type and quality of relationship giving rise to a duty to dispense.

Nevertheless, law changes over time and makes allowances for unique circumstances. Pharmacists are taking on more responsibility for drug therapy. They have an awkward role in the distribution of Plan B. Moreover, while the law may protect pharmacists' consciences, it may not be so receptive to pharmacists-as-activists. Dissenting pharmacists can take practical steps to protect themselves today, but tomorrow is another day.

"We're happy, but we're not thrilled," said Frank Manion, a senior attorney for the American Center for Law and Justice and the attorney for several southern Illinois pharmacists suspended without pay from their jobs at a Walgreens store after they refused to comply with the company policy to distribute Plan B, a form of emergency contraception. (1) Manion was referring to a mid-October 2007 settlement of a lawsuit against the state of Illinois, with Walgreens as intervening plaintiff, (2) challenging an Illinois regulation that some pharmacists believed virtually forced them to violate their religious beliefs. (1) "It's not exactly what we had looked for," Manion said to explain his enigmatic reaction. "What we had wanted was a full and unambiguous recognition of the right of conscience by the state." (4) Instead, the settlement will save many pharmacists' jobs, but it will not relieve pharmacies from their obligation under Illinois regulations to sell emergency contraception. (5)

The Illinois Pharmacists Association was perhaps even less thrilled than Manion about the half-way house result in this primary legal challenge to one of the strictest "must fill" regulations in the country. (6) Spokesman Michael Patton argued that the settlement circumvented the real issue: whether pharmacists have a legal right not to perform services that violate their religious beliefs. (7) Moreover, the settlement does little for small pharmacy owners lacking staff or colleagues to make sure women receive the drug. (8)

Contraceptives create complex legal and moral issues for many pharmacists. Evidence supports the claim that oral contraceptives taken daily or on an emergency basis are abortifacients, (9) but state statutes do not provide pharmacists with the same protection from participating in abortions that they do physicians, nurses and other health care professionals. (10) Refusing to dispense contraceptives based on religious scruples has cost many pharmacists their jobs. (11) Government leaders are pursuing "must fill" legislation and regulation that would force some pharmacists to choose between their careers and their consciences. (12) Some states find other ways to make practicing pharmacy consistent with sincerely held religious beliefs difficult. (13) Commentators argue refusal to dispense is sex discrimination actionable under public accommodations laws, which threatens pharmacy owners, many of whom are themselves women. (14) One pharmacist received professional discipline for refusing to dispense contraceptives. (15) Opinion-makers are often extremely hostile, (16) and abortion rights activists talk as though they would like to eliminate religious believers from the health care industry. (17)

Tort law is a brighter spot in the law for pharmacists. …