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A Case of Conscientious Refusal: Rights and Responsibilities
By Margaret R. McLean
A Pharmacist Refuses to Fill a Prescription for Birth Control: An Ethics Case Study (Podcast)
On July 6, 2002, a University of Wisconsin-Stout student, went to the K-Mart in Menomonie, Wisconsin, to fill her prescription for oral contraceptives, birth control pills. The only pharmacist on duty, Neil Noesen, asked if she intended to use the prescription for contraception. When she replied in the affirmative, Noesen, a Roman Catholic, refused to fill the prescription, explaining that to do so would be against his religious beliefs. She thought that he was kidding.
But Noesen was very serious. As a devout Catholic, he had concluded that he could not dispense contraceptives. He also refused to transfer the prescription or tell her how or where she could get the prescription filled, all of which, he explained later, would, in his view, constitute participating in wrongful behavior. Significantly, prior to employment at K-Mart, Noesen had informed the district manager that he would not dispense contraceptives; however, he did not mention that he would refuse to refer or to transfer prescriptions.
The woman filed a complaint with the Wisconsin Department of Regulation and Licensing's Pharmacy Examining Board. The administrative law judge who heard the complaint found that the ordinary standard of care "requires that a pharmacist who exercises a conscientious objection to dispensing of a prescription must ensure that there is an alternative mechanism for the patient to receive his or her medication, including informing the patient of their options to obtain their prescription." Further, he found that Noesen's conduct constituted "a danger to the health, welfare, or safety of a patient and was practiced in a manner which substantially departs from the standard of care ordinarily exercised by a pharmacist and which harmed or could have harmed a patient."
His ruling also limited Noesen's license, requiring him to notify any pharmacy where he worked of any practices he would refuse to perform and how he would ensure patient access to prescriptions that he declined to fill.1
Did Noesen have a right to refuse to perform this legitimate professional service on the basis of conscience?
The issue facing us here is not contraception but conscience and the limits—if any—of its protection.
I want to begin with CBS producer and PBS founder Fred Friendly's definition that conscience "... is that little voice that tells you to brush your teeth at night"—or to tell the truth, or to not hit your sister, or, in the case before us, to not fill a prescription.2
Conscientious refusal by a healthcare professional—here, a pharmacist—refers to the desire or intent to refuse, or to the actual refusal of, a course of action requested by a patient or expected by the ordinary standard of care,3 both of which are in play here as the young woman possesses a valid prescription which, according to pharmacy practice, ought to be filled. The basis for a refusal based on conscience is a conflict with the professional's personal values or core moral beliefs. Such values and beliefs—whether grounded in religion, as in this case, or not—matter deeply to a person, forming an integral part of self-identity and personal integrity and, hence, deserve some degree of protection.
Few, if any of us, would dispute that there are circumstances in which we have a right—perhaps a duty—to assert ethical or religious objections to fulfilling our professional obligations. Few of us would want to be operated on by a surgeon who was forced against conscience to slice us open. However, refusal decisions are never solely about the professional—conscientious refusal always affects someone else's health and access to medical care. There is always a broader social impact. One might, for example, imagine a rural area in which a pharmacist—who is the sole provider within a 50 mile radius—leaves women without reasonable access to legal, medically indicated, physician-prescribed medication.4 Noesen's refusal to fill the prescription and, then, to refer the patient and, finally, to transfer the prescription interfered with the patient's access to treatment, putting her in harm's way from an unwanted, preventable pregnancy. "Imagine if I had gotten pregnant then and the effects that would have had on my life," the former student said in a 2008 interview.5 "It's a problem in our society where people go out and have children they are not ready to have."6
The negative consequences of conscientious refusal in reproductive medicine fall disproportionately on women, as is the case here. When asked, the woman said that she planned to use the medication for contraception but this prescription could easily have been for dysmenorrhea7, menorrhagia,8 polycystic ovaries, and the like.
With our all-too-American focus on “rights-talk,”9 we often silence the equally crucial “responsibility-talk,” that cases such as this crave. Medicine has its own set of core ethical commitments:
Professional standards across medical disciplines have supported the right to “step away” from providing a service that violates conscience.10 However, this is coupled with the responsibility to treat the patient with dignity and to ensure access to needed medical care. The right to refuse does not include a right to obstruct—the patient must be informed about the intent to refuse and alternative courses of action; otherwise it becomes a troubling imposition of personal beliefs on patients, notably, female patients.11
The Code of Ethics for Pharmacists states: “A pharmacist respects the autonomy and dignity of each patient . . . by encouraging patients to participate in decisions about their health. . . . In all cases, a pharmacist respects personal and cultural differences among patients.”12 When Mr. Noesen refused to fill and, subsequently, to transfer the prescription, he denied this young woman’s right to make her own health care decisions in consultation with her physician. Her personal beliefs (she is Lutheran) were not respected.
Pharmacists should be allowed to “step away” from filling prescriptions that violate core moral beliefs but refusal to act must go together with responsibility to promote “the good of every patient in a caring, compassionate, and confidential manner . . . plac[ing] concern for the well-being of the patient at the center of professional practice” and “protecting the dignity of the patient.”13 Pharmacists and their employers need to develop processes and policies that support the individual decision of the pharmacist while providing the care that the patient requires.
Responsibility to the patient must always be the priority. “Stepping away” does not imply “stepping in between” a patient and her health care by refusing to refer or to transfer care, or by making the patient feel uncomfortable or ashamed. If the choice is to “step away,” the patient must be protected from otherwise preventable harm until the professional can step away safely.
Although they don’t attract as much attention as medically assisted death or health care reform, I find questions of conscience to be among the most vexing. I want to preserve the right for healthcare professionals to act or to refuse to act on the basis of individual conscience; but, I also want to protect those who are in harm’s way by appeals to conscience. Clearly, I am inclined to protect those who would suffer substantive harm as a result of conscientious refusal, even if it means that occasionally a professional must act on responsibility rather than conscience.
Perhaps, the young woman in this case said it best: “I have no problem with his beliefs. But you can’t let your beliefs interfere with your professional responsibilities. Maybe he should consider a different line of work.”14
Margaret R. McLean is the associate director and director of bioethics at the Markkula Center for Applied Ethics. She presented this paper at “The Spark of Conscience Inflames Debate: Conflicts of Conscience in Health Care,” a conference held at Santa Clara University Nov. 3, 2011.
1 Noesen appealed and, on appeal, the court ruled that Noesen had a right to refuse to provide birth control pills but not to refuse to transfer a valid prescription to another pharmacy.