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.