Pharmacists can face legal action for saying "No"! by David Work, Executive Director, NC Pharmacy Board
In February of 2004 the North Carolina Board of Pharmacy received a consumer complaint about a pharmacist who declined to dispense a prescription for Preven, a product used for emergency contraception, and cited his religious beliefs. The Board initiated an investigation, however, the complaint was later withdrawn.
Recognizing the interest in this issue the North Carolina Board of Pharmacy adopted a policy on this conduct in April of 2005. This policy states that a pharmacist can decline to dispense a prescription based on moral issues but then needs to refer the patient with the prescription to a pharmacist who will dispense the drug in a timely manner.
Over the last several weeks virtually every newspaper in our state has published a news story, editorial or letter to the editor on the refusal of a pharmacist to dispense a prescription for emergency contraception. Some newspapers have printed all three. It’s not unusual for a writer to commingle contraception and abortion as if these words are interchangeable and they are not. Television networks including CNN and FOX seem to be attracted to this topic. Emotions run high on the topic with a volatile mix of pharmaceuticals, sex and at least two kinds of morality. Some civil reflection on this activity is in order, hence this article.
First of all we need to settle on a standard definition of terms. Conception occurs and pregnancy begins when a fertilized egg attaches to the wall of a woman’s uterus. Preventing the fertilization or the attachment is standard contraception accepted by everyone with the possible exception of the Roman Catholic Church. I say possible here because even the Vatican accepts the rhythm method, which in its own way, is contraception by the timing of intercourse to avoid ovulation when the chance of conception is highest. In the normal life of a sexually active female there are many instances where a fertilized egg fails to attach to the uterine wall and is expelled as a part of the menstrual cycle.
Dislodging and expelling the fertilized egg from the uterine wall is abortion. By definition, contraception is not abortion.
Emergency contraceptive products such as Plan B act by preventing a fertilized egg from attaching to the uterine wall. A woman can effectively avoid a pregnancy by consuming this product after intercourse but prior to the egg attachment to the uterine wall. Missed birth control pills or rape can produce an urgent need for emergency contraception. Time is of the essence in this situation when the drug should be administered within 72 hours of intercourse to be effective.
Consuming a large dose of a standard oral contraceptive can also prevent attachment. The only drug used in contemporary medical practice which causes an abortion is RU 486 (mifepristone). Federal rules require this product to be provided only by a physician and pharmacists do not dispense this drug.
In the normal life of a sexually active female there are many instances where a fertilized egg fails to attach to the uterine wall and is expelled as a part of the menstrual cycle.
A pregnancy could result when a pharmacist declines to dispense a prescription for an emergency contraceptive and fails to refer the patient to another source for the product. This pharmacist could have liability exposure for the tort of “wrongful conception”, which is recognized in North Carolina. In one published case, a physician negligently installed an Intra Uterine Device (IUD) which was ineffective and the patient became pregnant. Damages could include medical expenses, pain and suffering, loss of wages, and emotional distress but not the cost of raising the child. If the pregnant patient decides to have an abortion it is possible that the pharmacist could also be liable for that expense. This is a straight-forward malpractice case where a pharmacist has a duty as described by the Board, and fails or refuses to comply with that duty and damages are a direct result of that conduct.
One large chain, Wal-Mart, has publicly announced that emergency contraceptives will not be stocked in their stores. They have pharmacies in most of their locations and some are in very rural areas, far from alternative sources for the drug. It remains to be seen how much liability for wrongful conception would be shared between a pharmacist and the employer who intentionally excludes emergency contraceptives from their inventory with no actual market experience.
In summary, it is possible for pharmacists to decline to dispense prescriptions for contraception but such an act may have unexpected and serious consequences.
David R. Work has been Executive Director of the North Carolina Pharmacy Board for over 25 years. His words are his own and do not reflect a position or opinion of the Pharmacy Board. The writer thanks Board Counsel Bailey & Dixon, Raleigh, for providing the legal research for this opinion piece
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