‘Conscience clause’ trips up pharmacies
Transgender woman’s denial spurs discussion
In recent weeks, two people were denied medications at Arizona pharmacies, bringing attention to laws that govern when and why pharmacists can refuse to fill prescriptions.
Hilde Hall, a transgender woman, said last week that a pharmacist at CVS in Fountain Hills refused to fill a prescription for hormones. CVS said the pharmacist violated company policy and was fired.
A few weeks earlier, Nicole Arteaga said she was denied a prescription to medicine for a miscarriage at a Peoria Walgreens. The company said their policy allows employees to not fill prescriptions if they have moral objections, but the prescription is supposed to be referred to another pharmacist to meet the patient’s needs in a timely manner.
In Arteaga’s case, a state law allows pharmacists and doctors to deny care for abortion-related procedures and medications. The medicine for Arteaga’s miscarriage, misopristol, can also be used for medication abortions.
But in Hall’s case, there is no state law that explicitly allows pharmacists to deny medication to transgender people, and federal law says people can’t be denied care because of gender identity.
Pharmacists have a clear right under Arizona law to not fill prescriptions of abortion medication, but it’s not clear how state law affects those who refuse prescriptions in other cases, like Hall’s.
Arizona law contains a so-called “conscience clause,” which allows pharmacists and other health professionals to object to participating in or facilitating certain abortion-related health care practices.
The law says they can object in writing to “abortion, abortion medication, emergency contraception or any medication or device intended to inhibit or prevent implantation of a fertilized ovum on moral or religious grounds.”
If a pharmacist objects, they are supposed to return the prescription to the patient.
Several states have similar refusal laws, while other states specifically prohibit pharmacists from denying medications on moral grounds alone, according to the National Conference of State Legislatures.
Another Arizona law says the government can’t “deny, revoke or suspend” a professional license, like that of a pharmacist, based on the practice of their religious beliefs, as long as the behavior doesn’t constitute “unprofessional conduct” for the profession.
The statute says professionals can decline to provide or participate in services that violate their “sincerely held religious beliefs.”
It also says the person can’t lose their license if they express these be-
liefs in a professional setting “as long as the services provided otherwise meet the current standard of care or practice for the profession.”
In Hall’s case, it is not clear why the pharmacist refused to fill the prescription.
The Arizona State Board of Pharmacy doesn’t include denying medications in its rules under unprofessional conduct.
While pharmacists may be protected from losing their license for refusing to fill a prescription for religious beliefs, they could be fired if they don’t follow company policies when they do so.
A provision in the federal Affordable Care Act prohibits discrimination by health providers who receive federal funding, which may apply to the situations of refused medications.
Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, age, disability and gender identity by any healthcare organizations that receive federal funding.
Pharmacies like CVS and Walgreens typically receive federal funding because they accept payments from Medicare and Medicaid.
A post about the ACA provision on the American Pharmacists Association’s website from 2016 says the rule may allow civil lawsuits against pharmacies that refuse to “treat patients in a manner consistent with their gender identity.”
Kam Gandhi, executive director of the state pharmacy board, said pharmacists can’t refuse any medications — only those legally allowed under the abortion medication statute.
“Pharmacists do have the right to refuse to fill prescriptions, but it has to be for a legitimate medical reason,” he said.
Pharmacists have a responsibility to make sure medications don’t negatively interact with each other, and they have more leeway to refuse fills on controlled substances, Gandhi said.
“I don’t want to say their forced to fill it, but they have to have a pretty darn good reason not to fill it,” he said.
Customers can file complaints with the pharmacy board if they believe a pharmacist has violated the law. The pharmacy board said it is investigating both recent cases of refusals.
Steve Kilar, a spokesman for the Arizona chapter of the American Civil Liberties Union, said the organization believes it’s only legally justified to deny medication in the specific instances outlined in the state statute on abortion services.
But that provision on abortions is “creating too much confusion” for pharmacies over what they can and can’t do, Kilar said.
“People shouldn’t have to guess as to whether they’re going to be served when they walk into a place of business,” he said.
Emma Chalverus, an employment attorney at law firm Davis Miles McGuire Gardner, said the laws that govern pharmacy refusals are complicated.
The case of the misopristol denial falls under the specific statute that allows pharmacists to deny abortion services, Chalverus said.
“It is clear that in the first case with Walgreen’s the pharmacist was allowed to refuse to give her her medication,” she said.
But there is not a parallel law that allows denials for medications for transgender people, she said. However, there isn’t a law that says pharmacists must dispense those medications either, she said.
“When there’s no law there, it’s hard to give a definitive answer,” Chalverus said.
She said companies may want to accommodate employees who have sincerely held religious beliefs, but they likely have policies that dictate what should then happen if a pharmacist refuses to fill the prescription.
If an employee doesn’t follow those company policies, the company is probably within its rights to fire them, she said.