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Recent Developments in Health Law

Published online by Cambridge University Press:  01 January 2021

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JLME Column
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Copyright © American Society of Law, Medicine and Ethics 2008

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References

References

Ferguson v. McKiernan, 855 A.2d 121, 2007 WL 4555436 (Pa. Dec 27, 2007).Google Scholar
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References

Stormans, Inc. v. Selecky, 524 F.Supp.2d 1245, 1250 (W.D. Wash. 2007). It should be noted that “conscience clause” is the term used by advocates of the pharmacist's right to decline to fill the prescription, while “refusal clause” is the term used by advocates of the patient's right to have the prescription filled. Smearman, C. A., “Drawing the Line: The Legal, Ethical and Public Policy Implications of Refusal Clauses for Pharmacists,” Arizona Law Review 48, no. 3 (2006): 469540, at 474. In this article, I adopt the choice of the Stormans court to use “conscience clause” to avoid confusion.Google Scholar
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Id., at 98. Compare Card, supra note 6 (undermining the scientific and ethical basis of an objection to emergency contraception based on a comparison to abortion).Google Scholar
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Id., at 1266. The plaintiffs made Fourteenth Amendment and Supremacy Clause claims that the Court did not reach because the First Amendment discussion was dispositive. Id., at 1255 and 1266.Google Scholar
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These cases also provide the basis for a stronger claim for a duty to dispense on the basis of a Due Process challenge. See, e.g., Duvall, supra note 2, at 1498 (“[T]he Supreme Court could analyze pharmacy conscience clause statutes under Eisenstadt v. Baird and Griswold v. Connecticut, rather than under Casey and Webster. Applying Eisenstadt and Griswold, which hold that citizens have a fundamental right to contraceptives and to ‘be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child,’ women may have more success challenging the constitutionality of pharmacy conscience clause statutes.”).Google Scholar
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References

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