Wis. Appeals Court Upholds Punishment Of Pharmacist Who Refused To Refill Oral Contraceptive Prescription

Main Category: Pharmacy / Pharmacist
Also Included In: Medical Malpractice / Litigation;  Sexual Health / STDs;  Women's Health / Gynecology
Article Date: 27 Mar 2008 - 5:00 PDT

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A three-judge panel of the 3rd District Court of Appeals in Wisconsin on Tuesday upheld the ruling of the state Pharmacy Examining Board against a pharmacist who refused to refill a woman's oral contraceptive prescription because of moral objections, the Milwaukee Journal Sentinel reports. The court ruled that the pharmacist, Neil Noesen, had the right to refuse to provide the contraceptive but that he was wrong to refuse to refer the woman to another pharmacy. According to a Planned Parenthood spokesperson, the case is one of the first in the country to rule on the issue of a pharmacist's refusal to fill a prescription (Rohde, Milwaukee Journal Sentinel, 3/25).

Noesen in July 2002 refused to fill university student Amanda Phiede's oral contraceptive prescription while he was working as a substitute pharmacist at a Kmart pharmacy in Menomonie, Wis. Phiede then asked him where else she could get the prescription filled, and Noesen refused to provide her with that information. Phiede later went to a Wal-Mart pharmacy, but when the Wal-Mart pharmacist called Noesen to have the prescription transferred, Noesen refused, saying again that artificial contraception is against his personal beliefs. Noesen continued to refuse to fill the prescription even after two police officers and the Kmart assistant manager spoke with him. The police took no further action and the managing pharmacist filled Phiede's prescription (Daily Women's Health Policy Report, 2/9/06).

The examining board in 2005 reprimanded and limited Noesen's license, the AP/Google.com reports. Under the reprimand, Noesen has to prepare written notices five days before beginning work at a pharmacy, specifying which practices he will not perform and the steps he will take to ensure that customers have access to the necessary medications. In addition, the board required that Noesen attend ethics courses and pay court costs, which are estimated to be about $20,000. The state appellate court upheld the 2006 ruling of Barron County, Wis., Circuit Judge James Babler, which validated the reprimand (Imrie, AP/Google.com, 3/25).

Decision, Reaction

Judge Michael Hoover in the appellate court opinion wrote that Noesen "prevented all the efforts [Phiede] made to obtain her medication elsewhere when he refused to complete the transfer and gave her no options for obtaining her legally prescribed medication elsewhere." He added, "The board could therefore properly conclude that he violated a standard of care applicable to pharmacists." The opinion noted that the U.S. Supreme Court has held that an individual's religious beliefs do not excuse compliance with otherwise valid laws prohibiting conduct that the state is free to regulate (Milwaukee Journal Sentinel, 3/25).

Planned Parenthood of Wisconsin said the ruling is important for women's access to reproductive health care (AP/Google.com, 3/25). "There has been a strong movement to restrict birth control over the past five or six years," Nicole Safar, legal and policy analyst for PPW, said, adding, "There is an extreme religious view that equates birth control with abortion, and they have already gone as far as they can go in restricting abortion."

Karen Brauer, president of Pharmacists for Life International, said her group's views are not extreme, adding that she hopes Noesen takes the case to the U.S. Supreme Court. Thomas Brejcha, an attorney representing Noesen, said he expects to appeal the decision to the Wisconsin Supreme Court. Noesen could not be reached for comment (Milwaukee Journal Sentinel, 3/25).

Reprinted with kind permission from http://www.nationalpartnership.org. You can view the entire Daily Women's Health Policy Report, search the archives, or sign up for email delivery here. The Daily Women's Health Policy Report is a free service of the National Partnership for Women & Families, published by The Advisory Board Company.

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