Abstract

Nationwide, state legislatures are embroiled in the controversy over "conscience clause" legislation that permits pharmacists to refuse to fill prescriptions for contraception, including emergency contraception, on the basis of religious or moral belief. Refusal clauses for pharmacists create a clash of constitutional rights, pitting the religious freedom claims of pharmacists against the reproductive rights claims of their women customers. This Article traces the history and development of refusal clauses and describes the context in which the debate takes place, including the role the abortion controversy plays and the recent decision of the FDA approving over-the-counter sale of emergency contraception to adult women. Using the framework of feminist legal methodology, the Article examines the harms alleged both by the women denied access to contraception and the pharmacists who refuse to dispense it. The Article also analyzes Supreme Court cases interpreting the First and Fourteenth Amendments as they apply to refusal clauses. It concludes by recommending legislation that would require all pharmacies, not pharmacists, to dispense legal contraception, thereby protecting the reproductive rights of women while allowing for the limited accommodation of individual pharmacists in conformity with current constitutional jurisprudence.

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