Ethics Seminar: Conscientious Refusals

1. Ethics Seminar: Conscientious Refusals Oct. 19, 2005 Bill Marcus

2. Refusal by Whom? • By physician or other clinician • Nurse practitioner or certified nurse midwife • Physician assistant • Pharmacist • By pharmacist in a pharmacy

3. Refusal of What? • Request for lethal drugs • Legal execution • Suicide, where illegal • Suicide, where legal • Oreg., assuming Sup. Ct. doesn’t upheld DoJ • Drugs for conditions one considers justified/deserved consequences of immoral conduct • AIDS? IV drug abuse • Sexual “profligacy” • Our main focus: reproductive issues/rights • Birth control • Abortifacients • EC/Plan B/”morning after” pill

4. How Does the Issue Come Up? • Consumer or patient asks prescriber for: • Birth control prescription’ • Early pregnancy abortifacient • EC • And/or same presents pharmacist w/ prescription or request per BPC4052 (for EC) • And there is no apparent medical problem for woman • So only ?, if any, is impact on embryo/foetus/possible embryo

5. Why Is This a Potential Problem? • No specific law in most states, incl. Calif. re refusals based on conscience • So…. • Look to Code of Ethics/ Hippocratic Oath/Oath of a Pharmacist • Laws that absolutely protect the objecting practitioner—S.D. and 3 other states, to date • Laws that absolutely protect the woman’s right to access—Ill., city of Austin, etc. • Middle ground, such as new Calif. statute

6. Some Background • Griswold v. Connecticut; Roe v. Wade—rights of medical privacy, incl. Birth control, most abortions • Development of safe pharmaceutical abortifacients, EC • Delays at FDA • Approval of EC as prescription drug • Approval of EC/Plan B as OTC drug • Highly charged politically

7. Some News Coverage— State Level • Pharmacist Refuses to Fill Morning After Pill, The Champlain Channel (NH), Sept. 26, 2004 • Wyoming considers allowing pharmacists to refuse prescriptions, Billings Gazette, Sept. 26, 2004 • Pharmacist cites sin in birth control case, Washington Times, Oct. 12, 2004 • Rx License is on the Line in Abortion Fight: Pharmacist Refused Pill Order Due to Faith, Capital Times (WI.), Oct. 12, 2004 • Druggists refuse to give out pill, USA Today, Nov., 8, 2004

8. State (and City) Responses • Bill would require birth control sales, Los Angeles Daily News, Dec. 31, 2004; Bill would force pharmacists to fill order, Instances of denying birth control cited as impetus for measure, Redding.com (CA), Jan. 22, 2005 • Austin prohibits Walgreens from refusing to fill prescriptions, Houston Chronicle, Aug. 19, 2005 • Pharmacy owners sue governor over emergency contraception rule, Belleville.com (IL.), Sept. 14, 2005 • Mass. Lawmakers override veto of emergency contraception bill, Boston Globe, Sept. 15, 2005 • Pharmacist-Contraception Battle Heads To Lawmakers, WCCO.com (MN.), Sept. 15, 2005

9. FDA (In)Action • OTC Morning-After Pill Decision Delayed, YahooNews, Jan. 22, 2005 • Rules for Morning-After Pill May Come Soon, Washington Post, Aug. 9, 2005 • [federal] Bill would require referrals if pharmacist won’t fill prescription, Newsday, Aug. 23, 2005 • Morning-after Pill: Politics and the F.D.A., New York Times, Aug. 28, 2005 • FDA Official Quits Over Delay on Plan B, Washington Post, Sept. 1, 2005 • Is Plan B ‘Unsafe’?, Current Research Does Not Support Fears of Day-After Pill Dangers, Washington Post, Sept. 6, 2005 • Lawmakers call for morning-after pill approval, Reuters, Oct. 11, 2005

10. California EC Legislation • One of about 10 states to allow EC w/o prescription • All technically illegal because in “positive conflict” with fed FDC law, which still requires a prescription • But, unlike fed DoJ and medical marijuana/assisted suicide, FDA has not challenged state laws • Calif. law clearly demonstrates Legis. intent to lean on the side of womens’ rights

11. California’s Response to Refusals on Grounds of Conscience • Original proposal would have mandated pharmacists fill all proper prescriptions • SB644 modified that to allow 3 exceptions: • When not in stock; • When pharmacist, in his/her professional judgment, believes shouldn’t be filled • When pharmacist refuses for reasons of conscience

12. SB644, Ortiz; ch 417, stats 2005 • 733. (a) No licentiate shall obstruct a patient in obtaining a prescription drug or device that has been legally prescribed or ordered for that patient. …violation of this section constitutes unprofessional conduct…. • (b) Notwithstanding any other provision of law, a licentiate shall dispense [dangerous] drugs and devices … pursuant to a lawful order or prescription unless…: • (1) Based solely on the licentiate's professional training and judgment, dispensing pursuant to the order or the prescription is contrary to law, or the licentiate determines is contrary to law, or the licentiate determines that the prescribed drug or device would cause a harmful drug interaction or would otherwise adversely affect the patient's medical condition.

13. (2) The prescription drug or device is not in stock. …[in which case\ …the licentiate shall take one of the following actions: (A) Immediately notify the patient and arrange for the drug or device to be delivered to the site or directly to the patient in a timely manner. (B) Promptly transfer the prescription to another pharmacy known to stock the prescription drug or device that is near enough to the site from which the prescription or order is transferred, to ensure the patient has timely access to the drug or device. (C) Return the prescription to the patient and refer the patient . The licentiate shall make a reasonable effort to refer the patient to a pharmacy that stocks the prescription drug or device that is near enough to the referring site to ensure that the patient has timely access to the drug or device.

14. (3) The licentiate refuses on ethical, moral, or religious grounds to dispense a drug or device pursuant to an order or prescription. A licentiate may [so] decline …only if the licentiate has previously notified his or her employer, in writing, of the drug or class of drugs to which he or she objects, and the licentiate's employer can, without creating undue hardship, provide a reasonable accommodation of the licentiate' s objection. The licentiate's employer shall establish protocols that ensure that the patient has timely access to the prescribed drug or device despite the licentiate's refusal to dispense the prescription or order.

15. (c) For the purposes of this section, "prescription drug or device" has the same meaning as the definition in Section 4022. • (d) The provisions of this section shall apply to the drug therapy described in paragraph (8) of subdivision (a) of Section 4052. • (e) This section imposes no duty on a licentiate to dispense a drug or device pursuant to a prescription or order without payment for the drug or device, including payment directly by the patient or through a third party payer accepted by the licentiate or payment of any required copayment by the patient. • SB644 also allows the board to cite and fine or issue a letter of admonishment for violation of section 733

16. Levels of Objection • To all BC/abortifacients/EC • To all post-impregnation pharmaceuticals • To all but minors: • Under 18 • Under 16 • Under 13 • To all but victims of non-consensual sex, including statutory rape • To all but victims of incest • Depending on circumstances (cf. careful, but unlucky [such as condom breaking] to more indiscriminate activity [treating EC as ready, regularly used form of post-sex preventative]

17. Some ?s Under Calif. Law • Can you legally ? a woman other than about her health issues? • EC law limits • 1707.1 (patient profile) parameters • But how decide issue of conscience w/o ability to ask ?s • Can you educate? Proselytize? • Explain your objections/concerns? • Try to convince her not to take BC/EC? • What about privacy/confidentiality rights?

18. Refusal to Follow Section 733 • Can you, i.e., refuse to refer to another pharmacist? • Another source? • Can you refuse to return a prescription for filling elsewhere? • Sure: as long as you’re ready to risk discipline, liability, etc.

19. Some Practical Consequences of Refusal • Damage to relationship with prescriber • Damage to relationship with patient/consumer • Economic: • Lost customers • Bad publicity/loss of public good will? • Boycotts?

20. Some Ethical Issues • Compromising your beliefs to accommodate consumer, comply with law • Autonomy and dignity of consumer • Privacy rights • Respect for (judgment of) fellow health care practitioners • Respect for life

21. ? • A woman comes to you for EC: what do you do? • Suppose there is no other source for 100 miles • Suppose, whether or not there is another convenient source: • She was the victim of non-consensual sex • She was the victim of statutory rape (she’s 15) • The sex was consensual and she was prudent, but a condom broke • She was the victim of incest • She’s 12 years old

22. It’s 10 Years From Now and… • Genetic testing can now be performed immediately after fertilization and: • The test shows it will be a boy, and the woman wants a girl, so asks for EC • The test shows the baby will be blind? Or missing a limb? Or a type I diabetic? • The test reveals the baby will have sub-normal intelligence • The baby will be intelligent, but unable to speak clearly or to feed, dress, or toilet him/herself [but suppose that child could also become…the next Stephen Hawking?]

23. Do you—physician, other clinician, pharmacist—park your objections, your beliefs, at the door? • What if the law effectively mandates that you do?

24. Assisted Suicide • Suppose the Supreme Court upholds using controlled substances for assisted suicide as auth’d by Oregon law…and California then legalizes it: • Can you refuse? • Note: even under Oregon’s law, physician/pharmacist can’t be forced to participate if he/she objects

25. Cultural Divide • Major split over whether strong religious beliefs/values of some can/should dictate or ban the conduct of others (often the majority) who don’t hold the same beliefs • Especially where the beliefs/values conflict with rights/desires of others • So great debate/battles over such as BC, abortifacients/EC, ending life, embryonic stem cell research, abortion in general, sexual counseling, especially w/ federal funds, that includes BC, EC, or info about same, abortion or info about it, info about safe sex, as opposed to abstinence

26. Your Role? • Not just to react to the situation in the moment • Not just to plan for the situation • Also to get involved in dialogue, education, debate…and to change laws/policies/practices

27. Thank You! Bill Marcus Bmarcusjd@aol.com