A Prescription for Balance
when pharmacists' and women's rights clash
In recent years, a number of pharmacists have refused to dispense prescriptions for contraceptives because of their ethical, moral, or religious beliefs. These occurrences have generated a heated debate both in the media and in state legislatures. To those who believe women have a fundamental right to make decisions regarding their bodies, legally sanctioning a pharmacist’s refusal to dispense contraceptives is an unacceptable intrusion into a woman’s personal autonomy. Supporters of this viewpoint can point to a line of Supreme Court decisions that have affirmed this sentiment. The Court has recognized that the Due Process Clause of the Fourteenth Amendment protects both the right to use and access contraceptives, and noted such personal decisions were choices central to personal dignity and autonomy.
Some believe, however, it is an equal if not greater intrusion on personal autonomy by forcing someone to do something that is against his or her beliefs. Support for this idea can be seen in both federal and state law, which prohibit a health care provider (either an individual or a facility) from being forced to perform abortion and contraceptive services to which they are opposed. The universal nature of these laws among states lends support to the general idea that it is hard to imagine someone being forced to perform an abortion if they are opposed to the procedure. One could make arguments that abortion is “worse” than contraceptives, or that the pharmacist’s roles are more “ancillary” than physicians or nurses performing abortions, but essentially it is the same issue. We are uncomfortable with making someone perform or contribute to something that they find religiously, morally, or ethically reprehensible. My question is: Does this conflict always have to result in one side “winning” and one side “losing”? So often, this is how a debate is framed: Ultimately, one right must trump another. Which right is more important? Which right has been better reasoned in logic and precedent? What does society value more? I think the debate should be framed differently. That is, I think we should seek to balance one right against the other. Ultimately, we should try to reach a balance that allows both rights to be fulfilled.
Moreover, there are other areas of law where similar rights collide with one another, and can provide us a model for balancing so that each right may be expressed and not compromised. For example, when a patient wishes to stop life-sustaining treatment (such as artificial nutrition or hydration, or artificial respiration), this can also pose a religious, moral, or ethical conflict for health care providers. At the same time, the right to refuse life-sustaining treatment was also recognized by the Supreme Court as a fundamental right under the Due Process Clause.
Yet laws have addressed this conflict with an eye towards balancing. When a health care provider refuses on religious, moral, or ethical grounds to stop providing life-sustaining treatment, laws generally permit them to do so. Such refusal, however, imposes additional duties on the health care provider. In order to refuse, the health care provider generally must assist in transferring the patient to another health care provider (to either another individual or to another facility entirely) who is willing to carry out the patient’s wishes. Additionally, some laws require that health care providers provide notice to individuals or their family members about any possible future conflict between the patient’s wishes regarding refusing life-sustaining treatment and the health care provider’s beliefs.
I think such duties could also be imposed upon pharmacists and pharmacies refusing to dispense contraceptives. Transferring a prescription to either another pharmacist in the same pharmacy or to another nearby pharmacy allows a woman to access her legally prescribed contraceptives in a timely manner, while the pharmacist avoids dispensing medication to which he or she is opposed. In some cases, a pharmacist or pharmacy may even be opposed to transferring a prescription (as it may be viewed as facilitating the process); if so, at the very least, prominent notice should be given to women (perhaps by a large sign in a window of the pharmacy) so that they know they need to find an alternative pharmacist or pharmacy to obtain their prescription.
Although not perfect, laws that attempt to balance both rights enable both the right to access contraceptives and the right to abide by religious, moral, or ethical beliefs to be expressed. These laws may not create clear, bright-line rules; but in some cases, I think this is the sacrifice we must make in order to express an overarching important value: freedom.
By Natalie Langlois ’07. This article is adapted from BCLR: 47 Boston College Law Review 815 (2006).