The Associated Press State & Local Wire, 25 March, 2008
Court upholds sanctions for pharmacist who didn't provide pills
WAUSAU Wis. -- A state appeals court upheld sanctions Tuesday against a pharmacist who refused to dispense birth control pills to a college student and wouldn't transfer her prescription elsewhere.
The 3rd District Court of Appeals ruled the punishment the state Pharmacy Examining Board handed down against pharmacist Neil Noesen did not violate any of his state constitutional rights, specifically his "right of conscience" to religiously oppose birth control.
"Noesen abandoned even the steps necessary to perform in a minimally competent manner under any standard of care," the three-judge panel said. The decision upheld a ruling by Barron County Circuit Judge James Babler.
Planned Parenthood of Wisconsin hailed the ruling as important for women's access to reproductive health care.
According to court records, Noesen was working as a substitute pharmacist at a Menomonie Kmart in 2002 when a University of Wisconsin-Stout student came in to refill her birth control pills.
Noesen testified he asked her whether she would use the pills for contraception and she answered yes. He advised her of his objection and refused to fill the prescription or tell her how or where she could get it refilled.
The woman was able to get the prescription filled two days later after missing the first dose of the medication, court records said. She filed a complaint with the state Department of Regulation and Licensing.
Noesen, 34, of St. Paul, Minn., told state regulators that he is a devout Roman Catholic and refused to refill the prescription or release it to another pharmacy because he didn't want to commit a sin by "impairing the fertility of a human being."
The Pharmacy Examining Board ruled in 2005 that Noesen failed to carry out his professional responsibility to get the woman's prescription to someone else if he wouldn't fill it himself.
His actions threatened the woman with an unwanted pregnancy and made her fearful of becoming pregnant, the board determined.
The board reprimanded Noesen, who was licensed by the state in 1999, and ordered him to attend ethics classes. He was allowed to keep his license as long as he informs all future employers in writing that he won't dispense birth control pills and outlines the steps he will take to make sure a patient has access to medication.
The board also found Noesen liable for the cost of the proceedings against him about $20,000 but the appeals court Tuesday ordered the board to reconsider that decision.
Noesen said the discipline he received "critically devastated" his business as a traveling pharmacist because some pharmacies refused to hire him and he lost his liability insurance, court records said.
Paul Linton of Chicago, one of Noesen's attorneys, said Tuesday he was disappointed in the appellate ruling.
"It can curtail the religious rights of pharmacists and perhaps other health care professionals," Linton said. No decision has been made yet whether to appeal, he said.
There was no telephone listing for Noesen in St. Paul. Linton said he had not talked to Noesen in several months and didn't know whether he still lived in St. Paul.
Nicole Safar, an attorney for Planned Parenthood of Wisconsin, which participated in the appeal, said the ruling was one of the first published decisions in the country on the issue.
In the past five years, there's been a growing number of pharmacists opposed to dispensing birth control pills, Safar said. Women rarely file formal complaints because they don't want to publicize their personal health histories.
"They go to the next place or do what they need to do," she said.
Larry Dupuis, legal director for the American Civil Liberties Union of Wisconsin, which also participated in the case, said the ruling struck the proper balance between patients' and pharmacists' rights.
A pharmacy should accommodate its pharmacists' religious beliefs but it can't leave "a patient high and dry," Dupuis said.
On the Net:
Wisconsin Court of Appeals: http://www.courts.state.wi.us