October 27, 2004

Refuting the health care "refusal clause"

This past February, in Denton, Texas, a rape survivor obtained a prescription for emergency contraceptive pills from a hospital—a hurdle in and of itself, as I've argued in the past. When she arrived at the pharmacy counter, however, she was made to jump through a new series of hoops: The first two pharmacies she entered didn't stock the pill, and the third was staffed entirely by pharmacists who refused to fill her prescription. Their reason? Misconstruing emergency contraception as abortion, the pharmacists asserted that Texas refusal clauses, termed "conscience clauses" by their backers, permitted them to refuse any medication to a customer on the basis of the physician's personal ideology.

Refusal clauses originated alongside Roe v. Wade in the 1970s, adopted by the feds and most states to allow individual physicians to refuse to participate in abortion procedures. Provided that quality medical services can still be conveniently accessed by the patient—unfortunately, a rare occurrence in rural and low-income areas—the measure seems reasonable. However, the Associated Press reports that recently, refusal clauses have been gaining new momentum, expanding to include other medications and procedures, most notably, emergency contraception.

Some proponents of the refusal clause argue that customers can just as easily fill their prescriptions elsewhere—an argument that holds little water in rural areas with few pharmacies, or in situations when the disputed medication, like emergency contraception, is time-sensitive. Ideally, government policies should balance a respect for physicians' personal values against the best interest of the patient, but in the case of the refusal clause, a growing conservative movement is deploying the clause not merely to respect a few doctors' sensibilities, but to prevent women from accessing contraceptives altogether.

In Wisconsin, for example, a pharmacist refused to even transfer a woman's prescription for birth control pills, arguing that to do so was, in effect, to provide the medication. In Mississippi, the country's broadest refusal clause allows health care workers to refuse almost any service to which they hold a moral objection. The laws in South Dakota and Arkansas are only slightly milder. Queer advocacy groups and others have begun to wonder if refusal clauses may be the new frontier for the far right, from which assisted reproduction or hormone therapy can be denied to same-sex couples and transgendered people, respectively.

In a country of religious (and irreligious) pluralism, the impulse to accommodate people of faith is an important one. However, when one person's conviction is allowed to veto another's medical choice, the line has been crossed from accommodating religious pluralism to promoting religious monopoly. Without accompanying measures to ensure timely, universal availability of all medical services, refusal clauses function to deny people, usually women, a full range of medical options. Lourdes Rivera of the National Health Law Program opines that "yes, we need to respect individual freedom of religion—but at what point does it cross the line of not providing essential medical care? At what point is it malpractice?

"If someone's beliefs interfere with practicing their profession," she adds, "perhaps they should do something else."