ACLU Urges Wisconsin Court to Uphold Decision Allowing Discipline of Pharmacist Who Refused to Refill a Prescription for Birth Control Pills

Affiliate: ACLU of Wisconsin
February 5, 2007 12:00 am

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MADISON – The American Civil Liberties Union today urged a Wisconsin court to affirm a lower court decision upholding the state’s discipline of a pharmacist who refused to refill a prescription for birth control pills without ensuring that the patient would be able to get her medication.

“We are hopeful that the court will agree that individual pharmacists with religious objections should not be able to prevent women from accessing contraception,” said Sondra Goldschein, an attorney with the ACLU Reproductive Freedom Project. “Pharmacies should honor individual pharmacists’ religious beliefs wherever possible; however, the patient’s right to obtain legally prescribed medication should always come first.”

In 2002, Neil Noesen, a devout Roman Catholic pharmacist who has a religious objection to the use of contraceptives, refused to refill a woman’s valid prescription for birth control pills. Noesen went on to impede the woman’s efforts to fill the prescription at another pharmacy. As a result, the woman missed the first dose of her medication and was forced to use a back-up method of contraception. The state Department of Regulation and Licensing Pharmacy Examining Board subsequently took disciplinary action against Noesen for his failure to adequately inform his employer of his religious objections to participating in the filling of prescriptions for contraception and for his refusal to promptly transfer this prescription to another pharmacy.

“Although the Wisconsin Constitution protects individuals from government interference with their practice of religion, it does not confer an absolute right to disregard the rights or welfare of others,” said Laurence Dupuis, Legal Director of the ACLU of Wisconsin. “Because women are the sole users of birth control pills, refusals to fill these valid prescriptions are tantamount to sex discrimination.”

A lower court ruled in February 2006 that the Department’s discipline of Noesen for departing from a pharmacist’s standard of care was constitutionally permissible. The Department held that a pharmacist “who exercises a conscientious objection to the dispensing of a prescription must ensure that there is an alternative mechanism for the patient to receive his or her medication.” Accordingly, the Department held, a pharmacist has a duty to fully inform employers of his or her limitations on practice arising out of his or her religious beliefs. This standard for accommodating religious objections and protecting patients’ rights protects the public health, enhances patient autonomy, and promotes the equality of women.

Today’s case is Noesen v. Wisconsin Department of Regulation and Licensing Pharmacy Examining Board. Lawyers on the friend-of-the-court brief include Goldschein of the ACLU Reproductive Freedom Project, Dupuis of the ACLU of Wisconsin, and Milwaukee attorney Jacqueline E. Boyton.

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