COVER STORY

CONFRONTATION AT THE COUNTER

The issue of pharmacists' versus patients' rights is producing conflicts and pink slips

When a Wisconsin pharmacist was presented with a prescription for birth control pills, he not only refused to dispense the script or refer it to another pharmacy, he refused to give it back to the patient based on his religious beliefs. He is now facing a disciplinary hearing brought by the state board of pharmacy.

Last February, an Eckerd pharmacist in Denton, Texas, refused to dispense emergency contraception to a woman identified as a rape victim. The pharmacist was fired.

Last spring, a Raleigh man complained to the North Carolina pharmacy board that a pharmacist refused to dispense an emergency contraceptive to his wife and lectured her on religion. The pharmacist was reportedly fired.

In March, a CVS pharmacist in North Richland Hills, Texas, refused to refill a prescription for birth control pills because the drug violates her personal beliefs. CVS declined to comment on whether the pharmacist was fired.

The refusal of the CVS pharmacist to dispense birth control pills was a wake-up call to the Planned Parenthood Federation of America, which had been focusing on protecting abortion rights, not women's access to birth control pills. President Gloria Feldt fired off an angry letter to CVS, demanding that the drugstore chain's CEO personally promise that such a "completely inexcusable" incident would never happen again.

Suddenly, Americans are waking up to the fact that women are being confronted at the counter by pharmacists asserting a religious or moral right to refuse to dispense hormonal contraceptives or emergency contraceptives. An estimated 12 million American women use hormonal contraceptives for birth control. But the drugs can also be prescribed for many other indications, including acne, fibroids, endometriosis, and to regulate menstrual periods.

The crux of the current conflict is the question of when pregnancy begins. The long-standing medical definition held by the American College of Obstetricians and Gynecologists is that pregnancy begins when the fertilized egg is implanted in the uterine lining. But pharmacists who refuse to dispense hormonal contraceptives believe that pregnancy begins at fertilization. In the event that birth control pills do not suppress ovulation and an egg is fertilized, these R.Ph.s believe the drugs cause a chemical abortion. And some pharmacists believe that referring the patient to another pharmacist or pharmacy makes them unwilling parties to abortion.

Policy manual

In the media uproar triggered by the Texas cases, reporters often pointed to the American Pharmacists Association's formal policy statement about the rights of pharmacists to refuse to dispense and the need to set up systems to be sure patients get their scripts filled. The trouble with the 30-second TV sound bites is that the reporters failed to grasp that the pharmacists in the Texas and Wisconsin incidents were not following the profession's policy, said Susan Winckler, R.Ph., APhA VP-policy and communications and staff counsel. Those pharmacists failed to ensure the patient's access to legally prescribed medications.

"Some media coverage gave consumers the impression that in some situations, the pharmacist actually followed our policy recommendations when they actually did not," said Winckler, who fielded numerous consumer e-mails and phone calls. "When implemented in the right way, the APhA policy is seamless to the patient."

Trying to walk a fine line while still respecting the rights of patients and the rights of pharmacists, APhA developed and adopted the policy to guide the profession when it comes to matters of conscience. In 1998, the association's house of delegates adopted a resolution that states, "APhA recognizes the individual pharmacist's right to exercise conscientious refusal and supports the establishment of systems to ensure patient access to legally prescribed therapy without compromising the pharmacist's right of conscientious refusal."

The policy provides a framework for accommodation of pharmacists' personal beliefs without denying patients access, said Winckler. "It says the pharmacist can step away, but the patient has to have access to the therapy," she said. "Some pharmacists have crossed the line from stepping away into obstructing access. "

The APhA position is based on an approach developed in the mid-1990s by Kenneth Mullan of Northern Ireland and University of Florida faculty members William Allen and David Brushwood. They postulated a system that would permit an objecting pharmacist to withdraw from the activity and provide an alternate means to make the medication available to the patient.

"The policy you develop becomes the basis to respect the pharmacist who says No but set up a mechanism to ensure the patient gets the prescribed therapy," said Brushwood. "It can almost always be done. Sometimes it works formally, and sometimes it works informally. I talk to district managers all the time who tell me, 'If I have a pharmacist who has a well-founded objection to a therapy, then I tell him or her to call me and I'll either come over and dispense it or find someone else who can or wait until a relief person comes in. And I'll stand behind you and call the patient to say that the medication won't be available until later this afternoon.' "

Couching the argument in terms of pitting pharmacists against patients is a false premise, said Brushwood. "Should we respect the patient's right to get legal and appropriate medication, or should we respect the pharmacist's right to refuse to dispense? My answer is that it's a false choice. Within the system we have developed in the profession, we can do both. If you don't have to choose, why choose."

Pharmacists have a right to conscientiously object to a therapy but they do not have a right to object to the patient's seeking that therapy, Brushwood said. One example would be a pharmacist who refuses to dispense AIDS drugs because he believes homosexuality is a sin.

The system of accommodation will not work with pharmacists who refuse to consider that there is truth in the positions of others who do not share their views, said Brushwood. Occasionally, the system fails to work when a pharmacist had an opportunity to opt out but decides not to invoke the mechanism to get the medication to the patient, he added.

"You have a few highly publicized, unusual cases that come up every five or six years, and I believe they are generally the result of a single person who wants the publicity and gets it,"said Brushwood.

Counterpoint

Wisconsin pharmacist Neil Noesen has had his share of publicity, wanted or not. He's something of an outlier among pharmacists who refuse to dispense. He not only refused to refill a script for oral contraceptives or to transfer the Rx, he declined to give the script back to the patient when she asked for it. He is now facing an administrative law hearing for the actions he said were motivated by his religious beliefs. The subject of a Feb. 23 article in Drug Topics, he has declined to comment further on his situation due to the hearing, which has been postponed several times.

Noesen or any other pharmacist who refuses to dispense hormonal contraceptives or emergency contraceptives has no duty to refer the patient to get the script filled, according to Karen Brauer, an Indiana pharmacist who is president of the antiabortion group Pharmacists for Life International (PFLI), which has 1,500 R.Ph. members.

"There is no moral or ethical obligation to tell a person where to get a drug that is detrimental," Brauer said. "Any patients who can transport themselves to a pharmacy can obtain the product they desire without need of a direct referral. Patients have proven themselves to be quite resourceful in obtaining pharmaceuticals. The referral rhetoric has been a tool to obtain involvement by the unwilling in dispensing drugs that stop human life or are detrimental. Obtaining the involvement of the unwilling has been used as a tool to legitimize the procedures and drugs that are in controversy."

Brauer is a veteran of the conscience wars who has become a go-to source for the media in search of a spokesperson for pharmacists who refuse to dispense. Her tale began in 1996 when she was confronted by a patient with a prescription for Micronor (norethindrone, Ortho-McNeil Pharmaceutical), which she refuses to dispense based on a conscientious objection. Such scripts had not been a problem before because she simply had another pharmacist dispense them. But she was the only pharmacist on duty that day at the Kmart where she was working, so she lied and told the patient the pharmacy was out of the drug. The patient found out that she had been lied to and complained to the chain.

When Brauer refused to promise to dispense all legal prescriptions, including Micronor, in the future, she was fired. She subsequently filed a lawsuit against Kmart for religious discrimination. However, she said the suit has languished in federal court since the chain declared bankruptcy. A public interest law firm founded by Pat Robertson of the Christian Coalition, the American Center for Law and Justice, has been providing her with legal assistance.

Pharmacists certainly can honor their religious or moral beliefs by refusing to dispense drugs to which they personally object, but they have a corresponding duty to steer the script to another pharmacist in the store or to another pharmacy, said Clarence Gissendanner, a Georgia pharmacist who is a trustee of an association of Christian pharmacists. Speaking strictly on his own behalf, he added, "Pharmacists have a legal obligation to transfer or provide advice to patients and providing that service should not be objectionable."

Coming to terms

The APhA policy is intended to minimize confrontations at the counter by urging employers and pharmacists to work out arrangements they can both live with so that patients are not denied access to medications. The problem has been a gap between the policy and practice in the pharmacy, said Winckler. "This is something you have to think about before the patient walks into your pharmacy," she told Drug Topics. "You have to have an alternative set up in advance. That's where the proactive part comes in because alternative sources are hard to come up with on the fly."

Ethical employers should inform pharmacists of the company's policy on filling legal prescriptions and have the pharmacist sign a statement that he or she would fill any prescription for a drug routinely stocked in the pharmacy, according to Gissendanner. He added that the employer would have the right to fire pharmacists who signed the statement but then refused to dispense some drugs.

"I think the pharmacist should inform the employer during the job interview that there are certain drugs he or she would not dispense," said Gissendanner, who is semiretired and practices part-time only in pharmacies that do not stock the drugs he believes cause abortions. "If the employer agrees to hire that pharmacist, then the employer should provide the pharmacist with a legal document exempting him or her from dispensing those drugs. On the other hand, ethical employers should know this is an issue and should have a clear understanding with their pharmacists on what is expected at their practice sites. Today, with so many areas of pharmacy practice, pharmacists can pick and choose what area they want to practice in. Pharmacists should always have the right to speak out against any practice that seems to be contrary to their beliefs."

Telling her employer of her views didn't protect her job, said Brauer. She added that pharmacists "can't really practice pharmacy without accessing our own view of what is healthy for the patient. We can't really accept liability without having our own dispensing authority. I recognize that the employers need to make a profit, but a pharmacist can contribute to profitability without being expected to participate in killing or other practices deemed unhealthy for the patient."

Gimme shelter

Many abortion foes, like Brauer and PFLI, have been trying to build a legal shield around pharmacists to protect them from retaliation by employers. But so far, South Dakota is the only state that has enacted a conscience clause for pharmacists who refuse to dispense medications based on religious or moral beliefs.

That 1998 law has become a blueprint for conscience clause legislation now being considered in 13 states, including Illinois, Indiana, Michigan, Missouri, New York, Ohio, Texas, and Wisconsin. In many states, antiabortion activists have tried several times to secure passage of a conscience clause, but the usual fate of such bills is a slow death in committee. Few legislators want to venture too close to the volatile issue of abortion, which is at the heart of conscientious objection.

"It's a pretty contentious issue when you get into the area of pharmacists and dispensing of hormonal contraceptives," said Matte Sande, legislative affairs director, Pro-Life Wisconsin, which has been trying to pass an R.Ph. conscience clause for years. "We know birth control is a very sensitive issue, politically, socially, and culturally. This is a small labor protection bill that doesn't prohibit anything, but it would face such strong opposition because it's a polarizing issue."

Hands off

State pharmacy boards are just as skittish as state legislators when it comes to stirring up the hornet's nest of women's reproductive rights and abortion. While they do not require R.Ph.s to fill every script, most boards have not specifically addressed the issues raised by refusal to dispense based on religious or moral tenets.

Given an opportunity to go on the record in support of a policy that mirrors the APhA position, pharmacy board members said, "No, thanks." The offer came in the form of a resolution introduced by the North Carolina delegation at the recent annual meeting of the National Association of Boards of Pharmacy in Chicago. The resolution called on NABP to recommend that pharmacists who refuse to dispense emergency contraceptives have a responsibility to direct the patient to another pharmacist or pharmacy. Without a word of discussion, the delegates rejected the statement by unanimous voice vote.

"My assumption is that the delegates recognized it as a moral issue and pharmacists have traditionally not wanted to take a position on moral issues," said David Work, executive director of the North Carolina pharmacy board. "Rather than say something, they say nothing. That's a disappointment. The profession is not dealing with this issue. The inaction at NABP reflects that."

Brushwood, who has worked closely with NABP and state pharmacy boards on other issues, finds that boards do not want to touch the issue until and unless they are confronted by a specific case. "Pharmacy boards are not going to engage in a hypothetical discussion," he said.

The profession hasn't really faced up to the conscience-versus-duty issue, according to Brushwood. But he also believes that the refusal to dispense might be a sleeping dog best left lying. "The profession has comfortably but not adequately addressed it," he said. "But adequately addressing it would lead to a divisiveness that I'm not sure we need right now. It would be so controversial, so emotional, so divisive, that it might be better off to leave things as they comfortably but inadequately are."

Carol Ukens

New franchise for R.Ph.s is based on personal beliefs

A Louisiana pharmacy owner has franchised his vision of a pharmacy in which pharmacists can practice according to the dictates of their personal religious or moral principles.

The Remedies Apothecary Inc. franchise is the brainchild of Lloyd Duplantis. He owns Lloyd's Remedies Apothecary in Gray, La., where he does not stock contraceptives. He wants to help R.Ph.s start their own pharmacies where they can practice according to their consciences. So far, he has signed deals with two franchisees, both in Louisiana.

"I'm not implying that anyone else is not working on principles," said Duplantis. "It's just that some people have specific inclinations that are more important to them than others. Our basic premise is that it allows pharmacists to be able to have the freedom to avoid those areas they don't feel comfortable with or don't agree with."

After four years of ownership, Duplantis said he has built his pharmacy business to about 160 scripts per day and is headed for $2 million in sales this year in a community of about 2,000 souls. His decision not to stock contraceptives has not been a big deal. When his clerks inform patients of the policy, they simply go elsewhere to get the scripts filled.

Duplantis has developed four business modules. The franchise module is for start-ups, the managerial module is for independents who need help improving the operations of their existing pharmacies, the bookkeeping module helps independents get a handle on accounting, and the Medicare module is a blueprint for jump-starting a durable medical equipment business.

"We're offering a relatively inexpensive franchise," said Duplantis. "The biggest thing we offer is getting you started and minimizing mistakes at the beginning. We structure a business plan that can be taken to the bank to arrange financing."

For more information about the Remedies Apothecary franchise, phone (985) 872-4547 or go to www.lloydsremedies.com/Franchise.htm.

Wisconsin R.Ph.s seek passage of conscience clause

After years of failing to win passage of conscience clause legislation to legally protect pharmacists who refuse to dispense certain medications, abortion foes in Wisconsin are trying to turn up the political heat with a statewide petition drive.

"Pharmacists deserve conscience protections, not pink slips," is the catchphrase of the petition being circulated by Pro-Life Wisconsin in the months leading up to the start of the 2005 legislative session. The petition also states, "Let's tell the Wisconsin legislature to stop employment discrimination against pharmacists who refuse to participate in abortion and euthanasia."

So far, 1,000 signatures have been gathered, said Matt Sande, Pro-Life Wisconsin legislative affairs director. But the group is hopeful a full-court press during the upcoming county fair season will boost the count to the target of 15,000 signatures.

The antiabortion group had introduced its own conscience clause bill for pharmacists and supported another piece of legislation for medical professionals. But when an amendment was added to that bill gutting protection for pharmacists, Pro-Life backed off, said Sande. The offending change eliminated the conscientious objection umbrella for contraceptive drugs, which the group regards as abortifacients. The governor eventually vetoed the bill anyway.

"We hope we can get a bill that is all-inclusive," said Sande. "We're talking about a labor protection bill, not banning birth control or abortion. But even then, it's tough for a lot of people to swallow. It's an uphill battle."

 

Carol Ukens. CONFRONTATION AT THE COUNTER. Drug Topics Jul. 26, 2004;148:26.