Woman suing two pharmacies after being denied emergency contraception

The US case brings to light concerns around conscientious objection at a time when a federal religious discrimination bill is being debated in Australia

A woman has filed a lawsuit against a Thrifty White Pharmacy and a CVS Pharmacy in Minnesota in the US, alleging the two pharmacies illegally kept her from accessing emergency contraception.

Andrea Anderson, a 39-year-old mother of five, says she asked the pharmacist at her drugstore in Minnesota more than once why he couldn’t fill her prescription for emergency contraception, according to the Star Tribune.

“I then realised what was happening: he was refusing to fill my prescription for emergency contraception because he did not believe in it,” Ms Anderson said on Tuesday.

The suit, filed in Aitkin County District Court, alleges that the Thrifty White as well as a CVS pharmacy in a nearby county discriminated against Anderson based on sex. It also contends that denying her service based on pregnancy-related health care needs violated the Minnesota Human Rights Act.

A manager at the Thrifty White declined to comment on the lawsuit. A spokesperson for CVS told the Star Tribune that the pharmacy is committed to providing access to emergency contraception and that it will investigate Ms Anderson’s complaint.

The Thrifty White pharmacist is reportedly a local church pastor in addition to being a pharmacist, and may have previously refused to fill prescriptions based on his personal beliefs.

Although the Minnesota Board of Pharmacy has reportedly created a way for pharmacists to decline to fill prescriptions that violate their ethics, they must provide alternative ways for customers to obtain their prescriptions.

Ms Anderson alleges that the pharmacies did not follow that protocol.

What’s happening in Australia?

Providing an alternative means of accessing treatment following conscientious objection is the same professional standard currently in Australia.

The Pharmacy Board of Australia Code of Conduct says good practice is to not allow “moral or religious views to deny patients or clients access to healthcare, recognising that practitioners are free to decline to provide or participate in that care personally”.

The code says that if pharmacists object conscientiously to supplying a product, they must inform patients, clients or colleagues, if relevant, and not use that objection to impede access to treatments that are legal.

According to the PSA code of ethics: “A pharmacist informs the patient when exercising the right to decline provision of certain forms of health care based on the individual pharmacist’s conscientious objection, and in such circumstances, appropriately facilitates continuity of care for the patient”.

In its guidance document for S3 emergency contraception (levonorgestrel and ulipristal), PSA states that: “In the event that an out-of-stock situation or moral belief of a pharmacist leads to the non-supply of a product or service, the pharmacist must accept responsibility for ensuring continuity of care – that is, timely access to the required medicine or service.

“This may involve the use of initiative to identify another reasonably available source for the required medicine or service, particularly in rural or remote areas or in other situations where access to alternate service providers may be limited.”

However the Religious Discrimination Bill 2019 being drafted by the Federal Government, spearheaded by Attorney-General Christian Porter and Prime Minister Scott Morrison, may add further complexity to the situation in Australia.

The first draft of the bill allowed conscientious objection provisions to be applied to a broad list of health professions, for the purpose of protecting health professionals who conscientiously object to providing a treatment or service on the basis of religious belief.

In the recently released second draft, provisions have been narrowed to medicine, midwifery, nursing, pharmacy and psychology.

Explanatory notes accompanying the bill clarify an objection “must be to a procedure, not a person”.

Under the proposed laws, a pharmacist could refused to dispense contraception or other medication however they would have to decline to provide that particular service to all patients.

The bill reads: “A health practitioner conduct rule that prevents a health practitioner from lawfully conscientiously objecting to providing or participating in a particular kind of health service pursuant to a State or Territory law that provides for such an exercise of conscientious objection (for example, the ability to conscientiously object to providing or participating in an assisted dying process under a State or Territory law) because of the health practitioner’s religious belief or activity may constitute discrimination under this Act.

“However, this provision does not have the effect of allowing a health practitioner to decline to provide a particular kind of health service, or health services generally, to particular people or groups of people. For example, refusal to prescribe contraception to single women may constitute discrimination under the Sex Discrimination Act 1984.”

Anthony Tassone, president of the Pharmacy Guild of Australia Victoria branch, said pharmacists haven’t been calling for the legislative changes.

“We certainly haven’t had our members banging down the door for these types of changes to be introduced,” he told the ABC.

He highlighted the importance of the professional obligations of health professionals and putting patient care first.

“That’s been the case with pharmacists in that, for whatever reason, if there was a conscientious objection on faith-based grounds for supply of a treatment or medicine – and we use the example of oral contraceptive pills – the pharmacist has an obligation to refer that patient to another pharmacy or healthcare provider to be able to access that treatment,” Mr Tassone said.

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