Questions remain after Catholic pharmacist loses appeal

MADISON, Wis. – Although a Wisconsin judge upheld the official reprimand of a Catholic pharmacist who refused to dispense a contraceptive drug to a college student or transfer the prescription to another pharmacy, debate on the issue of conscience rights was continuing in the state.

In a March 24 decision, 3rd District Court Judge Michael Hoover rejected pharmacist Neil Noesen’s appeal of sanctions imposed on him by the Wisconsin Pharmacy Examining Board in 2005.

However, an official of the Wisconsin Catholic Conference said the judge nevertheless acknowledged that conscience rights under the state constitution are even broader than those granted by the U.S. Constitution.

Kim Wadas, the Catholic conference’s associate director for education and health care, said Hoover’s affirmation of conscience rights was a step in the right direction.

“We were excited to see some of that language, which continued to recognize that pharmacists have a right of conscience,” Ms. Wadas told The Catholic Times, newspaper of the La Crosse Diocese. “This is something we advocate for on behalf of health professionals, especially Catholic health professionals.”

Ms. Wadas also praised state Sen. Kathleen Vinehout, a Democrat and member of St. Lawrence Parish in Alma, for her efforts to amend the Birth Control Protection Act, which would have forced pharmacists to dispense drugs approved by the Food and Drug Administration.

“We’re very grateful for her actions regarding this legislation, for the recognition of unborn life, and also for the recognition of the right of conscience for pharmacists,” she said.

Sen. Vinehout’s first amendment removed language that would have redefined abortion to exclude the use or prescription of any FDA-approved contraceptive, even if that contraceptive is abortifacient. She told The Catholic Times that the redefinition of abortion was a separate issue and did not belong in the language of a conscience-clause bill.

A second amendment modified the bill to protect the conscience rights of pharmacists and institutions that employ them not to dispense contraceptives. Article 1, Section 18 of the state constitution says no “control of or interference with the right of conscience” is to be permitted.

“I think it’s wrong to write a law that is opposed to a document that I took an oath to uphold,” Sen. Vinehout said. “The way the bill was drafted, it didn’t acknowledge the conscience of the pharmacist.”

The proposed legislation passed the Wisconsin state Senate during the legislative session’s closing hours March 13 only to die at that point, since the Assembly had already concluded its session.

The Noesen case dates to 2002, when he was working in the pharmacy at a Kmart in Menominee and refused to dispense FE 1/20, a hormonal contraceptive, to Amanda Phiede, who was a student at the University of Wisconsin in Stout.

In 2005 Administrative Law Judge Colleen Baird found that Mr. Noesen’s refusal to fill the prescription constituted “a danger to the health, welfare or safety of a patient and was practiced in a manner which substantially departs from the standard of care ordinarily exercised by a pharmacist and which harmed or could have harmed a patient.”

Judge Hoover’s ruling upheld the state pharmacy board’s reprimand and limited Mr. Noesen’s pharmacy license so that he would be required to notify a potential employer of his inability to distribute certain drugs and detail in writing how he would ensure the patient’s access to those drugs.

Mr. Noesen argued in his appeal that the Wisconsin Constitution protected his conscientious objection to cooperating materially in something he considers evil – contraception. He also argued that state law does not indicate how this conscientious objection must be exercised.

But Judge Hoover disagreed. “He prevented all the efforts (Phiede) made to obtain her medication elsewhere when he refused to complete the transfer,” the appeals judge wrote. “The board could therefore properly conclude that he violated a standard of care applicable to pharmacists.”

Mr. Noesen’s lawyer said he would appeal the decision to the Wisconsin Supreme Court.

Catholic Review

Catholic Review

The Catholic Review is the official publication of the Archdiocese of Baltimore.