Federal Court: Pharmacists Can Refuse to Dispense EC

Last week, a Federal court ruled that, despite Illinois law, pharmacists in Illinois can refuse to dispense emergency contraception. The state passed a law in 2005 that requires all pharmacies to dispense EC. As a result, Wal-Mart (and other companies) have disciplined pharmacists that refused to follow the rule. Then came the lawsuits and the bad news.

U.S. District Judge Jeanne Scott denied a request Tuesday by Wal-Mart to throw out a lawsuit filed by pharmacist Ethan Vandersand. Scott sided with Vandersand, who had claimed he was legally protected from discipline by the Illinois Health Care Right of Conscience Act when he declined to dispense Plan B.
Vandersand, who lives in Bluffs, formerly worked at the pharmacy in Beardstown’s Wal-Mart. He was put on unpaid leave after he refused to fill a Plan B prescription requested by a nurse practitioner at Springfield’s Planned Parenthood on behalf of a female patient in February 2006.
Wal-Mart had contended the state’s right-of-conscience law doesn’t cover pharmacists. Walgreen Co. has made the same argument in other Illinois lawsuits filed by fired pharmacists.
But Scott wrote in her ruling, “The statute prohibits discrimination against any person for refusing to provide health care because of his conscience.”

I think that this is the one and only time that I will ever take Wal-Mart’s side in a lawsuit. So of course they ended up losing. You know, it really sucks when a company tries to do the right thing– especially when they have such a strong reputation of doing the wrong thing– only to see it blow up in their face. It’s precisely these kinds of ruling that can deter companies from acting in a socially conscious way in the future. And this ruling is certainly going to add fuel to the anti-EC fire. It also has the potential to influence pending cases across the country.
And what’s it all for? To accommodate those who choose professions incompatible with their religious beliefs? I have to say that I’m really not sure what valuing a potentially fertilized egg over a woman has to do with “conscience,” anyway.
Correction/Clarification: it has been brought to my attention that all Wal-Mart has lost is a motion to dismiss in federal court, not the case itself. The misunderstanding arose from the article’s statement that “A federal judge’s ruling this week upholds the right of Illinois pharmacists to refuse to dispense emergency contraception.” This is accurate, but the final outcome of the actual case could change that. My understanding, and the impression given in this post, is that an appeal was dismissed, therefore upholding a previous ruling. This is false, and the case can still potentially be won in court. My apologies for the confusion.

Join the Conversation

  • SIUCarbondale10

    Thanks so much for posting this Cara. I live in Springfield, IL (about an hour and a half away from Beardstown and Bluffs). I have a lot of family that lives near Beardstown, so of course this article hit home for me. It is soooo ridiculous that these pharmacists aren’t required to fill prescriptions for EC. Even my conservative, Republican, Lutheran best friend believes in EC!

  • ouyangdan

    this makes me angry beyond belief! it blows my mind that someone would choose a profession that might require them to do something they disagree w/ morally. it is almost like these people choose these jobs to MAKE themselves a roadblock. if you are going to work in a job that requires you to provide a PUBLIC service, then you should not be able to allow your personal beliefs to interfere. separating work and personal is the first step to behaving like a professional. so what, now we can sue people b/c they want us to do our jobs? does this mean that a jehovah’s witness can be an ER doctor even though they are morally opposed to surgeries and blood transfusions, which would allow them to say ‘sorry, i won’t do this, it’s against my religion’?
    i will fight for your right to believe what you want, and worship as you choose, so long as you don’t force it on me…it’s YOUR freedom, but when your personal beliefs limit my choices, that is when i have a problem!
    great, yesterday one midwest state did a great thing, and today another blows it up…wonderful

  • http://www.feministstotherescue.blogspot.com FEMily!

    I’m very close to getting a job at a drug store and refusing to ring up diapers and other things for babies because I don’t want to procreate. Or perhaps I should force everyone who walks in the door to buy condoms because safe sex is the right thing to do.

  • http://thecurvature.com Anonymous

    OR get a job in a pharmacy, but refuse to ring out any brand name drugs because of the way that pharmaceutical companies screw over the American public! Hey, my conscience would hurt to assist them in ripping off sick Americans while lining the pockets of our politicians.
    Anyone know of an ancient book that I could pretend backs me up? ;)

  • Erica B

    Oh, please. If a store stocks something, it expects its employees to sell it. WTF do these assholes think when they take the job, it’s there for decoration? Give me a break.
    I’m very close to getting a job at a drug store and refusing to ring up diapers and other things for babies because I don’t want to procreate.
    That would be totally hilarious :-D

  • under_zenith

    Can vegan grocery store clerks refuse to ring through meat and meat products because it goes against their moral beliefs? Or does this exemption in providing products and services based on moral beliefs only apply to things that only women use?

  • PamelaV

    Can vegan grocery store clerks refuse to ring through meat and meat products because it goes against their moral beliefs?
    It depends. I know you may be being sarcastic, but at our local Health Food Store, many of the people will ring up their own meat out of courtesy if a cashier won’t ring it up. It mostly has to do with the “ick” factor, to be honest. It’s funny you mention vegans because all the vegans I know are very pro-choice (inc. myself).
    Anyway, I was curious if the patient could indeed get the medicine. Is SOMEONE required to give the woman the medicine? Can’t the patient have someone else ring it up? I am definitely against this and am not supporting it, I was just curious if the law supports making SOMEONE there give her the EC pill(s)

  • http://thecurvature.com Anonymous

    Well the pharmacist is more than just a cashier, Pamela. The pharmacist has to dispense it. Not just any pharmacy employee, by law, can walk behind the counter, pick up the medication and hand it over. So the issue arises when there is only one pharmacist on duty, and that pharmacist is anti-choice asshole.

  • micheyd

    I honestly think fundies just take these pharmacist jobs so they can be assholes to whoever they want to and impose their sick sense of morality on us all. They like the power; it makes them feel god-like.

  • PamelaV

    Well the pharmacist is more than just a cashier, Pamela. The pharmacist has to dispense it. Not just any pharmacy employee, by law, can walk behind the counter, pick up the medication and hand it over. So the issue arises when there is only one pharmacist on duty, and that pharmacist is anti-choice asshole.
    Right. This is the issue I was worried about. I understand the right to THEIR religious beliefs but there needs to be an unbiased pharmacy manager or doctor on staff at all times and there should be absolutely NO hassle in getting the woman her medication. That is humiliating in itself and proves they don’t give a shit about women, except in the context of controlling them

  • Jeff

    I hate to seem nitpicky, but it’s not an Illinois court, but rather a federal court that made this ruling. Why does it matter? Well, if we want to enact change, we need to do it atnthe federal level and get judges appointed who agree with our judicial philosophies.

  • http://thecurvature.com Anonymous

    You are right, Jeff. Apologies, I will correct it. Thanks for noticing.

  • Mickle

    Back in 2005 or so, when I first started hearing about this, I had some vague idea about making signs to post in pharmacies that allowed pharmacists to do this. Then CA passed a law like Illinois did, and I dropped the idea.
    Now I have a blog, and the federal government doesn’t give a shit what the voters think.
    I think it’s time to dust off those old poster ideas.

  • Heather Nan

    Last year, I helped organize a panel discussion at Vanderbilt University regarding this very issue–pharmacist refusing to dispense legal medications to women (primarily birth control pills, but EC kept coming up). The Medical School, the Law School and the Divinity School all co-sponsored. Only the Law School could find two people to side with the assholes (just a note, the majority of clergy persons support women’s reproductive rights…like 70%…fundies are just louder and aren’t fined when they politicize from the pulpits). Anyway, one doctor made a great comment. This “call of conscious” usually means that the person who objects makes a sacrifice, but only in the case of the pharmacist refusing to sell legal medication to a woman of age, is He (usually a he) allowed to “make another sacrifice.” The idea of conscience of doing what is morally right requires sacrifice and courage on the part of that person willing to stand up for what he/she believes in, but refusing to give out a medication requires the person in need of the medication to sacrifice, to suffer. So, determining the course of another person’s life IS NOT a moral choice, it is domination and control (and in this case, made legal by legislation written and lobbied for by a professional association). If these pharmacists want to actually do something moral, then they need to leave their profession in protest or work for a pharmacy in a Catholic hospital…although hopefully soon all rape victims, no matter what hospital they’re taken to will receive EC. Anyway, sacrifice for conscience, okay, but don’t think that controlling others IS sacrifice, its not, its sadism.

  • http://feministeconomist.blogspot.com Sam-I-am

    Doesn’t this mean that the Illinois state legislature needs to modify the right-of-conscience law? After all, the court did not say pharmacists have an inherent right not to dispense, but that the EC law conflicts with the right-of-conscience law. Is there somebody knowledgeable about the law who can comment on this?

  • Rachel

    I’m actually interviewing for a position in which I would be screening applicants to the undergrad pharmacy program at one of the most respected universities in the country. You can bet your ass that if I have any say in it, there’s going to be an admissions essay on this very subject.

  • http://profeministmale.wordpress.com ProFeministMale

    Suppose I were racist and an officer of the law, I doubt any judge is going to rule in my favor because I refuse to come to the aide of a person because of that person’s skin color. After all, isn’t it a part of my “conscience” not to do my job?
    It pisses me off beyond belief. It’s one of the reasons I plan to, this semester, stock up on Plan B on and dispense them myself!

  • Stacy

    Pharmacists here in Ireland can be just as selective about what medicines they will or will not sell. There was recently a story on a popular radio talkshow about one such unfortunate couple. The girlfriend reported that she went to the nearest pharmacist (towards the end of the 72 hour window) to get the emergency morning-after pill, only to be refused it. The pharmacist muttered something about not being willing to take part in intentional infanticide. The couple in the end had the baby (the 72 hours having elapsed) and abortion being illegal in Ireland. They were quite young and broke at the time-being Freshmans in Uni. She dropped out to look after the baby.
    The worst victims of these renegade pharmacists are underage (16-19) girls who, in Ireland, are the worst culprits for practicing unprotected sex.
    What about our right to have choices? It calls for Education and Empowerment for women before they get stuck in such a situation! Something sorely lacking in our Sex-Ed here in Ireland-its non-existent in schools!!

  • annejumps

    micheyd — I have a good bookmark explaining the agenda of right-wing doctors and pharmacists on my home computer, so I’ll have to wait to post it, but yes, there is a concerted effort to get conservative “gatekeepers” in privileged positions in law and medicine so that they can do things just like this. This is an organized effort.

  • JPlum

    My doctor is a practicing Muslim, working at a clinic run by a Catholic hospital, in Canada. The hospital library isn’t allowed to have any information on birth control, and the librarian is often in a quandary about what to do when a patient comes in asking for information. But I’m still able to get birth control no questions asked.
    I was at my doctor’s this week, and all the posts I’ve been reading about doctors and pharmacists refusing to do their jobs prompted me to ask a few questions. She feels that abortion is murder after 40 days post-conception. But she also said that the standard of care required her to provide appropriate care to her patients, and so she referred them to a place nearby that arranges abortions, since her hospital doesn’t do them. She was horrified when I told about American doctors being allowed to refuse care based on their personal beliefs. She was disgusted by the American Catholic solution to ectopic pregnancies, of removing the offending fallopian tube, compromising the woman’s fertility and possibly life (this is, after all, surgery), all in order to say that the termination of the pregnancy was just a side effect, and not the main reason for the procedure.
    She also said that, despite official policy, the hospital was now doign tubal ligations, very quietly.

  • Linnaeus

    Here in Washington, it’s the law that pharmacies have to dispense emergency contraception; a pharmacist may refuse if he or she can find a co-worker to fill the order (on the same visit). Pharmacies can’t use the “we’re out of stock” excuse permanently, either; they must order supplies of a drug a patient asks for if they don’t currently have it.
    But, of course, there’s a lawsuit against the state by pharmacists seeking to have the rule overturned.

  • Linnaeus

    Here in Washington, it’s the law that pharmacies have to dispense emergency contraception; a pharmacist may refuse if he or she can find a co-worker to fill the order (on the same visit). Pharmacies can’t use the “we’re out of stock” excuse permanently, either; they must order supplies of a drug a patient asks for if they don’t currently have it.
    But, of course, there’s a lawsuit against the state by pharmacists seeking to have the rule overturned.

  • nausicaa

    A few legal points:
    Walmart has not lost. This case was only at the “motion to dismiss” stage. All the court has said is that the plaintiff gets to go forward and try to prove his case. Most motions to dismiss are a crap shoot, so it’s not a big surprise to lose.
    The plaintiff has two claims here: one for discrimination under federal law, and one for violation of the Illinois State Right of Conscience Act. On its part, Walmart is trying to comply with the Illinois regulation requiring pharmacists to provide emergency contraceptives.
    With resepct to the federal claim, all the judge has said is that, in theory, the pharmacist might be able to prove his case for federal discrimination. The pharmacist still faces a very significant burden to prove discrimination: he must show that his behavior did not pose an “undue hardship” to Walmart’s ability to comply with the Illinois regulation requiring it to provide Plan B. Even if he does win his individual case (for instance, by showing that Walmart didn’t attempt to accomodate him at all) this case doesn’t strike down the Illinois Plan B regulation. All it says is that Walmart must provide a reasonable accomodation, which is a well established (and very important!) principle of anti-discrimination law that applies to most kinds of discrimination – race, gender, religion, disability.
    There’s still a problem with the state law claim, the Illinois Right of Conscience Act, though. The Act allows all healthcare professionals to decline to give medical care that conflicts with their “conscience.” The Act seems to clearly conflict with the Plan B regulation, so I’m not sure how things will shake out in the end. I assume that the Right of Conscience Act requires employers only to make “reasonable accomodations,” just like the federal anti-discrimination law. In that case, then Walmart would still have the chance to show that the plaintiff’s religious refusal to provide Plan B could not be reasonably accomodated and so he could be fired/demoted.

  • http://alberich10.blogspot.com/ DAS

    The couple in the end had the baby (the 72 hours having elapsed) and abortion being illegal in Ireland. They were quite young and broke at the time-being Freshmans in Uni. She dropped out to look after the baby. – Stacy
    Perhaps what they need to do is put a “you have the right to follow your conscience but you gotta take responsibility for the consequences” clause to these conscience clauses … if a pharmacist denies EC, then he has to pay for all costs associated with the upbringing of a baby.
    I’m tired of people exercizing cheap morality. If people have certain “moral” beliefs, fine. But then they should have to actually face the consequences of those beliefs instead of just forcing others to do so.

  • nausicaa

    (To lawyers reading my comment: yes, I may have phrased the burden shifting a little inaccurately, but it’s for the sake of the lay people!)

  • http://profeministmale.wordpress.com ProFeministMale

    I have a question that might be a bit off topic, but does have to do with refusal of EC.
    Does anyone have a “battle plan” in place for the unfortunate situations in which someone on your campus (I am assuming we’re mostly college or are working professionals) is refused EC by a local pharmacy? If not, I think it might be a good idea for FMLA and NOW CAN leaders to perhaps exchange ideas on this, as I do anticipate this to happen again.

  • LindsayPW

    This is just another reason Emergency BC needs to be over the counter for everyone and it seriously fucking needs to be OVER THE COUNTER and not over the pharmacist’s counter and behind closed doors, for those of us over 18.

  • http://profeministmale.wordpress.com ProFeministMale

    I would go even a step further and say that it also needs to be available to those under 18. Just because one is under 18 doesn’t mean that she is, somehow, magically excluded from needing EC.

  • Kyra

    Would some pro-choice congresspeople please point to this case (and the rest of the epidemic of conscience-clause pharmacists) as justification for putting it out on the shelves with the Tylenol?*
    Obviously, that would be a solution to this problem that suits everyone: women would have it available and pharmacists wouldn’t risk being forced to dispense it. Problem solved.
    *Or behind the OTHER counter with the cigarettes and so forth where any cashier can get it out and if one refuses there’s half a dozen others in the store. Or something.

  • Kristin

    I first read about this last week in the Springfield Star-Journal’s site. The comments are truly disgusting – one guy kept insisting that women could just go to another pharmacy if this guy wouldn’t dispense EC to them. Another asshole compared pharmacists who actually follow the law and dispense EC to the German soldiers who were “just following orders” in WWII. Bunch of pretentious, self-righteous assholes.

  • http://boltgirl.blogspot.com boltgirl

    micheyd and annejumps–I wrote a post about the evangelical strategy of getting into pharmacy positions here a year ago. I would be interested to hear if anyone actually connected to a pharmacy school has seen this happening. Anyway, there it is, for what it’s worth.

  • Doug

    I work in the Post Office so that means if I don’t like a particular candidate I don’t have to send out his mail and can just toss it in the trash. Nice decision by the judge, people can be hired for a job but don’t have to do the job and can’t get fired.
    Complete judicial incompetence. Someone tell me this judge was a Bush appointee.

  • druidbros

    I am so tired of these religious bastards trying to tell other people how to live. and what to do. If they want to live their life by a book written by a bunch of ignorant shepards 2000 years ago they can but they should leave the rest of us who want to live in this millenium alone.

  • BWA

    ouyangdan wrote: “i will fight for your right to believe what you want, and worship as you choose, so long as you don’t force it on me…it’s YOUR freedom, but when your personal beliefs limit my choices, that is when i have a problem”
    – A mighty insightful comment. This seems pertinent to the ongoing discussion that persons with certain beliefs should not be allowed to pursue professions where moral questions may come into play.
    Is it not also the case that a set of personal beliefs (pro-choice/EC) potentially limit another’s choice of profession when pharmacists are required to dispense drugs they find morally objectionable. Either they voilate their belief system, or they lose their job.
    So, is requiring a pharmacist to dispense EC a right thing to do in light of the above philosophy of personal freedom?

  • Mickle

    BWA
    You are acting as if dispensing birth control is the same as choosing what you sell. It’s not.
    Birth control is regulated. Which is why the post office worker’s analogy is more accurate than that of a vegetarian worker in a grocery store.
    The issue is not one of personal freedom on the part of the pharmacist, the issue is this: if the federal government is going to regulate a substance that is widely used and widely accepted as having important health benefits, then the government has the responsibility to make sure that those it allows to dispense this substance do not abuse their privilege. Abuse includes deciding for others that they should not be using it for reasons that have nothing to do with the reasons why the substance is regulated.
    Until I have the right to ship off birth control to anyone who doesn’t have easy access to it, pharmacists should not be allowed to refuse to dispense such medicine for any reason other than those pertaining to the reasons why the medicine is regulated. At least not unless the government is willing to step up and do the shipping/selling of birth control for me.

  • http://www.kmellis.com Keith Ellis

    I really want to accept Mickle’s argument, but I feel that Pharmacists are highly educated and qualified professionals and it’s expected that they exercise judgment in the activity of their jobs, which is precisely the dispensing of medication. They’re not robots and they’re not merely people serving a retail sales function.
    Now, that said, we know that medical professional associations, like other professional associations like the bar, make and enforce rules about professional conduct. It seems to me that the relevant professional association has a responsibility to decide the extent of a pharmacist’s to exercise their moral judgment about the dispensation of prescriptions and, if they’re allowed to do so, standards for pharmacies and, in general, the way in which a patient can get the care they need/desire regardless of an individual pharmacist’s decision.
    The alternatives, it seems to me, are legislated standards and/or reducing pharmacists to technicians with little exercise of professional judgment. I think the last is the wrong way to go (and I think this as part of my larger concerns about health care and reform—I’d like to see pharmacists and nurses and some other educated and qualified health care professionals exercising more authority and care); and I think getting the lawmakers and courts involved should only be a last resort if the pharmacists can’t decide this issue.
    On the specifics of how I’d like it decided, I have to say that I’d prefer that individual pharmacists be able to use their judgment on this as long as it doesn’t actually interfere with a person’s ability to get the medication. The reason I prefer this, even as a pro-choicer, is because I can just as easily imagine the shoe on the other foot. Doctors and pharmacists and other professionals should be allowed to use their judgment and work within their ethical parameters, regardless of popular opinion. Within limits, and I recognize that many think, and can convincingly argue, that dispensing contraception is outside those limits. But I can imagine a sincere pro-life positions and it simply doesn’t seem to me to be incompatible in a significantly large sense with the practice of pharmacology (or medicine, for that matter).
    That said, I do have serious problems with an individual pharmacist’s decision being the de facto medical choice for the female patient. That’s making the decision not just only for the pharmacist, but for the much more deeply involved person, as well. Clearly, that’s unjust. There must be a means by which the patient can get the medicine they need. Where there isn’t, the pharmacist should be required to dispense it. That seems to me to be a solution which should satisfy everyone. The only ones that truly find this unsatisfactory are those pro-lifers who quite deliberately want to enforce their beliefs on others.

  • werechick

    Screw. The. Pharmacist.
    Walmart: 1, Pharmacist: 0
    It is not his
    business, he merely works there. He doesn’t have the authority to decide his own job description, the people who hired him do. It’s like someone being hired at McD’s and then whining about making hamburgers. Sorry, but if you’re not doing your job, you can (and should) be fired for that.
    State: 1, Pharmacist: 0 (still)
    This is emergency care. As incredibly time sensitive as EC can be, it’s absolutely reasonable for the state to regulate to insure availibility when it is needed. If it weren’t something time sensitive, then that would be completely different.
    As it stands, state’s interest in preventing unwanted pregnancies overwhelm’s businesses mild discomfort.

  • werechick

    Screw. The. Pharmacist.
    Walmart: 1, Pharmacist: 0
    It is not his
    business, he merely works there. He doesn’t have the authority to decide his own job description, the people who hired him do. It’s like someone being hired at McD’s and then whining about making hamburgers. Sorry, but if you’re not doing your job, you can (and should) be fired for that.
    State: 1, Pharmacist: 0 (still)
    This is emergency care. As incredibly time sensitive as EC can be, it’s absolutely reasonable for the state to regulate to insure availibility when it is needed. If it weren’t something time sensitive, then that would be completely different.
    As it stands, state’s interest in preventing unwanted pregnancies overwhelm’s businesses mild discomfort.

  • werechick

    Screw. The. Pharmacist.
    Walmart: 1, Pharmacist: 0
    It is not his
    business, he merely works there. He doesn’t have the authority to decide his own job description, the people who hired him do. It’s like someone being hired at McD’s and then whining about making hamburgers. Sorry, but if you’re not doing your job, you can (and should) be fired for that.
    State: 1, Pharmacist: 0 (still)
    This is emergency care. As incredibly time sensitive as EC can be, it’s absolutely reasonable for the state to regulate to insure availibility when it is needed. If it weren’t something time sensitive, then that would be completely different.
    As it stands, state’s interest in preventing unwanted pregnancies overwhelm’s businesses mild discomfort.

  • werechick

    Crap. Didn’t realize I did that. Sorry.