BY SCOTT WACHTLER
Can a pharmacist refuse to fill prescriptions for moral reasons? This very question was the topic of discussion last week in the Ames Courtroom at Harvard Law School. About 40 people where on hand for the event to hear all sides of the issue.
The panel discussion – titled “Drugstore Cowboys” – was cosponsored by Harvard Law School for Choice, along with The Society for Life, Law and Religion. Moderator Holly Fernandez-Lynch introduced Paul Garbarini, pharmacist, attorney and professor at Northeastern University; Rachel Laser, Senior Policy Advisor, Third Way; Mark Rienzi, Attorney, WilmerHale; and Teresa Collett, Professor at the University of St. Thomas School of Law. Garbarini and Laser spoke on behalf of HLS for Choice, while Rienzi and Collett spoke on behalf of The Society for Life, Law and Religion.
Rienzi answered the question posed to the panel about whether a pharmacist can refuse to fill a prescription. “I think the answer is that they should, and generally speaking, under our law they do,” he said.
Rienzi said that the Constitution protects religious liberties. In addition, Title VII of the 1964 Civil Rights Act states that employers need to reasonably accommodate the religious beliefs and practices of their employers. Furthermore, some states have enacted Health Care Rights of Conscience legislation. This offers protection to people engaged in the delivery of health care services.
Rienzi believes that in most cases the issue of who supplies emergency contraception should be a solvable one. “Most would agree that there is no need to force any particular pharmacist to violate their religion when you can provide the drug some other way,” he said.
Other ways would be to allow another pharmacist to fill the prescription or to allow theses drugs to be available over the counter.
Collett started by asking how much we wanted to restrict professional discretion. “Professionals are not vending machines,” Collett said. “By the very definition of what they do, they must exercise judgment.”
Collett gave examples of when it would be appropriate for pharmacists to intervene in dispensing medications. She cited the scene in the 1946 movie, It’s a Wonderful Life when a young George Bailey prevents a druggist from dispensing pills after having seeing him mistake the proper medication for poison.
Collett’s more real world examples asked what a pharmacist should do when presented with a prescription for Viagra by a 16 year-old boy. “Let us assume that this particular pharmacist believes that such a prescription serves no useful purpose other than to encourage this child . . . to engage in unrestrained sexual conduct,” Collett said.
She furthered the example asking, “[What if] the patient who is presenting the prescription for Viagra is a known sex offender? Is it appropriate for [the pharmacist] to exercise some professional discretion in those settings?”
Laser warned the panel of falling down a slippery slope, and tried to center the topic on where it stands: birth control.
“What we’re here to talk about today,” she said, “is a pharmacists’ right to refuse to dispense birth control, and I do mean birth control.”
Laser said that this is important because at the heart of issue is fairness to women. “Prescription contraception is only available to women. It is only women who can get pregnant, and it is only women who have to endure the humiliation and other costs and risks of being denied,” she said.
Laser said that there are explicit examples of when a pharmacist has a right to refuse. Laser explained that it is the right and obligation of a pharmacist to refuse when they feel that the prescription is forged, or that it is illegal. “The fact that there is a very clear list [of] delineated exceptions, makes it clear that there is an implicit duty to dispense in other cases,” She said.
As a pharmacist and a lawyer, Garbarini said that he has seen this issues come up more frequently because there has been a lot of debate in the pharmacy community about whether consciousness laws can be applied to modern pharmacy practices.
“I feel that pharmacists have a big role to play in health care,” Garbarini said. “My problem is where discretion is employed in the pharmacy setting on a conscious basis because there are no guidelines. It s riddled with ambiguity.”
In Garbarini’s view, health care is a fundamental right and he sees no reason why the state should be involved in denying access to a fundamental right.
“In 99 percent of the cases a valid licensed medical practitioner has made an evaluation of this [patient] and decided . . . that this is the best treatment,” Garbarini said. “A pharmacist is then allowed to determine whether or not, by the terms of their consciences, they feel comfortable filling it? I have a hard time understanding why.”