As state abortion bans take effect following the Supreme Court’s decision to overturn Roe v. Wade, patients in some states have reported new difficulty with acquiring certain prescribed medications for unrelated conditions.
Some have said their pharmacist refused to fill their prescription for medications such as methotrexate, because the drug could theoretically be used for an abortion, even when that’s not the reason they’re taking the drug.
Can pharmacists legally refuse to fill a prescription?
Yes, pharmacists can legally refuse to fill a prescription.
WHAT WE FOUND
Just as doctors have the ability to decide whether or not to prescribe a medication, pharmacists are given professional discretion to fill or not fill prescriptions. There are a variety of reasons why a pharmacist might refuse to dispense a drug, including safety, legal concerns or in some states, even personal objections.
For instance, it could be a suspiciously high dosage of an opioid from an unfamiliar patient or doctor, in which case the pharmacist is obligated by federal law to use discretion in providing a controlled substance.
Or, a prescribed drug could negatively interact with other drugs the patient is taking.
Or, there might be an apparent error or missing information in the prescription, which the pharmacist needs to clear up with the doctor before filling.
In some cases pharmacists may also have leeway to refuse medication because of their own personal beliefs; the extent of that latitude varies by state.
“Pharmacists are not machines. They always use judgment in dispensing,” said Donald Miller, a professor of pharmacy practice at North Dakota State University. “We must do what is right for the patient. Most of the time what is right is dispensing the prescription as written, but many times the right thing is to not fill it, or more commonly clarify it.”
“There could be any number of problems with a prescription, then the pharmacist has to say, wait a minute, I can't fill this right now. I need to call your physician, talk about some alternatives, whatever the case may be,” he said.
Anna Legreid Dopp, with the American Society of Health-System Pharmacists, says there are five key aspects of a prescription that pharmacists are supposed to double-check. They need to make sure that “it's the right patient, the right drug, the right dose, the right route – how they're taking that medication – and then the right time,” she said.
This obligation to use discretion is explicitly spelled out in many state laws.
For instance, one section of the New Jersey laws pertaining to the state pharmacy board and regulation of pharmacy practice reads, “A pharmacist shall exercise independent professional judgment as to whether or not to dispense or refill a prescription or medication order. In determining to dispense or refill a prescription or medication order, the decision of the pharmacist shall not be arbitrary but shall be based on professional experience, knowledge or available reference materials.”
Oregon state law has a similar section: “A pharmacist licensed to practice pharmacy by the board has the duty to use that degree of care, skill, diligence and professional judgment that is exercised by an ordinarily careful pharmacist in the same or similar circumstances.”
In some states, pharmacists even have the ability to refuse to fill a prescription because of moral or personal objections to the drug. Others, like New Jersey, have explicit laws prohibiting that practice. Many have laws saying pharmacists must either refer the patient to a colleague or another pharmacist if they do not want to fill a prescription, but some states don’t. Corporate policy of pharmacy chains such as Walgreens often requires pharmacists make referrals.
Personal objections of pharmacists aren’t the only obstacle for some patients in states with abortion bans. The recent reports of refusals say that pharmacists are refusing the drug because they fear legal consequences for providing it.
For example, methotrexate is a drug commonly used to treat a variety of conditions, including rheumatoid arthritis. But in high doses, it can be used to treat ectopic pregnancies by terminating them. That means in some states it is classified as an abortion medication, potentially exposing pharmacists to legal repercussions.
“We don't know if the ramification will be experienced now, as a clinician tries to make these decisions, or if they might be prosecuted ten years from now,” said Dopp.
Making matters more complicated, the federal government issued guidance stating that refusing medication could violate constitutional protections against unequal treatment of women or people with disabilities.
“In some cases, we see risk in the pharmacist being disciplined or facing legal liability if they do something at the state level, but then also facing legal liability from the federal level if they don't,” said Dopp. “That's a really hard place to practice, and that's not in the best interests of patients.”
Still, experts say there are ways for patients to potentially smooth over these sorts of road bumps. For one, have your doctor write the reason for the prescription on their note to the pharmacy, so there can be no confusion about whether it will be used for an abortion. Second, build a relationship with your pharmacist so they already know who you are and what you’re using the drug for.
“As long as there is a reasonable expectation that the prescription is legitimate, you should be fine. I think pharmacies refusing to fill this is mostly fear and confusion and overreaction,” said Miller. “I understand the fear… but I think if you're using your professional judgment appropriately for the benefit of that patient, that's a really ironclad defense.”