Religion in the Pharmacy: A Balanced Approach to Pharmacists Right To Refuse To Provide Plan B

Religion in the Pharmacy: A Balanced Approach to Pharmacists Right To Refuse To Provide Plan B CATHERINE GREALIS* TABLE OF CONTENTS INTRODUCTION... 1715 I. HISTORY OF CONSCIENCE CLAUSES... 1718 II. THE CLASH OVER PHARMACISTS FREEDOM OF CONSCIENCE... 1720 A. COMPETING VIEWS OF PHARMACISTS ROLE IN SOCIETY... 1720 B. THE IMPETUS FOR THE DEBATE... 1721 C. OVERVIEW OF FEDERAL AND STATE LEGISLATION... 1722 D. STATES WITH CONSCIENCE CLAUSE PROTECTION... 1723 E. STATES WITH DUTY TO DISPENSE LAWS... 1725 III. FREE EXERCISE CHALLENGES TO DUTY TO DISPENSE LAWS... 1726 A. OVERVIEW OF FREE EXERCISE OF RELIGION CLAIMS... 1727 B. ANALYSIS OF DUTY TO DISPENSE LAWS... 1729 III. A BALANCED APPROACH TO CONSCIENTIOUS OBJECTIONS... 1731 A. ACCESS TO PLAN B... 1732 B. PROPOSED STATUTE... 1734 CONCLUSION... 1737 INTRODUCTION In December 2006, a young woman went to her local Rite-Aid pharmacy in Seattle, Washington, to get non-prescription emergency contraception after her normal method of birth control failed. 1 Although the pharmacy carried emergency contraception, the pharmacist refused to give it to her because he * Georgetown Law, J.D. 2009; University of North Carolina at Chapel Hill, B.S. 2004. 2009, Catherine Grealis. I would like to thank Professor Steven Goldberg for his comments throughout the early development of this Note. I would also like to thank Professor Jeffrey Shulman for his encouragement and advice, and the editors and staff of The Georgetown Law Journal for all their hard work. 1. NAT L WOMEN S LAW CENTER, PHARMACY REFUSALS 101, at 2 (2008), http://www.nwlc.org/pdf/ Pharmacy%20Refusals%20101.pdf. 1715

1716 THE GEORGETOWN LAW JOURNAL [Vol. 97:1715 thought it was wrong. 2 The pharmacist did find another pharmacy in the area that would provide her the drug, but only after her repeated insistence that he do so. 3 Stories such as this one, of pharmacists refusing to dispense emergency contraception on religious or moral grounds, have become more frequent in recent years. 4 While physicians and other healthcare providers have been legally permitted to object to abortions and other procedures on conscience grounds for decades, 5 such protections rarely extend to pharmacists with regard to emergency contraception. 6 With the increased demand for Plan B, a form of emergency contraception, and the FDA s recent approval of the drug for over-the-counter sale, 7 pharmacist refusals have received increased attention by the media. 8 Because emergency contraception may be effective even after an egg has been fertilized, many consider it to be analogous to an abortion. 9 And according to national surveys, over thirty-five percent of pharmacists say that they would refuse to dispense drugs that cause an abortion, 10 which is how some pharmacists characterize Plan B. 11 States have taken divergent approaches to pharmacists refusals to dispense Plan B. Some have adopted broad conscience clause protection for pharmacists. 12 Other states, however, have adopted duty to dispense laws to protect women s access to the drug, which either prohibit or limit pharmacists ability to refuse on conscience grounds. 13 While most states have yet to weigh in, lawmakers continue to grapple over whether to protect a pharmacist s freedom of conscience or a woman s access to emergency contraception. 14 2. Id. 3. Id. 4. See id. at 1 2 (listing pharmacist refusals); see also Marilyn Gardner, Pharmacists Moral Beliefs vs. Women s Legal Rights,CHRISTIAN SCI.MONITOR, Apr. 26, 2004, at 11. 5. See Kaiser Family Foundation, States that Allow Individual Providers to Refuse Women s Health Services (Jan. 1, 2009), http://www.statehealthfacts.org/comparetable.jsp?ind 499&cat 10#footnote1 (reporting that forty-six states permit healthcare providers to refuse abortion services and sixteen states permit refusals for sterilization services); see also discussion infra Part I. 6. See discussion infra sections II.C D. 7. See Press Release, U.S. Food & Drug Admin., FDA Approves Over-the-Counter Access for Plan B to Women 18 and Older: Prescription Remains Required for Those 17 and Under (Aug. 24, 2006) [hereinafter FDA Press Release], available at http://www.fda.gov/bbs/topics/news/2006/ NEW01436.html. 8. See, e.g., Pharmacist s Refusal to Fill Emergency Contraception Script Raises Questions, WOM- EN S HEALTH WKLY., Mar. 18, 2004, at 55. 9. See discussion infra section II.A and accompanying notes. 10. Jennifer E. Spreng, Pharmacists and the Duty to Dispense Emergency Contraceptives, 23 ISSUES L.& MED. 215, 218 (2008) (discussing national surveys of pharmacists). The percentage of objecting pharmacists increases to almost forty-five percent in regions such as the Midwest and Southeast. Id. 11. See discussion infra section II.B. 12. See Nat l Conference of State Legislatures, Pharmacist Conscience Clauses: Laws and Legislation (Nov. 2007), http://www.ncsl.org/programs/health/conscienceclauses.htm. 13. See, e.g.,ill.admin.code tit. 68, 1330.91(j) (2008). 14. See discussion infra section II.C.

2009] RELIGION IN THE PHARMACY 1717 Adding to the controversy, pharmacists have recently challenged duty to dispense laws on free exercise of religion grounds. 15 The constitutionality of these laws is questionable, and they may fail against pharmacists free exercise claims. A challenge to one such law has been appealed to the Ninth Circuit, 16 and a decision by that court could influence lawmakers consideration of similar legislation in the future. Notwithstanding their constitutional viability, duty to dispense laws are unwarranted. Such laws put pharmacists in the unfortunate position of following either the law or their religious beliefs. Moreover, extending freedom of conscience protection to pharmacists does not require restricting a woman s access to Plan B. This Note takes the position that pharmacists freedom of conscience should be protected. However, pharmacists right to object on conscience grounds must be balanced against the need for women to access Plan B. For this reason, current state conscience clauses lack sufficient protection for women. A better approach is one that affirmatively protects pharmacists freedom of conscience while including safeguards that protect patient access to prescription drugs. Part I of this Note discusses the history of freedom of conscience protection in the United States. Part II then addresses the current controversy surrounding pharmacists freedom of conscience. Part II first presents two competing viewpoints of pharmacists role in society, which may affect their freedom of conscience protection. It then discusses Plan B, the emergency contraception that helped instigate the debate, and provides an overview of federal and state legislation in this area. Part III addresses the constitutionality of duty to dispense laws enacted in various states. In focusing on pharmacists challenges under the Free Exercise Clause, this Part begins by briefly discussing the Supreme Court s approach to free exercise claims generally. The Court dramatically altered its approach to the Free Exercise Clause in Employment Division, Department of Human Resources v. Smith, 17 and this decision has important implications on what standard of review is appropriate in analyzing duty to dispense laws. This Part concludes by discussing two recent challenges to duty to dispense laws, the constitutionality of which remains questionable. Rather than proposing a resolution to this constitutional issue, Part IV of this Note argues that, while women s access to emergency contraception is a valid and important concern, protecting pharmacists freedom of conscience does not need to come at the expense of women s access to the drug. This Part proposes a statute that protects pharmacists freedom of conscience while also safeguard- 15. See discussion infra section III.B; see also Menges v. Blagojevich, 451 F.Supp. 2d 992, 995, 1005 (C.D. Ill. 2006). Pharmacists have also brought claims under Title VII of the Civil Rights Act. Menges, 451 F. Supp. 2d at 1002 05. 16. See Stormans, Inc. v. Selecky, 524 F. Supp. 2d 1245 (W.D. Wash. 2007), appeal docketed, No. 07-36039 (9th Cir. Dec. 13, 2007). 17. Employment Div., Dep t of Human Res. v. Smith, 494 U.S. 872 (1990).

1718 THE GEORGETOWN LAW JOURNAL [Vol. 97:1715 ing patient access to Plan B and other prescription drugs. I. HISTORY OF CONSCIENCE CLAUSES Conscience clauses are designed to permit healthcare providers to refuse to provide medical services that conflict with their moral, ethical, or religious beliefs. In light of the Supreme Court s decision in Roe v. Wade, which extended the constitutional right to privacy to protect a woman s right to an abortion, 18 initial conscience clause legislation focused on enabling healthcare providers to refuse to perform abortion and sterilization procedures they found morally and religiously objectionable. 19 Today, the federal government and most states have enacted laws enabling doctors and other healthcare providers to refuse to perform abortions and other services on moral, religious, or ethical grounds. The impetus for the first federal freedom of conscience protection actually came before Roe v. Wade, when the United States District Court for the District of Montana issued an order requiring a hospital to perform a sterilization procedure during a Caesarean section in 1972. 20 Congress quickly responded by adopting the Church Amendment, which allows healthcare providers receiving funds under the Public Health Services Act and the Community Mental Health Centers Act to refuse to perform abortion or sterilization procedures when it would be contrary to [their] religious beliefs or moral convictions. 21 Following the lead of the federal government, most states enacted some type of conscience clause legislation by 1978. 22 Today, forty-six states have laws permitting doctors and other healthcare providers to refuse to perform abortion services. 23 For the most part, conscience clause legislation remained out of the spotlight for almost twenty years following Roe v. Wade. 24 The issue reemerged in the mid-1990s due to the upsurge in managed care and advancements in medical practices. 25 More recently, controversial technological developments such as in vitro fertilization and stem cell research, in addition to an increase in end-of-life practices, have caused the freedom of conscience movement to gain significant momentum. 26 At the federal level, Congress has broadened conscience clause protection 18. Roe v. Wade, 410 U.S. 113, 153 (1973). 19. JODY FEDER, CONG. RES. SERV., THE HISTORY AND EFFECT OF ABORTION CONSCIENCE CLAUSE LAWS 3 (2006), available at https://www.policyarchive.org/bitstream/handle/10207/3696/rs21428_20060227.pdf. 20. See H.R. REP.NO. 93-227 (1973), reprinted in 1973 U.S.C.C.A.N. 1464, 1473. 21. 42 U.S.C. 300a-7 (2006). 22. FEDER, supra note 19, at 2. 23. See Kaiser Family Foundation, supra note 5. 24. Claire A. Smearman, Drawing the Line: The Legal, Ethical and Public Policy Implications of Refusal Clauses for Pharmacists,48ARIZ.L.REV. 469, 477 (2006). 25. Id. 26. Adam Sonfield, New Refusal Clauses Shatter Balance Between Provider Conscience, Patient Needs, THE GUTTMACHER REP. ON PUB. POL Y, Aug. 2004, http://www.guttmacher.org/pubs/tgr/07/3/ gr070301.pdf.

2009] RELIGION IN THE PHARMACY 1719 over the last decade. For instance, in the Balanced Budget Act of 1997 Congress expanded the range of protected services by enabling Medicare and Medicaidfunded programs to refuse to provide counseling and referral for abortionrelated services. 27 More recently, a conscience clause provision called the Hyde-Weldon Amendment was inserted into an appropriations bill for the Department of Health and Human Services. 28 It provides that no federal agency or program, nor any state or local government, may receive health and human services funding if it discriminates against a healthcare entity because it does not provide, pay for, provide coverage of, or refer for abortions. 29 Health care entity is broadly defined to include an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan. 30 In recent years, Congress has thus expanded the class of healthcare providers and professionals who can refuse to provide abortion services. 31 State legislatures have been even more willing than the federal government to expand conscience clause protection beyond abortion services. Today, thirteen states permit some healthcare providers to refuse contraceptive services, and seventeen states allow healthcare providers to refuse sterilization services. 32 In addition, given the recent advancements in medical technology mentioned above, some states now provide conscience clause protection for medical procedures and practices such as family and referral services, assisted reproduction, fetal experimentation, human cloning, and euthanasia. 33 Furthermore, many conscience clauses protect a range of healthcare providers, including doctors, nurses, hospitals, and universities. 34 27. FEDER, supra note 19, at 3. 28. Id. at 4. 29. Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 508(d)(1), 118 Stat. 2809, 3163 (2004). The Department of Health and Human Services recently enacted a regulation that empowers officials to eliminate federal funding of entities that do not follow existing federal law permitting healthcare providers to refuse to perform services they find morally or religiously objectionable. See Rob Stein, Lawsuits Filed Over Rule that Lets Healthworkers Deny Care, WASH. POST, Jan. 15, 2009, at A04. Seven states have challenged the regulation, arguing that it is overbroad, vague, and conflicts with existing federal and state laws. Id. 30. Consolidated Appropriations Act 508(d)(1). 31. See FEDER, supra note 19, at 5 ( [While] previous law protected only individual doctors or medical training programs that did not provide abortions or abortion training... [t]he appropriations provisions, on the other hand, allow large health insurance companies and HMOs to refuse to provide coverage or pay for abortions. ). 32. GUTTMACHER INSTITUTE, STATE POLICIES IN BRIEF: REFUSING TO PROVIDE HEALTH SERVICES 1 (2009), http://www.guttmacher.org/statecenter/spibs/spib_rphs.pdf. 33. See Martha S. Swartz, Conscience Clauses or Unconscionable Clauses : Personal Beliefs Versus Professional Responsibilities,6YALE J. HEALTH POL Y L.&ETHICS 269, 284 (2006). 34. Sarah Tomkowiak, Note, Reconciling Principles and Prescriptions: Do Pharmacist Refusal Clauses Strike the Appropriate Balance Between Pharmacists and Patients Rights?, 2007 U. ILL. L. REV. 1329, 1339 (2007).

1720 THE GEORGETOWN LAW JOURNAL [Vol. 97:1715 II. THE CLASH OVER PHARMACISTS FREEDOM OF CONSCIENCE While conscience clauses protecting healthcare providers have existed for over thirty years, the rise of emergency contraception has pushed the freedom of conscience debate to the pharmacy. Because pharmacists maintain a certain degree of control over women s access to the drug, the pro- and anti-choice movements have clashed over pharmacists ability to refuse on conscience grounds. 35 Pharmacists refusals have gained more publicity in recent years, 36 and federal and state lawmakers are beginning to respond. A. COMPETING VIEWS OF PHARMACISTS ROLE IN SOCIETY The willingness of lawmakers to extend freedom of conscience protection to pharmacists is influenced in part by the nature of the pharmaceutical profession itself and the services provided. 37 As opposed to doctors and other healthcare providers, pharmacists are not categorically recognized as professionals by society. Rather, many view pharmacists as mere technicians who simply fill customer orders. 38 This disparity may have implications on pharmacists ability to object on conscience grounds. The view that pharmacists are simply technicians who dole out drugs (and occasionally give customers advice) 39 seems increasingly pervasive in modern society, where prescriptions can be filled at any grocery or convenience store. In fact, community pharmacists spend two-thirds of their time processing orders and performing other duties that could be done by technicians or non-licensed staff. 40 Taking this view, pharmacists do not exercise independent discretion, 41 so they do not deserve analogous protection afforded to doctors and other healthcare providers. Under this theory, a pharmacist who objects on moral or religious grounds would likely have to quit. 42 35. See Molly M. Ginty, Pharmacists Dispense Anti-Choice Activism, WOMEN S ENEWS, May 2, 2005, http://www.womensenews.org/article.cfm/dyn/aid/2278/context/archive5 (quoting Karen Pearl, Planned Parenthood Association as stating that [t]he anti-choice movement is using prescription access to advance its agenda... [b]ut with new congressional legislation and with other initiatives, pro-choice organizations are fighting to prevent them from imposing their ideology on American women ). 36. See id.; see also Cynthia Dailard, Beyond the Issue of Pharmacist Refusals: Pharmacies That Won t Sell Emergency Contraception, THE GUTTMACHER REP. ON PUB. POL Y, Aug. 2005, http:// www.guttmacher.org/pubs/tgr/08/3/gr080310.pdf. 37. See Robin Fretwell Wilson, Essay: The Limits of Conscience: Moral Clashes Over Deeply Divisive Healthcare Procedures, 34 AM. J. L.& MED. 41, 57 (2008) (stating that [f]or some, the connection between providing a pill and forestalling a potential life is too far removed to support a reasonable objection ). 38. See Jessica D. Yoder, Pharmacists Right of Conscience: Strategies for Showing Respect for Pharmacists Beliefs While Maintaining Adequate Care for Patients, 41VAL. U. L. REV. 975, 1009 (2006). 39. Spreng, supra note 10, at 231 32. 40. Id. at 232. 41. Yoder, supra note 38, at 1009 10. 42. Jonathan D. Moreno, Conscience, Professionalism and Corporate Obligation, CONSCIENCE, Autumn 2006, at 36.

2009] RELIGION IN THE PHARMACY 1721 On the other hand, if pharmacists are considered professionals, then they should have the same right as doctors and other healthcare providers to refuse to participate in procedures they find morally or religiously objectionable. 43 This view is apparently endorsed by the American Pharmaceutical Association, which envisions a system of care where pharmacists work with patients as well as with physicians and other healthcare providers to promote drug therapy that contributes to a patient s well-being. 44 As professionals, pharmacists enjoy more discretion in their decisionmaking; 45 they are part of a team, rather than an ancillary link between the doctor and the patient. Because courts have traditionally protected physicians moral autonomy on the basis that they exercise discretion in their practices, pharmacists ethical decisions should deserve similar protection, according to this view. 46 As mentioned above, the nature of the pharmaceutical profession and how it is viewed by society may, in part, explain the unwillingness of state lawmakers to extend freedom of conscience protections to pharmacists. While pharmacists role in society has historically gained little attention, this disparity in viewpoints may well influence the freedom of conscience debate going forward. B. THE IMPETUS FOR THE DEBATE Although emergency contraception, like birth control, has technically been available for over twenty-five years, it was not until the FDA approved Preven in 1998 and Plan B in 1999 that a product was specifically marketed and labeled as emergency contraception. 47 More recently, the FDA approved Plan B for over-the-counter sales for persons eighteen years of age and older, 48 and nine states now permit pharmacists to dispense Plan B without a prescription. 49 Plan B is believed to work in one of three ways: (1) by stopping ovulation, (2) by preventing fertilization of the egg, or (3) by preventing the fertilized egg from implanting into the womb. 50 It is the third of these methods, the postfertilization effect of Plan B, that is the most controversial and subject to dispute. 51 The FDA and other health organizations, such as the American 43. Yoder, supra note 38, at 1010. 44. Spreng, supra note 10, at 230 (quoting David B. Brushwood, From Confrontation to Collaboration: Collegiality, Accountability and the Expanding Role of Pharmacists in the Management of Chronic Pain, 29 J.L. MED.&ETHICS 9, 71 (2001)). 45. Id. at 232 33. 46. Id. 47. Yoder, supra note 38, at 978 79. 48. FDA Press Release, supra note 7. 49. See Kaiser Family Foundation, Pharmacist Provision of Emergency Contraception to Women Without a Doctor s Prescription (Jan. 1, 2009), http://www.statehealthfacts.org/comparetable. jsp?ind 498&cat 100. 50. See U.S. Food & Drug Admin., FDA s Decision Regarding Plan B: Questions and Answers, http://www.fda.gov/drugs/drugsafety/postmarketdrugsafetyinformationforpatientsandproviders/ ucm109795.htm (last visited June 2, 2009) [hereinafter Plan B: Questions and Answers]. 51. Spreng, supra note 10, at 223 24. The post-fertilization effects of Plan B are subject to dispute in the medical community. While there is some evidence to support the conclusion that Plan B does

1722 THE GEORGETOWN LAW JOURNAL [Vol. 97:1715 College of Obstetricians and Gynecologists and the National Institute of Health, do not characterize Plan B as an abortifacient because they define pregnancy as beginning when the fertilized egg is implanted into the uterine lining. 52 However, those who view life as beginning when the egg is fertilized consider the potential post-fertilization effects of Plan B to be analogous to an abortion. 53 C. OVERVIEW OF FEDERAL AND STATE LEGISLATION The controversy and increased demand for Plan B has sparked significant momentum on both sides of the debate, with federal and state legislatures seeing an influx in legislation protecting either patient access to emergency contraception or a pharmacist s ability to refuse to dispense the drug. At the federal level, several bills were introduced in 2005 that would ensure that prescriptions refused to be filled by pharmacists on moral grounds would be filled by another pharmacist without delay. 54 More recently, the Access to Birth Control Act, introduced in both the House and the Senate in 2007, would require pharmacists to provide contraceptives without delay and would protect women from intimidation and harassment by pharmacy employees. 55 The majority of legislation has arisen at the state level, and lawmakers have come out on both sides of the issue. In 2005 and 2006, bills were proposed in twenty-two states that would permit pharmacists to refuse to fill prescriptions for birth control or emergency contraceptives. 56 And in 2008 alone, thirteen bills were introduced in eight states that would prevent pharmacists from refusing to dispense contraception because of their personal beliefs, while three states, on the other hand, considered bills allowing pharmacists to refuse to dispense certain drugs without any patient protection. 57 Although numerous bills have been introduced by state legislators, few states have yet to respond with legislation focusing specifically on pharmacists ability to refuse. Today, only four states have enacted laws that protect a pharmacist s have some post-fertilization effect, it is difficult to prove because methods to measure the loss of zygotes prior to implantation are still in their infancy. Id. at 226 28. Some commentators have even argued that antiabortion activists mischaracterize Plan B as an abortifacient to boost the pharmacist freedom of conscience movement. See Dailard, supra note 36, at 10. 52. Yoder, supra note 38, at 978 79; Ginty, supra note 35. 53. Yoder, supra note 38, at 978 79. 54. See H.R. 1539, 109th Cong. (2005) (providing that prescriptions not filled because of a pharmacist s refusal based on religious or moral grounds be filled by another pharmacist); Access to Legal Pharmaceuticals Act, H.R. 1652, 109th Cong. (2005) (ensuring that prescriptions refused to be filled by a pharmacist on religious or moral grounds be filled without delay); Access to Legal Pharmaceuticals Act, S. 809, 109th Cong. (2005) (same). 55. See Access to Birth Control Act, H.R. 2596, 110th Cong. (2007); Access to Birth Control Act, S. 1555, 110th Cong. (2007). 56. Maxine M. Harrington, The Ever-Expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs, 34FLA. ST. U. L. REV. 779, 785 (2007). 57. NAT L WOMEN S LAW CENTER, supra note 1, at 3.

2009] RELIGION IN THE PHARMACY 1723 right to refuse to dispense emergency contraception. 58 In addition, four other states have conscience laws that may be broadly interpreted to include pharmacists, even though pharmacists are not specifically mentioned in the statute. 59 On the other side of the issue, seven states have enacted laws that either prohibit or limit refusals by requiring pharmacists to ensure that valid prescriptions are filled. 60 Given the increase in pharmacist refusals to fill emergency contraception, 61 more states will likely be forced to address this issue in the future. D. STATES WITH CONSCIENCE CLAUSE PROTECTION The four states that have adopted laws protecting pharmacists ability to refuse to dispense emergency contraception are Arkansas, Georgia, Mississippi, and South Dakota. 62 The conscience clauses of these four states are similar in three key respects, to the dismay of women s rights advocates. First, none of the statutes impose any duty on pharmacists to refer or transfer the refused prescription to another pharmacy. 63 Second, none of the statutes require that the patient receive advance notice of the pharmacist s refusal. 64 And third, none provide an exception for women who are raped. 65 The first state to enact legislation was Arkansas, in 1973. 66 Its statute broadly protects the right of physicians, pharmacists, and any other authorized paramedical personnel to refuse to provide any contraceptive procedures, supplies, or information. 67 The statute further protects pharmacists from tort liability stemming from the refusal. 68 South Dakota s statute is more limited in scope than the Arkansas statute because it only allows the pharmacist to refuse to dispense medication if there is reason to believe that the medication would be used to cause an abortion or to destroy an unborn child. 69 Because unborn child is broadly defined under 58. Nat l Conference of State Legislatures, supra note 12. 59. See id. These states include Colorado, Florida, Maine, and Tennessee. Id. 60. See NAT L WOMEN S LAW CENTER, supra note 1, at 3. These states include California, Illinois, Maine, Massachusetts, Nevada, New Jersey, and Washington. Id. In addition, the pharmacy boards of seven states, including Alabama, Delaware, New York, North Carolina, Oregon, Pennsylvania, and Texas, have issued policy statements prohibiting pharmacists from interfering with patient access to medication or refusing to transfer prescriptions. Id. 61. Deborah Friedman, Planned Parenthood Federation of America, Inc., Refusal Clauses: A Threat to Reproductive Rights, Dec. 4, at 1, http://www.plannedparenthood.org/files/ppfa/fact-refusalclauses.pdf. 62. Nat l Conference of State Legislatures, supra note 12. 63. See Tomkowiak, supra note 34, at 1343 44. 64. Lora Cicconi, Comment, Pharmacist Refusals and Third-Party Interests: A Proposed Judicial Approach to Pharmacist Conscience Clauses, 54 UCLA L. REV. 709, 717 (2007). 65. Id. at 716 17. 66. See ARK.CODE ANN. 20-16-304(4) (2005). 67. See id. 68. See id. 20-16-304(5). 69. S.D. CODIFIED LAWS 36-11-70(1) (2) (2004); see also Dennis Rambaud, Note, Prescription Contraceptives and the Pharmacist s Right to Refuse: Examining the Efficacy of Conscience Laws, 4 CARDOZO PUB. L. POL Y & ETHICS J. 195, 202 (2006). The statute further provides that the pharmacist

1724 THE GEORGETOWN LAW JOURNAL [Vol. 97:1715 South Dakota law, pharmacists can refuse to dispense emergency contraception under the statute. 70 Like the Arkansas statute, however, South Dakota protects pharmacists from damage claims relating to a refusal to dispense medication. 71 Georgia has incorporated its pharmacist refusal clause into its State Board of Pharmacy rules, which provide that it is not considered unprofessional conduct for a pharmacist to refuse to fill a prescription based on his/her professional judgment or ethical or moral beliefs. 72 However, unlike the Arkansas and South Dakota statutes, it is unclear whether this rule protects pharmacists from civil liability. 73 While the state does protect a pharmacist s refusal to fill any prescription for a drug which purpose is to terminate a pregnancy from civil liability, 74 this law does not apply to Plan B because the statutory definition excludes contraceptive drugs, which is how Plan B is classified by the FDA. 75 The most recent state law that protects pharmacists ability to refuse, the Mississippi Health Care Rights of Conscience Act, was described by Mississippi Governor Haley Barbour as the single most expansive conscience exception law in the nation. 76 Governor Barbour is arguably correct in his assessment, given that the law applies to health care provider[s], broadly defined as any individual who may be asked to participate in any way in a health care service. 77 The statute goes on to list providers that fall under this definition, which nonexclusively include: physicians and their assistants, hospital and clinic employees, pharmacist and pharmacy employees, researchers, counselors, and social workers. 78 The law further protects healthcare providers from civil, criminal, or administrative liability and ensures that they are not discriminated against because of their refusal. 79 Additionally, because the Act applies to any device, drug, or medication, pharmacists may refuse to dispense not only may refuse medication that would cause the death of any person by means of an assisted suicide, euthanasia, or mercy killing. S.D. CODIFIED LAWS 36-11-70(3). 70. See Tomkowiak, supra note 34, at 1342. 71. S.D. CODIFIED LAWS 36-11-70. 72. GA.COMP.R.&REGS. 480-5-.03(n) (2001). 73. See Cicconi, supra note 64, at 717. 74. GA.CODE.ANN. 16-12-142(b) (2007). 75. Kristen Marttila Gast, Cold Comfort Pharmacy: Pharmacist Tort Liability for Conscientious Refusals to Dispense Emergency Contraception,16TEX.J.WOMEN & L. 149, 165 n.55 (2007). 76. Sonfield, supra note 26, at 1 2. 77. MISS.CODE ANN. 41-107-3(b) (2004) (emphasis added). 78. See id. The full text of the statute provides: Health care provider means any individual who may be asked to participate in any way in a health care service, including, but not limited to: a physician, physician s assistant, nurse, nurses aide, medical assistant, hospital employee, clinic employee, nursing home employee, pharmacist, pharmacy employee, researcher, medical or nursing school faculty, student or employee, counselor, social worker or any professional, paraprofessional, or any other person who furnishes, or assists in the furnishing of, a health care procedure. Id. 79. Id. 41-107-5(2) (3).

2009] RELIGION IN THE PHARMACY 1725 emergency contraception, but birth control as well. 80 E. STATES WITH DUTY TO DISPENSE LAWS On the other side of the debate, some states have taken steps in recent years to protect patient access to emergency contraception and prescription medication generally. Legislators supporting such protection argue that pharmacists conscientious refusals must give way to the need of women to access emergency contraception. 81 Hence, these duty to dispense laws either require pharmacists to dispense emergency contraception or limit the circumstances in which a pharmacist may refuse to dispense the prescription. The first major boost to the movement towards greater women s rights in this area came in 2005 when Illinois Governor Rod Blagojevich issued an emergency rule requiring pharmacies that carried contraceptives to fill prescriptions for emergency contraception or birth control without delay. 82 The rule was promulgated in response to two instances in which a pharmacy refused to fill women s prescriptions for emergency contraception. 83 Later that year, the Illinois legislature approved the rule, making it a part of the Illinois Administrative Code. 84 Following Illinois s lead, seven other states have adopted laws or regulations requiring pharmacists or pharmacies to dispense all valid prescriptions. 85 An additional eight states have considered bills that would prevent pharmacists or pharmacies from denying a customer access to prescriptions because of religious or moral beliefs. 86 In general, these laws provide that pharmacists must ensure that customers receive prescriptions without delay, by either filling prescriptions with drugs in-stock, ordering drugs not in-stock, or transferring the prescription to another pharmacy. 87 Not all duty to dispense laws completely prohibit pharmacist conscientious 80. See id. 41-107-3(a). 81. See Nancy K. Kubasek et al., The Questionable Constitutionality of Conscientious Objection Clauses for Pharmacists, 16 J. L.& POL Y 225, 263 64 (2007) (arguing that [c]onscientious objection statutes must be either struck down as unconstitutional or at least reformed to accommodate a woman s rights to birth control ); Friedman, supra note 61, at 4 (stating that Planned Parenthood s position is that it is unethical for health care providers to stand in the way of a woman s access to safe, effective, legal, and professional health care... [and] it is an act of discrimination to refuse to provide legal and medically prescribed... [emergency contraception] ). 82. See Press Release, Office of the Governor, Ill., Rod R. Blagojevich, Gov. Blagojevich Takes Emergency Action to Protect Women s Access to Contraceptives (Apr. 1, 2005), available at http:// www.illinois.gov/pressreleases/pressreleaseslistshow.cfm?recnum 3805; see also Bruce Japsen, Rx-Filling Mandate Backed by AMA: Contraceptive Denial Prompts Resolution, CHI. TRIB., June 21, 2005, at C1 (discussing rule). 83. Japsen, supra note 82, at C1. 84. Cicconi, supra note 64, at 721. 85. See NAT L WOMEN S LAW CENTER, supra note 1, at 3. 86. Id. 87. See Adam Sonfield, Provider Refusal and Access to Reproductive Health Services: Approaching a New Balance, 11 GUTTMACHER POL Y REV. 2, 5, Spring 2008, http://www.guttmacher.org/pubs/gpr/11/ 2/gpr110202.pdf.

1726 THE GEORGETOWN LAW JOURNAL [Vol. 97:1715 refusals, 88 though they do limit the instances in which a pharmacist may refuse. For example, California allows a pharmacist to refuse to fill a prescription on religious or moral grounds, but only when the pharmacist has provided advanced written notice to the employer, who is then able to provide a reasonable accommodation without undue hardship. 89 The law further requires employers to establish protocols that ensure patients receive timely access to the prescribed drug. 90 Taking a more limited approach, Washington s regulation completely prohibits conscientious refusals by a pharmacy; however, it provides a narrow right of conscience to an individual pharmacist if the pharmacist worked with another pharmacist on shift who would dispense the medication in place of the conscientious objector. 91 State pharmacy boards and other healthcare organizations have also come out protecting patient access to valid prescriptions. 92 Seven state pharmacy boards have adopted policy statements or practice guidelines that ban pharmacists from obstructing patient access to drugs or from refusing to transfer a prescription to another pharmacy. 93 As opposed to broader duty to dispense laws discussed above, most of these policies do permit pharmacist refusals, but they also include some protection for patient access to medicine. 94 However, three state pharmacy boards have adopted policies asserting that individual pharmacists may not refuse to fill a prescription due to their moral or religious objection. 95 III. FREE EXERCISE CHALLENGES TO DUTY TO DISPENSE LAWS Laws requiring pharmacists to fill prescriptions for emergency contraception over their conscientious objections raise free exercise of religion concerns under the First Amendment. 96 Pharmacists in states that have adopted duty to dispense laws, such as the ones discussed above, have filed suits alleging that these laws constitute a violation of their free exercise rights. 97 Because duty to dispense laws are relatively new, challenges to such laws are sparse. However, given the 88. See id. 89. See CAL. BUS. & PROF. CODE 733(b)(3) (West Supp. 2009); see also Sonfield, supra note 87, at 5. 90. CAL.BUS.&PROF.CODE 733(2b)(23). 91. Stormans, Inc. v. Selecky, 524 F. Supp. 2d 1245, 1251 53 (W.D. Wash. 2007) (discussing the Washington regulation and the agency s interpretation thereof). 92. See NAT L WOMEN S LAW CENTER, supra note 1, at 3. 93. Id. 94. See Sonfield, supra note 87, at 5. 95. Id. The policies provide that pharmacists may only object on professional grounds. Id. 96. See U.S. CONST. amend. I ( Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. (emphasis added)). In addition to raising free exercise of religion issues, duty to dispense laws may implicate Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination by an employer on the basis of an individual s race, color, religion, sex or national origin. 42 U.S.C. 2000e-2(a)(1) (2) (2006). It further defines religion to include all aspects of religious beliefs or practices, and provides that an employer has a duty to reasonably accommodate such beliefs unless to do so would create undue hardship. Id. 2000e(j). 97. See, e.g., Menges v. Blagojevich, 451 F. Supp. 2d 992, 995 (C.D. Ill. 2006).

2009] RELIGION IN THE PHARMACY 1727 rise in pharmacist refusals and the increase in proposed legislation in recent years, 98 more litigation is likely to ensue. While a detailed constitutional analysis of these laws is outside the scope of this Note, this Part provides some background on the Supreme Court s analysis of free exercise claims generally and discusses recent constitutional challenges to duty to dispense laws. A. OVERVIEW OF FREE EXERCISE OF RELIGION CLAIMS The Supreme Court s approach to claims brought under the Free Exercise Clause has varied substantially over the years. While the Court historically applied some form of heightened scrutiny to free exercise claims, 99 it departed from this approach in Employment Division, Department of Human Resources v. Smith. 100 This decision sparked much controversy and debate over the appropriate standard of review in these cases. 101 Which standard of review a court chooses to apply when analyzing duty to dispense laws is likely to be determinative as to a pharmacist s free exercise of religion claim. In general, courts employ three different standards of review in constitutional law cases. 102 The most lenient is rational basis review, which merely requires that the action be rationally related to a legitimate government purpose. 103 Significant deference is accorded to the legislature under this mode of review. 104 As one commentator notes, [t]his standard is famously lenient, and, according to widespread belief, nearly every law judged by it is upheld. 105 On the other side of the spectrum is strict scrutiny review. Under this test, a statute is unconstitutional unless it is narrowly tailored to further a compelling government interest. 106 The modern strict scrutiny test was developed during the Warren Court to deal with the issue of what standard should apply to protect preferred or fundamental rights that were too important to be enforced only by a rational basis test. 107 As compared to rational basis, this standard is much more demanding. The Supreme Court added a third tier to these two levels of scrutiny when it created an intermediate standard to analyze gender-based 98. See discussion supra sections II.B C. 99. See Richard Fallon, Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1269, 1281 (2007). 100. Employment Div., Dep t of Human Res. v. Smith, 494 U.S. 872, 885 88 (1990). 101. See infra notes 115, 120. 102. See Fallon, supra note 99, at 1273 (discussing the origins of strict scrutiny and the three standards of review). 103. See Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 242 43 (3d Cir. 2008) (describing rational basis standard). 104. See id. (stating that under rational basis, the statute is presumed constitutional, and the burden is on the one attacking the legislative arrangement to negat[e] every conceivable basis which might support it, whether or not the basis has a foundation in the record (quoting Heller v. Doe ex rel. Doe, 509 U.S. 312, 321 22 (1993))). 105. Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in Federal Courts,59VAND.L.REV. 793, 799 (2006). 106. See Fallon, supra note 99, at 1273. 107. Id. at 1270.

1728 THE GEORGETOWN LAW JOURNAL [Vol. 97:1715 classifications. 108 This requires that the law be substantially related to an important government interest. 109 In addition to gender-based classifications, this standard also applies to governmental discriminations against children born out of wedlock. 110 Thus, for the purposes of claims under the Free Exercise Clause, either rational basis or strict scrutiny will apply. Before 1990, the Supreme Court had applied the strict scrutiny standard to laws that substantially burdened religion. 111 However, the Court retreated from this standard in Employment Division, Department of Human Resources v. Smith, 112 when it held that neutral laws of general applicability do not violate the Free Exercise Clause, even if they incidentally burden religion. 113 Relying in part on precedent, the Court reasoned that an individual s beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. 114 At the time of its decision, Smith was widely criticized for restricting the protection afforded by the Free Exercise Clause, 115 given that it lowered the standard of review applied to laws that are neutral and generally applicable. 116 Smith dictates that neutral laws are subject only to rational basis review, 117 so they will be upheld as long as they are rationally related to a legitimate governmental purpose. 118 108. Id. at 1298. 109. Id. 110. Id. 111. Id. at 1269, 1281. 112. Employment Div., Dep t of Human Res. v. Smith, 494 U.S. 872, 885 88 (1990). 113. See id. at 878 80. 114. Id. at 878. 115. See Douglas Laycock, Summary and Synthesis: The Crisis in Religious Liberty, 60 GEO. WASH. L. REV. 841, 848 (1992) (calling Smith the near total loss of any substantive constitutional right to practice religion ); see also Kent Greenwalt, Religion and the Rehnquist Court, 99 NW. U. L. REV. 145, 154 (2004) (describing Smith as having sharply restrict[ed] the scope of the Free Exercise Clause and fail[ing] to safeguard even acts of worship central to a faith ). Whether one applauds or condemns the decision has to do, in part, with one s conception of the Free Exercise Clause. One interpretation posits that the free exercise clause protects religious practices against even the incidental or unintended effects of government action. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1418 (1990). Under this view, [t]he remedy generally is to leave the government policy in place, but to carve out an exemption when the application of the policy impinges on religious practices without adequate justification. Id. A competing interpretation, however, asserts that the Free Exercise Clause exists solely to prevent the government from singling out religious practice for peculiar disability. Id. Under this view, religious believers and institutions cannot challenge facially neutral legislation, no matter what effect it may have on their ability or freedom to practice their religious faith. Id. at 1418 19. This is apparently the view endorsed in Smith, which the Court has continued, in essence, to reaffirm since its decision. See Ronald Krotoszynski, If Judges Were Angels: Religious Equality, Free Exercise, and the (Underappreciated) Merits of Smith, 102 NW.U.L.REV. 1189, 1207 (2008). 116. See Smith, 494 U.S. at 883 85 (declining to apply the Sherbert test). 117. See, e.g., Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 242 43 (3d Cir. 2008) ( Since [the statute] is a neutral law of general applicability, we will apply rational basis review unless an exception to the Smith rule applies. ). 118. Id. at 243 (stating that rational basis review requires merely that the action be rationally related to a legitimate government objective (quoting Tenafly Eruv Ass n v. Tenafly, 309 F.3d 144, 165 n.24 (3d Cir. 2002) (internal citations omitted))).

2009] RELIGION IN THE PHARMACY 1729 As the Court later discussed in Church of the Lukumi Babalu Aye v. City of Hialeah, if a law is not neutral and generally applicable, meaning that the law is designed to restrict certain practices because of their religious motivation or that the law selectively burdens religious but not secular conduct, it must survive strict scrutiny review. 119 As mentioned above, Smith s rational basis review is a more lenient standard than strict scrutiny. 120 Therefore, a court s decision as to whether duty to dispense laws are neutral and generally applicable that is whether rational basis or strict scrutiny applies, may determine the outcome of the plaintiff s free exercise claim. 121 B. ANALYSIS OF DUTY TO DISPENSE LAWS Lower courts have so far seemed inclined to apply the strict scrutiny standard to the plaintiff s free exercise challenges. For instance, the district court in Menges v. Blagojevich denied the defendant s motion to dismiss on its free exercise claim because plaintiffs sufficiently demonstrated that the law was not narrowly tailored because it only applied to pharmacies, and not hospitals or emergency rooms, which also dispensed the drug. 122 In this case, plaintiffpharmacists filed suit after their employer, Walgreens, mandated a new company policy requiring pharmacists to dispense Plan B and other emergency contraceptives. 123 If a pharmacist refused to comply with Walgreens policy, they were placed on unpaid indefinite suspension. 124 Walgreens initiated its policy after Illinois Governor Blagojevich issued an emergency rule requiring pharmacists to dispense emergency contraception. 125 Because the Governor had said that the rule was enacted in response to pharmacists refusals to fill emergency contraception, and the fact that the rule only applied to Division I pharmacies 126 and not to hospitals or emergency rooms, the plaintiffs alleged that the rule was targeted at pharmacists because of their religious beliefs and 119. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533, 542 543 (1993). 120. See Kenneth Marin, Employment Division v. Smith: The Supreme Court Alters the State of Free Exercise Doctrine, 40 AM. U. L. REV. 1431, 1431 33, 1465 66 (1991) (discussing how Smith lowered the standard of review from the more rigorous compelling interest standard). But see Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1110 (1990) (discussing how, prior to Smith, the Court rarely sided with the free exercise claimant, notwithstanding the Court s application of the more stringent compelling interest standard). 121. This distinction is only important in analyzing a free exercise claim under the federal Constitution. States are free to interpret their state constitutions as they please, and many state supreme courts refuse to follow Smith. See Daniel A. Crane, Beyond RFRA: Free Exercise of Religion Comes of Age in the State Courts,10ST.THOMAS L. REV. 235, 244 45 (1998). 122. Menges v. Blagojevich, 451 F. Supp. 2d 992, 995, 1005 (C.D. Ill. 2006). Plaintiffs also alleged that Title VII of the Civil Rights Act of 1964, which protects employees against religious discrimination, see supra note 96, preempts the Illinois law. Menges, 451 F. Supp. 2d at 995. 123. Menges, 451 F. Supp. 2d at 998. 124. Id. 125. Id. 126 Division I pharmacies are pharmacies that engage in general community pharmacy practice and that are open to, or offer pharmacy services to, the general public. Id. at 996.

1730 THE GEORGETOWN LAW JOURNAL [Vol. 97:1715 was thus not neutral. 127 The court concluded that these allegations could support such a finding. 128 Furthermore, as mentioned above, because the purpose of the rule was to make emergency contraception available, and yet it only applied to Division I pharmacies, the court found that plaintiffs had sufficiently pled that the rule was not narrowly tailored. 129 The Menges court is not alone in concluding that strict scrutiny may likely apply to duty to dispense laws. More recently, the district court in Stormans, Inc. v. Selecky enjoined the state of Washington from enforcing its duty to dispense regulation. 130 The law prohibited a pharmacy from allowing its pharmacist-employees to refuse to fill a prescription on moral or religious grounds. 131 Although the regulation was facially neutral, the court analyzed the historical background of the law, which had focused on pharmacists conscientious refusals. The court therefore concluded that the regulation must be subject to strict scrutiny. 132 However, its application of strict scrutiny has been criticized, 133 and it is questionable whether it will be upheld on appeal. The case is currently pending in the Ninth Circuit. In a decision issued last year denying the defendant s motion to stay the injunction, 134 the court of appeals provided some insight, although slight, into how it might rule on this issue. The majority gave little attention to the free exercise claim in its order, instead reasoning that there was insufficient evidence of irreparable harm to grant the stay. 135 However, in a strong dissent, Judge Tashima argued that rational basis review applied, and that the lower court erred in finding that the plaintiffs were likely to succeed on the free exercise claim. 136 Judge Tashima rebuked the lower court for its reading of Lukumi and reasoned that, because the pharmacy board was attempting to prevent both religious and moral objections through its rule, it was not 127. Id. at 1000 01. 128. Id. at 1001. 129. Id. at 1001 02. 130. Stormans, Inc. v. Selecky, 524 F. Supp. 2d 1245, 1249, 1266 (W.D. Wash. 2007). 131. Id. at 1251. 132. Id. at 1263. The court examined the historical background of the regulation and the effect of the law in operation. Id. at 1258. The court was persuaded by the evidence submitted by the plaintiffs, including (1) a letter discussing the pharmacy board s rulemaking efforts as dealing with issues arising from some pharmacists in the state refusing to fill or desiring to deny filling some legal prescriptions for emergency contraception... based on the pharmacists asserted religious or moral beliefs, (2) the prominent role Planned Parenthood and the National Women s Law Center played in promulgating the rules, (3) the Governor s own opposition to pharmacists conscientious refusals, and (4) that those who participated in creating the regulation fixed their attention and crafted their response to the debate regarding Plan B and religious objections thereto. Id. at 1259 60. 133. See, e.g., Marci Hamilton, Why a Federal District Court Was Wrong To Apply Strict Scrutiny to a Washington State Law Requiring Pharmacies, But Not Individual Pharmacists, To Fill Plan B Prescriptions, FINDLAW, Nov. 15, 2007, http://writ.news.findlaw.com/hamilton/20071115.html (arguing that the Washington regulation is a neutral, generally-applicable law with an obvious legitimate public purpose of increasing access to needed medications ). 134. Stormans, Inc. v. Selecky, 526 F.3d 406 (9th Cir. 2008). 135. Id. at 408. 136. Id. at 412 & n.4, 415.