Will Conscience Clauses Continue to Protect Healthcare Professionals, and What about Business Owners?
Written by: Leah Jeunnette, Ph.D.(c)
Although formally asserting a conscientious objection to go to war based on moral or religious beliefs is what originally led to the right to refuse to participate in an activity that violates one’s moral code, its application has greatly broadened over time. Since then, conscientious objections, sometimes called conscience clauses or right to refuse, became commonly applied in health care. Most prominently, after Roe v. Wade legalized abortions, it protected physicians from being forced to perform abortions if contrary to their moral beliefs. Conscientious objection for moral and/or religious reasons extended to pharmacists filling certain prescriptions, as well. Now its relevance to various businesses has become a source of ongoing debate, with both sides claiming rights to behavior governed by their own moral code.
In 2004, the American Pharmacist Association reaffirmed the Pharmacy Conscience Clause. It reads as follows:
- APhA recognizes the individual pharmacist’s right to exercise conscientious refusal and supports the establishment of systems to ensure patient’s access to legally prescribed therapy without compromising the pharmacist’s right of conscientious refusal.
- APhA shall appoint a council on an as needed basis to serve as a resource for the profession in addressing and understanding ethical issues.
The Washington Board of Pharmacy changed its state regulation of filling prescriptions. In the state of Washington, a pharmacist cannot refuse to fill a prescription to which the pharmacy’s owners object on religious or moral grounds. Because of this, there is now a lawsuit involving Stormans’ pharmacy and pharmacist Rhonda Mesler, which argues that the pharmacy and the pharmacist have the right to refuse to fill a request for Plan B due to religious objections of both the pharmacist and the owner, and also have the right to refuse to stock Plan B at that pharmacy. The US Supreme Court is currently deciding whether or not to hear this lawsuit.
The issue of an individual’s right to access health care versus another individual’s right to refuse to provide something that violates religious beliefs isn’t a new debate. According to the Guttmacher Institute, 45 states have specific laws that protect individuals using the conscience clause regarding abortion, but only 12 states protect individuals using a conscience clause regarding emergency contraception. Many states simply make their conscience clauses broad enough to potentially include pharmacists. But this case debates whether or not the pharmacy itself is required to stock Plan B even if the owner of the business objects to the use of emergency contraception. It holds the pharmacies, pharmacists, and business owners as separately responsible entities. Many feel that forcing business owners and pharmacies to stock prescriptions that they find morally or religiously objectionable violates religious freedom and is akin to persecution. Others disagree and claim that refusing to stock and/or dispense Plan B is discriminatory, limits women’s access to health care, and constricts freedom of choice.
This ethical debate seems to pit the principles of justice and autonomy against each other, but instead of the usual patient versus healthcare professional, it is now extending to the patient versus business owner—and is this substantively different from the issue of a customer versus a business owner not associated with health care (e.g., Hobby Lobby not wanting to offer employees insurance that pays for contraception or the Mennonites who refused to host a gay wedding at their Iowa bistro)? This subtle difference creates a new dynamic that the court will have to continue to explore and decide who is legally allowed to have their way.
If the US Supreme Court decides to hear this case, their ruling will have a ripple effect on all conscience clauses in health care and health associated businesses. And what sort of shift will we see in the protection of personal freedoms as a result?