Pharmacist fights legal battle after refusing to fulfil morning-after pill prescription in Poland

A pharmacist is challenging her punishment for refusing to fulfil a patient’s prescription for the morning-after pill. Her case is being supported by Ordo Iuris, a prominent conservative legal group, which argues that pharmacists should be protected by the same “conscience clause” as doctors who refuse treatments contrary to their beliefs.

The incident in question recently took place at a pharmacy in Kraków, where a woman came with a prescription from a doctor for EllaOne, an emergency contraceptive. The pharmacist refused to provide it, saying that it “could pose a threat to the unborn child”, says Ordo Iuris.

EllaOne – a brand name for the medication ulipristal – does not induce abortion, but works by preventing fertilisation if taken shortly after sexual intercourse. If fertilisation has already taken place, it has no effect.

While in most European countries the morning-after pill is available freely over the counter, Poland is one of just two EU member states (the other being Hungary) in which a prescription is required. That measure was introduced by the current national-conservative government in 2017.

As a result of that and other restrictions, Poland was this year ranked as having Europe’s worst contraception policies by the European Parliamentary Forum for Sexual and Reproductive Rights. It was the only country classified as having “exceptionally poor” policies.

In justifying the 2017 decision, the then health minister, Konstanty Radziwiłł, argued that emergency contraceptives can have side effects and should only be administered under medical supervision. He also said that he himself, being a medical doctor, would refuse to prescribe such pills, even to a rape victim, as it would violate his beliefs.

In Poland, doctors – as well as nurses and midwives – have a legally enshrined right to refuse treatments “inconsistent with their conscience”. That has been used by medics – in particular those citing Catholic beliefs – to refuse to provide treatments such as abortion and contraception.

The so-called conscience clause does not, however, apply to pharmacists. After the pharmacist in Kraków refused to provide emergency contraception pills, the patient filed a formal complaint. That resulted in a district pharmaceutical court issuing a reprimand against the pharmacist.

However, Ordo Iuris’s lawyers then helped her bring an appeal to the Supreme Pharmaceutical Court, where they argued that the lower court had considered the case despite the pharmacist being justifiably absent and therefore unable to defend herself.

The higher court agreed, quashing the earlier ruling and ordering the lower court to reconsider the case. That has yet to take place, but Ordo Iuris has pledged to defend the woman when it does.

It argues that the right of pharmacists and owners of pharmacies to invoke the conscience clause is protected by article 53 of the constitution, which stipulates that “freedom of conscience and religion shall be ensured to everyone”, and which was confirmed by a 2015 constitutional court ruling.

“The right to refuse to perform an act contrary to one’s conscience belongs to every human being as one of the fundamental human rights,” said Magdalena Majkowska, a member of Ordo Iuris’s management board. “Freedom of conscience cannot be treated as a privilege arbitrarily granted to a [particular] group.”

Other legal experts and women’s rights groups, however, disagreed. In 2017, the then commission for human rights, Adam Bodnar, argued that a refusal by pharmacists to sell certain treatments by invoking the conscious clause is illegal and a violation of patients’ rights.

Kamila Ferenc, a lawyer from the Federation for Women and Family Planning, agrees that it is an “unlawful act”. “The pharmacist’s duty is to follow the doctor’s recommendations,” she told Gazeta Wyborcza, while also noting that contraceptives are prescribed for health reasons other than a woman simply not wanting a baby.

A similar position has been adopted by Poland’s Supreme Pharmaceutical Chamber (NAI), whose spokesman told Gazeta Wyborcza that “if a doctor prescribes a drug, in our opinion, the role of the pharmacist is not to challenge and question the doctor’s recommendations”.

“If we are talking about freedom, it should work both ways: if someone’s freedom, in this case of a pharmacist, is to limit the patient’s freedom, then we cannot speak of freedom,” he added.

The emergency contraceptive medication sold under the brand name EllaOne or Ella, ulipristal, is included in the World Health Organisation’s List of Essential Medicines. In 2014, the European Medicines Agency recommended that it be made available without prescription in all EU countries.

Under Poland’s current government, sexual and reproductive rights have become a battleground, with a near-total abortion ban going into force last year, efforts by the authorities to restrict sex education in schools, and the ending of state funding for IVF treatment.

Main image credit: Dima Mukhin/Unsplash

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.