State-level Anti-Choice Efforts Target Pharmacies and Provider Conscience Laws

Kay Steiger

Conscience clauses are becoming an increasingly popular mode of anti-choice legislation. While a bill in Louisiana represents a compromise position, bills pending in other states are more restrictive.

Last week, Louisiana’s legislature passed what is known as a “conscience” bill, allowing medical professionals to refuse certain procedures if they violate religious or other beliefs. Often, conscience bills, like the midnight regulation passed in the final days of the Bush administration (Obama is expected to rescind the rule), specifically target abortion and contraception. Louisiana’s bill includes abortion and some types of emergency contraception, along with stem cell research and euthanasia. Gov. Bobby Jindal, who is anti-choice, is expected to sign the bill. But Louisiana isn’t alone in proposing such a measure; 12 other states have introduced such bills this legislative session, the most active of which were in Louisiana and Arizona.

Still, pro-choice activists in Louisiana are optimistic. “What came out is something that we consider to be a major victory,” said Marjorie Esman, executive director of the American Civil Liberties Union in Louisiana. When the bill was first introduced it placed no restrictions on what procedures could be legally refused by a medical professional. “Any medical care of any kind could be refused,” Esman said.

Now the bill not only has an enumerated list, but it also cannot legally interfere with access to care. “If you’re the only pharmacy in a small town and there’s no [other] pharmacy within 100 miles, you have to have someone on your staff that will distribute emergency contraception,” Esman said.

Esman, who testified before the state legislature three times on behalf of changing, said that the ACLU called the bill “discriminatory medicine.” The more sinister potential of the original bill could have expanded far beyond reproductive services, Esman said. “If you were anti-gay, you didn’t have to treat gay people. If you were a white supremacist and worked at a doctor’s office you could refuse to make appointments for people who are non-white.”  It was by raising concerns of broader threats of the legislation that the ACLU was able to build a diverse coalition to work on the bill.

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Through the compromise ultimately reached on this bill, the ACLU achieved two objectives: protecting religious freedoms and protecting the rights of patients as consumers by ensuring access to care. Even so, Esman is sanguine. “[M]y feeling is that you shouldn’t enter into a medical profession if you object to some of its procedures,” Esman said.

Still, conscience clauses are becoming an increasingly popular mode of anti-choice legislation, and not all states will result in the kind of compromise reached in Louisiana. Arizona’s bill combines a conscience clause, allowing pharmacists to refuse to dispense emergency contraception, with a 24-hour waiting period for abortions. The bill also increases penalties (from one year of prison to two years) for physicians that perform the already-illegal late abortion procedures erroneously and misleadingly termed "partial-birth abortions."

Gov. Jan Brewer, an anti-choice Republican who took Janet Napolitano’s place when she accepted the job of Secretary of Homeland Security, is expected to sign such legislation if it comes to her desk.  Elizabeth Nash, public policy associate at the Guttmacher Institute, says that Brewer is “hot to trot on bad anti-choice stuff … she wants to sign some anti-choice [legislation].”  Arizona is also considering legislation that would require that a parental consent form for a minor’s abortion, already required by law, also be notarized.  This would create one more hurdle for teenagers seeking an abortion.

Nash also points out that while there is some movement on anti-choice pharmacy access legislation in the states, 11 other states have introduced consumer protection bills that would ensure access to birth control and emergency contraception. Four states, California, Illinois, New Jersey, and Washington, already have laws in place that ensure access. However, as I’ve written before, Washington’s law has a temporary injunction while pharmacists that are making a constitutional claim to religious freedom challenge it in court. The case could ultimately make its way to the Supreme Court, forcing a decision on whether such conscience rules are constitutional.

Of the 11 states that introduced measures to ensure access to contraception this legislative session, the bill furthest along in the process is one in Wisconsin. Known as the Prescription Protection Act, the bill is currently folded into the state’s annual budget bill, so it has a significant chance of getting passed. It is unlikely that Gov. Jim Doyle, a pro-choice Democrat, would support the bill.

Wisconsin’s bill requires pharmacies to have someone available during business hours willing to fill prescriptions for birth control. The bill also has broad public support. A 2007 poll showed that 84 percent of Wisconsinites support guaranteed access to birth control, according to NARAL Pro-Choice Wisconsin. And there are no anti-choice bills on the docket this year.

Nash would like to see more states with guaranteed access to birth control and emergency contraception. “This movement got started in response to pharmacists’ refusal to fill prescriptions,” Nash said. Indeed, just last year the Washington Post wrote about Pharmacists for Life, a group that aggregated a list of pharmacists that refused to fill birth control prescriptions. Pharmacists are increasingly targeting birth control, but more commonly they refuse to dispense Plan B, often because of a misconception that Plan B is a form of medical abortion.

Perhaps the best way to fight pharmacist refusal bills is to approach these from a consumer protection perspective. Few pharmacists refuse prescriptions that don’t affect women’s reproductive heath and rights. Bills that allow pharmacists to refuse to fill birth control or emergency contraception are unfairly targeting women as consumers. Women deserve access to birth control and emergency contraception, just as other consumers deserve access to heart disease or other medications.

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