Pharmacist refuses to fill prescription for morning-after pill:

An AP story reports:

About 40 people gathered outside an Eckerd store Monday, protesting what they said was a decision to deny a rape victim a prescription for the morning-after pill.

A spokesman for the Largo, Fla.-based company confirmed that Eckerd has taken disciplinary action in response to an incident at the pharmacy. . . . .

“A prescription is filled regardless of one’s religious, moral or ethical belief. Failure to comply would result in disciplinary action, and that has occurred,” [an Eckerd spokeswoman said]. . . .

Morning-after pills are higher doses of the hormones in regular birth control pills and have been sold under the brand names Plan B and Preven since 1998.

Taken within 72 hours of unprotected sexual intercourse, the pills are at least 75 percent effective at preventing pregnancy. They work by preventing ovulation or fertilization of an egg. If fertilization has occurred, they prevent the egg from implanting into the uterus — the medical definition of pregnancy.

A few observations:

1. The federal Civil Rights Act requires employers to provide “reasonable accommodations” for employees who have religious objections to certain job rules; many similar state laws impose similar obligations. At least two courts have held that employers therefore may not punish empoyees for refusing to assist with abortions. See Tramm v. Porter Mem’l Hosp., No. H 87-355, 1989 U.S. Dist. LEXIS 16391, at *33 (N.D. Ind. Dec. 22, 1989) (concluding that a hospital had to reasonably accommodate a nurse who objected to cleaning instruments that had been and would be used in abortions, applying Title VII and the Free Exercise Clause); Kenny v. Ambulatory Centre of Miami, 400 So. 2d 1262 (Fla. App. 1981) (concluding that a hospital had to reasonably accommodate a nurse who had objected to assisting with abortions, applying state law but borrowing by analogy from the Title VII undue hardship cases). And the same would apply, I think, to employees who refuse to assist by providing morning-after pills. It doesn’t matter for these purposes whether morning-after pills really are like abortions or not. Rather, what matters is whether the employee sincerely believes (not reasonably believes, but sincerely believes) that his religion (or his conscience, since Title VII has generally been interpreted as applying a similar rule for deeply held secular moral beliefs) prohibits him from providing these morning-after pills.

        Note, however, that this requires only reasonable accommodation, defined as accommodation that doesn’t impose undue hardship on the employer (or, presumably, on its customers). So if the pharmacist is the only pharmacist on duty — which may well have been the case here — then an employer probably would be able to insist that the pharmacist fill the orders, since otherwise the employer would lose the customer. But if there are several pharmacists in the store, and at least one of them doesn’t have any moral objection, then Title VII would probably give the objecting pharmacists a right to refuse to provide the morning-after pills, and to instead refer the matter to the nonobjecting pharmacist. (I realize that some objectors might object even to referring the matter to the other pharmacist; but I don’t think that Title VII would require employers to accommodate that sort of belief, since such an accommodation may pose an undue hardship on the employer and the customers.)

2. But wait, there’s more! Many states have laws that provide much greater protections specifically to people who object to helping in abortions. Consider Texas Occupations Code ? 103.001:
   

   A physician, nurse, staff member, or employee of a hospital or other health care facility who objects to directly or indirectly performing or participating in an abortion procedure may not be required to directly or indirectly perform or participate in the procedure.

   This law gives absolute protection to the employee, with no regard for how much of a hardship this might oppose on the employer or the employer’s clients. But it also applies only to (A) employees of health care facilities and (B) abortion procedures. Texas Labor Code ? 401.011 (admittedly a different statute, which might not be seen as applying to the Occupations Code) actually defines “health care facility” in a way that would cover pharmacies; “health care facility” is defined to mean “a hospital, emergency clinic, outpatient clinic, or other facility providing health care,” and “health care” is defined to mean “includes all reasonable and necessary medical aid, . . . medical treatments, . . . and medical services,” including “a prescription drug, medicine, or other remedy.” Texas Health & Safety Code ? 245.002 defines “abortion” to mean “an act or procedure performed after pregnancy has been medically verified and with the intent to cause the termination of a pregnancy other than for the purpose of either the birth of a live fetus or removing a dead fetus. The term does not include birth control devices or oral contraceptives.” Under this rule, use of a morning-after pill wouldn’t be an abortion because it isn’t done after the pregnancy has been medically verified. But again, the Health & Safety Code provision is a different statute, aimed at regulation of surgical abortions; the definitions in it might not apply to the Occupations Code.

        This makes me think that the Occupations Code provision probably wouldn’t apply here — but that many opponents of morning after pills might be interested in broadening the Occupations Code rule, and similar rules in other states, to cover morning-after pills. It will be interesting to see whether this incident, or other similar incidents, will build support for such statutory changes.

3. Finally, laws that prevent clinics or pharmacies from insisting that their employees help in abortions might at some point be seen as imposing an “undue burden” on women’s right to an abortion (just as a state law that prevents the Boy Scouts from insisting that their scoutmasters not be gay imposes an unconstitutional burden on the Scouts’ First Amendment right to express those messages that they want to express). But the law in this area is unclear, and I suspect that it would require some evidence that the law is really making it very hard for the clinics and pharmacies to provide abortion services.

(Thanks to reader Dylan Alexander for the pointer to the news story.)