Kansas City, MO Daily Record - Increasing Number of Health Care Providers Refusing to Give Treatment Based on Religious Beliefs

April 26, 2005
by Correy E. Stephenson

An increasing number of health care providers across the country are invoking their religious beliefs to refuse to give treatment, medication and services they find morally objectionable.

The most common examples are pharmacists who refuse to fill prescriptions for birth control or emergency contraception, but experts say the trend is expanding to other types of health care workers, including EMTs and even medical secretaries.

Several states introduced "conscience" or "refusal" clauses in the immediate wake of Roe v. Wade, giving doctors the choice of whether or not to perform abortions.

But over the last 20 years, other medical personnel have invoked the right to refuse for religious reasons and numerous states have attempted to expand the coverage of existing statutes.

"We're seeing a spate of state bills and enactments that have addressed the right to refuse in recent years," said Robyn Shapiro, who practices health law at Michael Best & Friedrich in Milwaukee.

Since 1997, 25 states have considered granting pharmacists the right to refuse and 11 states are currently considering similar legislation.

Four states - Arkansas, Georgia, Mississippi and South Dakota - already allow pharmacists to refuse to fill prescriptions based on their religious beliefs.

Legal action, however, is still in the formative stages, with several cases pending but no significant verdicts or appellate decisions on the subject so far.

The current administration has "emboldened" health care providers to take stronger stances, according to Rachel Laser, senior counsel at the National Women's Law Center in Washington, D.C.

Laser's organization was involved in a recent administrative hearing for a Wisconsin pharmacist, Neil Noesen, who refused to fill a birth control prescription in July 2002. Noesen, a Roman Catholic, testified that it would be "a sin" for him to provide contraception. He also refused to transfer the prescription to another pharmacy.

An administrative law judge recommended Noesen be reprimanded and required to attend ethics classes. The Pharmacy Examining Board will make its final decision this month.

Refuse Or Transfer?

Noesen's refusal is not an isolated incident.

In December 1996, Karen Brauer was fired as a pharmacist at K-Mart when she refused to fill a prescription for Micronor, an oral contraceptive.

Brauer said during her seven years at K-Mart, she made her religious beliefs clear to her supervisors and often turned away birth control prescriptions.

A customer found out Brauer lied when she said the store was out of the medication, and filed a complaint. K-Mart management asked Brauer to agree that she would fill such prescriptions in the future, and when she refused, she was fired.

Brauer then filed suit in Ohio federal court.

In her claim, Brauer argued that Micronor provided the equivalent of an abortion based on her belief that life begins at fertilization, as opposed to implantation, the accepted medical definition.

Based on this view of the drug, she claimed that firing her violated Ohio's conscience clause, which allows health care providers to decline to perform abortion procedures (although it does not include contraceptives). In addition, she claimed that being fired for refusing to provide an abortifacient amounted to religious discrimination. She argued that under Title VII, K-Mart could have reasonably accommodated her religious beliefs in some way, such as having another pharmacist on staff to provide Micronor.

Due to K-Mart's bankruptcy filing, the case has languished.

But "these cases are not going away anytime soon," said Francis J. Manion, senior counsel at the American Center for Law & Justice.

In addition to Brauer, Manion has represented numerous pharmacists and other health care workers who have invoked their religious refusal rights.

"In this country, we decided from the beginning to respect and accommodate the free exercise of religion, and while there are inconveniences, that is the cost of living in a free society that values certain beliefs," he said.

But Eve Gartner, a senior staff attorney at Planned Parenthood in New York, said this represents the proverbial slippery slope.

"If pharmacists are allowed to make independent judgments about which prescriptions to fill and which to reject, that puts health care consumers in this country in a very uncomfortable and almost unconscionable position, if they have to go from pharmacy to pharmacy hoping to find a pharmacist who is going to fill their prescription," she said.

"The job of a pharmacist is not to make judgments about [the medications being prescribed,]" Gartner said. "The job is to fill the prescription."

Brauer, now president of Pharmacists for Life, said that requiring pharmacists to refer prescriptions they object to would be hypocritical.

"Doctors are not expected to refer [patients] to someone else if they don't perform abortions," she said.

While referral might be an option in large pharmacies or big cities, Gartner expressed concern about rural areas or small towns where a referral might not be possible, or might take too long.

"With emergency contraception in particular, the longer you wait to take it, the less effective it is," she explained.

"In many situations accommodating a pharmacist's religious beliefs denies women and other health care consumers meaningful access to the drugs they need," Gartner said. "It is possible to accommodate an individual's religious view, but it can't be at the expense of the people who need medication."

Laser agreed.

Referral or transfer "places a tremendous burden on women to find another pharmacy and travel that distance. A decision to allow pharmacists to refuse is a decision to allow one class of people, women, to be denied access to basic health care for a condition that only women experience," she said.

Laser said referral or transfer could only be a safe middle ground if delivery of the prescription is "seamless."

Not Just Pharmacists

While pharmacists are on the front lines of this issue, experts said the use of conscience clauses could expand to a myriad of other medical situations.

Shapiro used Mississippi's new statute to illustrate how conscience clauses can be applied outside the contraception and abortion context. The new law covers "health care providers," a term broadly defined to include hospitals, pharmacies and anyone counseling or advising a patient, she explained.

"One danger is that if the health care provider for any reason had a problem with terminating life support, for example, that provider could simply refuse to even mention [the choice between] being maintained in a vegetative state for years or stopping treatment," she said.

Shapiro, former chair of the ABA Coordinating Group on Bioethics & Law, said these changes in the health care landscape should concern patients.

"This movement has a tremendous impact on informed consent," she said, noting that health care providers won't even have to inform patients or customers of other options if they have religious or moral objections to those options.

Other potentially objectionable health services could include freezing sperm or eggs for a cancer patient before undergoing chemotherapy, Shapiro added.

And the right to invoke a conscience clause has already expanded to other health care workers. Manion defended a secretary in a county health department who objected to working on abortion-related paperwork.

She sued for religious discrimination after she was denied a promotion, he said.

Currently, Manion is representing an emergency medical technician in Illinois who refused to transport a passenger to an abortion clinic. His client, Stephanie Adamson, received a call to transport a patient from a downtown hospital to an abortion clinic. Adamson, whom Manion describes as having "strong anti-abortion beliefs," refused because she felt she would "be facilitating an immoral act."

While he acknowledged that EMTs rarely have the time or luxury to decide whether or not to transport their patients, he said his client knew she wasn't putting the patient's life in danger.

"The patient was at the best hospital in Chicago and leaving to get an elective abortion," he said. "I don't think it's unreasonable for my client to refuse in a non-emergency situation."

Adamson was fired for her refusal and has now sued her former employer, alleging religious discrimination. The case is currently in discovery. Manion said a trial is scheduled for the fall.