CNSNews.com
Friday, Jan. 26, 2001

In a case that could have implications for the recently approved abortion pill RU-486, U.S. District Judge Herman Weber ruled that an Ohio law, designed to protect people who refuse to perform or participate in medical procedures resulting in an abortion, applies to pharmacists.

Weber reasoned that "what is critical is the undisputed fact that Micronor does prevent implantation of a fertilized egg in some cases and the plaintiff's asserted belief that this process results in abortion and is morally wrong."

Both sides said they were pleased with the ruling.

"This is a major victory for the rights of conscience [and] has enormous implications for the growing practice of chemical or drug-induced abortions," said Francis J. Manion, senior counsel for American Center for Law and Justice, the public interest law firm suing the pharmacist's former employer, Kmart.

The retailer had argued that the state law in question did not apply to pharmacists. If the suit is not settled out of court, the only matter left for the jury to decide, other than damages, will be "was she fired for her refusal to do this?" said Manion. Both sides already agree she was.

"We're pleased with the judge's ruling," said Susan Dennis, a spokeswoman for Kmart. "The judge dismissed four of the five charges, so we're pleased with that." She said the company just received a copy of the opinion Thursday and has not had time to go through all of it.

Forty-four states have a conscience law to protect medical practitioners who refuse to perform abortion procedures, according to Manion.

"Now, with the American Medical Association approving the 'morning after' pill for over-the-counter sales, I think we're going to see a lot of this," Manion predicted. He believes the ruling will make it easier for pharmacists to refuse to fill prescriptions for RU-486.

Though the Kmart case involved a state law, it was brought in federal court, in part because the plaintiff is a resident of another state. However, Manion believes federal law offers similar protection to employees. "Title 7, in the federal employment statutes, at least we argue, would cover this issue, too, if the person said this was a religious belief," Manion said. The federal law has yet to be tested in this regard.

"I think in some cases, there's an even stronger argument to be made than there is under ... these [state] conscience laws," said Manion. Under federal law, "all you have to show is that you have a religious belief that prevents you from doing a particular job task, and the employer has to at least try to accommodate you."

The trial is scheduled to begin in May, but both sides are trying to negotiate a settlement.

Pro-abortion groups such as Planned Parenthood and Guttmacher Institute object to conscience laws.

In a 1998 report, Guttmacher Institute analyst Shannon Criniti stated that "while everyone has the right to their opinions about reproductive health care, including emergency contraception and abortion, it is important to remember that the conscience that matters most belongs to the patient."

"Health care providers have a professional, ethical, and, in some instances, legal obligation not to impede access to reproductive health care," wrote Criniti.

Others, like John O. McGinnis of the Cardozo School of Law, object to conscience laws on the grounds that they limit the freedom of contract between employer and employee.

To those critics, Eric Treene, director of litigation for another public interest law firm, Becket Fund for Religious Liberty, responds that that principle has long since been compromised by other issues, like race and gender discrimination.

"It's kind of a red herring, because we accept that all the time for important public purposes," said Treene. "It's a highly regulated profession already, and the government is recognizing how deeply divided the public is on the abortion issue ... that this doesn't seem an undue intrusion on the right to contract."

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