American Journal of Law & Medicine

A reasonable time, place and manner restriction: Medicare reimbursement law should require pharmacists to fill prescriptions regardless of personal belief.

"[T]he [First]Amendment embraces two concepts--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." (1)


In 1996, a 32-year-old woman brought a prescription for birth control to a Kmart in Cincinnati, Ohio. The pharmacist on duty at the time, Karen Brauer, turned her away, explaining that Kmart did not carry birth control pills. (2) The woman complained, and Kmart fired Brauer. (3) In an April 2001 interview on Fox News, Bill O'Reilly asked Brauer, "Why would the patient complain about that, if you didn't have the drug on hand?" Brauer responded that "somehow she found out that this pharmacy actually did have the drug at the time." "So you lied to her?" O'Reilly asked. 'Yes, I did," said Brauer. (4)

Today, Brauer is the president of Pharmacists for Life International, representative of a growing movement which maintains that pharmacists--private citizens licensed by the state to serve the public--have the right not only to refuse to fill birth control prescriptions themselves, but also to refuse to make a referral or transfer the prescription elsewhere. (5) Some pharmacists subscribing to this view actively obstruct access to birth control with extreme measures such as confiscating patients' prescriptions, deleting future refills from the system or berating patients. (6) The most well-known example is Neil Noesen, a former Wisconsin Kmart pharmacist.

Twice fired, Noesen has become something of a martyr to the cause of refusing pharmacists. He was the only one on duty in 2002 when a college student requested a routine refill of her birth control prescription. Noesen first interrogated her as to why she needed birth control, then told her that birth control pills cause abortions and that he would not refill her prescription. When he refused to transfer it to another pharmacy and confiscated her prescription, the student drove to a Wal-Mart. The pharmacist there called Noesen, but Noesen refused to provide him the information needed to complete the transfer. (7) The student was able to have her prescription filled several days later when she returned with police, who contacted the store's out-of-town manager. The manager had to return and fill it personally since Noesen would not. The student had missed a dose in the interim days. (8) The state Pharmacy Examining Board reprimanded Noesen, required him to attend ethics classes, saddled him with $20,000 in court fees and restricted his license. The Wisconsin Court of Appeals upheld the Board's decision, finding that Noesen's behavior clearly violated his profession's standard of care. (9)

The story doesn't end there. Several years later, Noesen took a job at a Wal-Mart pharmacy. Noesen's boss was aware of his beliefs and negotiated extensively with him in an effort to reach an arrangement in which Noesen would not have to handle customers seeking contraception. Noesen agreed that if he was approached by such a customer he would signal a co-worker to handle her. But before long, the manager was receiving complaints from customers and physician's offices that had spoken to Noesen on the phone regarding birth control prescriptions. Noesen would simply put them on hold without alerting a co-worker, as per the agreement, and leave them on hold until they hung up. Similarly, Noesen would leave customers seeking birth control prescriptions stranded at the desk without alerting the others on duty that a customer needed assistance. When the manager heard Noesen question a customer over the phone about her reasons for using birth control and then suggest "natural" family planning (10) to her, he had to intervene, apologize and counsel the customer himself. The manager prohibited Noesen from speaking to contraceptive-seeking patients about his beliefs, but Noesen continued to do so. When he next prohibited Noesen from contact with all females of child-bearing age, Noesen became more aggressive in his efforts to speak to them. With the atmosphere in the pharmacy becoming increasingly uncomfortable for customers and co-workers, Noesen was ultimately fired. He was removed from the Wal-Mart by police while shouting to onlookers that Wal-Mart was discriminating against him and would not grant reasonable religious accommodation. (11)

It may be tempting to dismiss pharmacists like Noesen as lonely subscribers to a fringe cause that struggles for support, but this is not the case. Despite its aggressive stance, Pharmacists for Life and the "right to refuse" idea has garnered a sizable following within the pharmacy community: pharmacist refusals to fill and/or transfer contraceptive prescriptions are on the rise, and not just for emergency contraception. (12) Increasingly, pharmacists are hindering access to simple combination hormone birth control, (13) based on a belief that birth control is no better than abortion because it may prevent implantation of fertilized eggs. (14) In light of the serious and increasing shortage of pharmacists in the United States, (15) this trend is alarming. Refusing pharmacists have succeeded in reopening the previously settled issue of whether women in this country, and their partners, have a viable right to engage in family planning with birth control. Although much has been written about this topic, (16) to my knowledge no articles have proposed a federal law connecting Medicare reimbursement for pharmacies with the filling of all valid prescriptions, and none have argued that pharmacist refusals are properly evaluated as symbolic speech rather than exercise of religion.

The Neil Noesen story illuminates the myriad issues raised by the religiously-motivated treatment of customers using contraception: the time-sensitive nature of the pill; the unprofessionalism of a total stranger injecting him or herself into an unsuspecting, trusting patient's personal matters; the problems such persons create for employers and co-workers; and, because the profession both has a monopoly on distributing birth control and suffers serious shortages, the disproportionate power such pharmacists wield in the market. Most of all, it presents a stark example of why crafting a legal response that balances a pharmacist's so-called "right" to refuse and the patient's right to access contraception is not possible; namely: that some refusing pharmacists often will not compromise--they will not transfer, tell the patient where to go, or cooperate with attempts to satisfy all parties. (17) Therefore, this note argues in favor of a federal law conditioning pharmacy reimbursement under Medicare Part D on employing pharmacists that will fill all valid prescriptions, and that such a law could withstand scrutiny from the Supreme Court. Such a law would not provide, as other proposed laws do, that a pharmacist may refuse to fill a prescription because it is permissible for a co-worker to do the pharmacist's job for him.

Part II explores the normative, legal and policy reasons for such a law. It argues that birth control is basic health care for women. It explores the wildly varying positions taken by the states on whether pharmacists may refuse to dispense birth control, and discusses why allowing persons providing needed public services to "conscientiously" refuse to provide those services to some people is a slippery slope. Part II also reviews the reasons why other suggested solutions to the refusing pharmacist problem, such as the American Pharmacists Association's position, other proposed federal laws and legal challenges to conscience clauses that protect pharmacists, are unworkable. Part II concludes that a preempting federal law is the only viable answer to the threat to women's rights posed by pharmacist refusals to dispense and transfer birth control. Part III proposes connecting Medicare reimbursement to pharmacies with staffing pharmacists who will fill all valid prescriptions. It evaluates the challenges such a law would surely face, including that it imposes an "unconstitutional condition" on pharmacists and that it violates their rights to freely exercise their religion. Part III then outlines why pharmacist refusals are more properly evaluated as expressive conduct and therefore symbolic speech. It concludes that, although the proposed law may withstand strict Free Exercise scrutiny, if pharmacist refusals are evaluated as a form of speech the proposed law will be upheld as a reasonable time, place and manner restriction.



The typical woman wants only two children. (18) However, women have the potential to become pregnant for more than three decades. Without contraception, the average woman would give birth fourteen times during her life. (19) Too many pregnancies can be unhealthy and sometimes even dangerous for women, putting them at heightened risk for conditions such as preeclampsia, uterine atony, placenta previa, and anemia, not to mention more trivial but nonetheless embarrassing conditions such as incontinence and uterine prolapse. (20) Thus, "there's nothing 'optional' about contraception," argues Dr. Luella Klein, the American College of Obstetrics and Gynecology's Director of Women's Health Issues. "It's a medical necessity for women during 30 years of their lifespan. To ignore the health benefits of contraception is to say that the alternative of twelve to fifteen pregnancies during a woman's lifetime is medically acceptable." (21) Evidence that birth control is now considered necessary for women's health can be seen in the dramatic increase in insurance coverage of contraception over the last decade. (22) Today, nine out of ten employer-based insurance plans cover a full range of FDA-approved contraceptives--three times than what it was a decade ago. (23) According to the Centers for Disease Control, contraceptive care is one of the top ten greatest public health achievements of the twentieth century because it has improved the health of both mothers and children as well as the economic and social status of women. (24) The view that "any woman not celibate who refused childbearing" is betraying "woman's God-given vocation" (25) is essentially gone. Today, the standard for "health" is quite ambitious--indeed, the World Health Organization defines it as "a complete state of physical, mental and social well-being and not merely the absence of disease or infirmity." (26) Consistent with this definition, just because women are physically capable of bearing numerous children beginning at a young age does not necessarily mean to do so is healthy, because it may entail a compromise of the social and/or mental well-being that is now considered equally important to human health.

Thus pharmacists, who have a state-granted monopoly on prescription distribution, hold incredible power over the well-being of their female customers: women must go to a pharmacist to have a basic need fulfilled. By contrast, persons with objections to birth control could pursue a profession in which they will not be asked to dispense it every day. Therefore, state laws which permit pharmacists to refuse to fill birth control prescriptions disadvantage the party with more at stake. Unfortunately, they also shield those who would deliberately exploit this disparity in power to make a statement, advance a political goal or feel powerful.


There is great variation among the states as to how, if at all, the law should handle pharmacists who refuse to dispense birth control. Only fifteen of the fifty states have legislated on this issue at all, and five others have "pharmacy board interpretations of professional obligations." (27) Three states-Maine, Massachusetts and Nevada--place a duty directly on each pharmacist individually to fill all valid prescriptions, regardless of his personal feelings. (28) Four--New Jersey, Washington, Wisconsin and Illinois--require pharmacies (as opposed to employee-pharmacists) to ensure all prescriptions are filled, meaning a pharmacist may refuse to fill a birth control prescription, as long as someone else is present who will do it in his stead. (29) California requires its pharmacists to themselves fill all valid prescriptions, unless their employer consents to their refusal, in which case the pharmacy must ensure another employee is there and will fill the prescription or that "timely access" is otherwise achieved. (30) The policies of seven states' pharmacy boards-Alabama, Delaware, New York, North Carolina, Oregon, Pennsylvania and Texas--allow pharmacists or pharmacies to refuse to fill birth control prescriptions themselves, but require that they ensure timely transfer and prohibit interference with or abandonment of a birth control-seeking patient. (31) However, state boards of pharmacy do not have the authority to create binding law: while the boards suggest pharmacists transfer or get a coworker to fill prescriptions they will not fill themselves, pharmacists in those states are not legally obligated to do so. Finally, five states--Arizona, Mississippi, Georgia, Arkansas and South Dakota--permit any health care professional or entity to refuse to provide various prescriptions for any reason without even a referral requirement or other patient protections. (32)

Uniformity in the law is a common and legitimate reason for federal regulation. Also, the federal government may simply wish to regulate an issue itself when it is dissatisfied with the current posture of state law on an issue. The Health Insurance Portability and Accountability Act (HIPAA) (33) is a very well-known example in the health care sector of federal regulation designed both to replace a hodge-podge of differing state policies (34) and to preempt those state policies, pursuant to the Supremacy Clause, (35) which were not at least as strict as the federal standard. (36)

A federal "duty to fill" statute would eliminate the uncertainty created by erratic state positions on the issue of pharmacist refusals, which might, for example, burden large chain pharmacies operating in interstate commerce by subjecting them to disparate state laws. It would also eliminate the disparity in rights between women in different regions of the country--a woman who comes to the only pharmacy counter around for miles in rural South Dakota would have the same right to be served as a woman in Massachusetts.


While passing a federal law to preempt uneven and unsatisfactory state laws has its own disadvantages, the other options available are inadequate or unworkable. The legal grounds available on which to challenge state refusal laws, such as state public accommodations laws and the Establishment Clause, either rest on shaky ground or require large leaps from the current state of the common law. In addition, laws and policies attempting to balance pharmacists' Free Exercise claims with patients' rights to legal contraception abound, but ignore the fact that pharmacists who object to birth control are unwilling to compromise and are discriminating against common pharmacy customers. The following sections detail why reliance on legal challenges and referral-oriented laws and policies does not resolve the pharmacist refusal debate.

1. Legal Challenges to Pharmacist-Inclusive Conscience Clauses

a. Pharmacist Refusals Constitute Prohibited Sex Discrimination in Public Accommodations

Laws that protect refusing pharmacists disproportionately, if not exclusively, affect women. Indeed, House Representative Debbie Wasserman Schultz from Florida remarked that "if pharmacists were refusing to sell men condoms this issue would have already been addressed by Congress." (37) An overwhelming majority of states prohibit discrimination based on sex in places serving the public. (38) Though privately owned, pharmacies are places of public accommodation held open to serve customers with valid prescriptions and are desirous of their business. Further, federal law, as hashed out in the employment context, establishes that refusal to deal with a woman simply because she has the potential to get pregnant is, in fact, discrimination because of sex, because only women can become pregnant. …

Log in to your account to read this article – and millions more.