The goals of this Article are two-fold: (1) to explain that pharmacist conscience clause legislation may be expanded to areas concerning controversial biomedical research; and (2) to demonstrate that welfare economics can be applied to analyze pharmacist conscience clause legislation. Regarding the first goal, the broad language of existing and proposed conscience clause legislation creates an umbrella that allows a pharmacist to escape liability for refusing to fill a prescription for almost any type of medication. With respect to the second goal, this Article applies welfare economics to demonstrate that pharmacist conscience clauses are a part of tort law and can be analyzed as such to determine whether social welfare is maximized.
Part II of this Article explains the role of pharmacists as the gatekeeper for drugs. In Part III, this Article describes conscience clause legislation designed to protect pharmacists who refuse to dispense prescriptions. Part IV considers whether the momentum of the state initiatives to allow pharmacists to refuse to dispense birth control could potentially be expanded to drugs discovered by controversial biomedical research. This Article describes how some of the conscience clause laws are so broadly worded that they could potentially be applied to other controversial areas, in particular, medications discovered through stem cell research. Part V provides that the application of principles from welfare economics may demonstrate that the protection from liability for pharmacists who refuse to fill a prescription due to the pharmacist’s personal or religious beliefs fails to maximize social welfare.
Joanna K. Sax, Access to Prescription Drugs: A Normative Economic Approach to Pharmacist Conscience Clause Legislation, 63 ME. L. REV. 89 (2010).