Access to Prescription Drugs: A Normative Economic Approach to Pharmacist Conscience Clause Legislation

Abstract

Over the past several years there has been a surge in the introduction of legislation that provides legal protection to a pharmacist who refuses to fill a prescription due to a personal and/or religious objection to the particular medication. These pieces of legislation are collectively referred to as “conscience clauses.” While many states are currently considering such legislation, at least five (5) states - Arkansas, Mississippi, Georgia, Florida and South Dakota - already have state laws that provide legal protection to pharmacists who refuse to fill prescriptions.

In large part, the pharmacist conscience clause legislation debate focuses on birth control – this is reflected in some pharmacist conscience clause legislation that limits the legal protection afforded to pharmacists to enumerated categories of prescription drugs. Some conscience clauses, however, are broadly worded and do not limit the protection to stated categories of drugs. This Article proposes that these broadly worded conscience clauses may be used to protect pharmacists who refuse to fill prescriptions for drugs developed through controversial biomedical research, such as embryonic stem-cell research.

The goals of this Article are two-fold: (1) explain that pharmacist conscience clause legislation may be expanded to areas concerning controversial biomedical research and (2) demonstrate that welfare economics can be applied to analyze pharmacist conscience clause legislation. Regarding the first goal, the broad language of existing and proposed conscience clause legislation creates an umbrella that allows a pharmacist to escape liability for refusing to fill a prescription for almost any type of medication. With respect to the second goal, this Article applies welfare economics to demonstrate pharmacist conscience clauses are a part of tort law and can be analyzed as such to determine whether social welfare is maximized.

Keywords: FDA, prescription drugs, stem cell, Conscience Clause, pharmacist