Refusing to dispense carries legal risks

In February of 2004, the North Carolina Board of Pharmacy received a consumer complaint about a pharmacist who declined to dispense a prescription for Preven-a product used for emergency contraception (EC)-based on his religious beliefs. The board initiated an investigation; however, the complaint was later withdrawn. Much publicity has focused on this kind of conduct. As a result, the North Carolina pharmacy board adopted the following policy during its meeting in April.

Conscience concerns in pharmacist decisions A pharmacist should function by serving the individual, community, and societal needs, while respecting the autonomy and dignity of each patient. The best practice by a pharmacist is to promote the good for every patient in a caring, compassionate, and confidential manner. Pharmacists should discuss and resolve any questions about emergency contraception prior to employment. Compassionate care and conscientious objection are not mutually exclusive.

A pharmacist has the right to avoid being complicit in behavior that is inconsistent with his or her morals or ethics. It is unacceptable, however, for pharmacists to impose their moral or ethical beliefs on the patients they serve. Pharmacists who object to providing a medication for a patient on this basis alone, therefore, should take proactive measures so as not to obstruct a patient's right to obtain such medication.

Board of pharmacy staff interprets this policy to mean that if a pharmacist refuses to fill a prescription for emergency contraception, then that pharmacist has an obligation to get the patient and the prescription to a pharmacist who will dispense that prescription in a timely manner.

In the widespread media coverage of this issue, the terms contraception and abortion have been not been properly defined. So, first, we need to settle on a standard definition of terms. Conception occurs and pregnancy begins when a fertilized egg attaches to the wall of a woman's uterus. Preventing the fertilization or attachment is standard contraception accepted by nearly everyone.

Recent research indicates that some products suppress ovulation when the chance of conception is highest or obstruct penetration of the egg by sperm. In the normal life of a sexually active female, there are many instances when a fertilized egg fails to attach to the uterine wall and is expelled as part of the menstrual cycle. Dislodging and expelling the fertilized egg from the uterine wall is abortion. By definition, contraception is not abortion.

EC acts by preventing a fertilized egg from attaching to the uterine wall. Missed birth control pills or rape can produce an urgent need for EC. Time is of the essence in this situation because the drug should be administered within 72 hours of intercourse to be effective.

Consuming a large dose of a standard oral contraceptive can also prevent attachment. The only drug used in contemporary medical practice that causes an abortion is RU-486 (mifepristone, Danco Laboratories). Federal rules require this product to be provided only by a physician, and R.Ph.s do not dispense it.

A pregnancy could result if a pharmacist declines to dispense EC and fails to refer the patient to another source. This pharmacist could have liability exposure for the tort of "wrongful conception," which is recognized in many states.

In one published case from Michigan, an R.Ph. negligently dispensed the wrong drug instead of an oral contraceptive, and the patient became pregnant. Damages could include medical expenses, pain and suffering, emotional distress, and so on, but not the cost of raising the child. If the pregnant patient decides to have an abortion, it is possible the R.Ph. could also be liable for that expense. If the pharmacist intentionally refuses to dispense the Rx, and that is found to be willful and wanton misconduct, then punitive damages may be possible. This is a straightforward malpractice case in which an R.Ph. has a duty established by the pharmacy board or by expert testimony and fails or refuses to comply with that duty. And damages are a direct result of that conduct.

Pharmacists need to check the law in their individual state for concepts such as "wrongful conception" and "wrongful life" or similar torts.