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  • BIOETHICS FORUM ESSAY

After the Supreme Court Decision on Lethal Injection Drug, More Questions

Now that the Supreme Court has ruled that Oklahoma’s substitution of midazolam for sodium thiopental as a sedative in lethal injections does not violate the Eighth Amendment prohibition against cruel and unusual punishment, an important question is whether states will even be able to obtain drugs used in capital punishment. Increasing numbers of professional associations that are essential for providing and compounding lethal injection drugs are urging their members not to do so.

The American Pharmacists Association (APhA) recently issued a statement discouraging pharmacists from participating in capital punishment. The APhA now joins the American Medical Association, American Nurses Association, and American Board of Anesthesiology in defining capital punishment as inimical to ethical practice for health care professionals. Following on the heels of the APhA resolution, the International Academy of Compounding Pharmacists (IACP) has also declared that active participation of their members in the administration of the death penalty is unethical.

These changes could not come at a better moment. The capital punishment landscape in the United States is increasingly baroque. Utah recently reinstated the firing squad for execution when lethal injection compounds are unavailable. Oklahoma has approved capital punishment by nitrogen gas asphyxiation as its second line method of execution, after lethal injection, and before electrocution and the firing squad. Oklahoma was, of course, the scene of the botched 2014 execution of Clayton Lockett, who died of a heart attack an hour and a half after the start of his execution. Lockett reportedly sat up from the execution gurney to declare the “the drugs aren’t working.”

States traditionally sourced compounds for lethal injection directly from manufacturers. But since 2006, manufacturers have voluntarily withdrawn sodium thiopental – the sedative affirmed by the Supreme Court in Baze v. Rees as constitutional as part of a three drug cocktail in capital punishment – from the market in the U.S. Countries in the European Union have also prohibited the sale of chemical agents for use in executions, and the Food and Drug Administration has banned importation of compounds available abroad.

State penal systems have since experimented with alternative drugs in a variety of three-, two-, or single-drug protocols. Unable to purchase from manufacturers, states have turned to a few compounding pharmacies for supplies, sometimes paying for drugs in cash and hiding the identity of their suppliers. Georgia has specifically included compounding pharmacists under the protection of its death penalty secrecy laws.

The capital punishment scene in the U.S. is also mired in uncertainty that ranges from concerns about states’ data collection to misgivings about execution drugs. States that have adopted the Common Rule and collect data on the effects of execution drugs on death row inmates (prisoners are members of a categorically vulnerable population and require additional protections when they are subjects of research) must arguably receive oversight from an IRB and comply with other stipulations of the Common Rule. Otherwise, states’ data collection about lethal injection may constitute illegal human subjects research. Further complicating matters, until the latest Supreme Court ruling, courts themselves have demonstrated their reservations about the way states carry out capital punishment: some courts issue stays of execution on the grounds that novel lethal protocols include unproven drugs, while others refuse to issue such stays.

The core values of pharmacy have always implicitly argued against any role for the profession in executions. Pharmacists have no legal or ethical obligation to supply states with chemical agents for use in executions. As the first clause of the APhA Code of Ethics sets out, “a pharmacist promises to help individuals achieve optimum benefit from their medications, to be committed to their welfare, and to maintain their trust.” Now the code has been supplemented by this policy announced at the organization’s March 2015 annual meeting:

The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.

The declaration is in keeping with the APhA’s commitment to “state publicly the principles that form the fundamental basis of the roles and responsibilities of pharmacists.”

Both the APhA and the IACP account for the lack of specific strictures against participation in capital punishment as a historical accident. They offer that until states turned directly to them for lethal agents, there was no need to address the ethics of pharmacy and the death penalty. As William Fassett, one of the drafters of the new APhA policy explained, “Before that, it was like saying, ‘Should we have a policy about pharmacists flying airplanes without a license?’ It wasn’t an issue for us.”

The ethics of participation in the death penalty have become a glaring issue for pharmacists, especially compounders. Their reputation suffered in the fungal meningitis crisis of 2012 that resulted in 64 deaths. It is further sullied by a few of their members participating directly in the death penalty by supplying compounds, usually secretly, in the current Wild-West atmosphere. Compounding pharmacists should be seen by the public as pioneers in personalizing medications for patients and as an especially human face of the health care system.

What has gone unsaid is that the APhA previously passed a resolution abjuring death penalty participation for its members. The IACP statement is a board resolution. Both of these are important, but not enough. Both the APhA and the IACP ought to incorporate these statements against direct participation in capital punishment into their formal codes of ethics. Some pharmacists may choose to ignore this standard. But pharmacists as a body will have spoken in the strongest way possible that they serve as skilled professionals dedicated to the health and welfare of patients.

Lillian Ringel, JD, MS, is the Associate Director of the Columbia University Bioethics program. Stephanie Holmquist is a course facilitator and MS candidate in the Columbia University Bioethics program.

Posted by Susan Gilbert at 07/02/2015 09:28:51 AM |

Published on: July 5, 2015
Published in: Professional Ethics

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