Pharmacist Refusals in Ohio: A Compromise

PHARMACIST REFUSALS IN OHIO: A COMPROMISE MEGAN N. NELSON * I. I NTRODUCTION “I promise to devote myself to a lifetime of service to others through the profession of pharmacy.” 1 So begins the Oath of a Pharmacist 2 ; but what is the ethical pharmacist to do when his or her conscience conflicts with the needs of a patient? At this cross-section of individual rights, how is the state to protect both individuals? Should he refuse to fill the prescription? Should she direct the patient to another pharmacist? How should pharmacists protect their beliefs without compromising their patients’ health or violating their patients’ rights? Pharmacists’ refusals to fill prescriptions based on religious, moral, or ethical objections have received national attention in recent years. Nicole Arteaga of Arizona appeared in the New York Times in 2018 when her pharmacist refused to provide an abortifacient, prescribed when her doctor could no longer find a fetal heartbeat, doubling her suffering. 3 Similarly, in Michigan, Rachel Peterson was turned away by a Meijer pharmacist when she sought to fill a prescription for an abortifacient to complete a miscarriage. 4 These refusals are not new as evidenced by the National Women’s Law Center’s numerous examples of women being refused * J.D. Capital University Law School (2020) and Editor-in-Chief of the Volume 48 Capital University Law Review; M.H.A. Franklin University (2016); B.S. Biochemistry, The Ohio State University (2015). The author thanks everyone who provided support and assistance in writing and publishing this comment. The views in this comment, as well as any errors or omissions, are entirely my own. 1 Oath of a Pharmacist , AM. PHARMACISTS ASS’N (last viewed Oct. 11, 2019), https://www.pharmacist.com/oath-pharmacist [https://perma.cc/Y828-S96Z]. 2 Id. 3 Louis Lucero II, Walgreens Pharmacist Denies Woman with Unviable Pregnancy the Medication Needed to End It , N.Y. TIMES (June 25, 2018), https://www.nytimes.com/ 2018/06/25/us/walgreens-pharmacist-pregnancy-miscarriage.html [https://perma.cc/VY7JC8W7]. 4 Elisha Fieldstadt, Michigan Pharmacist Denies Woman Miscarriage Medication Over Religious Beliefs , NBC NEWS (Oct. 18, 2018), https://www.nbcnews.com/news/usnews/meijer-pharmacist-denies-michigan-woman-miscarriage-medication-citing-religious-beliefs-n921711 [https://perma.cc/QN8J-QXSK]. 238 CAPITAL UNIVERSITY LAW REVIEW [48:237 contraception as far back as 2004. 5 Sometimes, these conflicts occur over emergency contraception, when a patient seeks to purchase emergency contraception but the pharmacist refuses to sell it because he believes he is facilitating sin by doing so. 6 For example, a Wisconsin pharmacist called a woman with a prescription for emergency contraception “a murderer” and declined to fill it. 7 In Ohio, people seeking emergency contraception may legally be turned away by pharmacists claiming a moral or religious objection to providing the drug. This comment proposes a state statute prohibiting all Ohio pharmacists working for privately owned pharmacies from refusing to fill prescriptions for, or otherwise sell, emergency contraception for personal, moral, ethical, or religious reasons without either (1) a referral to another pharmacist within the pharmacy within 72 hours or (2) a referral to another pharmacist located within a reasonable distance from the pharmacy. Some pharmacists may argue that any action they take against their consciences would infringe their First Amendment rights. These pharmacists would undoubtedly find this statute extraordinarily burdensome and would challenge it in the court system, either under federal or Ohio law. The legislature and courts, however, must balance pharmacists’ rights with the rights of the patients they serve. As the United States Supreme Court has recognized: Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. 8 Keeping this principle of balance in mind, the statute this comment proposes seeks to establish a compromise between pharmacists and their 5 Pharmacy Refusals 101 , NAT’L WOMEN’S L. CENTER (Dec. 28, 2017), https://nwlc.org/resources/pharmacy-refusals-101/ [https://perma.cc/6DFX-Y4GJ]. 6 Douglas Nejaime & Reva B. Siegel, Feature, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics , 124 YALE L.J. 2516, 2576 (2015). 7 Id. He stated, “You're a murderer! I will not help you kill this baby. I will not have the blood on my hands.” Id. (footnote omitted). 8 United States v. Lee, 455 U.S. 252, 261 (1982). 2020] PHARMACIST REFUSALS: A COMPROMISE 239 patients, giving equal respect to both parties’ interests. It proceeds by first giving background information on emergency contraception available in pharmacies and explains why Ohio should prioritize passing a law to reasonably limit pharmacist refusals. It proceeds by analyzing potential challenges at the federal and state levels, ultimately concluding that the proposed statute should survive a challenge under either federal or state law. A. Background The United States Supreme Court has recognized the importance of protecting women’s power to make their own choices about their reproductive health, stating that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” 9 This important interest sometimes competes with others’ interest in freedom of religious exercise. To adequately protect both parties’ rights, particularly in the healthcare arena, the Ohio General Assembly should adopt a statute with clear guidelines. Otherwise, pharmacists may continue to refuse to fill prescriptions for or sell over-the-counter emergency contraception, an experience that women across the country have suffered through. 10 Before this comment proposes a specific solution, however, it must first explain what emergency contraception does, the controversy over its use, and why pharmacist refusals cannot be allowed to continue. 1. Emergency Contraception—An Explanation Women who have engaged in unprotected sexual intercourse can still try to avoid pregnancy using emergency contraception. 11 Three types of emergency contraception are medications that can be purchased at a 9 Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992) (citations omitted). 10 Pharmacy Refusals 101 , NAT’L WOMEN’S L. CENTER (Dec. 2017), https://nwlcciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2017/12/Pharmacy-Refusals-101.pdf [https://perma.cc/BB2K-MMMY]. 11 FAQ114 Contraception: Emergency Contraception , AM. C. OBSTETRICIANS & GYNECOLOGISTS 1 (May 2019), https://www.acog.org/Patients/FAQs/Emergency-Contraception [https://perma.cc/N3LL-X4GN]. Unprotected sexual intercourse may refer to when a woman has failed to use a contraceptive, when a chosen form of contraception has failed, or in the event of a sexual assault without, or with improper use of, contraception. Emergency Contraception , WORLD HEALTH ORG. (Feb. 2, 2018), https://www.who.int/news-room/fact-sheets/detail/emergency-contraception [https://perma.cc/ZZ4Q-LL45]. 240 CAPITAL UNIVERSITY LAW REVIEW [48:237 pharmacy. 12 Any person “of any age” can purchase “[t]he progestin-only pill” without a prescription, while “Ulipristal [and] combined birth control pills,” both require valid prescriptions. 13 None of these medications “ends an existing pregnancy”; they merely “prevent[] pregnancy from occurring” if taken before pregnancy begins. 14 Because they will become ineffective after a fertilized egg has become implanted, 15 these medications must be taken as soon as possible “after unprotected sexual intercourse to be effective.” 16 Both the progestin pill and Ulipristal operate primarily by stopping ovulation. 17 However, the FDA states that Levonorgestrel (the progestin pill) and Ulipristal Acetate may also work by preventing a fertilized egg from attaching. 18 While many people would agree that preventing ovulation is another form of contraception, many people alternatively believe that life begins when an egg is fertilized, and these people would view the prevention 12 AM. C. OBSTETRICIANS & GYNECOLOGISTS, supra note 11, at 1. Another form of emergency contraception, “the copper intrauterine device (IUD),” can only be provided by a doctor. Id. Mifepristone is another drug that can be used as emergency contraception, but it can also be used to induce an abortion early in pregnancy. JAMES TRUSSELL ET AL., EMERGENCY CONTRACEPTION: A LAST CHANCE TO PREVENT UNINTENDED PREGNANCY 2 (2019), https://ec.princeton.edu/questions/ec-review.pdf [https://perma.cc/TY9H-3M4Q]. Mifepristone used to be known as RU-486. The Abortion Pill , PLANNED PARENTHOOD, https://www.plannedparenthood.org/learn/abortion/the-abortion-pill [https://perma.cc/98NC-RFHE] (last visited Feb. 24, 2019). Because IUDs and medically classified abortifacients are beyond the scope of this comment, references to emergency contraception hereinafter will exclude IUDs and Mifepristone. 13 AM. C. OBSTETRICIANS & GYNECOLOGISTS, supra note 11, at 2. 14 Id. at 1. 15 TRUSSELL ET AL., supra note 12, at 8. 16 AM. C. OBSTETRICIANS & GYNECOLOGISTS, supra note 11, at 1. 17 Birth Control , U.S. FOOD & DRUG ADMIN., https://www.fda.gov/consumers/free-publications-women/birth-control#EC [https://perma.cc/4S77-E9XL] (last updated Mar. 6, 2018). Researchers with the Office of Population Research at Princeton University have concluded “that the best available evidence is that the ability of levonorgestrel and ulipristal acetate ECPs to...