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The Crossroads Between Law and Ethics: Conscience Clauses

Jesse C. Vivian, BS Pharm, JD
Professor, Department of Pharmacy Practice,
College of Pharmacy and Allied Health
Professions, Wayne State University,
Detroit, Michigan  

8/20/2007

US Pharm. 2007;32(8);49-53.

Is it a good and noble thing to stand up for your beliefs and refuse to do activities that you fully and honestly think are wrong, evil, or even sinful? What if your refusal to do something negatively affects somebody else who does not share your values--is it still okay to follow your conscience? Or, as a licensed pharmacist who swears to uphold our code of ethics, do you have to look first to the welfare of your patients even if doing so results in having to do something you understand to be morally wrong? Another way of looking at these dilemmas is to ask where the boundaries of law and ethics intersect and ask which of these forms of behavioral conduct takes precedence. If the law demands you do one thing and your ethical beliefs mandate you do something else, you may find yourself in a massive moral/legal quagmire.

Like it or not, this exact problem has infiltrated the practice of pharmacy and is widely examined in the mass media regarding the issue of dispensing oral contraceptive medications. Some of our kindred souls sincerely object to the practice of birth control. There are those who will refuse to take part in any activity that supports or furthers individuals who have no ethical difficulty doing whatever they want to determine the kind of lifestyle they wish to pursue, including when or whether to have a child.

This clash of principles is not hypothetical. A series of cases and public discourse have made the issue of conscientious objection to birth control by pharmacists an international concern.1 This column has also focused on different aspects of the debate.2 A recently decided legal case will help elucidate the line between personal ethics and legal obligations.3

Facts of the Case
A pharmacist looking for some extra work disclosed to a temporary staffing company that he refuses to fill prescriptions for birth control medications. The pharmacist was required to provide prospective employers with a written statement of this fact because his state's board of pharmacy had limited his license in an earlier case after a complaint was filed with that agency when he refused to fill a birth control prescription for a young woman and refused to transfer the prescription to another pharmacy as she requested.4

A Wal-Mart store in Wisconsin that does a high level of pharmacy business was in need of a temporary pharmacist in July 2005, and the staffing company recommended this individual. At this location, the pharmacists and the pharmacy technicians share customer-service duties, including assisting walk-in patients at the counter and answering telephone inquiries from patients, physicians, hospitals, clinics, insurance companies, and other pharmacies. The technicians enter data into a computer system and verify insurance information, whereas the pharmacists check all prescriptions and labels and hand the medication to patients while counseling as necessary. Approximately 10% of this pharmacy's volume relates to contraception prescriptions, inquiries, and associated matters.

Before working at this store, the pharmacist provided a written statement to the acting pharmacy supervisor for Wal-Mart, explaining his religious convictions and stating that he would "decline to perform the provision of, or any activity related to the provision of, contraceptive articles," including "complete or partial cooperation with patient care situations which involve the provision of or counsel on contraceptive articles."3

The pharmacy supervisor understood these limitations to mean that the temporary pharmacist would not fill prescriptions for birth control. To accommodate this limitation, the supervisor relieved the pharmacist from "filling prescriptions for birth control, taking orders for birth control from customers or physicians, handing customer's birth control medication, and performing checks on birth control orders." The supervisor also arranged for birth control prescriptions to be sorted into a separate basket so that the pharmacist would not have to touch the items and ensured that someone would be available to fill orders and respond to customer inquiries concerning birth control.

Within a few days, the supervisor realized that these accommodations still did not satisfy the pharmacist because he refused to do anything related to patient care duties if it even remotely involved birth control. For example, when the pharmacist answered the telephone and the caller asked for a refill on a contraceptive prescription, he would put the caller on hold and not tell any other pharmacy personnel that there was a call waiting. When a patient came to the pharmacy counter and asked for a birth control prescription refill or asked for advice about anything related to the use of birth control products, the pharmacist would just walk away and again not inform the other staff that someone was waiting for assistance. He rationalized this behavior, stating that if he had to talk to anyone asking about birth control, he would always counsel against using contraception.

The supervisor then attempted to mollify the pharmacist further by offering to have him assist only individuals who came to the counter who were males or women not of childbearing age. Due to the high volume of telephone traffic, the pharmacist would still have to answer the phone. The pharmacist refused these further attempts of accommodation unless walk-in patients and phone calls were first prescreened by someone else to assure him that he would not have to deal with any birth control inquiries. The supervisor tried to placate the pharmacist by agreeing he would not have to talk to any walk-in patients but he would still have to take phone calls and refer the objectionable ones to someone else.

On the fifth day of employment at this pharmacy, it became clear that the pharmacist would not accept the accommodations proposed by the supervisor. Therefore, the supervisor terminated the pharmacist's employment. But the pharmacist refused to leave the store, and he began to vocally preach to customers in the pharmacy area that Wal-Mart was discriminating against him for his religious beliefs. The police were summoned, and he was physically carried out of the building. Remember the article published in the prior edition of this column? This gentleman was quite familiar with this treatment because he had done the same thing just a few months earlier in a pharmacy in Minnesota where he had worked as a pharmacy intern. In that case, he was charged with (and convicted of) criminal trespass and interference with legal process.

Lawsuit
The pharmacist initiated a "pro se" (meaning he represented himself without an attorney) complaint in a federal district court sitting in Wisconsin against the state of Wisconsin, the temporary staffing agency that placed him in the pharmacy, and Wal-Mart, claiming that his religious freedoms as established by the Civil Rights Act of 1964 were being compromised.5 The claim against the state was that it failed to adopt a Board of Pharmacy rule that would allow him to refuse to participate in any activities involving any aspect of birth control. The claims against the two corporate defendants were that they failed to provide reasonable accommodations to protect his religious practices.

Upon the request of the three defendants, the trial court judge dismissed the entire complaint. The judge ruled that he did not have jurisdiction to hear complaints of this sort against the state. He also found that the temporary staffing company did nothing whatsoever to violate the civil rights of the pharmacist because it did nothing but recommend him to Wal-Mart. The charges against Wal-Mart were dismissed because the judge determined that it did act reasonably in offering him extensive accommodations.6

Appeal
Unhappy with this result, the pharmacist appealed his case to the United States Court of Appeals for the Seventh Circuit. Once again, he represented himself without the aid of an attorney. His primary claim was that a jury hearing the case could find as a matter of fact that the defendants were not reasonable in refusing the accommodations that he requested. The three-judge panel reviewed the complaint, the undisputed facts, and the legal proceeding of the district court and unanimously affirmed dismissal of all charges. 

In doing so, it acknowledged that the Civil Rights Act does require employers to make reasonable accommodations for the religious beliefs and practices of its employees. However, the law does not require employers to make accommodations that would create an undue hardship. The court noted that an accommodation that requires other employees to assume a disproportionate workload (or divert them from their regular work) is an undue hardship as a matter of law. It went on to state: "Even assuming that the technicians could promptly answer all incoming calls from customers and health professionals, the diversion of technicians from their assigned duties of data input and insurance verification would impose the undue cost of uncompleted data work on Wal-Mart." The court concluded that relieving the pharmacist from counter and telephone duties would have resulted in substantial costs and shifted responsibilities to other employees who were already working at capacity. On this point, the court stated: "Wal-Mart was under no obligation to rearrange staffing and incur such costs to accommodate an inflexible employee."3

The court also dismissed the claims relative to the staffing agency that placed him at Wal-Mart. That organization did not have anything to do with what the pharmacist claimed was discrimination with respect to his religious beliefs.

As to the charge that the state of Wisconsin discriminated against the pharmacist by not adopting a "conscience clause," an administrative rule to protect pharmacists from discrimination by employers who do not respect their religious beliefs and practices, the court held that the state is immune to these kind of claims pursuant to the 11th Amendment to the U.S. Constitution. The only exceptions are when the state is the employer of the employee making the anti-discrimination claim or when the state voluntarily consents to the jurisdiction of a federal court
proceeding. As neither exception applied to this case, the state was also dismissed from the lawsuit.

Analysis
Everyone is entitled to act or refrain from acting according to their own beliefs, and the law provides protection from those who discriminate against those beliefs or practices. But the extent to which an employer must go to accommodate religious expression is not unlimited and is never carried out to extremist measures. In this case, a pharmacy manager practically bent over backward to accommodate this pharmacist's desires to be free of any activities involving contraception. But, said the courts, there are limits on how far an employer must make those accommodations. Here, the pharmacist pushed the limits way beyond the mandates of the law when he demanded that he be protected from any inquiry, no matter how trivial, concerning any form of contraception.

It is highly doubtful that this case would have come out any differently if the state had adopted a conscience clause. Such laws also limit accommodations to those that are reasonable under the circumstances of employment. Demands for altered work assignments that go beyond reasonable accommodation will not be forced upon employers, including those involved with health care services.

As pharmacists, we have an obligation to provide professional service to our patients and others involved with their care. Walking away from the counter or putting phone callers on hold without asking someone else to provide service or answers is simply not acceptable. It is easy to understand that a conscientious objector might think that helping somebody to find others willing to help them is just as bad as doing the acts they object to. But individual pharmacists cannot pick and choose who they want to assist. The law will protect people who object to certain practices, but if the objectors demand too many concessions from their employers, they should not be surprised when the law will not step in to mandate unreasonable accommodations. Indentured servitude no longer exists in this country, and no one is forced to accept employment where practices they object to go on. The better alternative is to find employment or conditions where you will not be expected to do something unconscionable.

This is not meant to put down those of our ranks who do not approve of some behaviors. It is just meant to educate pharmacists on the extent that laws protect your beliefs. If you don't think the law is right, work to change it, but not in the pharmacy where you want the employer to change practices, and certainly not where you complain openly to patients in the pharmacy when you have pushed the employer to the limits of tolerating your demands. Even more so, do not be so belligerent that the police have to come and haul you away. As this case points out, your soapbox is on the public streets, not in a pharmacy that you do not own.

References
1. See, e.g., Pharmacist Resists Illinois Rule on Contraceptives. Available at: www.foxnews.com/story/0,2933,166426,00.html published on August 22, 2005 and accessed June 19, 2007; Should Pharmacists' Moral Codes Trump Professional Duties? Some Pharmacists Have Triggered Legal Battles By Refusing to Fill Contraceptive Prescriptions, at abcnews.go.com/Health/LegalCenter/story?id=701109 published on May 3, 2005 and accessed June 19, 2007; and World Health Organization: Oral Contraceptives and Menopausal Therapy at www.abortionbreastcancer.com/news/050831/index.htm (with no publication date), copyrighted in 2005 and accessed on June 19, 2007. See also Vock DC. FDA ruling puts pharmacists in crossfire, Pew Forum on Religion and Public life; Religion News, September 6, 2006, pewforum.org/news/display.php?NewsID=11242. Accessed June 19, 2007.
2. Vivian JC. Intervention or unwanted intrusion? US Pharm. 2006;31(8):90-94. Available at:www.uspharmacist.com/index.asp?show=article&page=8_1827.htm. Accessed June 19, 2007. Vivian JC. Obstruction of process, trespass, and disorderly conduct. US Pharm. 2007:32(7):57-59. Available at:www.uspharmacist.com/index.asp?show=article&page=8_2069.htm. Accessed June 19, 2007.
3. Noessen v. Medical Staffing Network, Slip Op No 06-2831 (May 2, 2007), 7th Cir Ct App, 2007 US App Lexis 10687. The individual involved in the case published here last month is the same as the one involved in this case.
4. Forster S. Reprimand advised for pharmacist; beliefs, duties clash; he refused to fill birth control order, JS Online, Milwaukee Journal, March 1, 2005.
5. Title VII 42 USC § 2000e-2.
6. United States District Court for the Western District of Wisconsin. No. 06-C-071-S. John C. Shabaz, Judge. Noesen v. Medical Staffing Network, Inc., 2006 U.S. Dist. LEXIS 36918 (W.D. Wis., June 1, 2006).

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