Religion, conscience, and access to medications

On the Docket

Religion and medication was a hot topic of case law in September 2012. Four recent judicial opinions provide guidance for pharmacists as they sort through the responsibility to respect individual beliefs while not creating unreasonable barriers to the acquisition of pharmaceutical products and services.

Injunction favoring pharmacists

The Appellate Court of Illinois upheld an injunction protecting two pharmacists from enforcement of an Illinois rule requiring pharmacists to dispense or aid in the dispensing of emergency contraceptives. The pharmacists explained that “they have religious-based objections to participating in any way in dispensing emergency contraceptives due to their beliefs that these contraceptives may prevent a fertilized egg from attaching to a woman’s uterus” and cited the Illinois Conscience Act.

Even though the words “pharmacist” and “pharmacy” are not used in the Conscience Act, the court ruled that the act applies to pharmacists because pharmacists provide “health care services” which are covered under the act. While the act requires health professionals to provide “emergency services,” the court held that emergency contraception does not qualify as an emergency under the plain and ordinary meaning of the term “emergency.” As to these two pharmacists, the state was enjoined from enforcing the rule.

Challenge to ACA

Two secular, for-profit companies challenged a provision of the Affordable Care Act (ACA) that requires coverage “with respect to women, [of] such additional preventive care and screenings as provided for in comprehensive guidelines supported by the Health and Resources and Services Administration.” The companies claimed that this coverage would include oral contraceptives, and for that reason they faced a choice between “complying with the ACA’s requirements in violation of their religious beliefs, or paying ruinous fines that would have a crippling impact on their ability to survive economically.”

A U.S. District Court in Missouri disagreed with the companies, noting that they “remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives.” The court dismissed the case.

Amending suit to include religious discrimination

A pharmacist in Pennsylvania objected to a requirement by his employer that he become a certified immunizer. He informed pharmacy management that he was opposed to administering flu vaccination because he had a very close friend who died from Guillain-Barré syndrome following a flu vaccine. After his employment was terminated, the pharmacist filed an age discrimination claim against the pharmacy because he was replaced by a younger person. The pharmacist later sought to amend his lawsuit to include religious discrimination. A U.S. District Court denied the request, noting that the pharmacist clearly stated he was opposed to immunizations due to his friend’s death. The court said, “This is a personal preference and not a religious belief.”

Evidence of policy development required

An Idaho pharmacist filed a religious discrimination claim objecting to his employer’s immunizer policy, saying that he “follows Kriya Yoga, which teaches that harming another person will engender bad karma upon reincarnation.” He requested that the pharmacy produce evidence of conversations related to drafts of the policy which created a system to ensure patient access with exceptions for objecting pharmacists. The pharmacy refused, citing attorney–client privilege since attorneys had been involved in drafting of the policy.

The U.S. District Court hearing the case noted, “The mere fact that an attorney is in the room when business matters are discussed does not render the conversation privileged.” Only legal advice given by counsel is privileged. The pharmacy was required to produce evidence of conversations “regarding factual matters or business-related considerations” during the meetings.

Conclusion

Pharmacists who face dilemmas regarding conscientious objection will find guidance in APhA policy that supports pharmacists who step out of the way based on religious beliefs, without supporting those who step in the way. It states, “APhA recognizes the individual pharmacist’s right to exercise conscientious refusal and supports the establishment of systems to ensure patient’s access to legally prescribed therapy without compromising the pharmacist’s right of conscientious refusal.”

Based on: Morr-Fitz, Inc. v Quinn, 2012 IllApp. LEXIS 783 (September 20, 2012); O’Brien v. USDHHS, 2012 U.S.Dist. LEXIS 140097 (September 28, 2012); Prewitt v. Walgreens, 20121 U.S.Dist. LEXIS 137027 (September 25, 2012); Dewitt v. Walgreen Co, 2012 U.S.Dist. LEXIS 125493 (September 4, 2012).