Penalty for Pharmacist's Refusal Upheld

WAUSAU, Wis. (AP) -- A state appeals court upheld sanctions Tuesday against a pharmacist who refused to dispense birth control pills to a woman and wouldn't transfer her prescription elsewhere.

The 3rd District Court of Appeals ruled that the punishment the state Pharmacy Examining Board handed down against pharmacist Neil Noesen did not violate his state constitutional rights, specifically his "right of conscience" to religiously oppose birth control.

"Noesen abandoned even the steps necessary to perform in a minimally competent manner under any standard of care," the three-judge panel said. The decision upheld a ruling by Barron County Circuit Judge James Babler.

Planned Parenthood of Wisconsin praised the ruling as important for women's access to reproductive health care. Several states have been wrestling with the issue of pharmacists who refuse on religious grounds to dispense birth control or "morning-after" pills.

Noessen's attorney Paul Linton said that he was disappointed but that no decision had been made on whether to appeal.

The ruling "can curtail the religious rights of pharmacists and perhaps other health care professionals," Linton said.

According to court records, Noesen was working as a substitute pharmacist at a Menomonie Kmart in 2002 when a University of Wisconsin-Stout student sought to refill her birth control prescription.

Noesen testified he advised the woman of his objection to the use of contraception and refused to fill the prescription or tell her how or where she could get it refilled.

The woman was able to get the prescription filled two days later but missed the first dose of the medication, court records said. She filed a complaint with the state Department of Regulation and Licensing.

Noesen, 34, of St. Paul, Minn., told regulators that he is a devout Roman Catholic and refused to refill the prescription or release it to another pharmacy because he didn't want to commit a sin by "impairing the fertility of a human being."

The Pharmacy Examining Board ruled in 2005 that Noesen failed to carry out his professional responsibility to get the woman's prescription to someone else if he wouldn't fill it himself.

The board reprimanded Noesen and ordered him to attend ethics classes. He was allowed to keep his license as long as he informs all future employers in writing that he won't dispense birth control pills and outlines steps he will take to make sure a patient has access to medication.

The board also found Noesen liable for the cost of the proceedings against him - about $20,000 - but the appeals court ordered the board to reconsider that decision.

Larry Dupuis, legal director for the American Civil Liberties Union of Wisconsin, which like Planned Parenthood participated in the appeal, said the ruling struck the proper balance between patients' and pharmacists' rights.

A pharmacy should accommodate its pharmacists' religious beliefs but it can't leave "a patient high and dry," Dupuis said.

Noesen said the discipline "critically devastated" his business as a traveling pharmacist because some pharmacies refused to hire him and he lost his liability insurance, court records said.

There was no telephone listing for Noesen in St. Paul. Linton said he had not talked to Noesen in several months and didn't know whether he still lived in St. Paul.

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