Reconciling principles and prescriptions: Do pharmacist refusal clauses strike the appropriate balance between pharmacists’ and patients’ rights?

Sarah Tomkowiak   

University of Illinois Law Review

Conclusion: When a woman and her physician decide that a prescription for contraception is in her best health interests, legal, professional, and ethical obligations should prevent a pharmacist from being able to effectively override that determination. The right of a pharmacist to abide by her moral or religious principles when faced with a prescription that goes against those principles is an important right to protect. However, this right should never be allowed to infringe on a patient’s right to access birth control, an equally important right that has significant implications for the majority of American women’s reproductive health. Pharmacist refusal clauses acknowledge pharmacists’ right to refuse at the expense of women’s right to access contraceptives, inappropriately reconciling these rights. Griswold v. Connecticut may be forty years old, but the issues debated before the Supreme Court then have risen anew today, this time behind the pharmacy counter. Following in the footsteps of the Griswold Court, we must now reaffirm that women have the right to make their own family planning decisions, including the decision to use contraception. Legislatures, pharmacy boards, pharmacies, pharmacists, and patients must work together to put the needs of patients back where they belong—as the first priority of the pharmacy profession.


Tomkowiak S. Reconciling principles and prescriptions: Do pharmacist refusal clauses strike the appropriate balance between pharmacists’ and patients’ rights? U Illinois L Rev 2007(4) 1329-1360

Achieving transparency in implementing abortion laws

Rebecca J. Cook, Joanna N. Erdman, Bernard M. Dickens

International Journal of Gynecology & Obstetrics

Abstract: National and international courts and tribunals are increasingly ruling that although states may aim to deter unlawful abortion by criminal penalties, they bear a parallel duty to inform physicians and patients of when abortion is lawful. The fear is that women are unjustly denied safe medical procedures to which they are legally entitled, because without such information physicians are deterred from involvement. With particular attention to the European Court of Human Rights, the UN Human Rights Committee, the Constitutional Court of Colombia, the Northern Ireland Court of Appeal, and the US Supreme Court, decisions are explained that show the responsibility of states to make rights to legal abortion transparent. Litigants are persuading judges to apply rights to reproductive health and human rights to require states’ explanations of when abortion is lawful, and governments are increasingly inspired to publicize regulations or guidelines on when abortion will attract neither police nor prosecutors’ scrutiny.


Cook RJ Erdman JN, Dickens BM. Achieving transparency in implementing abortion laws. Int J Gynaecol Obstet. (2007) 99, 157-161

The Ever-Expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs

Maxine M. Harrington

Florida State University Law Review

Introduction:  During the past few years, the debate over whether health care professionals should be required to provide services that conflict with their personal beliefs has focused primarily on pharmacists refusing to fill prescriptions.1 According to one media account, during a sixmonth period in 2004 there were approximately 180 reports of pharmacists refusing to dispense routine or emergency oral contraceptives. 2 This controversy, however, extends beyond the pharmacy into every facet of the heath care system. . .


Harrington MM. The Ever-Expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs. 34 Fla. St. U. L. Rev. 779, 816 n.237 (2007) 

Conscientious objection in medicine

Julian Savulescu

British Medical Journal

Shakespeare wrote that “Conscience is but a word cowards use, devised at first to keep the strong in awe” (Richard III V.iv.1.7). Conscience, indeed, can be an excuse for vice or invoked to avoid doing one’s duty. When the duty is a true duty, conscientious objection is wrong and immoral. When there is a grave duty, it should be illegal. A doctors’ conscience has little place in the delivery of modern medical care. What should be provided to patients is defined by the law and consideration of the just distribution of finite medical resources, which requires a reasonable conception of the patient’s good and the patient’s informed desires (box). If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors. Doctors should not offer partial medical services or partially discharge their obligations to care for their patients. . .


Savulescu J. Conscientious objection in medicine. BMJ. 2006 February 4; 332(7536): 294–297. doi:  10.1136/bmj.332.7536.294

The Fallacies of Objections to Selective Conscientious Objection

Amir Paz-Fuchs, Michael Sfard

The Fallacies of Objections to Selective Conscientious Objection

Abstract

This paper critically analyzes the theoretical and pragmatic arguments raised against the refusal of individuals to serve in a specific military campaign that they view as immoral. The Israeli Supreme Court case of Zonshein v Judge-Advocate General will serve as an axis of the discussion, as it combines two related facets: first, the Court’s decision touches upon most of the difficult issues in the field of conscientious objection. And second, the development leading up to the decision was accompanied by an exceptional clash of academics, each side summoning expert opinions in support of its claim.

Courts worldwide have accepted that a categorical distinction exists between universal and selective conscientious objection. The combination of the Zonshein decision and the accompanying academic debate presents the opportunity to reexamine the theoretical and pragmatic reasons that are offered as support for distinguishing the two ‘types’ of conscientious objection. Close scrutiny finds them wanting.


Paz-Fuchs A, Sfard M. The Fallacies of Objections to Selective Conscientious Objection. Israel Law Review, Special Issue: Refusals to Serve – Political Dissent in the Israel Defense Forces. 2002 Fall; 36(3);111 – 143. DOI: https://doi.org/10.1017/S0021223700017994.

Exploring the Biological Contributions to Human Health: Does Sex Matter?

Institute of Medicine

Does Sex Matter?

Abstract

One of the most compelling reasons for looking at what is known about the biology of sex differences is that there are striking differences in human disease that are not explained at this time.

Being male or female is an important basic human variable that affects health and illness throughout the life span. Differences in health and illness are influenced by individual genetic and physiological constitutions, as well as by an individual’s interaction with environmental and experiential factors. The incidence and severity of diseases vary between the sexes and may be related to differences in exposures, routes of entry and the processing of a foreign agent, and cellular responses. Although in many cases these sex differences can be traced to the direct or indirect effects of hormones associated with reproduction, differences cannot be solely attributed to hormones.

Therefore, sex should be considered when designing and analyzing studies in all areas and at all levels of biomedical and health-related research. The study of sex differences is evolving into a mature science. There is now sufficient knowledge of the biological basis of sex differences to validate the scientific study of sex differences and to allow the generation of hypotheses with regard to health. The next step is to move from the descriptive to the experimental phase and establish the conditions that must be in place to facilitate and encourage the scientific study of the mechanisms and origins of sex differences. Naturally occurring variations in sex differentiation can provide unique opportunities to obtain a better understanding of basic differences and similarities between and within the sexes.

Barriers to the advancement of knowledge about sex differences in health and illness exist and must be eliminated. Scientists conducting research on sex differences are confronted with an array of barriers to progress, including ethical, financial, sociological, and scientific factors.

The committee provides scientific evidence in support of the conclusions presented above and makes recommendations to advance the understanding of sex differences and their effects on health and illness.


Institute of Medicine 2001. Exploring the Biological Contributions to Human Health: Does Sex Matter?. Washington, DC: The National Academies Press.
https://doi.org/10.17226/10028.

Reproductive health services and the law and ethics of conscientious objection

Bernard M. Dickens

Medicine and Law

Abstract: Reproductive health services address contraception, sterilization and abortion, and new technologies such as gamete selection and manipulation, in vitro fertilization and surrogate motherhood. Artificial fertility control and medically assisted reproduction are opposed by conservative religions and philosophies, whose adherents may object to participation. Physicians’ conscientious objection to non-lifesaving interventions in pregnancy have long been accepted. Nurses’ claims are less recognized, allowing nonparticipation in abortions but not refusal of patient preparation and aftercare. Objections of others in health-related activities, such as serving meals to abortion patients and typing abortion referral letters, have been disallowed. Pharmacists may claim refusal rights over fulfilling prescriptions for emergency (post-coital) contraceptives and drugs for medical (i.e. non-surgical) abortion. This paper addresses limits to conscientious objection to participation in reproductive health services, and conditions to which rights of objection may be subject. Individuals have human rights to freedom of religious conscience, but institutions, as artificial legal persons, may not claim this right.


Dickens BM. Reproductive health services and the law and ethics of conscientious objection. Med Law. 2001;20(2):283-93.

The scope and limits of conscientious objection

Bernard M. Dickens, Rebecca J. Cook

International Journal of Gynecology & Obstetrics

Abstract: Principles of religious freedom protect physicians, nurses and others who refuse participation in medical procedures to which they hold conscientious objections. However, they cannot decline participation in procedures to save life or continuing health. Physicians who refuse to perform procedures on religious grounds must refer their patients to non-objecting practitioners. When physicians refuse to accept applicants as patients for procedures to which they object, governmental healthcare administrators must ensure that non-objecting providers are reasonably accessible. Nurses’ conscientious objections to participate directly in procedures they find religiously offensive should be accommodated, but nurses cannot object to giving patients indirect aid. Medical and nursing students cannot object to be educated about procedures in which they would not participate, but may object to having to perform them under supervision. Hospitals cannot usually claim an institutional conscientious objection, nor discriminate against potential staff applicants who would not object to participation in particular procedures.


Dickens BM, Cook RJ. The scope and limits of conscientious objection. Int J Gynaecol Obstet. 2000 Oct;71(1):71-7.

Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands

Johanna H. Groenewoud, Agnes van der Heide, Bregje D. Onwuteaka-Philipsen, Dick L. Willems, Paul J. van der Maas, Gerrit van der Wal

NEJM

Background and Methods

The characteristics and frequency of clinical problems with the performance of euthanasia and physician-assisted suicide are uncertain. We analyzed data from two studies of euthanasia and physician-assisted suicide in the Netherlands (one conducted in 1990 and 1991 and the other in 1995 and 1996), with a total of 649 cases. We categorized clinical problems as technical problems, such as difficulty inserting an intravenous line; complications, such as myoclonus or vomiting; or problems with completion, such as a longer-than-expected interval between the administration of medications and death.

Results

In 114 cases, the physician’s intention was to provide assistance with suicide, and in 535, the intention was to perform euthanasia. Problems of any type were more frequent in cases of assisted suicide than in cases of euthanasia. Complications occurred in 7 percent of cases of assisted suicide, and problems with completion (a longer-than-expected time to death, failure to induce coma, or induction of coma followed by awakening of the patient) occurred in 16 percent of the cases; complications and problems with completion occurred in 3 percent and 6 percent of cases of euthanasia, respectively. The physician decided to administer a lethal medication in 21 of the cases of assisted suicide (18 percent), which thus became cases of euthanasia. The reasons for this decision included problems with completion (in 12 cases) and the inability of the patient to take all the medications (in 5).

Conclusions

There may be clinical problems with the performance of euthanasia and physician-assisted suicide. In the Netherlands, physicians who intend to provide assistance with suicide sometimes end up administering a lethal medication themselves because of the patient’s inability to take the medication or because of problems with the completion of physician-assisted suicide.


Groenewoud JH, van der Heide A, Onwuteaka-Philipsen BD, Willems DL, van der Maas PJ, van der Wal G. Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands. N Engl J Med 2000; 342:551-556 February 24, 2000 DOI:10.1056/NEJM200002243420805

Some legal and ethical issues in assisted reproductive technology

Bernard M. Dickens, Rebecca J. Cook

International Journal of Gynecology & Obstetrics

Abstract: The potential and actual applications of reproductive technologies have been reviewed by many governmental committees, and laws have been enacted in several countries to accommodate, limit and regulate their use. Regulatory systems have nevertheless left some legal and ethical issues unresolved, and have caused other issues to arise. Issues that regulatory systems leave unresolved, or that systems have created, include disposal of embryos that remain after patients’ treatments are concluded, and multiple implantation and pregnancy. This may result in risks to maternal, embryonic and neonatal life and health, and the contentious relief that may be achieved by selective reduction of multiple pregnancies. A further concern arises when clinics must or choose to publicize their success rates, and they compete for favorable statistics  by questionable patient selection criteria and treatment priorities.


Dickens BM, Cook RJ. Some legal and ethical issues in assisted reproductive technology. Int J Gynaecol Obstet. 66 (1999) 55-61