/publications/issue/2010/April2010/PharmacyLaw-0410

May Pharmacists Refuse to Dispense a Lawful Medication?

Author: Joseph L. Fink III, BSPharm, JD

Should pharmacists be required to fill prescriptions for medications that are legally on the market, but to which they have moral or religious objections?


Issue of the Case

May pharmacies be required to stock and dispense a medication lawfully on the market to which the pharmacist has a personal objection based on a moral or religious belief?

Facts of the Case

The board of pharmacy in a western state received reports of pharmacists under its jurisdiction destroying or confiscating prescriptions for medications to which the practitioners had a moral or religious objection. Reports mentioned syringes, prenatal vitamins, oral contraceptives, and medications to treat AIDS, but the vast majority of concerns were related to levonorgestrel (Plan B). The agency started a regulation issuance process that included opportunity for public comment. After receiving more than 21,000 written comments and testimony at hearings, the board adopted 2 regulations. The first specified that a pharmacist may be subject to discipline for destroying or refusing to return an “unfilled lawful prescription, violating a patient’s privacy, or unlawfully discriminating against, or intimidating or harassing a patient.” That regulation did not go further to require that a pharmacist dispense a medication to which he or she objected.

The second regulation addressed the pharmacy rather than the pharmacist. This one required pharmacies to “deliver lawfully prescribed drugs or devices to patients and to distribute drugs and devices approved by the FDA…in a timely manner consistent with reasonable expectations for filling the prescription.” The pharmacy was also prohibited from destroying or refusing to return an unfilled lawful prescription.

In comments accompanying the regulations, the board noted that it had created a right of refusal for pharmacists by allowing a pharmacy to accommodate a pharmacist’s beliefs— for example, by having another pharmacist available in person or by phone to serve the patient.

A family-owned pharmacy and 2 pharmacists practicing elsewhere filed suit in federal court, seeking an injunction to prohibit the board from enforcing its regulations because, in the view of the plaintiffs, the regulations interfered with their First Amendment right to free exercise of religion. They alleged that their religious beliefs prevented them from dispensing the medication that they regarded as a form of abortion.

The US District Court made an interim ruling in their favor and entered a temporary injunction until a trial could be held. That court order prevented the board from penalizing pharmacists who refused to dispense Plan B, as long as they referred the patient to a nearby pharmacy where it was available. The trial court judge’s order of a temporary injunction was appealed to the US Court of Appeals for the Ninth Circuit.

The Court’s Ruling
A 3-judge panel of the US Court of Appeals overturned the temporary injunction, ruling that the US District Court judge was in error when he concluded that the regulations violated the free exercise of religion clause in the First Amendment.

The Court’s Reasoning
Balancing the legal interests of patients against those of the pharmacists and the pharmacy, the appellate court found that the constitutionally protected right to freely exercise one’s religious beliefs “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” It continued, “Any refusal to dispense— regardless of whether it is motivated by religion, morals, conscience, ethics, discriminatory prejudices, or personal distaste for a patient—violates” the regulations promulgated by the board of pharmacy.

The appellate court found that the regulations appeared to be related to the state’s "legitimate interest in ensuring that its citizen-patients receive lawfully prescribed medications without delay." It deferred making a final conclusion on that point, however, referring the issue back to the US District Court. The appellate court directed that the judge at the lower level should reweigh the balance of hardships among the parties and reconsider the interests at stake.

The case was returned to the trial court for further consideration of additional challenges to the regulations rooted in the US Constitution. The pharmacy and the pharmacists involved in this case secured an agreement from the board that it would not pursue sanctions against them until the other issues in the case had been resolved at trial. ■


Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.