Neil Noesen v Department of Regulation and Licensing and Pharmacy
Examining Board
Appeal Brief
Barron County, Circuit Court
State of Wisconsin
Case no. 2005CV000212
JURISDICTIONAL STATEMENT
The case comes now to this court through Mr. Noesen's right to appeal the
Final Decision and Order LS031009PHM of the State of Wisconsin
Pharmacy Examining Board.
STATEMENT OF THE ISSUES
Whether or not Mr. Noesen violated a professional standard in refusing to
participate in the provision of Loestrin FE 1/20 that he was reasonably
certain would cause the destruction of an unborn child.
STATEMENT OF THE CASE
Mr. Noesen stated a conscientious objection to participation in the
provision of artificial birth control to patients, when he was hired by RPh
on the Go, a firm that contracts pharmacist's services to pharmacies. When
Mr. Noesen refused to transfer a prescription for Loestrin, an artificial
birth control medication, patient AR filed a complaint with the Wisconsin
Pharmacy examining board. Mr. Noesen here alleges that the Final Decision
and Order imposed by the State of Wisconsin Pharmacy Examining Board
does not adhere to the timeless philosophy of the practice of pharmacy, is
unprofessional in nature, and furthermore is unlawful. Mr. Noesen petitions
the Honorable Circuit Court Judge in this judicial review to set aside,
modify, or remand LS031009PHM under the provisions of Wisconsin Statutes
227.57.
STATEMENT OF FACTS
The events referred to in the Findings of Fact of the Final
Decision and Order LS031009PHM fail to truthfully acknowledge the
good-faith effort of Mr. Noesen to inform both his agent RPh on the Go as
well as their client Kmart about Mr. Noesen's conscientious objection to
participate in any way in the provision of a contraceptive article.
STANDARD OF REVIEW
De novo review is appropriate if any of the following is true: (1)
the issue before the agency is clearly one of first impression, (2) a legal
question is presented and there is no evidence of any special agency
expertise or experience, or (3) the agency's position on an issue has been
so inconsistent that it provides no real guidance. Brauneis v. State,
2000 WI 69, ¶18, 236 Wis. 2d 27, 612 N.W.2d 635.
ARGUMENT
Mr. Noesen alleges that he is not in violation of the proposed standard
of care which was not clearly set forth before the hearing.
Mr. Noesen stated very clearly in his letter to Mr. John Scott that he would
not
in any way "participate in" the provision of contraceptive
articles. From this written disclosure it is most reasonable for both the
agent and the client to expect a pharmacist to exercise a conscientious
objection to all dispensing functions related to the provision of
contraceptive articles.
It is reasonable to expect Mr. Noesen to be consistent in his
conscientious objection. It is not reasonable to expect Mr. Noesen to
provide an accommodation himself for his own objection. It is much more
reasonable to expect him to exercise the same consistent conscientious
objection to participation in any way not only for the dispensing of
a contraceptive article but also for a transfer of or referral for a
contraceptive article.
Loestrin FE 1/20 prevents pregnancy by reducing the likelihood of
implantation.
Findings of Fact#22 FDO LS031009PHM. AR was using
Loestrin FE 1/20 primarily for contraception purposes.
Findings of
Fact#23 FDO LS031009PHM.Under Wisconsin Law, "Whoever recklessly
endangers another's safety under circumstances which show utter disregard
for human life is guilty of a Class D felony".
Wisconsin Stat. §
941.30(1). An implantation failure of an unborn child of AR due to the
use of Loestrin FE 1/20 results in the reckless endangerment of safety of
that unborn child of AR.
Participating in the provision of a contraceptive article that inhibits
the implantation of an unborn child, thereby causing the destruction of an
unborn child, is unlawful and can never be considered a standard of care.
There is no duty to provide this type of service. No prior accommodation is
needed for a pharmacist who refuses to participate in the provision of a
contraceptive article that makes the implantation of an unborn child less
likely. No prior accommodation is needed for a pharmacist who
conscientiously refuses to participate in the transfer of an order for a
contraceptive article to another pharmacy for a contraceptive article that
makes the implantation of an unborn child less likely. Participation in any
way in the provision of a contraceptive article that inhibits the
implantation of an unborn child, thereby causing the destruction of an
unborn child, is to be party to an action forbidden under Wisconsin law.
The ALJ mischaracterized the situation from her own subjective impression as
that of a pharmacist whose only concern was "satisfying his own personal
moral code" (Decision at 25). As such, the ALJ clearly failed to grasp the
depth of Mr. Noesen's conscientious objection. It is unreasonable to suggest
that a conscientious objector who makes a bona fide act of conscience should
be expected to compromise his own objection. Mr. Noesen believes sincerely
that as a Roman Catholic citizen that he should respect all life, defend
those values that ennoble man, and not be party to attacks against human
life or procreation.
The ALJ's insistence that Mr. Noesen's professional
obligations required him to provide the patient with information on how to
obtain her prescription renders meaningless any protection of conscience
purportedly derived from Wisconsin Constitution Article I section 18, and
the Federal Constitution's Free Exercise Clause of the 1st
Amendment.
While the practice of pharmacy has greatly evolved from the medicinal
theories of antiquity, the philosophy of the practice of pharmacy
remains the same. To induce a structural and functional abnormality in a
patient with hormonal contraceptives without a valid indication or to harm
an unborn child can never be considered to be in conformity with the
philosophy of pharmacy practice and must therefore always be excluded from
the scope of the practice of pharmacy.
Highly-effective fertility-awareness methods of family planning are
available as alternatives to contraceptive articles for enabling couples to
practice responsible parenthood. These methods do not contradict the
philosophy of pharmacy practice and are certainly not in violation of any
state or federal laws. Fertility-awareness methods help to foster
communication between couples and empower them to plan their families
naturally.
If Loestrin FE 1/20 is being used with the intent to impair fertility,
implantation of an unborn child to the uterus is less likely. This
pharmacological action constitutes reckless endangerment of the safety of
the unborn child. In the case where a couple is provided informed consent
fully aware of the anti-implantative effects of hormonal contraceptives,
this endangerment to the unborn child may occur under circumstances which
show utter disregard for human life. The destruction of an unborn child is
contrary to the timeless philosophy of the practice of pharmacy.
CONCLUSION
The ALJ failed to acknowledge the depth of Mr. Noesen's conscientious
objection, that Mr. Noesen cannot be expected to participate in any way
in the provision of Loestrin FE 1/20 or other hormonal contraceptives
that may result in the destruction of an unborn child. The ALJ's insistence
that the pharmacy standard of care required him to so participate, is
violative of Mr. Noesen's conscience rights, under the Wisconsin
Constitution Article I section 18, and the Federal Constitution's Free
Exercise Clause of the 1st Amendment. Mr. Noesen respectfully
requests that this Court set aside, modify, or remand the decision of the
ALJ under the provisions of Wisconsin Statutes 227.57.
Respectfully submitted ____ of November, 2005.
________________________________
Neil Noesen
P.O. Box 771
Cumberland, WI 54829-0771
612.605.3672
CERTIFICATE OF SERVICE
I certify that true and correct copy of the foregoing Brief was sent by
United States mail, postage pre-paid, to the following individuals:
Bruce Olsen, Esq.
Assistant Attorney General
State of Wisconsin Department of Justice
17 W. Main Street
P.O. Box 7857
Madison, WI 53707-7857
Pharmacy Examining Board
Department of Regulation and Licensing
1400 East Washington Avenue
P.O. Box 8935
Madison, WI 53708-8935
____ of November, 2005
________________________________
Neil Noesen
P.O. Box 771
Cumberland, WI 54829-0771
612.605.3672