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I was asked by a commenter to reflect on the following story and opine as to whether it would be a proper conscience clause refusal.  I do so here, taking the facts stated in the story at face value—and without judging the Idaho law in question with which I am not familiar.  Nor am I licensed to practice law in Idaho, so this is not a legal opinion on the matter. In other words, I am judging the reported facts with what I have stated should be the criteria for conscience clause protections, not what actually happened or based on what the Idaho law may or may not protect. From the story:

A new Idaho law enacted in 2010 is designed to protect medical professionals by allowing them to refuse health care services that conflict with their religious, moral or ethical principles. But Planned Parenthood says a Nampa pharmacist acted in the wrong and was not protected by the law when she refused to fill a prescription. Planned Parenthood has responded by filing a complaint with the state. The prescription at the center of this is methergine. It’s used to prevent bleeding after childbirth or after an abortion.

In November, a Planned Parenthood nurse called this Nampa Walgreen’s for a methergine prescription. According to Planned Parenthood, the Walgreen’s pharmacist asked if their patient had an abortion. The nurse says she cited federal patient privacy laws and refused to answer. “The pharmacist said, ‘Well, if you’re not going to tell me that and she had an abortion, I’m not going to fill this prescription.’ And then our practitioner said, ‘Why don’t you tell me another pharmacy that I can call or another pharmacist that can dispense this medication for my patient?’ And the pharmacist hung up on her,” said Kristen Glundberg-Prosser of the Planned Parenthood of the Great Northwest.

Here are the criteria I have written should be applied to such cases. From my First Things article, “Pulling the Plug on Conscience Clauses:”

  • The rights of conscience should apply to medical facilities such as hospitals and nursing homes as well as to individuals.

  • Except in rare and compelling circumstances in which a patient’s life is at stake, no medical professional should be compelled to perform or participate in procedures or treatments that take human life.

  • The rights of conscience should apply most strongly in elective procedures, that is, medical treatments not required to extend the life of, or prevent serious harm to, the patient.

  • It should be the procedure that is objectionable, not the patient. In this way, for example, physicians could not refuse to treat a lung-cancer patient because the patient smoked or to maintain the life of a patient in a vegetative state because the physician believed that people with profound impairments do not have a life worth living.

  • No medical professional should ever be forced to participate in a medical procedure intended primarily to facilitate the patient’s lifestyle preferences or desires (in contrast to maintaining life or treating a disease or injury).

  • To avoid conflicts and respect patient autonomy, patients should be advised, whenever feasible, in advance of a professional’s or facility’s conscientious objection to performing or participating in legal medical procedures or treatments.

  • The rights of conscience should be limited to bona fide medical facilities such as hospitals, skilled nursing centers, and hospices and to licensed medical professionals such as physicians, nurses, and pharmacists.

  • Now, let’s apply the reported facts to the above criteria.

    1. The medication is designed to prevent serious harm to the patient, and hence, would not be elective.  That puts a greater onus on the pharmacist.

    2. The medication didn’t cause the abortion (if one was involved here), and hence, could not be construed as taking a human life.

    3. The action of the drug—stopping bleeding—was not objectionable per se to the pharmacist.  That was why she asked if it involved an abortion or a birth. Thus it was not the procedure to which the pharmacist objected.

    4. The procedure was not a matter of facilitating lifestyle, but preventing serious physical injury or even death.

    5. There is no  indication that advance notice was given that the anti bleeding drug wouldn’t be dispensed.  That is because the drug itself is not what the pharmacist objected to.

    6. The refusal was based on discrimination, not the drug.  The pharmacist thought the patient had an abortion.  She found that morally repugnant.  But refusing the prescription for that reason is no more acceptable than refusing to dispense cancer treatment medications to a lung cancer patient or the anti bleeding medication for a bank robber who was shot.  Such moral judgments about patients are unacceptable.  It is the procedure that must be objectionable.

    So, based on the reporting of the story, this isn’t even a close call.  This is not a proper conscience clause (from my criteria) case and in Wesley World, the pharmacist would not be protected.

    Update: Under Idaho law, there is no duty to dispense, so the complaint was dismissed.

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