California
Senate Bill 644 (2005)
Amending Business and Professions Code
Check on the status of this bill at the
California
State Assembly
Introduction:
AB 644 is not framed as a freedom of conscience
measure, but as a law to compel professionals to
dispense legally prescribed drugs and devices
despite conscientious objections. However, the
text of the bill permits a pharmacist who has
previously given his employer written notice of
his objections to decline to fill a
prescription. The employer must accommodate the
pharmacist if doing so will not cause the
employer undue hardship (the usual standard for
accommodation of religious freedom), and it then
becomes the duty of the employer to see that the
patient can obtain the drug or device. This
appears to be an acceptable arrangement from the
perspective of an objecting pharmacist employed
by someone else, and to this extent can be
considered a protection of conscience measure.
A weakness in this arrangement is that an
objecting employer or an objecting pharmacist
who is operating his own pharmacy is denied the
same freedom, since (if he does not carry the
product) he is obliged to obtain and dispense
the product, transfer the prescription or refer
the patient to a pharmacy known to have it. In
consequence, persons with moral objections to a
drug, device or procedure will be denied either
the freedom to engage in business or the freedom
to live and work according to their
conscientious convictions, freedoms which are
not denied to those who think differently.
It would be possible to accommodate business
owners and self-employed pharmacists by
requiring them to post notice of their
objections and the fact that they do not supply
certain drugs or devices, perhaps requiring them
to include the notice in advertising and
business or telephone directory listings.
Protective legislation will become
increasingly important if California legalizes
assisted suicide, for this bill, as currently
framed, would then make facilitation of assisted
suicide a condition for running a pharmacy
business in California.
INTRODUCED BY: Senator Oritz (22
February, 2005) (As amended 7 April, 2005)
THE PEOPLE OF THE STATE OF CALIFORNIA DO
ENACT AS FOLLOWS:
SECTION 1.
It is the intent of
the Legislature that health care professionals
dispense prescription drugs and devices in a timely
way or provide appropriate referrals for patients to
obtain the necessary prescription drugs and devices,
despite the health care professional's objection to
dispensing the drugs or devices on ethical, moral,
or religious grounds.
SEC. 2 Section 733 is added to the Business
and Professions Code,
to read:
733. Notwithstanding any other provision of law, a
licentiate shall dispense drugs and devices, as
described in subdivision (a) of Section 4024,
pursuant to a lawful order or prescription unless
one of the following circumstances exists:
(a) Based on the
licentiate's professional training and
judgment, dispensing
pursuant to the
order or the prescription is contrary to
law or is contraindicated for the patient.
(b) The pharmacy does not have the
prescription
drug or device in its stock.
If an order or
prescription can not be dispensed because the
drug or device is not in stock, the licentiate
shall take one of the following actions:
(1)
Immediately notify the patient and
arrange for
the drug or device to be delivered to the
pharmacy or directly to the patient in a
timely way.
(2) Promptly transfer the prescription to
another pharmacy known to stock the
prescription drug or device and that is
within a reasonable distance from the
pharmacy that is transferring the
prescription or order to ensure the patient
has timely access to the drug or device.
(3) Return the prescription to the patient and
refer the patient to a pharmacy known to
stock the prescription drug or device and that is
within a reasonable distance from the
referring pharmacy to ensure that the
patient has timely access to the drug or
device.
(c) The licentiate refuses on ethical, moral,
or religious grounds to dispense a
drug or device
pursuant to an order or prescription. A
licentiate may decline to dispense a
prescription
drug or device on this basis only
if the licentiate has previously notified his or her employer, in writing, of the drug or
class of drugs to which he or she objects, and
the licentiate's employer can, without creating
undue hardship, provide a reasonable
accommodation of the licentiate's objection by
establishing protocols that ensure that the
patient has timely access to the prescribed
drug or device despite the licentiate's
refusal to dispense the prescription or order.