US Pharm. 2009;34(2):42-43.
Imagine the following scenario occurring at any pharmacy in the United States. A patient wants to consult with a pharmacist or pharmacy personnel about the various forms of contraception available and some of the risks and benefits associated with each of the options. Without telling the pharmacist on duty or in charge, a pharmacy technician or, for that matter, anybody employed by the pharmacy, tells the patient that he or she will not discuss the matter or even refer the patient to someone who is willing to offer the requested advice. In addition, the pharmacy clerk never says a word about this interaction to the pharmacist on duty.No matter the political leanings, religious beliefs, or moral sense of righteousness that our brothers and sisters in the family of pharmacy may hold dear, a majority of pharmacists would probably find this situation intolerable. Think of any modification or nuance to this scenario and its implications to the profession of pharmacy. Stand up and cheer wildly or sit down and grumble. Either way, get ready, for this exact situation may soon be upon us.
Right of Conscience Regulations
In late December 2008, the Department of Health and Human Services (HHS) issued a set of regulations prohibiting individuals or legal entities that accept any money from federal programs from discriminating against those who refuse to engage in any form of behavior they deem offensive.1 Using “right of conscience” terminology, this includes an objection based on religious, personal, or moral beliefs. Without any changes, the rules could exist for the next 30 years, and they might not be that easy to modify.
While the broadly worded rules appear to be directed toward those who object to abortions or sterilization procedures, the applicability to emergency contraception, artificial insemination, sperm donations, or any form of birth control could also come under the rubrics of this law. It might also have some applicability to end-of-life care decisions. The rules took effect on January 20, 2009,2 but HHS will wait until October 1, 2009, to accept final certifications from health care providers to ensure that they are compliant.3 Failure to apply for and accept the required certification will result in the loss of all federal funding. The rules will likely apply to an estimated 584,000 health care facilities, including approximately 58,000 pharmacies, 4,800 hospitals, and 234,000 physician offices.4 They also apply to pharmacy, medical, and other health organizations educating future practitioners. It is anticipated that at least 17 million women will be subject to these rules every year they remain in effect.5
During the public comment period between the time the rules were proposed and their effective date, there were almost 200,000 individuals and groups who opposed the regulations.6 HHS made very few changes and did not address the public’s disparate viewpoints.
Analysis
One of the oddities about these regulations is whether they are even needed. Federal laws prohibiting discrimination against “conscientious objectors” have been in existence for several decades. It has been at least 30 years since the federal government gave physicians and nurses the ability to opt out of performing abortions without fear of recrimination.4 The new rule would go further by making clear that other health care workers, whether or not they are licensed, registered, or certified under state or federal laws to provide medical care, may also refuse to provide information or advice to patients who might want an abortion, sterilization, or related procedure.4 For example, comments from HHS indicate that an employee of an institution where abortions are performed could refuse to clean the instruments following the procedure.
In announcing the release of the regulations, HHS Secretary Michael O. Leavitt indicated that the law is necessary to “protect the moral conscience of persons in the health care industry.”4 Leavitt also said he had intended to issue the rule as a final regulation before the Obama administration took office. (Sometimes when there is a political change in presidential administrations, the outgoing administration may enact “11th-hour” or “midnight” rules as a way of preserving their legacy.7) Leavitt asserted that some professional health care organizations threaten to brand practitioners as “unprofessional” when they fail to put the health care concerns of patients above personal opposition to any given behavior. He criticized the development of an environment in the health care field that is intolerant of individual conscience, certain religious beliefs, ethnic and cultural traditions, and moral convictions. Leavitt said the rule was focused on abortion, not contraception. That may be the cruelest understatement of the intended effects of the regulations. One provision states that no person may be required to assist in a “health service program or research activity” that is “contrary to his religious beliefs or moral convictions.” The HHS rule says that the law should be enforced “broadly” to cover any “activity related in any way to providing medicine, healthcare or any other service related to health or welfare.”1,4
One of the battles over these rules is expected to take place right in the middle of the pharmacy. Plan B emergency contraception or any drug that could be labeled “the morning after pill” will put the right-to-life and the right-to-chose coalitions at loggerheads at the pharmacy front doors. Surely there will be debates about what is an abortion relative to prevention of implantation of a fertilized egg. These regulations do not even provide a definition of this important concept. Instead, while acknowledging the public outcry for a definition, HHS commented, “questions over the nature of abortion and the ending of a life are highly controversial and strongly debated.”1
A Notable State Regulation
Another intriguing twist is that just as the federal government was releasing these broad regulations, the Illinois Supreme Court released its opinion on December 20, 2008, allowing pharmacies and pharmacists to challenge a diametrically opposed state administrative rule that demanded that health care professionals dispense Plan B or similar emergency contraception medications.8 The ruling in Morr-Fitz v. Blagojevich reversed two previous lower-court decisions. Former Governor Rod Blagojevich9 promulgated a rule in 2005 forcing pharmacists to fill all requests for such medications irrespective of the pharmacist’s objections on the grounds of personal, moral, or religious beliefs. In a controversial statement about the Illinois rule, the governor said, “Rather than try to get the legislature to pass something…through executive order action, I forced these guys to fill prescriptions for birth control for women who come in with prescriptions from their doctors.”10
The notorious “pro-abortion” governor also said in his 2005 State of the State speech, “Now, I understand that several bills have been introduced that would overturn my executive order to protect women’s reproductive freedoms…So let me make something else very clear—if any of those bills reach my desk, they are dead on arrival.” He further explained, “Think about what we’ve been able to do since I’ve been governor. The reproductive freedoms of women are more protected in Illinois than any state in America. That’s in [stark] contrast to the advances and assaults coming from the Bush administration.”10
What this Illinois Supreme Court ruling means is that pharmacies and pharmacists can still challenge the law; it does not overturn the law for the time being. If it were reversed, pharmacists in Illinois would have the same right of conscience contemplated by the federal regulations.
Conclusion
This will hardly be the final chapter on the federal rule. On November 20, 2008, legislation was introduced in the Senate that would prohibit HHS from finalizing, enforcing, or implementing the right of conscience rule.3 The bill has been referred to the Committee on Health, Education, Labor, and Pensions for further discussion. Even so, there is already pressure on President Barack Obama and his new administration to rescind the regulations. The right of conscience rule is only one of a number of reproductive-health issues under review by the Obama team, which is preparing strategies to reverse a variety of Bush measures.11 Executive decisions are expected to occur on such issues as federal funding for sex education, abortion, and stem cell research.
In the meantime, pharmacists across the nation should take stock of these political and social issues and make some values decisions. Is a woman’s choice on reproductive care more or less important than a pharmacist’s autonomy rights to object to practices deemed immoral? Is there a middle ground where a pharmacist could justifiably decline to participate in reproductive options but still refer patients to someone else willing to help a patient in need? The profession is going to have to come to grips with these issues to develop a professional ethos that we can all live with.
REFERENCES
1. Ensuring that Department of Health and Human Services funds do not support coercive or discriminatory policies or practices in violation of federal law. Final rule. Fed Regist. 2008;73:78072-78101.
2. It may be only a coincidence, but the effective date coincided with Inauguration Day.
3. HHS finalizes ‘right of conscience rule.’ December 18, 2008.
www.hrtools.com/news/alerts/
4. Broader medical refusal rule may go far beyond abortion. LA Times. December 2, 2008.
www.latimes.com/news/
5. ‘Right of conscience’ law puts women’s health at risk. December 22, 2008.
http://news.softpedia.com/
6. HHS publishes provider conscience expansion rule. Huffington Post. December 19, 2008.
http://www.huffingtonpost.com/
7. Midnight reg on ‘right of conscience’ for health workers moves forward. December 16, 2008.
www.propublica.org/article/
8. Illinois Supreme Court allows pharmacies’ right of conscience case to go forward. December 20, 2008.
www.rightsidenews.com/
9. Yes, this the same governor of Illinois who was removed by impeachment for allegedly trying to sell the Senate seat vacated by President Barack Obama.
10. Major pro-abortion Illinois Governor Rod Blagojevich caught red handed trying to sell Obama’s senate seat. December 9, 2008.
www.lifesitenews.com/ldn/2008/
11. Bush-era abortion rules face possible reversal. Wall Street Journal. December 17, 2008.
http://online.wsj.com/article/
To comment on this article, contact rdavidson@jobson.com.
