JURIST Guest Columnist Marsha N. Cohen
, Professor of Law at the University of California Hastings College of Law, says governments have a responsibility to protect individuals' freedom by requiring health care businesses to fully meet health care needs, even over the objection of individual pharmacists...
n the battle about pharmacists who demand to “follow their conscience” and refuse to fill certain prescriptions, opposing parties have staked out extreme positions. In doing so, they obscure the reasonable middle-ground solution that represents the strength of the society we celebrate so noisily every Fourth of July.
As an adherent myself to a minority religion, I greatly appreciate the freedom I have at work as well as at home to follow the tenets of my faith. On the other side of the coin, I don’t expect my workplace to cease operations for my religious observances. When we celebrate our constitutional freedoms, we sometimes forget that one person’s freedom is another person’s sacrifice – and the Constitution protects us all. So while employers are required to accommodate religious practices and beliefs, the courts have recognized that they need not, and in fact may not, accommodate those practices and beliefs if to do so would discriminate against believers in other faiths or even nonbelievers. Statutory protections of religious belief (such as the federal Title VII) must steer carefully between the Scylla and Charybdis of the establishment and free exercise clauses of the First Amendment.
The pharmacists at the center of the recent refusal-to-furnish battles are surely not the first ones to seek accommodation for their religious beliefs. Many likely have been quietly accommodated, and appropriately so. Pharmacists whose religious beliefs conflict with filling birth control prescriptions can be scheduled for shifts when multiple pharmacists are on duty, or when few pickups occur, without significant interference either with the conduct of business or patient health care. Essentially this is the position incorporated in the Conscience Clause of the American Pharmacists Association’s Code of Ethics, which recognizes a pharmacist’s right to exercise conscientious refusal but the simultaneous need to ensure patient access to prescribed drugs. When such accommodation can easily be made, it should be made. While I appreciate the concern for health care availability of those who argue that you should not be a pharmacist if you object to any category of legal prescription medication, I fear where such an absolutist position leads. (Should I not be a professor because I refuse to teach during a few days of the scheduled school year?) In any case, the availability problem can be solved by requirements directed to pharmacies rather than to pharmacists.
The absolutists on the side of pharmacists demanding their “right” of conscience also need to recognize their responsibility to respect the freedoms of others – both the freedom to obtain medications that patients and their physicians deem necessary and the freedom not to share the refuser’s religious beliefs. A common theme in many of the high-profile recent skirmishes involving pharmacist refusals to fill prescriptions has been active interference with the patient’s right to obtain legal medications – more than just quiet compliance with conscience. Sometimes that interference has included a refusal to return or to transfer a prescription; the pharmacist’s conduct in those cases is clearly out of bounds. Whether you consider the prescription a form of property or just a medical record, it surely belongs to the patient and not to the pharmacist, unless it is being used for the purpose for which it was tendered (that is, unless it is being filled).
Often the pharmacist’s interference has included a lecture – the most extreme of which have allegedly included calling patients murderers or baby-killers, sometimes in front of other customers. To my mind, not only does such behavior exceed the bounds of ethical behavior by a professional, but it also violates existing federal law and probably some parallel state laws as well: the laws that protect our medical privacy.
The federal law that protects the privacy of our personal health information (HIPAA, the Health Insurance Portability and Accountability Act) and its implementing regulations detail when a “covered entity” (including every pharmacy) may use as well as disclose protected health information. “Use” is the key here. Personal health information may not be used for purposes unrelated to our health care. Pharmacies, as well as other health care providers, are required to have polices in place that limit the amount of health information disclosed “to the amount reasonably necessary to achieve the purpose of the disclosure.” And every patient has the right to “adequate notice of the uses” that may be made by the covered entity.
Implementation of HIPAA was responsible for that blizzard of paper about privacy rights we all received from our health care providers in 2003. I can’t say that I kept the paper I got from my pharmacy (or even, frankly, that I read it). But I’m willing to wager that neither my pharmacy nor any other has ever given any patients notice that their personal health information might be used to convince them of the immorality of their medical choices, to determine whether they were violating God’s law (in the opinion of the pharmacy’s representative), or to save their souls from eternal damnation. Nor would such uses in any case be related to health care as contemplated by HIPAA.
I can hear representatives of Pharmacists for Life International (which has provided coordination and leadership to refusing pharmacists) arguing that pharmacists aren’t “lecturing” patients; they are just providing them with important personal health information on the basis of which they might decide not to fill their prescriptions. That argument, however, would be transparently specious. The pharmacists in question have not been providing clinical information and education of the type often most available to and best understood by pharmacists. Reports suggest that a lot of misinformation has in fact been provided – for example, that birth control pills are dangerous for healthy women (a position obviously not shared by the Food and Drug Administration or the medical profession). Patients seeking birth control do not need to be “educated” that birth control medications prevent births. That’s why they are taking them. Not to mention that some patients report being vilified and embarrassed. More critically, the ultimate decision about health care belongs to the patient, but the pharmacists supposedly providing information want to make decisions for patients, not empower them to decide on their own. In fact, they have already decided not to fill the prescriptions in question, whatever the patient might choose. That is a pharmacist imposing his or her belief, not engaging in education.
Does HIPAA thus muzzle those pharmacists who want to take the opportunity of patients seeking birth control to convince them not to fill these prescriptions? Absolutely, if the “discussion” is not legitimately based on individual health-care concerns related to the patient (such as a drug contraindication) but rather on the pharmacist’s religious convictions. I don’t know whether the federal Department of Health and Human Services Office of Civil Rights, which enforces HIPAA, has received any such complaints, but it seems to me they would be entirely legitimate. If I hand a prescription to, or share my health care problems with, a pharmacist, I am entitled to expect that his or her use of that information will only be to promote my health and not to proselytize, embarrass, or frighten me based on his or her religious beliefs.
The middle-ground solution I favor – allowing pharmacists to quietly follow their religious beliefs to the extent they can be accommodated by their employers – also has application to the question of the responsibilities of a pharmacy rather than an individual pharmacist. The Illinois emergency rule to assure the availability of contraceptive medications was directed to pharmacies rather than individual pharmacists, an excellent solution to the problem of contraceptive availability. A state government’s significant interests in family planning and maternal and child health certainly are adequate justification to require that those who enter the pharmacy business make available at their licensed establishments a wide range of necessary family planning medications. Should holders of pharmacy licenses, like individual pharmacists, be allowed to seek conscience-based exceptions? If the licensee is an individual rather than a corporation, or a corporate license holder is a religious organization requiring the license for activities central to its religious mission, I would support a limited exception, even if the exception is not required by the Constitution. If making such exceptions proves to interfere with the availability of needed health care in a particular state, that state could review and narrow their availability. For-profit corporate holders of pharmacy licenses, however, regardless of their sense of their employees’ or stockholders’ beliefs, should have no such right of conscience; objecting stockholders can invest in other ventures if they do not wish to meet the mandated responsibilities of a health care provider.
To date, it appears that no state other than Illinois has adopted a requirement that its pharmacy licensees either stock or order prescription contraceptives or (if the patient prefers) transfer or return the prescription. California’s licensing board requires pharmacies that choose not to make emergency contraception services available to refer the patient to a provider who can provide them. Given the significant patient demand for prescription contraceptives, few retail pharmacies are likely to choose not to sell any of them. While the freedom we so value should be extended to individuals, even health care professionals, who act responsibly and respectfully while following their religious beliefs, government should not hesitate to protect the freedom of the rest of us by requiring health care businesses to fully meet our health care needs. Marsha N. Cohen is Professor of Law at Hastings College of the Law (University of California). She served two terms as a member of the California State Board of Pharmacy.