Conscience Clause Puts Walgreen's in a Tight Spot

When two Chicago women went to a South Side pharmacy to pick up their prescription contraceptives in March, they were shocked and outraged that pharmacists refused to fill their prescriptions based on their religious objections to contraceptive use. When the women took their complaints to Illinois Governor Rod Blagojevich, he wasn't too happy either.

Blagojevich issued an emergency action in April 2005 requiring pharmacists to fill birth control and emergency contraceptives prescriptions. "No delays. No hassles. No lectures," Blagojevich said. "Just fill the prescription."

Walgreen's, which has more than 500 stores in Illinois, heeded the governor's warning and asked its pharmacists to comply with the rule. It fired those who didn't. Seven terminated pharmacists then sued the governor, alleging the rule violates Title VII and the Illinois Health Right of Conscience Act, which protects healthcare personnel who refuse to perform a task for moral reasons.

But not only did the employees target Blagojevich, they also sued Walgreen's, arguing it violated the Conscience Act by enforcing the governor's rule.

"Pharmacies have been put in an untenable position of being forced to choose between complying with the Health Care Right of Conscience Act and the governor's new rule," says Julie Gottshall, partner in Katten Muchin Rosenman's Chicago office.

Although Walgreen's situation is somewhat of a legal rarity, the use of the broadly worded conscience clause has some concerned. And on Sept. 6, the U.S. District Court in Springfield fueled this concern when it denied the governor's request to dismiss the suit, in effect recognizing "the right of conscience" as a legitimate theory.

Stuck In The Middle

Prior to Blagojevich's emergency rule, Walgreen's Illinois stores followed the company's nationwide policy, which allowed a pharmacist to decline to fill a prescription on moral grounds if there is someone else in the store who can fill the prescription, or if it can be reasonably obtained from a nearby pharmacy.

This policy not only seemed to work for both employees and patrons, but also fit in nicely with the state's conscience clause. However, when forced to decide between the Act and the rule, Walgreen's went with the rule, upsetting some employees. But some believe Walgreen's didn't have a choice.

"Walgreen's did the right thing," says Barbara Brown, partner at Paul, Hastings, Janofsky & Walker. "The federal court says this is not a religious observance that needs to be accommodated by the employer."

Not everyone agrees with Brown's assessment. "They should have kept their policy in place and said to their governor 'the burden is on you to tell us how to respect the rights of our employees within the framework of your rule,'" says Francis Manion, of the American Center for Law & Justice and lead plaintiffs' counsel. He adds that if Walgreen's wanted to be proactive, it could have filed a declaratory judgment action.

Once its employees filed suit, that is exactly what Walgreen's did. In June the company intervened in the case, seeking a declaratory judgment that the rule violates Title VII.

However, the broad language in the Act leaves room for interpretation.

Slippery Slope

After the 1973 Roe v. Wade decision, states began adopting "conscience clauses" to allow medical professionals to opt out of participating in the newly legalized abortions. However, these clauses have since evolved beyond abortion.

"It's a broadly worded act and is not yet well interpreted," Gottshall says. "What, if anything, pharmacies must do to comply with the act is an open question."

According to the National Conference of State Legislatures, Arkansas, Georgia, Mississippi and South Dakota have passed laws allowing a pharmacist to refuse to dispense emergency contraception drugs, while Colorado, Florida, Maine and Tennessee have broad refusal clauses that do not specifically mention pharmacists.

Employers' greatest concern is the potential for employees to use these laws to refuse duties other than dispensing birth control.

Using the theoretical example of a pharmacist who does not believe in the war in Iraq, Gottshall asks whether a pharmacist can refuse to fill an injured veteran's prescriptions. Under this broadly worded clause, Gottshall says, pharmacists could potentially say dispensing such medication would violate their personal conscience.

"It's the classic slippery slope," Brown says. "I think most employers who serve the public have a great deal of difficulty complying with [conscience clauses]."

Because these clauses vary by state, experts advise counsel to take a careful look at the conscience act in each state in which they operate.

"You have a lot of latitude under federal law but you need to look closely at what state law requires," Gottshall says.

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