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US Pharm.
2006;8:90-94.
Ever have those feelings that you
are going to burst if you can't get your two cents heard on a subject? Want to
yell out that a baseball umpire is as blind as a bat or that the coach's
strategy stinks? Or how about when reading the paper, coming across an
article, you think, "Someone has to stop this madness"? Or maybe you are
attending a religious event and want to stand up and yell, "You hypocrite!"
There are, of course, times when your voice should be heard and many more
times that you should not be heard (a.k.a. "biting your tongue"). In a legal
setting, when is it proper for a person or entity that is not a party to
litigation to ask a judge for permission to participate in the proceedings?
Perhaps just as important, when is your participation in a lawsuit to which
you are not a party an unwanted intrusion? A recent case that is of the utmost
interest to the pharmacy profession will illustrate how these legal wranglings
should be sorted out.1
Anyone associated with pharmacy in
any way knows that one of the fundamental moral, religious, and legal
controversies is whether pharmacists should be forced to dispense valid
prescriptions for emergency contraception or be permitted to refuse to be
associated with this activity as a matter of conscience or religious
objection. The issue has been building over the last few years within the
ranks of pharmacists who have expressed strong feelings on both sides of the
argument.
The issue was brought to public view
in April 2005 when the governor of Illinois adopted an administrative rule
that would result in disciplinary action against a pharmacist who refused to
dispense emergency contraception medicine after being presented with a legally
issued prescription. The public and pharmacy professional media have covered
the stories of pharmacists who were terminated and patients who could not get
the medications they needed or wanted. With the amount of attention this
situation has generated, one might think this is the only moral or religious
dilemma that haunts pharmacists and patients.
The focus has been primarily on
employer policies, general politics, and the moral philosophy of forcing a
pharmacist to do something he or she does not want to do. There are folks who
claim that making the pharmacist dispense an "abortifacient"2
is an irresponsible invasion of the pharmacist's right to conscientious
objection. On the other side are those who say that pharmacists are
responsible first and foremost for the welfare of the patients they serve, and
that takes priority over any objections pharmacists might have about filling
prescriptions they consider improper on religious grounds. There have been
individuals who promote the Illinois decree as necessary and appropriate to
protect the care of patients. These folks also suggest, very vocally, that
pharmacists who have objections should find other means of employment. Up
until recently, few courts have reviewed these issues specifically. Now,
however, there is one published opinion from a federal trial court judge that
begins to shed light on some of the relevant issues.3 This decision
is only the opening round in what will probably be an ongoing salvo of cases.
Facts of the Case
The organization
that initiated the action taken by the court is Walgreen Co. This is not to
indicate any bias for or against this company. It could have been any of the
other community pharmacy chains. Reading from the opinion, Walgreens was
forced to try to intervene in the litigation. The identity of the intervening
plaintiff is necessary to put the context of the issues into perspective. For
example, Walgreens, headquartered in Illinois, is one of the larger chain
stores in the Midwest. Here is how the story unfolds.
On April 1, 2005, at the direction
of the Illinois governor, the administration adopted an "Emergency Rule" as
part of the state's health code.4 The regulation was made
permanent on August 25, 2005, when the state's administrative rule-making body
adopted it by majority vote. On March 13, 2006, the governor was quoted in
public media stating that the rule is directed at pharmacists working in
community pharmacies (delineated as "Division I Pharmacies") who fail to
accept the requirements of their professional obligations. This fact will
become important because the rule applies to only one section of the pharmacy
profession, not to others working in environments other than the traditional
retail store.
The wording of the regulation in
this controversy is important enough to be quoted in full. The rule states:
j) Duty of Division I Pharmacy to
Dispense Contraceptives
1) Upon receipt of a valid, lawful prescription for a contraceptive, a
pharmacy must dispense the contraceptive, or a suitable alternative permitted
by the prescriber, to the patient or the patient's agent without delay,
consistent with the normal timeframe for filling any other prescription. If
the contraceptive, or a suitable alternative, is not in stock, the pharmacy
must obtain the contraceptive under the pharmacy's standard procedures for
ordering contraceptive drugs not in stock, including the procedures of any
entity that is affiliated with, owns, or franchises the pharmacy. However, if
the patient prefers, the prescription must be transferred to a local pharmacy
of the patient's choice under the pharmacy's standard procedures for
transferring prescriptions for contraceptive drugs, including the procedures
of any entity that is affiliated with, owns, or franchises the pharmacy. Under
any circumstances an unfilled prescription for contraceptive drugs must be
returned to the patient if the patient so directs.
2) For the purposes of this subsection (j), the term "contraceptive" shall
refer to all FDA-approved drugs or devices that prevent
pregnancy.
3) Nothing in this subsection (j) shall interfere with a pharmacist's
screening for potential drug therapy problems due to therapeutic duplication,
drug-disease contraindications, drug-drug interactions (including serious
interactions with nonprescription or over-the-counter drugs), drug-food
interactions, incorrect drug dosage and duration of drug treatment,
drug-allergy interactions, or clinical abuse or misuse, pursuant to 225 ILCS
85/3 (q).5
The issues of employee and employer
rights, and how the change in the law affects those rights, was brought to the
federal district court in Illinois on the motion to intervene of Walgreen Co.
The plaintiffs in the main case were (or still are) licensed pharmacists in
Illinois, and the defendants were the Illinois governor and other state
officials.
The plaintiffs alleged that the
defendants promulgated a rule to force them to dispense prescription
medications commonly called the "morning after pill," "Plan B," and "emergency
contraceptives" (hereinafter referred to as "emergency contraceptives") in
violation of the plaintiffs' constitutional right to freely exercise their
religious beliefs. The constitutional dispute that put the case into the
federal (as opposed to the state) court is the allegation that the defendants
acted in violation of Title VII of the Civil Rights Act of 1964 (hereinafter
referred to as "Title VII").6 The plaintiffs alleged
that they were fired by Walgreens because they would not comply with the new
Illinois rule. The primary issue for this phase of the case is determining if
Walgreens should be permitted to intervene to seek a declaratory judgment
regarding whether the Illinois rule violates Title VII.
Note that the term "contraceptives"
as used in the rule applies to all FDA-approved contraceptives, which include
emergency contraceptives. This is important because the plaintiffs allege that
"Emergency contraceptives work with a significant abortifacient mechanism of
action that they claim violates their religious beliefs that prohibit them
from dispensing emergency contraceptives."
Prior to the rule, the plaintiffs
alleged that Walgreens had a "Referral Pharmacist Policy." Pursuant to
adoption of this policy, Walgreens allowed its pharmacists nationwide to
decline to fill a prescription based on moral or religious objections, as long
as the prescription could be filled by another pharmacist at that store or at
a nearby pharmacy. After the promulgation of the rule, the plaintiffs claim
that Walgreens changed the Referral Pharmacist Policy in Illinois to require
that every pharmacist fill prescriptions, even if it violated his or her moral
or religious beliefs. The plaintiffs also allege that Walgreens still has the
prior Referral Pharmacist Policy in place in every state other than Illinois.
Before the adoption of the rule, the
discharged pharmacists notified Walgreens of their religious objections to
dispensing emergency contraceptives and requested an accommodation of their
religious beliefs. In September 2005, Walgreens allegedly began firing
pharmacists who refused to comply with the Emergency Rule. Also in September
2005, the Board of Pharmacy started taking disciplinary actions against
Illinois pharmacies, including Walgreens, for violating the rule, because
individual pharmacists had refused to dispense emergency contraceptives. Those
claims had not been resolved at the time that this court's opinion was
published.
According to the plaintiffs, in
November 2005, Walgreens demanded that each of its pharmacists agree in
writing to the new policy that required that they dispense emergency
contraceptives. The plaintiffs allege that pharmacists who refused to sign the
policy were placed on unpaid, indefinite suspension.
On December 1, 2005, the Illinois
governor allegedly stated in a national television broadcast that Walgreens'
actions were in compliance with the rule and that in terminating the
plaintiffs for asserting their religious objections to dispensing emergency
contraceptives, Walgreens was following the law. According to the plaintiffs,
a spokesperson for the governor subsequently reiterated the defendants'
interpretation of the rule that pharmacists in Division I pharmacies have no
choice but to dispense emergency contraceptives and that Walgreens' alleged
firing of the discharged plaintiffs was appropriate.
At the center of this controversy,
the plaintiffs allege that the decision by Walgreens to change its policy and
practices of accommodating the religious and moral beliefs of its pharmacists
in Illinois was motivated by the promulgation and enforcement of an amendment
to the Emergency Rule. The linchpin of the plaintiffs' claim is that they have
been denied their fundamental constitutional and statutory rights and that the
deprivation is continuing because the rule requires employers to engage in
religious discrimination and so is void under Title VII.
In its motion to intervene,
Walgreens claimed that in addition to the Board of Pharmacy's enforcement
actions, it has been subjected to several civil actions by pharmacists who
refused to dispense emergency contraceptives. These pharmacists have also
alleged that Walgreens violated the Illinois Health Right of Conscience Act.
7 This Right of Conscience Act prohibits employers from discriminating
against health care workers who refuse to provide any type of health care
because of conscience.8 Pharmacists have also filed charges of
discrimination against Walgreens with the Equal Employment Opportunity
Commission for violation of Title VII.
For all these reasons, Walgreens
sought to intervene and asked for a declaratory judgment that the rule
violates Title VII. Walgreens claims that it has been forced to amend its
Referral Pharmacist Policy to refuse to accommodate the religious beliefs of
pharmacists in Illinois.
Analysis
While it is easy to
see that Walgreens wanted to intervene because it was caught between the
proverbial rock and hard place, it is more telling that Walgreens wants the
court to overrule the state-enforced regulation. This is a precarious
position. If Walgreens is successful, the pharmacists that it fired will
recover damages for their wrongful discharge. Walgreens could also come under
judicial scrutiny from the Equal Employment Opportunity Commission for the
same reasons.
Those consequences will be played
out in a future installment of this ongoing controversy. In terms that should
be well understood by the community of pharmacists, the judge ordered that the
Walgreens' motion to intervene as a third-party plaintiff was granted.
REFERENCES
1. Please don't
shoot the messenger. At the outset, I want to make known that no matter how
objectively the issue addressed in this month's column is presented, there are
going to be legions of pharmacists who will want their voices also heard on
the legal and moral dilemmas. I promise that I will use the best of my
abilities to stay neutral on the controversy and welcome opinions from all who
care to respond. Send your message to my attention addressed to this journal's
contact email at editor@uspharmacist.com. I can't promise that I will respond
to every communication, but I would be happy to print summaries of common
ideas or interesting points of view in a future column.
2. Words like
"abortifacient," or "contraception" seem to be "hot spot" words that people
define very differently to match whatever point they want to advance.
3. Menges v
Blagojevich, Slip Op No 05-3307 (June 8, 2006), USDC Illinois, 2006 US Dist
Lexis 37770.
4. 68 Ill. Admin. Code
§ 1330.91(j).
5. Id.
6. Title VII of U.S.
Const. Amend I; 42 U.S.C. §§ 2000e-2 & 2000e-7.
7. 745 ILCS 70/1 et seq.
8. 745 ILCS 70/5.
To comment on this article, contact
editor@uspharmacist.com.
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