Pharmacists’ Right to Conscientious Objection. A Comparative analysis of Spanish and US models

Abstract

Abstract:
This paper analyzes the responses of the Spanish legal system, in contrast to the jurisprudence of the US Federal Supreme Court and the European Court of Human Rights, to a refusal by pharmacists to dispense drugs for reasons of conscience. In this context are studied: the Spanish jurisprudence and constitutional doctrine, the jurisprudence of the European Court of Human Rights, and the most important decisions of the US federal Courts. It attempts to explain the consistency (or inconsistency) of our model of pharmaceutical conscientious objection to the constitutional framework, and to what extent the position of our Constitutional Court resembles that of the courts utilized for comparison.

The choice of the American model is due to this legal system’s extensive experience in the regulation and resolution of conflicts related to conscientious objection. Indeed, in the specific case of pharmaceutical conscientious objection, the Federal Supreme Court recently ruled on a case based on issues very similar to those determined in the STC 145/2015 case, although utilizing a very different methodology from ours in order to resolve the conflict between norm and conscience.

The first part of the article analyses the legal nature of conscientious objection in our legal system, and the decisions of our Constitutional Court in this field. This permits us to understand the relationship between freedom of conscience and conscientious objection, and to what extent it is necessary that legislators expressly recognize the possibility that individuals will not comply with the law on grounds of conscience, so that we may speak of a hypothetical right to conscientious objection.

The second part of the article is devoted to the analysis of the American constitutional model in the field of freedom of conscience, and especially the study of the decisions by the Federal Supreme Court on the grounds of conscientious objection in the context of health. Included in this section are its positions on conscientious objection by pharmaceutical staff.

The article concludes by offering a series of reflections on the different responses suggested by the models studied, and their respective constitutional relevance. In this regard, it is noteworthy that our Constitutional Court has taken the dangerous step of recognizing the right of pharmacists to refuse to dispense the morning-after pill for reasons of conscience, a decision that will be called to play a particularly important role in shaping the future of conscientious objection in
our legal system, and which relegates to the rights of women in this field to a secondary status. With this decision we move away from the solutions that other countries in our legal environment have adopted, and that furthermore had been endorsed by the ECHR. Similarly, our legal system ignore the valuable lessons of the American model, which has attempted to not sacrifice -but rather to harmonize- the legal interests at stake, thus articulating mechanisms that ensure the proper provision of public service.