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Essay: The Limits of Conscience: Moral Clashes over Deeply Divisive Healthcare Procedures

Published online by Cambridge University Press:  06 January 2021

Robin Fretwell Wilson
Robin Fretwell Wilson*
Affiliation:
Washington & Lee University School of Law
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Extract

Refusals by individual pharmacies and pharmacists to fill prescriptions for emergency contraceptives (“EC”) have dominated news headlines, from the Washington Post to the Miami Herald. In the act that sparked a firestorm of controversy, an Eckerd pharmacist refused to fill a rape victim’s prescription for Plan B. A few months later, 11 Alabama nurses resigned positions at state clinics rather than provide EC against their moral convictions. These refusals do not seem to be driven by moral concerns about promiscuity, since pharmacists have refused to dispense Plan B to married couples as well. Instead, the refusals reflect moral and religious concerns about facilitating an act that would cut-off a potential human life.

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Article
Information
American Journal of Law & Medicine , Volume 34 , Issue 1 , March 2008 , pp. 41 - 63
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2008

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References

1 A Lexis Nexis search in News-All found more than 3000 articles with the terms “emergency contracept[ion]” or “Plan B” in the headline since 2004.

2 Liz Austin, Denial of Emergency Contraception for Texas Woman Raises Moral, Legal Questions, The Associated Press, Feb. 24, 2004.

3 Debbie Elliot, Alabama Nurses Quit over Morning-After Pill, All Things Considered (National Public Radio broadcast July 28, 2004), available at http://www.npr.org/templates/story/story.php?storyID=3627209.

4 Rob Stein, Pharmacists Rights at Front of New Debate; Because of beliefs, some refuse to fill birth control prescriptions, Wash. Post, Mar. 28, 2005, at A1, available at http://www.washingtonpost.com/wp-dyn/articles/A5490-2005Mar27.html.

5 Emergency contraceptives—like “Plan B” and the “morning after pill”—contain progestins that inhibit or delay ovulation and disrupt embryo transplant and implantation, although the precise mechanism by which post-coital oral contraception works is “not well understood.” Grimes, David A., et al., Emergency Contraception Review, 137 Annals Intern. Med. 180, 181 (2002)CrossRefGoogle Scholar, available at http://www.annals.org/cgi/reprint/137/3/180.pdf. Some see this as tantamount to abortion. Charisse Jones, Druggists Refuse to Give Out Pill, USA Today, Nov. 8, 2004, at 3A, available at http://www.usatoday.com/news/nation/2004-11-08-druggists-pill_x.htm (noting that some pharmacists believe that preventing the implantation of a fertilized egg is a form of abortion); Susan B. Apel, Access to Assisted Reproductive Technologies 23 n.55 (2007) (unpublished manuscript), available at http://works.bepress.com/susan_apel/1/1 (noting that Plan B is “viewed by some as a contraceptive and by others as an abortifacient”). Medical groups note that Plan B does not act as an abortifacient because it does not act on an “established pregnancy,” although it can prevent implantation of a fertilized egg. Cantor, J. and Baum, K., The Limits of Conscientious Objection - May Pharmacists Refuse to Fill Prescriptions for Emergency Contraception?, 351 New Eng. J. Med. 2008, 2009 (2004)CrossRefGoogle ScholarPubMed. Plan B can also inhibit ovulation. Id. For some who believe that life begins at conception, whether Plan B technically fails to act as an abortifacient changes little about the moral nature of dispensing Plan B; for others, the multiplicity of action matters greatly to the moral calculus. Compare Karen Sughrue, The Debate Over Plan B: Did Religion Play Role In An FDA Decision?, 60 Minutes, June. 11, 2007, http://www.cbsnews.com/stories/2005/11/22/60minutes/main1068924_page2.shtml (quoting a pharmacist who refused to dispense Plan B as saying, “The morning after pill is after you have that fertilized egg, and that is a baby. You are not allowing it to implant.”) with Cantor & Baum, supra (discussing how the various physiological mechanisms by which Plan B can operate permits some Catholic groups to reconcile their religious teachings with state mandates to provide EC to rape victims since “a patient and a provider who aim only to prevent conception follow Catholic teachings”).

By 2003, three million American women had used Plan B while approximately one million had used Preven, an “older estrogen-progestin product” that acts in much the same way. See Camp, Sharon L. et al., The Benefits and Risks of Over-the-Counter Availability of Levonorgestrel Emergency Contraception, 68 Contraception 309, 309 (2003)CrossRefGoogle ScholarPubMed.

6 Jones, supra note 5.

7 Rob Stein, For Some, there is No Choice, Wash. Post, July 16, 2006, at A6, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/07/15/AR2006071500790.html.

8 Refusal to Artificially Inseminate ‘Unmarried’ Lesbian, 46 Nursing Law's Regan Report 7 (Dec. 2005).

9 Gussie Fauntleroy, Infant Circumcision: The debate over parents’ rights, human rights and the right to choose, Santa Fe New Mexican, July 30, 2001, at B-1.

10 Bolton, Michele Morgan, Pharmacy refusals lead to complaint; Group says women were improperly denied emergency contraception, The Times Union (Albany, N.Y.), Aug. 16, 2006Google Scholar, at A1.

Other physicians have refused to send the patient's records to an abortion clinic, presuming they were necessary to support the need for a late-term abortion. Stein, supra note 7.

11 Cati Vanden Breul, Yale Professors Discuss Morning-After Pill Policies, Minn. Daily (Minneapolis), Jan. 31, 2005, available at http://www.mndaily.com/articles/2005/01/31/63002.

12 Kara Lowentheil, When Pharmacists Refuse, Women Lose, Planned Parenthood Federation of America, http://www.plannedparenthood.org/issues-action/birthcontrol/pharmacists-refuse-6501.htm.

13 Bolton, supra, note 10.

14 Mass. Gen. Laws ch. 111, § 70E(o) (2006) (providing that every female rape victim of childbearing age has the right to receive accurate written information about emergency contraception from any facility, including any private or state run hospital, to be promptly offered the same, and to be provided with emergency contraception upon request). See also Scott Helman, Romney Says No Hospitals Are Exempt from Pill Law: He Reverses Stand on Plan B, Boston Globe, Dec. 9, 2005, at A1 (noting that Massachusetts Governor Mitt Romney overturned an initial ruling by the State Department of Public Health, which would have allowed privately run hospitals to opt out of the emergency contraception requirement if they objected on religious or moral grounds).

Other states have similar requirements in cases of rape. See Center for Reproductive Rights, Emergency Contraception (EC) for Sexual Assault Survivors in the Emergency Room (Aug. 27, 2007), http://www.reproductiverights.org/pub_fac_ecintheer.html.

15 Health – Emergency Contraception, Broadcast News, Dec. 14, 2005, available at 2005 WLNR 20105347.

16 Arkansas, Georgia, Mississippi, and South Dakota allow pharmacist refusals based on personal beliefs. Ark. Code Ann. § 20-16-304 (2005); Ga. Comp. R. & Regs. 480-5-.03(n) (2007); Miss. Code Ann. § 41-107-5 (2007); S.D. Codified Laws § 36-11-70 (2004). Arkansas and Mississippi both cover a range of healthcare providers as well as institutions, while Georgia and South Dakota only protect refusals of pharmacists. Conscience clauses arose contemporaneously with Roe v. Wade, when family planning advocates argued that the receipt of public benefits or federal funds required an individual hospital, even a Catholic one, to provide access to abortion.

17 A number of states now require pharmacists or pharmacies to ensure that all valid prescriptions are filled. These include California, Illinois, Maine, Massachusetts, and Nevada. See, e.g., Cal. Bus. & Prof. Code § 733 (West Supp. 2008); Ill. Admin. Code tit. 68, §1330.91(j) (2008); 02-392-19 Me. Code R. §11 (Weil 2007) (citing Me. Rev. Stat. Ann. tit. 32, § 13795(2) (2005)). Commonwealth of Massachusetts Department of Public Health, Pharm. Bd. Policy No. 2006-1, Joint Guidelines of the Board of Registration in Pharmacy, Board of Registration in Medicine and Drug Control Program: Pharmacist Dispensing of Emergency Contraception (2006), available at http://www.mass.gov/Eeohhs2/docs/dph/quality/boards/pharmacy_ec_policy_pharmacist_dispensing.pdf (implementing Mass. Gen. Laws ch. 94C, § 91A (2008); Nev. Admin. Code § 639.070 (Supp. 2007).

Pharmacy boards in Delaware, North Carolina, Oregon and Texas have issued policy statements prohibiting pharmacists from refusing to fill a prescription for a stocked medication or refusing to transfer a valid prescription. Considering Moral and Ethical Objections, DELAWARE STATE BOARD OF PHARMACY NEWS (Delaware State Board of Pharmacy, Dover, Del.), Mar. 2006, at 4; Letter from Lawrence H. Mokhiber, Executive Secretary, New York State Board of Pharmacy, to Supervising Pharmacists, Re: Policy Guideline Concerning Matters of Conscience (Nov. 18, 2005), available at http://www.op.nysed.gov/pharmconscienceguideline.htm (asserting that “[w]hen a pharmacist recognizes that his/her religious, moral or ethical belief, or any other factor, will result in the refusal to fill a prescription that is otherwise available in a pharmacy, the pharmacist has a professional obligation to take appropriate steps to avoid the possibility of abandoning or neglecting a patient”); North Carolina Board of Pharmacy, Pharmacist FAQs: Frequently Asked Questions for Pharmacists on Conscience Clause http://www.ncbop.org/faqs/Pharmacist/faq_ConscienceClause.htm (last visited Feb. 9, 2008) (recognizing that pharmacists have a right to practice free of ethical conflict, but placing the burden squarely on the objecting pharmacist to “take proactive measures so as not to obstruct a patient's right to obtain [EC]”); Oregon Board of Pharmacy, Position Statement: Considering Moral and Ethical Objections, available at http://www.oregon.gov/Pharmacy/M_and_E_Objections_6-06.pdf (stating that “Oregon pharmacists cannot however, interfere with a patient's lawfully and appropriately prescribed drug therapy”); Texas State Board of Pharmacy, Plan B, www.tsbp.state.tx.us/planb.htm (last visited February 9, 2008) (“If a pharmacist is unable to sell a medication or fill a particular prescription for any reason, he/she should refer the patient to another pharmacist at the pharmacy, if possible, or refer the patient to a pharmacy where the patient may obtain the medication.”).

18 The 2006 and 2007 legislative sessions saw the introduction or consideration of 55 bills to allow or expand refusal protections. National Women's Law Center, Pharmacy Refusals 101, January 2008, at 3, available at http://www.nwlc.org/pdf/Pharmacy%20Refusals%20101.pdf. By contrast, seven states in 2007 and eleven states in 2006 introduced legislation to prohibit refusals or require pharmacists to fill contraceptive prescriptions. Id.

19 Stormans, Inc. v. Selecki, 524 F. Supp. 2d 1245, 1249 (W.D. Wash. 2007).

20 Id.

21 Professor Marci Hamilton argues that the District Court erred in applying strict scrutiny review to the Washington regulation instead of rational basis review since, in her view, the regulation represents a rule of neutral applicability. See 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, Nov. 15, 2007, http://writ.news.findlaw.com/hamilton/20071115.html (arguing that the decision essentially holds that “disproportionate effect necessarily triggers strict scrutiny”). Under Employment Division, Department of Human Resources of Oregon v. Smith, rules of neutral applicability receive rational basis review. 494 U.S. 872 (1990).

While Smith suggests that a “nondiscriminatory religious-practice exemption is permitted, or even … desirable,” it does not require such an exemption. Id. at 890. Justice Scalia observes that “leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” Id.

22 In Oklahoma, for example, “[a] prescription is the property of the patient for whom it is prescribed.” Okla. Stat. tit. 59, § 354(A) (2000). Behavior that is presently illegal can and should be addressed through existing regulatory schemes.

23 Title VII of the Civil Rights Act of 1964, for example, exempts religious employers from the prohibition on religion-based discrimination “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” See Lupu, Ira C. and Tuttle, Robert W., Instruments of Accommodation: The Military Chaplaincy and the Constitution, 7 & n.22 (2007)Google Scholar (unpublished manuscript), available at http://ssrn.com/abstract=996050.

24 The second statement in the Oath of a Pharmacist, developed in 1994 by the American Pharmaceutical Association Academy of Students of Pharmacy/American Association of Colleges of Pharmacy Council of Deans (APhA-ASP/AACP-COD) Task Force on Professionalism, states “I will consider the welfare of humanity and relief of human suffering my primary concerns.” American Association of Colleges of Pharmacy, Oath of a Pharmacist, June 26, 1994, http://www.aacp.org/site/tertiary.asp?TRACKID=&VID=2&CID=686&DID=4339. The fifth statement of the oath holds pharmacists to “the highest principles of moral, ethical, and legal conduct.” Id.

25 See William J. Curran, et al., Health Care Law and Ethics 835 (5th ed. 1998) (excerpting In re A.C., 537 A.2d 1235 (D.C. App. 1990) (en banc)).

26 See supra note 21 (discussing Smith); see, infra note 102 (discussing Roe and Griswold).

27 See, e.g., Griffin, Leslie C., Conscience and Emergency Contraception, 6 Hous. J. Health L. & Pol’y 299, 307 (2006)Google Scholar (“The easiest way to make emergency contraception available to consumers without delay is to sell it over-the-counter, without a prescription.”).

28 See, e.g., United States Food & Drug Administration, FDA Approves Over-the-Counter Access for Plan B for Women 18 and Older Prescription Remains Required for Those 17 and Under, FDA News (Aug. 24, 2006), http://www.fda.gov/bbs/topics/NEWS/2006/NEW01436.html; Center for Reproductive Justice, The Fight for Emergency Contraception: Every Second Counts, http://www.reproductiverights.org/crt_planb_timeline.html (last visited Feb. 14, 2008); Pharmacy Access Partnership, What Consumers Need to Know about Plan B OTC, Jan. 2007, http://www.pharmacyaccess.org/pdfs/ConsumerFAQsOTC.pdf.

29 See Curran, supra note 25.

30 See Misti Crane, Some still refuse to dispense plan B; Ohio consumers denied contraceptive, Columbus Dispatch (Ohio), Jan. 15, 2007, at A1, available at http://www.dispatch.com/dispatch/contentbe/dispatch/2007/01/15/20070115-A1-02.html.

31 Id.

32 Making Plan B available behind the counter does not change the dilemma for pharmacists who object to dispensing a drug that they believe ends a potential human life and, consequently, does not resolve a patient's access issues. It may alleviate access concerns, however, since any pharmacist, technician, or store staff member with access to Plan B may dispense the drug to consumers showing proof of age. See Pharmacy Access Partnership, What Pharmacists, Technicians and Pharmacy Staff Need to Know about Plan B OTC in Pharmacies, 2007, http://www.pharmacyaccess.org/pdfs/PharmacistFAQsOTC.pdf.

33 See infra Part II.

34 Existing conscience clauses in a number of states encompassed EC even before the most recent controversy erupted. See, e.g., Ga. Comp. R. & Regs. 480-5-.03(n) (2008).

35 Taylor v. St. Vincent's Hospital, 369 F. Supp. 948, 950 n.1 (D. Mont. 1973); H.R. Rep. No. 92-227, at 11 (1973), reprinted in 1973 U.S.C.C.A.N. 1464, 1473.

36 Under Section 1983, entities acting under color of state law may not subject “any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983 (2000).

37 See H.R. Rep. No. 93-227 (1973), as reprinted in 1973 U.S.C.C.A.N. 1464, 1473 (discussing the preliminary injunction granted by the District Court of Montana in Taylor).

38 Hospital and Medical Facilities Amendments of 1964, Pub. L. No. 88-443, 78 Stat. 447 (codified at 42 U.S.C. § 291) (2008).

39 Id.

40 The Church Amendment appears in Section 401 of the Health Programs Extension Act, which President Nixon signed into law in June 1973. Pub. L. No. 93-45, 87 Stat. 91, 95 (1973).

41 Id.

42 Id.

43 Dep’ts of Lab., Health & Hum. Services., and Educ. and Related Agencies Appropriations Act of 2004, Pub. L. No. 108-447, § 508(d)(1), 118 Stat. 2809, 3163; Pub. L. No. 109-149, § 508(d)(1), 119 Stat. 2833, 2879.

44 Id.

45 Pub. L. No. 108-447, § 508(a) provides that:

The limitations established in the preceding section shall not apply to an abortion—(1) if the pregnancy is the result of an act of rape or incest; or (2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.

See also Pub. L. No. 109-149, § 508(a).

46 Dep’ts of Lab., Health & Hum. Services., and Educ. and Related Agencies Appropriations Act of 2004, Pub. L. No. 108-447, § 507, 118 Stat. 2809, 3163; Pub. L. No. 109-149, § 507, 119 Stat. 2833, 2879 (2005).

47 Bob Egelko, California Suit Hits Antiabortion Amendment, S.F. Chron. Jan. 26, 2005, at B3, available at 2005 WLNR 1074748.

States are challenging the constitutionality of the Weldon Amendment on the grounds that “the vague and sweeping nature of the Clause has the potential to dramatically curb women's access to reproductive health care information and services.” Guttmacher Institute Media Center, In The News: Lawsuits Filed to Enjoin Federal Refusal Clause, Dec. 20, 2004, available at http://www.guttmacher.org/media/inthenews/2004/12/20/. These challenges have been unsuccessful to date. See, e.g., National Family Planning and Reproductive Health Ass'n, Inc. v. Gonzales, 391 F. Supp. 2d 200 (D.D.C. 2005) (denying a preliminary injunction to family planning services providers on the grounds that the Weldon Amendment was not unconstitutionally vague, did not violate the providers’ First Amendment free speech rights, and did not constitute impermissible delegation of legislative power to executive agencies).

48 42 U.S.C. 238n(a)(1)(2000).

49 Dep’ts of Lab., Health & Hum. Services., and Educ. and Related Agencies Appropriations Act of 2004, Pub. L. No. 108-447, § 508 (d)(2), 118 Stat. 2809, 3163.

50 See Pub. L. No. 100-259, § 909, 102 Stat. 28, 29 (1988) (codified at 20 U.S.C. § 1688 (2008)) (providing that the receipt of monies under Title IX, which prohibits sex discrimination in federally-funded education programs, may not be construed to require an individual or entity to provide or pay for abortion-related services).

51 Firings and other disciplinary actions against pharmacists who refuse to provide emergency contraceptives have dominated the news in recent years. See, e.g., Stein, For Some, There is No Choice, supra note 7; Leah Thorsen, Druggists Suspended in Debate over Pill, St. Louis Post-Dispatch, Nov. 30, 2005, at A1, available at 2005 WLNR 24319411 (reporting that Walgreen's placed four Illinois pharmacists in the St. Louis area on unpaid leave for refusing to fill prescriptions for emergency contraception in violation of a rule imposed by Illinois Gov. Rod Blagojevich in April of 2005 that requires Illinois pharmacies that sell contraceptives approved by the FDA to fill prescriptions for emergency birth control); Marilyn Gardner, Pharmacists’ Moral Beliefs vs. Women's Legal Rights, Christian Sci. Monitor, Apr. 26, 2004, at 11, available at http://www.csmonitor.com/2004/0426/p11s01-usju.html (reporting that a K-Mart pharmacist faced disciplinary hearings in Wisconsin after refusing to fill or transfer a woman's prescription for birth-control pills on the basis on the pharmacist's religious beliefs).

52 See Ark. Code Ann. § 20-16-601(a) (2005); Conn. Agencies Regs. § 19-13-D54(f) (2005); Del. Code Ann. tit.. 24, § 1791 (2005); Fla. Stat. Ann. § 390.0111(8) (West 2002); Ind. Code Ann. § 16-34-1-4 (West 1993); Iowa Code Ann. § 146.1 (West 2005); Kan. Stat. Ann. § 65-443 (2002); Me. Rev. Stat. Ann. tit. 22, §§ 1591, 1592 (2004); Mich. Comp. Laws Ann. § 333.20181 (West 2001); Minn. Stat. Ann. § 145.414 (West 2005); N.M. Stat. Ann. § 30-5-2 (LexisNexis 2003); N.C. Gen. Stat. § 14-45.1(e), (f) (2005); N.D. Cent. Code § 23- 16-14 (2002); Ohio Rev. Code Ann. § 4731.91 (LexisNexis 2006); 18 Pa. Cons. Stat. Ann. § 3213(d) (West 2000); S.D. Codified Laws § 34- 23A-11 (1994); S.D. Codified Laws § 34- 23A-12 (2004); Tenn. Code Ann. § 39-15-204 (2006); Wyo. Stat. Ann. § 35-6-106 (2007).

53 Haw. Rev. Stat. Ann. § 453-16(d) (LexisNexis 2005).

54 See Cal. Health & Safety Code § 123420(c) (West 2006); Neb. Rev. Stat. § 28- 337 (1995); Or. Rev. Stat. Ann, § 435.475 (West 2003); Or.Rev. Stat. Ann § 435.485 (West 2003) (allowing physicians to refuse to give patients information about an abortion, but the physician must let the patient know about the refusal).

55 16 Pa. Code §§ 51.1 - 51.61 (2005).

56 See Ariz. Rev. Stat. Ann. § 36-2151 (2003); Colo. Rev. Stat. Ann. § 18-6-104 (West 2007); Ga. Code Ann. § 16-12-142 (2007); Idaho Code Ann. § 18-612 (2004); 720 Ill. Comp. Stat. Ann. 510/13 (West 2003); Ky. Rev. Stat. Ann. § 311.800 (Lexis Nexis 2007); Mass. Gen. Laws Ann. ch. 112, § 12I (West 2003); N.Y. Civ. Rights Law § 79-i (McKinney 1992); 43 Pa. Cons. Stat. Ann. § 955.2 (West 1991); R.I. Gen. Laws § 23-17.11 (1996) (providing an exception for scheduled abortions only); Va. Code Ann. § 18.2-75 (2004).

57 Cal. Health & Safety Code § 123420(a) (West 2006).

58 Wis. Stat. Ann. § 253.09 (West 2004).

59 See La. Rev. Stat. Ann. § 40:1299.33 (2001); Mass. Gen. Laws Ann. ch. 112, § 12I (West 2003); Mo. Ann. Stat. § 197.032 (West 2004).

60 Mont. Code Ann. § 50-20-111 (2007).

61 745 Ill. Comp. Stat. Ann. 70/7 (West 2002).

62 See 745 Ill. Comp. Stat. Ann. 70/13 (West 2002); 18 Pa. Cons. Stat. Ann. § 3213 (West 2000).

63 Ky. Rev. Stat. Ann. § 311.800(5)(c) (West 2007).

64 See 16 Pa. Code § 51.51 (2000) (allowing a facility that provides abortions to seek a temporary exemption to the conscience clause protections).

65 Mo. Ann. Stat. § 188.105 (West 2004).

66 Specialized abortion clinics are defined as “those where at least half of patient visits are for abortion services.” Finer, Lawrence B. & Henshaw, Stanley K., Abortion Incidence and Services In the United States in 2000, 35 Perspectives on Sexual and Reproductive Health 6, 12 (2003)CrossRefGoogle ScholarPubMed.

67 Id.

68 Kantor, Julie & Baum, Ken, The Limits of Conscientious Objection - May Pharmacists Refuse to Fill Prescriptions for Emergency Contraception?, 351 N. Eng. J. Med. 2008, 2010 (2004)CrossRefGoogle Scholar. Similarly, some believe a “refuse-and-refer” system will not be effective in remote parts of the state and in particularly religious areas. See, e.g., Hamilton, supra note 21.

69 City-Data.com, Fincastle, http://www.city-data.com/city/Fincastle-Virginia.html (last visited Mar. 2, 2008).

70 City-Data.com, Eastville, http://www.city-data.com/city/Eastville-Virginia.html (last visited Mar. 2, 2008).

71 Google Maps, Distance from Eastville, Va. to Rite-Aid in Exmore, http://maps.google.com (last visited Feb. 13, 2008); Telephone interview by Erin Willoughby, research assistant, with Rite-Aid employee (October, 2006).

72 Google Maps, Distance from Eastville, Va. to Rayfield's Pharmacy, http://maps.google.com (last visited Mar. 2, 2008); Telephone interview by Erin Willoughby, research assistant, with Rayfield's employee (October 2006).

73 Yahoo Yellow Pages, Pharmacies in Roanoke,Va., http://yp.yahoo.com; Google Maps, Distance from Fincastle, Va. to Roanoke, Va., maps.google.com.

74 Telephone interview by Erin Willoughby, research assistant, with Planned Parenthood employee (October, 2006).

75 See Planned Parenthood, About Us, http://www.plannedparenthood.org/aboutus/who-we-are/pp-services-5552.htm (last visited Mar. 2, 2008).

76 Online pharmacies such as http://www.drugstore.com and http://www.edrugstore.md provide emergency contraception for next-day delivery to a patient's home.

77 Admittedly many lower income individuals may not have access to the internet, although public libraries and other sources partially fill this gap. While these electronic efforts may not fully solve the problem, they are a step in the right direction.

Public awareness campaigns can also help to reduce the hardship on patients seeking EC. For instance, the American College of Obstetricians and Gynecologists initiated a public education campaign entitled Ask Me. Press Release, American College of Obstetricians and Gynecologists, ACOG Steps Up Efforts To Get Emergency Contraception to Women, May 8, 2006, available at http://www.acog.org/from_home/publications/press_releases/nr05-08-06-1.cfm. A number of websites also provide information on where and how to obtain EC, including http://www.fillmypillsnow.com and http://ec.princeton.edu.

78 Interview with Katherine Fader, pharmacist (June 5, 2006).

79 Jen McCaffrey, Pam Podger and Jeff Sturgeon, Pharmacies Divided on Whether to Sell Plan B, Roanoke Times, August 25, 2006, at A1.

80 Press Release, U.S. Rep. Debbie Wasserman Schulz, Birth Control: On 40th Anniversary of Supreme Court Decision Some Women Have Seen Their Rights Vanish (June 7, 2005), available at http://www.house.gov/apps/list/press/fl20_schultz/prescription40thpresser.html

81 Doe v. Bolton, 410 U.S. 179, 198 (1973).

82 Webster v. Reproductive Health Services, 492 U.S. 490 (1989) (upholding a Missouri statute that prohibited public employees from performing abortions in public hospitals).

83 Harris v. McRae, 448 U.S. 297, 316 (1980).

84 Ariz. Rev. Stat. Ann. § 36-2151 (2003).

85 For example, in one case in which a state supreme court concluded that the state constitution prohibited conscience protections for unwilling providers, the court said the hospital's “sincere moral belief” could not outweigh the ability to procure an abortion. Valley Hosp. Ass’n v. Mat-Su Coalition for Choice, 948 P.2d 963, 972 (Alaska 1997). In the court's view, constitutional rights “cannot be allowed to yield simply because of disagreement with them.”

86 Hurley v. Eddingfield, 59 N.E. 1058 (Ind. 1901).

87 A handful of states treat health care services as public services and bring them within public accommodation statutes. Five states, by statute or court decision, now define public accommodations to include health care providers. See Unruh Civil Rights Act, Cal. Civ. Code §51(b) (West 2007) (extending nondiscrimination provisions to “all business establishments of every kind whatsoever”); Haw. Rev. Stat. Ann. § 489-2 (LexisNexis 2005) (“‘Place of public accommodation’ means a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the general public as customers, clients, or visitors. By way of example, but not of limitation, place of public accommodation includes facilities of the following types: … (10) A professional office of a health care provider, as defined in section 323D-2, or other similar service establishment”); Me. Rev. Stat. Ann. Tit. 5 § 4553 (West 2002) (“‘Place of public accommodation’ means a facility, operated by a public or private entity, whose operations fall within at least one of the following categories: … A laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, dispensary, clinic, bathhouse or other service establishment”); N.J. Stat. Ann. 10:5-5 (West 2002) (“‘A place of public accommodation’ shall include, but not be limited to: … any dispensary, clinic or hospital”); NY. Exec. Law § 292 (McKinney 2005) (“The term ‘place of public accommodation, resort or amusement’ shall include, except as hereinafter specified, all places included in the meaning of such terms as: … dispensaries, clinics, hospitals.”).

Michigan, Ohio, Tennessee, and Rhode Island prohibit discrimination in health care services through other statutory provisions. Mich. Comp. Laws Ann. § 333.20201 (2001) (“(1) A health facility or agency that provides services directly to patients or residents and is licensed under this article shall adopt a policy describing the rights and responsibilities of patients or residents admitted to the health facility or agency… . (2) The policy describing the rights and responsibilities of patients or residents required [under subsection (1)] shall include, as a minimum, [all of the following]: (a) A patient or resident shall not be denied appropriate care on the basis of race, religion, color, national origin, sex, age, disability, marital status, sexual preference, or source of payment[;]” Michigan does not include private physicians under this statute unless they rise to the level of a freestanding outpatient surgical facility (a term that includes all facilities where at least 50% of patients each year receive abortions)); Ohio Rev. Code Ann. § 1751.13 (2004) (“A health insuring corporation shall file an annual certificate with the superintendent certifying that all provider contracts and contracts with health care facilities through which health care services are being provided contain the following: … (9) A provision requiring the provider or health care facility to provide health care services without discrimination on the basis of a patient's participation in the health care plan, age, sex, ethnicity, religion, sexual preference, health status, or disability, and without regard to the source of payments made for health care services rendered to a patient[;]” Ohio defines a “provider” as a “natural person or partnership of natural persons who are licensed, certified, accredited, or otherwise authorized in this state to furnish health care services.” Ohio Rev. Code Ann. § 1751.01(X) (2004)); Tenn. Code Ann. § 56-7-3010 (2000) (“(a) Contractors shall ensure that health care providers providing services to plan enrollees: … (2) Do not refuse to provide services to a plan enrollee on the basis of health status, medical condition, previous insurance status, race, color, creed, age, national origin, gender, sexual orientation, disability or marital status.”); R.I. Gen. Laws § 23-17.16-2 (2004) (“Each home care patient/client has the following rights: (1) To receive services without regard to race, creed, color, gender, sexual orientation, age, disability, or source of payment.”).

88 Such as an agreement by a doctor to be in a network or on call or to serve a patient through a spell of illness.

89 Ky. Rev. Stat. Ann. § 311.800(5)(c) (West 2007).

90 Ill. Comp. Stat. Ann. 70/7-7 (West 2002).

91 41 Iowa Op. Att’y Gen. 478 (1976).

92 Id.

93 450 U.S. 707 (1981).

94 Id. at 709.

95 Id. at 710.

96 Id. at 712.

97 Id. at 715.

98 Id.

99 Id. at 717.

100 Id.

101 eDrugstore.MD Online Pharmacy, Plan B, http://www.edrugstore.md/Plan-B-(Levonorgestrel).jsp (noting that “[p]atients may take [EC] after the initial 72 hour period, but effectiveness gradually declines after this initial timeframe”).

102 Some advocates charge that women should not have to tolerate even the smallest inconvenience because “contraception is part of the most basic health care for women” and “the refusal to fill birth control prescriptions goes against the spirit of Griswold v. Connecticut.” Schulz Press Release, supra note 80.

103 Kyung Song, Women Complain After Pharmacies Refuse Prescriptions, Seattle Times, August 1, 2006, at A5.

104 Pharmacy Refusals 101, supra note 18. While other women have encountered longer waits, these examples are instructive of the difficulty most women are likely to face.

105 Rebecca Dresser, Professionals, Conformity, and Conscience, Hastings Center Report, November-December 2005, at 9 (arguing that individual pharmacists should have to provide referrals to other pharmacists who will fill the prescription).

106 At least one state has affirmatively rejected this approach with respect to abortions. Md. Code Ann., Health-Gen. § 20-214 (LexisNexis 2005) (“A licensed hospital … may not be required to permit, within the hospital, the performance of any medical procedure that results in artificial insemination, sterilization, or termination of pregnancy; or to refer to any source for these medical procedures.”).

107 Dresser, supra note 105, at 10 (arguing that all pharmacists have a duty to provide accurate information, including informing the patient where she can obtain EC).

108 One article describes the current pharmacist workforce as including “bolus of pharmacists who are now mostly in their mid to late fifties.” The article goes on to predict a “coming exodus” of pharmacists as they reach retirement age. Manasse, Henri R. & Speedie, Marilyn K., Pharmacists, Pharmaceuticals, and Policy Issues Shaping the Workforce in Pharmacy, 64 Am. J. Health-Syst. Pharm. (Special Feature) e30, e43-44 (2007)CrossRefGoogle Scholar.

109 Pharmacist shortage worsens nationwide; Concerns raised about impact on patients, MSNBC.com, Nov. 7, 2005, http://www.msnbc.msn.com/id/9956386/.

110 Vischer, Robert K., Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace, 17 Stan. L. & Pol’y Rev. 83, 112 (2006)Google ScholarPubMed.

111 Id. at 85.

112 Id. at 112.

113 Id.

114 See Martha Minow, Should Religious Groups Be Exempt from Civil Rights Laws? (forthcoming 2007), available at http://ssrn.com/abstract=1013417.

115 See, e.g., Pharmacy board statements, supra note 16.

116 Proposed Rules, Pharmacy Practice Act, 31 Ill. Reg. 15399 (proposed Nov. 26, 2007) (to be codified at 68 Ill. Admin. Code tit. 1330, § 91).

117 Illinois requires pharmacies that do not carry EC to post a sign directing patients to other pharmacies that do stock it. 68 Ill. Admin. Code tit. 1330, § 91(k) (2007). A proposed regulation in Illinois would permit objecting pharmacists to refuse to fill a prescription for EC but require them to, first, refer the patient to another willing pharmacist on premises or, second, to contact another pharmacy which then can authorize a non-pharmacist employee to dispense the medication. The regulation would also authorize a registered pharmacy technician to dispense EC. See Proposed Rules, supra note 116.

118 Cal. Health & Safety Code § 123420(a) (West 2006).

119 Mont. Code Ann. § 50-20-111 (2007).

120 745 Ill. Comp. Stat. Ann. 70/7 (West 2006).

121 16 Pa. Code § 51.51 (2000).

122 Mo. Ann. Stat. § 188.105 (West 2004).