Order Code RS22293
Updated August 30, 2006
CRS Report for Congress
Received through the CRS Web
Federal and State Laws Regarding
Pharmacists Who Refuse to Distribute
Contraceptives
Jody Feder
Legislative Attorney
American Law Division
Summary
This report provides an analysis of federal and state laws that govern whether
pharmacists may refuse to fill valid prescriptions for birth control and emergency
contraception or to sell the emergency contraceptive Plan B now that the Food and Drug
Administration (FDA) has approved Plan B for over-the-counter sale to women aged 18
or older. Such laws are sometimes referred to as “conscience clause” laws because they
allow medical providers to refuse to provide services to which they have religious or
moral objections. During the 109th Congress, legislators have introduced several bills
that address this issue, including H.R. 1539, H.R. 1652, S. 778, and S. 809.
This report provides an analysis of federal and state laws regarding pharmacists who
refuse to distribute birth control and emergency contraceptives. In response to reports of
such incidents, multiple jurisdictions have enacted or are considering laws that would
govern whether or not pharmacists may, for moral or religious reasons, refuse to fill valid
prescriptions or sell contraception. Such laws are sometimes referred to as “conscience
clause” laws because they allow medical providers to refuse to provide services to which
they have religious or moral objections. Supporters of such laws argue that pharmacists
should not be forced to engage in activity that violates their personal beliefs, while
opponents contend that women have the right to receive the medical treatment that is
prescribed by their doctors or that is otherwise legally available. This report describes
trends in federal and state law regarding pharmacy conscience clause legislation.1
1 Because this report is intended to provide examples of the various types of pharmacy conscience
clause laws, it does not contain an exhaustive list of all state laws on the topic. Furthermore,
because there are currently no reported cases in federal or state court databases regarding
pharmacists who refuse to fill prescriptions for contraceptives, this report focuses on statutes and
regulations rather than court decisions.
Congressional Research Service ˜
The Library of Congress
CRS-2
Until recently, most conscience clause laws were designed to allow medical
practitioners to opt out of providing abortion-related services.2 Over the past several years,
however, several newspapers have begun to report incidents in which pharmacists have
refused on moral or religious grounds to fill prescriptions for contraceptives. For example,
in January 2004, in one of the earliest incidents to be widely publicized, a pharmacist at
an Eckerd pharmacy in Texas was disciplined by his employer after he violated company
policy by refusing to dispense emergency contraceptives to a rape victim.3 In some cases,
pharmacists also have refused to refer or transfer the prescription to another pharmacist
or pharmacy, thus preventing some customers from obtaining their medications from
another person or store.4 In response to these reports, multiple states have enacted or are
considering conscience clause laws that would specifically regulate whether or not
pharmacists are legally permitted to refuse to distribute contraceptives due to moral or
religious objections.
As indicated above, pharmacy conscience clause laws were initially designed to
address situations in which pharmacists refused to fill valid prescriptions for birth control
or emergency contraception. Although the emergency contraceptive Plan B still requires
a prescription for women younger than age 18, the Food and Drug Administration (FDA)
recently approved Plan B for over-the-counter status for women aged 18 or older. Because
the FDA approval requires that Plan B be sold behind the pharmacy counter, however,
some pharmacists may still refuse to sell the drug even if no prescription is required.
While pharmacy conscience clause laws that address access to contraceptives may pertain
to over-the-counter sales of Plan B, other laws that govern the filling of prescriptions may
not cover situations involving such over-the-counter sales.
Currently, there are no federal laws that address whether or not a pharmacist may
refuse to fill a prescription or sell contraceptives. The lack of federal legislation is not
unusual, given that the practice of pharmacy is generally an issue of state law. Thus,
pharmacies and pharmacists are primarily regulated by state boards of pharmacy,5 and all
of the existing pharmacy conscience clause laws have been enacted at the state level.
Nevertheless, several Members of Congress have introduced bills related to
pharmacists who refuse to fill prescriptions for certain drugs. One bill, H.R. 1539 would
require pharmacies to ensure that, if a pharmacist refused to fill a prescription on the basis
of religious beliefs or moral convictions, then the prescription would be filled by another
pharmacist employed by the pharmacy within four hours of such refusal. Likewise,
companion bills H.R. 1652 and S. 809 would require pharmacies to ensure that
prescriptions are filled without delay by another of their pharmacists if one pharmacist
refuses and would also prohibit pharmacies from employing any pharmacist who acts with
intent to prevent or deter a customer from filling a valid prescription. In addition, S. 778
2 For more information on abortion-related conscience clause laws, see CRS Report RS21428,
The History and Effect of Abortion Conscience Clause Laws, by Jody Feder.
3 Reuters,
Pharmacist Refuses Pill for Victim, Chicago Tribune, Feb. 11, 2004, at C7.
4 Rob Stein,
Because of Beliefs, Some Refuse To Fill Birth Control Prescriptions, Wash. Post,
March 28, 2005, at A1.
5 For general information on state boards of pharmacy, see the National Association of Boards
of Pharmacy website at [http://www.nabp.net/].
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would require pharmacies that receive Medicare or Medicaid payments to ensure that
valid prescriptions are filled without unnecessary delay or interference.
As noted above, several states have enacted laws regarding pharmacists who refuse
to dispense birth control and emergency contraception. These laws vary widely from state
to state. For example, some of these state laws specifically require pharmacists to fill valid
prescriptions, while other states explicitly allow pharmacists to refuse to fill prescriptions
if they have moral or religious objections. Still other states have statutes and regulations
that are silent with respect to a pharmacist’s right of refusal but that nonetheless contain
provisions that offer protections to consumers whose prescriptions are rejected.
At least two states — Illinois and California — have laws that require pharmacists
to dispense prescriptions. Under Illinois law, pharmacies must fill valid prescriptions for
contraceptives without delay.6 If the contraceptive or a suitable alternative is not in stock,
then the pharmacy is required to either order the drug or, if the customer prefers, to
transfer the prescription to another pharmacy or return the prescription to the customer.7
The Illinois law, which was enacted under an emergency rule issued by the governor, is
being challenged in several lawsuits.8 In California, pharmacists are prohibited from
preventing patients from obtaining legally prescribed drugs. However, pharmacists are
permitted to refuse to dispense prescription drugs on moral or religious grounds if they
notify their employer and if the pharmacy arranges for customers to have timely access
to their medication despite the employee’s refusal.9
In contrast to laws that specifically establish a duty to fill contraceptive prescriptions,
many states have general laws that allow pharmacists to refuse to fill prescriptions under
certain circumstances, such as when there are doubts about the validity of the prescription
or when the pharmacist believes the prescription poses a safety risk.10 Because such
provisions do not cite moral or religious objections as legitimate grounds for refusing to
dispense drugs, they could potentially be interpreted as implicitly requiring pharmacists
to fill valid prescriptions despite their personal beliefs.
Other states have laws that, although they do not specifically address the question
of whether or not a pharmacist can refuse to fill prescriptions, appear to offer some
protection to consumers whose prescriptions have been rejected. For example, under a
recently enacted Nevada law, pharmacists are required to transfer a prescription to another
pharmacist at the request of the customer.11 Thus, Nevada customers whose pharmacists
refuse to fill a prescription for contraceptives can have their prescriptions transferred to
6 68 Ill. Adm. Code § 1330.91(j).
7
Id.
8 Gretchen Ruethling,
Illinois Pharmacist Sues Over Contraceptive Rule, N.Y. Times, June 10,
2005, at A18. The lawsuits were filed by the American Center for Law and Justice and by the
Center for Law and Religious Freedom. For more information, see [http://www.aclj.org/] and
[http://www.clsnet.org/clrfPages/index.phpx].
9 Cal Bus & Prof Code § 733.
10
See, e.g., 32 M.R.S.A. § 13795(2); N.J.A.C. § 13:39-7.13; 8 NYCRR § 63.6.
11 2005 Nev. ALS 65 (to be codified at NRS § 639.2353).
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another pharmacy or pharmacist. Other states have similar mandatory prescription transfer
provisions that may offer protection to customers whose contraceptive prescriptions have
been rejected.12
It is important to note that even in the absence of specific laws, general pharmacy
laws may be interpreted to require pharmacists to fill prescriptions. For example, many
states have laws that govern the professional conduct of pharmacists or that generally
require the dispensation of drugs pursuant to a valid prescription. Indeed, the Wisconsin
Pharmacy Examining Board recently pursued disciplinary action against a pharmacist who
refused to fill a customer’s birth control prescription or to transfer the prescription to
another pharmacist. Finding that the pharmacist had violated rules against unprofessional
conduct by “[e]ngaging in any pharmacy practice which constitutes a danger to the health,
welfare, or safety of patient or public, including but not limited to, practicing in a manner
which substantially departs from the standard of care ordinarily exercised by a pharmacist
which harmed or could have harmed a patient,”13 the Board issued an order reprimanding
the pharmacist, limiting his license, ordering him to attend a pharmacy ethics class, and
requiring him to pay the costs of the legal proceedings.14 Like Wisconsin, other states
have similar rules of professional conduct that could potentially be applied to pharmacists
who refuse to fill or transfer prescriptions for contraceptives.15
In addition to Wisconsin, there are other states that have interpreted their general
pharmacy laws to prohibit pharmacists from refusing to fill or transfer valid prescriptions
for contraceptives. For example, the North Carolina Board of Pharmacy has interpreted
the state’s pharmacy laws to include a duty of the pharmacist to promote the good for
every patient. Recognizing that pharmacists have a right to avoid participating in activities
that violate their morals but that patients have a right to obtain their medications, the
Board has interpreted the pharmacy laws “to mean that if a pharmacist refuses to fill a
prescription for emergency contraception, then that pharmacy has an obligation to get the
patient and the prescription to a pharmacist who will dispense the prescription in a timely
manner.”16
12 For example, Texas law provides that a pharmacist “may not refuse to transfer original
prescription information to another pharmacist,” and Oklahoma law specifies that “[n]o legally-
competent practitioner of the healing arts shall refuse to honor the requests of his patient to have
his prescription transferred to the registered pharmacist or pharmacy of the patient’s choice.” 22
Tex. Admin. Code § 291.34(e)(6); 59 Okla. Stat. § 354.
13 Wis. Adm. Code Phar. 10.03(2).
14 In The Matter of The Disciplinary Proceedings Against Neil T. Noesen, Final Decision and
Order LS0310091PHM of the State of Wisconsin Before the Pharmacy Examining Board (April
13, 2005), available at [http://drl.wi.gov/dept/decisions/docs/0405070.htm].
15 For example, Maine, Minnesota, and North Dakota have laws that deem it to be unprofessional
conduct for a pharmacist to refuse to dispense prescriptions that may ordinarily and reasonably
be expected to be dispensed in a pharmacy by a pharmacist to be unprofessional conduct. CMR
02-392-030; Minn. R. 6800.2250; N.D. Admin. Code 61-04-04-01.
16 North Carolina Board of Pharmacy,
Frequently Asked Questions for Pharmacists on
Conscience Clause, available at [http://www.ncbop.org/Conscience%20Clause.asp]. It is
important to note, however, that although such a policy interpretation would be likely to be taken
into consideration by a court, this type of agency guidance does not carry the full force of law.
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Meanwhile, at least four states have laws that specifically permit pharmacists to
refuse to fill valid prescriptions. Under Georgia law, “[i]t shall not be considered
unprofessional conduct for any pharmacist to refuse to fill any prescription based on
his/her professional judgment or ethical or moral beliefs,”17 while the Arkansas code
specifies that “[n]othing in [the law] shall prohibit a ... pharmacist ... from refusing to
furnish any contraceptive procedures, supplies, or information.”18 Mississippi law also
explicitly grants pharmacies and pharmacists the right to refuse to participate in any health
care service — defined to include the dispensing of drugs — that violates his or her
conscience.19 Likewise, in South Dakota, pharmacists are not required to dispense
medication if there is reason to believe that the medication would be used to destroy an
unborn child.20 Because “unborn child” is defined as an organism that exists at
fertilization,21 this provision could apply to some drugs, such as abortifacients and
possibly emergency contraception, that — unlike standard birth control pills, which
prevent fertilization from occurring in the first place — prevent fertilized eggs from
implanting in the uterus.
Finally, several other states have general conscience clause laws that do not
specifically mention pharmacists but that nonetheless appear to apply to them. For
example, in Colorado, no private institution, physician, or “agent or employee of such
institutions or physician” may be prohibited from refusing to provide contraceptives if
such refusal is based on moral or religious objections,22 while in Florida, doctors or “other
people” may not be prevented from refusing to dispense birth control for religious
reasons.23
Clearly, pharmacy conscience clause laws vary widely from state to state. While only
a small number of states have laws that specifically authorize or deny a pharmacist’s right
to refuse to fill valid prescriptions or sell contraceptives for reasons of personal belief, a
number of states are considering such laws.24 Indeed, in Minnesota, several competing
17 Ga. Comp. R. & Regs. r. 480-5-.03.
18 A.C.A. § 20-16-304.
19 Miss. Code Ann. §§ 41-107-1 et seq.
20 S.D. Codified Laws § 36-11-70.
21
Id. at § 22-1-2(50A).
22 C.R.S. 25-6-102.
23 Fla. Stat. § 381.0051.
24 Monica Davey and Pam Belluck,
Pharmacies Balk on After-Sex Pill and Widen Fight, N.Y.
Times, April 19, 2005, at A1. According to the National Women’s Law Center, bills to require
pharmacists to dispense valid prescriptions for contraceptives were introduced in at least eight
states in 2006, while bills to allow pharmacists to opt out of dispensing contraceptives were
introduced in at least twenty states in 2006. National Women’s Law Center,
Pharmacy Refusals
101, August 2006, [http://www.nwlc.org/pdf/PharmacyRefusals101_08.24.06.pdf].
See also,
National Conference of State Legislatures,
Pharmacist Conscience Clauses: Laws and
Legislation, March 2006, [http://www.ncsl.org/programs/health/conscienceclauses.htm].
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proposals are pending, including a bill that would authorize a pharmacist’s right to refuse
and a bill that would prohibit it.25
In addition to states, local jurisdictions may enact laws as well. Recently, for
example, the city of Austin, Texas passed a law that requires pharmacies that participate
in the city’s medical assistance program to fill valid prescriptions without delay, even if
an individual pharmacist objects for moral reasons.26 Moreover, individual stores and
pharmacy chains have their own employment policies that govern such situations in the
absence of state laws on the subject, and many of these policies appear either to require
pharmacists to fill valid prescriptions or to allow their employees to refuse to fill
prescriptions only if the employee transfers the prescription to another pharmacist or
pharmacy.27 Indeed, Walgreens has a policy that requires pharmacists who object to filling
certain prescriptions to refer those prescriptions to another pharmacist or pharmacy,28 and
Wal-Mart, which, until recently, did not stock emergency contraception, has a similar
policy regarding employees with moral or religious objections.29
Such policies echo the positions of several major health associations. For example,
the American Medical Association “supports legislation that requires individual
pharmacists or pharmacy chains to fill legally valid prescriptions or to provide immediate
referral to an appropriate alternative dispensing pharmacy without interference,”30 while
the American Pharmaceutical Association “recognizes the individual pharmacist’s right
to exercise conscientious refusal and supports the establishment of systems to ensure
patient’s access to legally prescribed therapy without compromising the pharmacist’s right
of conscientious refusal.”31 Regardless of such policy positions, the issue of whether
pharmacists should be allowed to refuse to fill valid prescriptions or sell contraceptives
is likely to continue to generate a great deal of legislative debate in the near future.
25 2005 Bill Tracking MN H.B. 2597; 2005 Bill Tracking MN H.B. 3032.
26 Lisa Falkenberg,
Austin Prohibits Walgreens From Refusing to Fill Prescriptions, The Houston
Chronicle, Aug. 19, 2005, at B6.
27 Stein,
supra note 4, at A1.
28 Falkenberg,
supra note 26, at B6.
29 Michael Barbaro,
In Reversal, Wal-Mart Will Sell Contraceptive, NY Times, March 4, 2006,
at C1.
30 American Medical Association, H-120.947
Preserving Patients’ Ability to Have Legally Valid
Prescriptions Filled, available at [http://www.ama-assn.org/apps/pf_new/pf_online?f_n
=browse&doc=policyfiles/HnE/H-120.947.HTM]
31 American Pharmaceutical Association,
Current APhA Policies Related to the Practice
E n v i r o n m e n t & Q u a l i t y o f W o r k l i f e I s s u e s , a v a i l a b l e a t
[http://www.aphanet.org/AM/Template.cfm?Section=Search§ion=Control_Your_Practic
e1&template=/CM/ContentDisplay.cfm&ContentFileID=267].