“UPDATE (April 22, 2009)—Good news for medical professionals who have conscientious objections to participating in abortion. AB 67 is now a bill dealing with election issues—campaign advertisements and communications. Thanks to Assemblyman Nava for gutting and redrafting the bill.”
Read LLDF’s letter to Assemblyman Pedro Nava, who has introduced Assembly Bill 67 to the California Legislature. If enacted, AB 67 will allow the state to revoke the license of any pharmacist who refuses to dispense abortifacients, “irrespective of the pharmacist’s ethical, moral or religious objections.”
April 17, 2009
The Honorable Pedro Nava
Sacramento, CA 95814
[Sent via facsimile; 916.319.2135]
RE: Assembly Bill 67
Dear Assemblyman Nava:
We are writing this letter in response to several of our constituents, who brought AB 67 to our attention because they are concerned about being forced by the government to act in contravention to their consciences should the bill become law.
By way of introduction, Life Legal Defense Foundation (LLDF) is a non-profit public interest law firm with expertise in rights of conscience. LLDF was established in 1989 and since that time has represented various individuals with conscientious objections to certain medical procedures. We recently filed an amicus brief in the case of Morr-Fitz v. Blagojevich et al., where pharmacists and pharmacy owners in the State of Illinois brought suit to protect their constitutional rights because they are being forced by the state government to dispense emergency contraceptives in violation of their ethical, moral and/or religious beliefs.
In support of LLDF’s legal and educational mission, we writing this letter to bring to your attention legal flaws in the bill that should be addressed prior the bill moving forward in the legislative process. We are confident that as a State Legislator who is no doubt aware of California’s budget issues, you will want to address the legal flaws discussed below so that the State can avoid the expense of having to defend the constitutionality of the enactments that AB 67 will create if chaptered.
We see two legal problems in the way in which AB 67 has been drafted.
First, AB 67 declares that Article I, Section 4, of the California Constitution “shall not be lawful grounds for a pharmacist to fail to dispense a prescription.” Such language is, of course, a legal nullity. Constitutional protections of individual rights are not subject to contraction by the fiat of the legislature. Either the right set out in Article I, section 4, protects the right of pharmacists to refuse to dispense a prescription or it does not. The language of AB 67 does not and cannot alter the scope of that protection.
Second, AB 67 is predicated on either a misconception of or a deliberate deception as to the holding in Benitez v. North Coast Women’s Center (2008) 44 Cal.4th 1145. InBenitez, the Court held that Article I, Section 4, was not a defense to a claim under the Unruh Civil Rights Act, prohibiting discrimination in the provision of services against persons on the basis of, inter alia, sexual orientation. Thus, as the Court noted, a doctor can avoid a conflict between his or her religious beliefs and the law by simply refusing to provide the particular medical service at issue to any patient. What he or she cannot do is to provide the service to some but refuse it to others on a discriminatory basis.
Seeking to piggyback on that ruling, AB 67 declares that, in order to provide “full and equal access” to dispensed prescriptions, it is necessary to force all pharmacists to dispense allprescriptions, regardless of the pharmacist’s ethical, moral, or religious objections. Thus, AB 67 turns the Unruh Act protection of the rights of persons to equal treatment into a right of drugs to equal treatment. AB 67 codifies a non sequitur.
Moreover, unlike the Benitez case, in which the Court held that the physicians might either refuse to perform the requested procedure on any patient or refer some patients to other doctors who would perform the procedure, AB 67 makes no such accommodation for pharmacists, either as to refusals or referrals. Thus, unlike the application of the Unruh Act in the Benitez case, AB 67 will directly and substantially burden the religious beliefs and practices of pharmacists, bringing their constitutional rights into direct conflict with the provisions of the law.
Based on the foregoing legal analysis, we believe it is critical that AB 67 be removed from the Business and Professions Committee April 21, 2009 calendar in order to address the legal problems discussed above.
Very truly yours,
Dana Cody, Esq.
Life Legal Defense Foundation
Cc: Ted Blanchard, Assembly Republican Caucus [by facsimile (916) 319-3902]
Business and Professions Committee [by facsimile (916) 319-3306]