Pharmacist Choice and the Morning-After Pill

By SHERRY F. COLB

Wednesday, Nov. 02, 2005

Just this year, fourteen states have introduced bills that would protect the right of a pharmacist to choose not to fill prescriptions, based on his or her own personal, moral, or religious beliefs. Some of the bills explicitly refer to prescriptions for emergency contraception (the morning-after pill), while others apply more generally.

Such laws present fascinating questions about how the reproductive choices of women do, and should, intersect with the moral choices of providers such as pharmacists. They force both the pro-life and the pro-choice thinker to articulate the scope and meaning of the rights that each embraces.

A Hypothetical Pro-Life Pharmacist's Viewpoint

Though I am not a pro-life pharmacist, I will here take on the persona of such an individual and defend my right not to distribute morning-after pills.

I believe that life begins at the moment of conception. For that reason, once an egg and a sperm unite to form one living cell, that cell is a human being entitled to all of the respect that we extend to a newborn baby. And just as a newborn baby cannot survive without food, warmth, and oxygen, a growing embryo cannot survive without attaching to a uterus.

Women take the so-called "morning-after pill" with the goal of preventing either fertilization of her egg or, if fertilization has already occurred, implantation of the resulting embryo in her uterus. In the latter situation, the hormones in the pill interfere with the natural process by which a woman's uterus becomes a hospitable place for an embryo after ovulation. The pill thus causes the death of the embryo, just as surely as leaving a newborn baby naked on a freezing cold mountain will cause the death of that baby.

After the Supreme Court decided Roe v. Wade, my approach to embryos became a dissenting view. I accept that reality, though I am not happy about it, and I remain hopeful that some of the new legal minds joining the highest Court will revisit the abortion issue with greater sympathy than previous ones have shown. In the meantime, however, I cannot accept the notion that I have to participate in the killing process by dispensing a pill that I consider an abortifacient.

I believe that preventing implantation is tantamount to abortion, because it kills a living embryo, and that abortion is the moral equivalent of murder. I should therefore have the right to avoid facilitating such an act. If I can be forced -- at the risk of losing my job -- to provide morning-after pills, then "freedom of choice" is truly just a slogan, and the only "choice" the law protects is that of people who find the killing of unborn children morally unobjectionable.

There is precedent in my favor, even under existing case law. The Supreme Court said in Maher v. Roe that the right to an abortion does not include entitlement to federal funding to support that abortion. Why would the Court say that? Plainly to announce that just because one has a "privacy" right to something that many people consider immoral does not mean that other people must pay for it with tax money.

Those who oppose abortion have rights too, even after Roe. A doctor should not have to participate in an abortion if she believes that abortion is wrong, and a pharmacist like me should not have to participate in it either. Lawyers, for example, can decide not to represent tobacco companies or accused rapists, without legal consequence. I too should be allowed to choose to opt out of the violence perpetrated in the name of choice.

Analyzing What the Hypothetical Pharmacist Said

Let us now examine the argument of our hypothetical pharmacist. First, we note that she acknowledges -- as this issue forces her to do -- that she is opposed not simply to late- or mid-term abortions.

Pharmacists who dispense morning-after pills do not participate in procedures that destroy an entity that looks remotely like a baby, in terms of shape, body structures or functions. To oppose the morning-after pill as murder, then, is to claim that one human cell has a moral entitlement -- against the contrary wishes of a woman who might have been raped (as many users of emergency contraception have been) -- to implant inside that woman's body, unimpeded.

Second, we should observe that the pharmacist describes as a penalty the consequences that her employer might choose to impose following the refusal to fill a morning-after-pill prescription. That is, the pharmacist -- in the name of choice -- wants the law to force employers to exempt her and other pharmacists who oppose morning-after pills from the otherwise-generally-applicable job requirement that they make every effort to fill all legal prescriptions that customers bring to them.

But how much is really asked of the pharmacist here? The lawyer who refuses tobacco litigation or rape defense is different from a person who wishes to dispense medicines selectively. The profession of law necessarily involves an intensive level of work, commitment and identification with a client; that simply does not hold true in the profession of pharmacy, in which every client must be equally welcome.

I shall now return again to the hypothetical pharmacist's persona to address these and a few other points.

Our Hypothetical Pharmacist's Reply

I do admit my view -- of which I am not ashamed -- that a fertilized egg cell is entitled to live. Rape is a horrific crime, and I in no way condone or excuse the actions of a rapist when I say that the rapist's innocent child should not have to pay for his father's offense. In the same vein, no one would argue that the mother of a two-year-old child, a child conceived in rape, may choose to kill that child.

The law should punish a rapist severely for his crime. But the rapist's child did nothing blameworthy and does not deserve to die for his father's violence. No matter what the circumstances of his conception might have been, once conceived, he is equal to all other human beings on this earth.

In response to the second point, I do believe that firing me for failing to fill a prescription for morning-after pills is a penalty. If I do my job well and simply refrain from filling a particular, morally objectionable prescription, then I do not deserve to be terminated, any more than a pharmacist who misses work one day because his child is sick deserves to lose his job.

To provide another analogy, what if the law protected a right of terminal patients to take poison and end their lives? And what if pharmacies began stocking a particularly "humane" cocktail of poisons that a doctor could prescribe for eligible patients? When a patient walked into a pharmacy to fill that prescription, many pharmacists (including me) would decline, believing that handing poison to a suicidal person is tantamount to murder. The law should never compel people to participate in murder, even if the law allows that murder to occur, for whatever reason.

Further Response to the Hypothetical Pharmacist

To step out of the persona once again, I believe that the above argument is persuasive and yet simultaneously devastating to the pharmacist's position. One can envision many different sorts of medications to which a pharmacist might have a moral objection. Some pharmacists probably believe -- as the Pope does -- that birth control is wrong and would therefore refuse to dispense birth control pills. (Indeed, several of the proposed bills under consideration allow pharmacists to refuse to dispense "artificial birth control.") Or, because birth control pills may be used at high doses as morning-after pills, the very same pharmacist we encountered earlier might not wish to dispense them for that reason.

Other pharmacists might oppose fertility drugs because they interfere with natural processes and might ultimately entail selective abortion if too many children are conceived. Still others might believe that anti-depressant medication is morally wrong, because it is a mood-altering drug and therefore resembles heroin and cocaine. People should improve their moods through good works, some might claim.

And what about Viagra? One could plausibly argue that "erectile dysfunction" is often a normal part of aging and that medicines to fix the problem are inappropriate and unnatural.

It is true that every individual should be able to chart her own moral life and should not generally be forced to engage in conduct that she considers wrong. But in choosing a service profession, one agrees to serve people who, on occasion, will do something one considers wrong. Pharmaceuticals in particular generate a great deal of debate, because they necessarily alter "natural" processes, and there are people who view each one of those natural processes as sacred in some way.

In the absence of medication, some people would become quite ill and die early. As a result of medication prolonging their lives, they might instead have children who carry genes for illnesses that could cause great suffering and "should have" died out. Because of the availability of potentially lethal medication, some people will take an overdose and die when less alternatives might have worked. And also because of medication, some people will terminate the life of a human embryo before it can implant inside its "mother's" uterus.

But it is the people taking the medication who should bear ultimate responsibility for morally questionable consequences. For the pharmacist to make the judgment that a patient should not have an "immoral" medicine, is not "choice" at all but an abdication of her responsibility to fill prescriptions so that patients can make up their own minds.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns on abortion and the right of privacy, among other subjects, may be found in the archive of her work on this site.

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