By Stephanie Simon
(Reuters) - Can a state require a pharmacy to stock and dispense emergency contraception - even when the owner considers the drug immoral?
That's the question at the heart of a long-running legal battle in Washington state, expected to be decided Wednesday with a ruling from U.S. District Court in Seattle.
It's the latest twist in a contentious national debate over the role of conscience in the workplace.
In recent weeks, the debate has been dominated by religious groups fighting to overturn a federal mandate that most health insurance plans provide free birth control. But the battle extends far beyond insurance regulations.
Asserting conscientious objections, nurses in New Jersey have refused to check the vital signs of patients recovering from abortions. Infertility specialists in California would not perform artificial insemination on a lesbian. An ambulance driver in Illinois declined to transport a patient to an abortion clinic.
In the Washington case, a family-owned pharmacy in Olympia declined to stock emergency contraception, which can prevent pregnancy if taken within 72 hours of unprotected sex. Co-owner Kevin Stormans says he considers the drug equivalent to an abortion, because it can prevent implantation of a fertilized egg. His two pharmacists agree.
Their decision to keep the drug off their shelves came under fire in 2007, when the state Board of Pharmacy enacted a rule requiring pharmacies to stock and dispense all time-sensitive medications in demand in their community. In the case of the Olympia pharmacy, that includes emergency contraception, said Tim Church, a state Department of Health spokesman. The pharmacy's owner and employees filed suit to block the mandate.
"All our family wants ... is to serve our customers in keeping with our deepest values," Stormans said in a statement issued by his attorneys.
The state argues that it has a compelling interest in protecting the right of patients to legal medication.
The conscience debate has implications for a vast number of patients. A 2007 New England Journal of Medicine study found that 14 percent of doctors do not believe they are obligated to tell patients about possible treatments that they personally consider morally objectionable. Nearly 30 percent of physicians said they had no obligation to refer patients to another provider for treatments they wouldn't offer themselves. A more recent study, published last week in the Journal of Medical Ethics, echoed the finding on referrals.
And abortion and contraception aren't the only medical services at issue. Physicians also may have object to following directives from terminally ill patients to remove feeding tubes or ventilators, said Kathryn Tucker, director of legal affairs for Compassion & Choices, an advocacy group that backs physician-assisted suicide.
A FAMILIAR DIVIDE
The arguments for and against expanded conscience rights fracture along familiar lines.
Religious liberty advocates argue that protecting an individual's right to heed his conscience is a core American value. They advocate broad laws that would shield most anyone in the health-care field from doing any work he or she deems objectionable, even if it's several steps removed from the actual act of terminating a pregnancy or supplying emergency contraception.
Under this view, a translator could refuse to convey family-planning information to a patient; a custodian could refuse to clean the operating room after an abortion; a billing clerk could refuse to process insurance claims for birth-control pills.
Conscience is, by definition, a highly individual value set; neither an employer or the state should "get to define the conscience" of an individual worker, said Matt Bowman, an attorney with the Alliance Defense Fund, a conservative non-profit law firm focused on religious liberty.
Bowman recently represented a dozen nurses who sued a New Jersey hospital over a requirement that they tend to abortion patients before and after surgery.
One of those nurses, Fe Esperanza Racpan-Vinoya, said even a routine blood pressure check would be abhorrent to her if the patient was in for an abortion. "Absolutely," she said, "there's a big difference" between a patient in for an abortion and one in for an appendectomy.
The hospital, University of Medicine & Dentistry of New Jersey, settled the case in late December. It pledged to hire new staff so nurses with objections wouldn't have to help with abortion patients, except in emergencies.
RETAINING PEOPLE OF FAITH
Religious liberty advocates say they worry that narrowing conscience rights will drive people of faith out of medical professions. "The government cannot single out people with conscientious objections ... and seek to exclude them from the public square," said Eric Kniffin, legal counsel for the Becket Fund for Religious Liberty, which represents the pharmacy in the Washington case.
But women's groups and other patient advocates argue that expansive opt-out clauses create workplace chaos and risk patient harm. They worry about rural patients, where there may be just one pharmacist or gynecologist within 100 miles.
"It leads to one group of people imposing their religious belief on the public health of everyone else, and that's just unacceptable," said Susan Berke Fogel, an attorney with the National Health Law Program, which advocates for family planning access.
Paige Gerson, a dietician in the Kansas City suburbs, experienced the sting of a doctor citing conscience objections several years ago, when she called her gynecologist early one Saturday seeking an emergency contraceptive. The doctor on call declined to prescribe it or refer Gerson to another doctor.
"I was in disbelief," Gerson said. "I absolutely felt she was judging me." She drove into the city to get help from Planned Parenthood.
COURT RULINGS VARY
Case law on conscience rights is a confusing patchwork.
Federal law offers clear protections for doctors and nurses who don't want to participate in abortions.
Nearly every state has similar "conscience clause" laws in place for abortion. A number go further still -- 17 states allow health-care providers to refuse to sterilize patients on moral or religious grounds, and 13 states permit providers to refuse to prescribe or dispense contraceptives, according to the Guttmacher Institute, a family planning research group.
The broadest conscience protection of all is in Mississippi, where state law allows nearly anyone connected with health-care service to refuse to participate in nearly any procedure.
State and federal courts, however, have signaled a wariness to extend such broad protections.
Letting citizens freely opt out of civil laws by citing their religious beliefs would effectively "permit every citizen to become a law unto himself," Justice Antonin Scalia warned in a 1990 decision curtailing the rights of workers to claim religious freedom exemptions.
In 2008, the California Supreme Court cited that ruling in deciding that infertility doctors were wrong to deny a lesbian artificial insemination on religious grounds. Their denial ran afoul of a California law barring discrimination based on sexual orientation, the court found.
A state court in Illinois last spring overturned a regulation, similar to the Washington rule, that required pharmacies to carry and dispense emergency contraception.
And late last month, the 6th Circuit Court of Appeals in Cincinnati ruled in favor of a graduate student studying for a counseling degree who said she couldn't counsel clients on same-sex relationships because of her religious belief that such relationships were wrong. The university expelled her, citing intolerance; she sued, claiming religious discrimination. The appeals court said she should get a trial.
"A reasonable jury could conclude that professors ejected her from the counseling program because of hostility toward her speech and faith," the court wrote. "Tolerance is a two-way street."
(Reporting by Stephanie Simon in Denver; Editing by Marilyn W. Thompson)