Pharmacist Conscience Clauses: Laws and Information
Updated May 2012
Health provider “refusal clauses” (also known as "conscience clauses") were first enacted in response to the United States Supreme Court's decision in the Roe v. Wade case, 410 U.S. 113 (1973). Roe v. Wade was the landmark decision establishing that most laws against abortion violate a constitutional righy to privacy, overturning all state laws outlawing or restricting abortion. Some states have subsequently proposed legislation and passed laws designed to allow doctors and other direct providers of health care to refuse to perform or assist in an abortion, and hospitals to refuse to allow abortion on their premises. Now, the issue is expanding as pharmacists are refusing to fill emergency contraception and contraception prescriptions. This movement resulted in the term “conscience clause," which gives pharmacists the right to refuse to perform certain services based on a violation of personal beliefs or values. Most of the debate revolves around a pharmacist dispensing emergency contraception. Emergency contraception is used to prevent a pregnancy, not terminate a pregnancy, and is a general term used to describe several different types of birth control pills that are used in increased doses within 72 hours of unprotected intercourse. Emergency contraception is not the same thing as Mifeprex, which is the brand name of mifepristone in the United States and is sometimes referred to as non-surgical abortion, medical abortion, or RU-486. Pharmacists do not play a role in administering these medications.
In some states, legislators are introducing bills that would explicitly grant pharmacists the right to refuse to dispense drugs related to contraception on moral grounds. Other state legislators are introducing legislation that would require pharmacies to fill any legal prescription for birth control, much like the former Governor's emergency rule in Illinois, which requires pharmacies to provide the morning after pill. Six states (Arizona, Arkansas, Georgia, Idaho, Mississippi, and South Dakota) have passed laws allowing a pharmacist to refuse to dispense emergency contraception drugs. Illinois passed an emergency rule that requires a pharmacist to dispense FDA approved contraception. Colorado, Florida, Illinois, Maine and Tennesee have broad refusal clauses that do not specifically mention pharmacists.
California pharmacists have a duty to dispense prescriptions and can only refuse to dispense a prescription, including contraceptives, when their employer approves the refusal and the woman can still access her prescription in a timely manner.
New Jersey's law prohibits pharmacists for refusing to fill prescriptions solely on moral, religious or ethical grounds.
Washington's law allows pharmacists to dispense emergency contraception without a prescription through collaborative practice agreement and state-approved protocol.
Washington and Wisconsin laws requires that emergency rooms provide information about emergency contraception upon request as well as dispense it upon request.
Conscience Clause Laws (allowing the refusal to fill)
Arkansas § 20-9-1001 allows certain individuals or entities to refuse to perform abortion services and provide or dispense contraceptives in all or most circumstances.
California SB 644 Chapter No. 417 prohibits a health care licentiate from obstructing a patient in obtaining a prescription drug or device and would require the licentiate to dispense drugs and devices pursuant to a lawful prescription or order except in specified circumstances, including on ethical, moral, or religious grounds asserted by the licentiate.
Colorado Rev. Stat. 25-6-102 states that no private institution, it employees, or physicians may be held liable for refusing to dispense contraceptive supplies, procedures or information if their refusal is based on a moral or religious objection to such activities.
Florida 2003 Stat. XXIX 381.0051 states that physicians or other people may not be held liable for refusing to dispense contraceptive or family planning devices, services or information.
Georgia Admin. Code § 480-5-.03 provides that a pharmacist shall not be required to fill a prescription for an emergency contraceptive drug; provides that such refusal shall not be the basis for any claim for damages; provides for the duration of the effectiveness of the written objection; provides for related matters; repeals conflicting laws.
Idaho Code § 18-611 provides that no health care professional shall be required to provide any health care service that violates his or her conscience.
Illinois requires pharmacies to dispense contraception. Gov. Rod Blagojevich (D) issued emergency rules that require pharmacies in the state to dispense FDA-approved contraceptives. If the pharmacy does not have the drug or a suitable substitute in stock, then the pharmacy must order the medication through standard procedures, transfer the prescription to another local pharmacy or return the prescription to the patient. The emergency rules will be in effect only for 150 days, after which the state is expected to begin the normal rulemaking process in order to make the requirement rule permanent.
Maine Rev. Stat. tit. 22, 1903 (1973) gives physicians and agents of medical and related facilities the right to refuse to provide family planning services when such actions would interfere with moral or religious beliefs.
Mississippi Code Ann. § 41-41-215 permits health care providers, including pharmacists or other pharmacy employees, counselors, social workers, health insures and health care facilities to refuse to provide [any] medical services, including counseling and referral, on religious or ethical grounds (SB 2619).
South Dakota Codified Laws § 36-11-70 allows pharmacists the right to refuse to provide services.
Tennessee Code Ann. 68-34-104 allows physicians or any agent of such an entity to refuse to offer contraceptive services, supplies, or information if it interferes with a moral or religious belief. States that physicians or other agents may not be held liable for this refusal.
Washington RCW48.43.065 allows for no individual health care provider, religiously sponsored carrier, or health care facility be required by law or contract in any circumstances to participate in the provision of or payment for a specific service if they object to so doing for reason of conscience or religion.
Also: On June 1, 2006 the Washington Board of Pharmacy approved proposed rule language regarding a pharmacist’s responsibilities in dispensing a lawful prescription. This language would amend Washington Admin. Code 246-863-095 to prohibit a pharmacist from delegating the decision not to dispense prescriptions for any reason.
Sources: National Conference of State Legislatures; Denver, Colorado.
Compiled by NCSL Health Program, Denver.
Note: List may not be comprehensive, but is representative of state laws that exist. NCSL appreciates additions and corrections.