The thought of people refusing to serve a person of color due to their personal objection to desegregation is now considered indefensible, but refusal of service due to personal religious objections is not a thing of the past.

When I think of refusal of

services the first thing that comes to mind is a story my mother told

me from her childhood when a restaurant in Mississippi refused to seat

her family based on legal racial segregation. She was a young

child but the memory stuck with her and she shared the story with me

to explain that there was a time when inequality was protected by law

and how that inequality had an impact on her life. She made certain

to point out that many segregationists justified their bigotry based

on religious grounds.

The thought of people refusing to serve

a person of color due to their personal objection to desegregation is

now considered indefensible and a violation of the law, but refusal

of service due to personal religious objections is not a thing of the

past. Pharmacists in Washington State can refuse to fill prescriptions,

for example a prescription for Plan B, if they feel that doing so conflicts

with their religious beliefs. Pharmacy refusal and refusals of

service are threats to the rights and health of women and defending

against those threats and the erosion of rights that they represent

is a crucial front in the reproductive justice struggle.

Like most people, I thought

that getting a prescription filled was a simple process. A person

goes to their doctor, gets a prescription, drops it off at a pharmacy

and the pharmacist fills it. The idea that an insurer would refuse

to cover, a doctor would refuse to prescribe or a pharmacist would refuse

to fill that prescription on religious grounds and that her or his refusal

would be protected by law never crossed my mind until my home state

of Missouri’s legislature entertained a bill containing protections

for pharmacies earlier this year. As Amanda Marcotte explored

in her piece Freedom’s

Just Another Word for Punishing Women ,

pharmacy refusal is a key anti-choice tool that has less to do with

protecting religious freedom than protecting misogyny and forcing women

to bend to the will of the religious right.

So how did this happen?

Shortly after the landmark Roe v. Wade decision in 1973, Congress passed

the Church Amendment

that allows healthcare providers to cite religious grounds in order

to refuse to provide services. Specifically, the Church Amendment

prevents the government, as a condition of a federal grant, from requiring

healthcare providers to perform or assist in abortion or sterilization

procedures against their moral or religious convictions. It also prevents

institutions receiving certain federal funds from taking action against

personnel because of their participation, nonparticipation or beliefs

about abortion or sterilization. Within five years of passage of the

Church Amendment, the majority of states adopted refusal clauses and

refusal clauses have been extended to include assisted reproductive

technologies, contraception and emergency contraception, human embryonic

or fetal research, in vitro fertilization, and stem cell research.

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That brings us to the example

of Washington State, where pharmacists can refuse to fill prescriptions

if they feel that doing so conflicts with their religious beliefs.

On April 12, 2007, the

Washington State Pharmacy Board adopted rules

requiring pharmacies to ensure that patients are able to get prescriptions

filled on site and in a timely manner. The rules require pharmacies

to dispense all lawfully prescribed drugs and devices, clarifying that

a pharmacist’s personal and/or moral judgments have no place at the

pharmacy counter. On September 27th, 2007, a judge presiding over a

pharmacy refusal lawsuit issued a preliminary order preventing those

rules requiring pharmacies to fill all lawful prescriptions without

discrimination or delay from taking effect. As The Northwest Women’s

Law Center pointed

out in their statement about the ruling, the rules were adopted to promote

the health of Washingtonians and the ruling preventing those rules from

being applied put the health of all Washington residents at risk.

Sarah Dunne, legal Director of the ACLU of Washington, pointed out in a

statement issued shortly after the prevention ruling that "The Pharmacy Board rules

strike the appropriate balance between patients’ rights of access to

medication and pharmacists’ individual rights. We hope the court ultimately

will recognize this and reinstate the rules."

Access to reproductive healthcare

is being denied on religious grounds through refusals to cover prescriptions

too. One key question is whether a healthcare insurance provider

can refuse to cover services on religious grounds if they receive federal

funds. Catholics

for Choice

(CFC) approached that question from the angle of the Catholic healthcare

system and its impact on reproductive healthcare. Some Catholic

HMOs receive payment for services from federal programs like Medicaid,

which mandates a provision of family planning services. In their

report Catholic

HMOs and Reproductive Health Care ,

CFC explored the growth of Catholic managed care and the question of

refusal of services and found that, of the 48 Catholic managed care

plans CFC identified serving some 2.5 million Americans, 25 (representing

52% of all the Catholic plans identified) are providing contraceptive

coverage for enrollees and some of those specify that they will only

cover oral contraception.

The public policy implications

are clear, since coverage is a key factor in access to reproductive

healthcare and federal mandates should protect that access. But

the CFC report found that there are few formal regulations that require

health plans that refuse to provide family planning services to disclose

this clearly on marketing and enrollment materials. As a result,

employers may select a plan and have no idea that it limits or denies

access to reproductive healthcare due to a lack of coverage. Employees

would then be left to seek reproductive healthcare elsewhere and shoulder

the additional costs or go without that healthcare entirely.

It’s not as if there aren’t

ways to balance individual freedoms. In their report, CFC identified

several methods that Catholic healthcare plans may use to make reproductive

health services available to enrollees without compromising their organizations

beliefs. The key element is distancing the Catholic plan from the direct

provision of and/or direct payment for forbidden services. The

Catholic plan can contract with non-Catholic providers, such as another

hospital or clinic, to provide the services. They could also arrange

for the money they receive from enrollees or their employers that goes

to pay for reproductive health services to go through third-party.

Or a Catholic plan may arrange for another insurer to handle payment

and provision of reproductive health services.

So let’s rewind to my earlier

exploration of going to the doctor, getting a prescription then going

to the pharmacy and getting that prescription filled – things clearly

aren’t as simple as they initially appeared to be. A woman may

be denied access as a result of her healthcare insurance provider’s

refusal of coverage, she may have a doctor refuse to treat her or she

may actually make it to the pharmacy only to find that the pharmacist

refuses to fill the prescription on religious grounds. And access

to reproductive healthcare looks more like a grueling obstacle course

where the game is based on luck and chance than a protected freedom.