Confusion and Conscientious Objection in Arizona

by Steven H. Miles, MD and Arthur Caplan, Ph.D.

Nicole Mone Arteaga was trying to get pregnant. It had been difficult for her. She had a miscarriage. Then, unexpectedly, she got pregnant again. Because of her miscarriage history, she cooperated with weekly medical monitoring, On June 19th, she was told, according to news interviews, that the fetus no longer had a heartbeat. Her doctor offered her a choice between a medication to cause the uterus to expel the fetal remains or a surgical procedure. She decided on the drug option so that she could avoid a surgical procedure and remain at home. On June 21, she went to pick up the medication that her physician had prescribed. At the pharmacy, according to media interviews and a Facebook post and a Walgreens’s spokesperson, a pharmacist refused to fill the prescription. She says that with her seven-year-old child in hand, and five customers within earshot, she told the pharmacist that her pregnancy was doomed. He, citing his moral beliefs, rejected her request.

As she put it, “he failed to understand is this isn’t the situation I had hoped for, this isn’t something I wanted. This is something I have zero control over. He has no idea what its like to want nothing more than to carry a child to full term and be unable to do so. If you have gone thru a miscarriage you know the pain and emotional roller it can be.” She left Walgreens in tears, feeling shamed and humiliated by the pharmacist.

Later on the evening of June 21, she received an email notifying her that the prescription was ready to be picked up at another franchise of the same chain pharmacy at a location across town. Given her previous experience, she called her physician to ensure that the pharmacist at the second location would dispense the medication. She picked up the prescription.

Ms. Arteaga says that she complained to the store manager and to the Walgreens corporate office. She has filed a complaint with the Arizona Board of Pharmacy. A woman in her circumstances should be able to obtain a legitimate prescription at a pharmacy without having to overcome a pharmacist’s personal moral concerns. Especially disturbing in this case is that Ms. Arteagawas not pregnant as was widely and inaccurately reported by news media. The pharmacist’s moral objection to abortion was irrelevant to this prescription.

The following letter by medical ethicists was sent to the Arizona Board of Pharmacy.

July 1, 2018

To: Arizona State Board of Pharmacy

1616 West Adams Street

Phoenix, AZ 85007

From: United States’ Professors of Bioethics

Re: Complaint Against a Pharmacist in Handling a Prescription in Peoria, Arizona.

1. We, the undersigned, are Professors, Associate Professors, Assistant Professors, and Professors Emeriti in the United States who perform substantial scholarly work in bioethics, medical ethics and clinical ethics. We all have had occasion to learn, teach, or publish on matter of ‘conscience clauses’ in health care. Such ‘clauses’ in legislation or institutional policy generally address the right of a health care provider to refuse to become engaged in some morally controversial form of medical care, most often with regard to decisions in end-of-life care or in reproductive health care but also in other matters such as prison health care, vaccination policies and other areas.
2. We understand that the Arizona State Board of Pharmacy will consider the case of a complaint against a pharmacist who was working at Walgreens Pharmacy on 9040 Peoria Avenue in Peoria, Arizona. Allegedly, a pharmacist who is the subject of the complaint declined to fill a legal prescription for a medication that was presented by Ms. Nicole Mone Arteaga.
3. None of us have any personal or financial interest or involvement in this case. None of us has been asked by any interested party to opine on this matter. Each of the signatories agrees with the entire contents of this letter.
4. Our opinion was not solicited by Ms. Arteaga although it is in response to her public discussion of the medical ethics issues raised by this case.
5. Our knowledge of this matter is entirely premised on public reports in the media and social media describing the events and positions Ms. Nicole Arteaga and spokespeople for Walgreen’s Pharmacy Inc. We note that as of this time, the identified pharmacist has not commented on this matter.
6. We understand that the relevant state law on the pharmacist’s conduct is “Arizona Statute 36-2154 B. Right to refuse to participate in abortion; abortion medication or emergency contraception.”

A pharmacy, hospital or health professional, or any employee of a pharmacy, hospital or health professional, who states in writing an objection to abortion, abortion medication, emergency contraception or any medication or device intended to inhibit or prevent implantation of a fertilized ovum on moral or religious grounds is not required to facilitate or participate in the provision of an abortion, abortion medication, emergency contraception or any medication or device intended to inhibit or prevent implantation of a fertilized ovum. The pharmacy, hospital or health professional, or an employee of the pharmacy, hospital or health professional, shall return to the patient the patient’s written prescription order.

7. Given the predicated facts, we opine that,
   1. Arteaga was not pregnant when she presented the prescription given that the fetus did not have a heartbeat, i.e., was dead.
   2. Arteaga was not requesting to effect an abortion. She was requesting the expulsion of retained fetal remains. This is specifically permitted under Arizona law, 2151 that defines and limits the scope of Conscientious Objection. Definitions.”Abortion” means the use of any means to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child. Abortion does not include birth control devices, oralcontraceptives used to inhibit or prevent ovulation, conception or the implantation of a fertilizedovum in the uterus or the use of any means to save the life or preserve the health of the unborn child, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy or to remove a dead fetus.
   3. The condition of fetal death is associated with medical and psychological risks including infection and depression and other conditions. Given these, the choice of management is properly between a patient and her physician.
   4. The pharmacist persisted in refusing to fill the prescription after being told by Ms. Arteaga and her husband that the fetus was dead.
   5. Given that Ms. Arteaga was not pregnant, this situation does not fall within the protection for a pharmacist who would claim a “conscience clause” of refraining from assisting in abortion under 36-2154 B.
8. Given the above predicates, the pharmacist demonstrated several kinds of unprofessional conduct.
   1. He did not know that the presented prescription was for a drug that had multiple uses and made inaccurate inferences about the purpose of the drug.
   2. He acted on that lack of knowledge and inaccurate inference in a manner that adversely affected the pharmacy care of a client.
   3. He improperly inserted himself in the decision-making of a physician-patient relationship.
   4. He injured Ms. Arteaga in the following ways:
      1. He emotionally traumatized a woman who was in the process of trying to address the tragedy of fetal death.
      2. He subjected Ms. Arteaga to greater than necessary burdens in filling a legal prescription.
      3. He subjected Ms. Arteaga to the small risk of infection or pain from retained fetal remains.
      4. He exposed his employer to public notoriety.

Sincerely,

Co-Signatories:

William Allen, M. Div., J.D.
Associate Professor,
Program in Bioethics, Law, and Medical Professionalism
University of Florida College of Medicine
Associate Professor,
Pharmacy Law and Ethics
University of Florida College of Pharmacy

Robert M Arnold, MD
University of Pittsburgh
Section of Palliative care and Medical Ethics

Alison Bateman-House, PhD, MPH, MA
Assistant Professor
Division of Medical Ethics
NYU Langone Health

Muriel J. Bebeau, PhD
Professor Emerita,
Affiliate Faculty, Center for Bioethics
Director Emerita, Center for the Study of Ethical Development
University of Minnesota

Sheldon Berkowitz, MD, FAAP
Assistant Professor of Pediatrics
Affiliate Faculty, Center for Bioethics
University of Minnesota

Donald Brunnquell, PhD
Clinical Assistant Professor
Department of Psychology
University of Minnesota

Alyssa Burgart, MD, MA, FAAP
Medical Director, Lucile Packard Children’s Hospital Clinical Ethics
Stanford University Center for Biomedical Ethics

Arthur Caplan, PhD
Drs. William F. and Virginia Connolly Mitty Professor of Bioethics at New York University’s School of Medicine

Alta Charo
Warren P. Knowles Professor of Law
University of Wisconsin – Madison

Brian H. Childs, Ph.D.
Professor of Bioethics and Professionalism
Director of Ethics Education
Mercer University School of Medicine
Columbus, Macon, Savannah, Georgia

Catherine Constable, MD
Assistant Professor, Department of Medicine and Division of Medical Ethics,
NYU Langone Health

Debra DeBruin, PhD
Maas Family Chair in Bioethics
Associate Professor
Center for Bioethics
University of Minnesota

Jason T. Eberl, Ph.D.
Professor, Health Care Ethics
Albert Gnaegi Center for Health Care Ethics
St. Louis, MO 63104

Cheryl Erwin, JD, PhD
Director, Center for Ethics, Humanities & Spirituality
Associate Professor
Texas Tech University Health Sciences Center
Lubbock, Texas

Faber-Langendoen, MD
Chair, Center for Bioethics and Humanities
Medical Alumni Endowed Professor of Bioethics & Professor of Medicine
SUNY Upstate Medical University

Joel E. Frader, MD, MA
Professor of Pediatrics and Professor of Bioethics and Medical Humanities
Feinberg School of Medicine, Northwestern University
Chicago, IL

Barry R. Furrow JD
Professor of Law and Director, Health Law Program
Kline School of Law
Drexel University,
Philadelphia, PA

Elisa J. Gordon, PhD, MPH
Professor, Center for Bioethics and Medical Humanities, Department of Medical Education
Feinberg School of Medicine
Northwestern University
Chicago, Illinois

Jane Greenlaw, JD
Professor Emeritus
Division of Medical Humanities and Bioethics
University of Rochester School of Medicine and Dentistry
Rochester, New York

Michael A. Grodin, M.D.
Professor, Center for Health Law, Ethics & Human Rights
Boston University School of Public Health

Rosalie A Kane, PhD,
Professor, Health Policy and Management, School of Public Health,
University of Minnesota

Craig M. Klugman, Ph.D.
Professor, Department of Health Sciences
Co-Director, Minor in Bioethics & Society
Chicago, Illinois 60614

Loretta M. Kopelman Ph. D.
Professor Emeritus, Brody School of Medicine at East Carolina University and Adjunct Professor of Family Medicine at Georgetown University School
of Medicine

John D. Lantos MD
Professor of Pediatrics
University of Missouri – Kansas City
Professor of Pediatrics, University of Missouri – Kansas City
Director, Children’s Mercy Hospital Bioethics Center

Betty Wolder Levin, PhD
Professor
Dept. of Community Health and Social Sciences
CUNY Graduate School of Public Health and Health Policy
Matthew S. Lucas, PhD, MBE, RN
Assistant Professor
Department of Women, Children, and Family Health Science,
College of Nursing
University of Illinois at Chicago,

David Magnus, PhD
Director, Stanford Center for Biomedical Ethics
Thomas A. Raffin Professor of Medicine and Biomedical Ethics and Professor of Pediatrics, Medicine and By Courtesy of Bioengineering
Stanford University

Kyle Aaron McGregor, PhD
Assistant Professor of Child and Adolescent Psychiatry & Medical Ethics
Director of Pediatric Mental Health Ethics
NYU Langone Health

Diane E. Meier, MD
Professor, Department of Geriatrics and Palliative Medicine
Gaisman Professor of Medical Ethics
Icahn School of Medicine at Mount Sinai
New York, New York

Christopher Meyers, PhD
Emeritus Director, Kegley Institute of Ethics
Emeritus Professor, Philosophy
California State University, Bakersfield
Hospital Ethicist, Kern Medical

Howard Minkoff, MD
Distinguished Professor Ob/Gyn SUNY Downstate, Chair Ob/Gyn Maimonides Medical Center
Brooklyn, New York

Jonathan D. Moreno
David and Lyn Silfen University Professor
Department of Medical Ethics and Health Policy
University of Pennsylvania

Lawrence J. Nelson, Ph.D., J.D.
Department Chair and Associate Professor
Santa Clara University
Santa Clara, California

Michael E. Shapiro, MD, FACS
Associate Professor of Surgery
Rutgers – New Jersey Medical School
Rutgers, New Jersey

Lawrence J. Schneiderman, M.D.
Emeritus Professor of Family Medicine & Public Health, and Medicine
UCSD School of Medicine
La Jolla, California

Dena J. Seiden
Adjunct Assistant Professor, Emeritus
Wagner School of Public Service
New York University
New York, New York

Donnie Self, Ph. D.
Professor Emeritus
Texas A&M College of Medicine
Texas A&M University
College Station, Texas

Lois Shepherd, J.D.
Peter A. Wallenborn, Jr. and Dolly F. Wallenborn Professor of Biomedical Ethics
Co-Director, Studies in Reproductive Ethics and Justice
Center for Biomedical Ethics and Humanities
Professor of Public Health Sciences and Professor of Law
University of Virginia

Bethany Spielman, Ph.D, J.D.
Professor, Medical Humanities and Law
School of Medicine
Southern Illinois University

Bonnie Steinbock
Professor Emeritus of Philosophy
University at Albany/State University of New York

Lance K. Stell, PhD, FACFE
Professor of Philosophy, emeritus
Davidson College
Davidson, NC 28035

Anita J. Tarzian, PhD, RN
Program Coordinator, Maryland Health Care Ethics Committee Network
Law & Health Care Program, Maryland Carey Law
Associate Professor
University of Maryland School of Nursing
Baltimore, MD 21201

Professor Noam Zohar, PhD
Director, Graduate Program in Bioethics
Department of Philosophy
Bar Ilan University