News

Federal judge upholds pharmacists' right to refuse

Posted August 02, 2007 11:00 pm

Dean Olsen

A federal judge said this week that Illinois pharmacists have a right to refuse to dispense emergency contraception on moral grounds.

But U.S. District Judge Jeanne Scott's statement Tuesday isn't her final ruling in former Beardstown pharmacist Ethan Vandersand's efforts to fight the discipline Wal-Mart gave him last year for refusing to fill a prescription for the so-called "morning-after" pill.

And the legal opinion in Vandersand's civil-rights lawsuit against the retail giant apparently won't affect a state law requiring pharmacies to dispense emergency contraception.

Gov. Rod Blagojevich in 2005 issued a rule requiring pharmacies to dispense the medicine, which is up to 90 percent effective if taken within 72 hours after unprotected sex.

The governor's rule was designed to prevent pharmacies from being able to deny women access to "Plan B" contraceptives, even if pharmacists who work there disagree with dispensing the drug on moral grounds.

Some pharmacists consider Plan B a form of abortion because the drug can prevent a fertilized egg from implanting in a woman's uterus.

Like conventional birth-control pills, Plan B most often works by preventing ovulation.

Plan B also is believed to work by temporarily changing the lining of the uterus so an egg doesn't implant. But scientists say regular birth-control pills sometimes work this way, too. It's unclear whether emergency contraception hinders implantation any more frequently than conventional birth-control pills.

Walgreen Co. has disciplined some company pharmacists for refusing to promise that they would dispense Plan B if asked. Those pharmacists are fighting their disciplines in court cases that eventually could be influenced by the outcome of Vandersand's case.

Francis Manion, the Kentucky lawyer representing Vandersand, said Thursday that Scott's ruling this week "is a huge step forward in the ongoing struggle to ensure legal recognition of pharmacists' right to practice their chosen profession without violating their moral and professional integrity."

Scott denied a request by Wal-Mart to throw out Vandersand's lawsuit.

Scott sided with Vandersand, who had claimed that 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 and 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.

The patient ended up obtaining Plan B from another Beardstown pharmacy.

Among other legal arguments in its defense, Arkansas-based Wal-Mart had contended that 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."

She also wrote: "Providing medication ... constitutes health-care services. Any person, including Vandersand, who refuses to participate in any way in providing medication because of his conscience is protected by the Right of Conscience Act."

Vandersand's lawsuit against Wal-Mart, in which he is asking for lost pay and an unspecified amount of monetary damages, continues in federal court.

"Wal-Mart's arguments, now soundly rejected by this court, may no longer be used by corporate or governmental officials to squeeze out of the profession pharmacists with a high regard for the sanctity of all human life," said Manion, who is part of the conservative public-interest law firm The American Center for Law and Justice.

But Wal-Mart spokesman John Simley said the Vandersand case is far from over, and Scott's ruling wasn't a setback.

"We have denied discriminating" against Vandersand, Simley said. "The facts of the case haven't even been heard yet."

Susan Hofer, spokesman for the Illinois Department of Financial and Professional Regulation, said agency officials don't think the ruling will have impact on the state law governing pharmacies and emergency contraception, but officials are reviewing the judge's statements.

Pam Sutherland, president of the Illinois Planned Parenthood Council, said she was glad that the ruling didn't question the state requirement that pharmacies dispense emergency contraception without delay if they sell other types of birth-control pills.

But she said she was troubled that Scott's ruling, if left unchanged, could be interpreted to mean the Right of Conscience Act protects a wide range of people - even grocery-store clerks - if they refuse to sell contraceptives based on moral views.

"That goes farther than the General Assembly intended it to go," Sutherland said.

Dean Olsen can be reached at (217) 788-1543 or dean.olsen@sj-r.com.

Article Categories
News