Berlin court acquits pharmacist who refused to sell the “morning-after” pill

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• A Berlin pharmacist who refused to sell the “morning-after” pill because of his religious beliefs has been found not guilty.
• Andreas Kersten refused to stock and market the pill on the grounds of freedom of conscience.
• Since 2018, the Berlin Chamber of Pharmacy has been conducting proceedings against the pharmacist and the then-owner of Undine Pharmacy.
• In 2020, the Berlin Administrative Court acquitted the pharmacist, claiming that he had the right to follow his conscience.
• This verdict was appealed by the Chamber. In 2024, however, the court upheld Kersten's acquittal.
• This is the first judgment in Germany in which a court has confirmed a pharmacist's right to exercise his freedom of conscience.

The Berlin Administrative Court issued a judgement which triggered a heated debate on the proper balance between professional duties and personal convictions in the context of freedom of conscience. The court upheld Andreas Kersten's acquittal on the grounds of freedom of conscience and thus dismissed the Chamber of Pharmacy's appeal in its entirety, and ordered it to pay the defendant’s legal costs. The decision concerned the case of a pharmacist who had refused to sell the morning-after pill because of his personal religious beliefs (he describes himself as a “devout Catholic”). Moreover, he had offered a pro-life leaflet to a customer, and his pharmacy was famous for its engagement in the campaign against contraceptives and early abortifacients, making him the target of attacks by left-wing activists. Kersten then refused to sell the “morning-after” or “emergency-contraception” pill to a customer, arguing that the sale of the drug would run contrary to his religious and moral convictions. (These pills can in fact be taken even a few days after a sexual intercourse and thus have an abortive effect in some cases.)

Kersten, a pharmacist and the then owner of Undine Pharmacy, had been the target of professional conduct proceedings by the Berlin Chamber of Pharmacy for exercising his right to freedom of conscience since 2018. In November 2019, Kersten received a favourable verdict from the Professional Court in the Berlin Administrative Court, which ruled at the time that pharmacists do have the right to follow their conscience.

In 2020, the court delivered a verdict acquitting the pharmacist. Kersten had to wait a long time for the final ruling, however, as the Chamber of Pharmacy then appealed it. In 2024, a judgment was issued in which the Berlin Administrative Court upheld Kersten's acquittal.

The Berlin court found the pharmacist not guilty, while pointing out that, in principle, his refusal to sell the morning-after pill was not justified and that every pharmacist must fulfil his professional duties, which means providing customers with legally-available medicines (including the “morning-after” pill). The judge indicated that Kersten and any pharmacist who could not reconcile the dispensing of certain remedies with their conscience should resign from the profession.

The court's decision was based on the existing laws and regulations pertaining to a pharmacist’s responsibilities. This legislation ensures that all citizens have access to essential medications and treatments without discrimination. At the same time, however, the Basic Law of the Federal Republic of Germany (the Constitution), in article 4 p. (1), states that “Freedom of faith and of conscience and freedom to profess a religious or philosophical creed shall be inviolable”. Furthermore, wording similar to the Polish conscience clause is reflected in the German Act on the Prevention and Management of Pregnancy Conflicts, as well as the Embryo Protection Act.

So far, other than in this case, no German court has ruled on the protection of a pharmacist's conscience, making the judgement a significant one for pharmacists in Germany. The verdict is therefore precedent-setting and confirms that freedom of conscience can be invoked in Germany, despite the judge's objections regarding the “primacy of the performance of professional duties” over one's conscience.

“I am relieved that the court rejected the sanction sought by the Chamber of Pharmacy against me. I became a pharmacist to promote health and even save lives. I cannot reconcile the sale of the so-called ‘morning-after pill’ with my conscience because of the possibility of terminating a human life, even prematurely. The court of first instance initially upheld my position, finding no fault with my conscience clause. But even though I was acquitted, I am appalled by the reasoning that broadly rejects our freedom of conscience. Now pharmacists may be forced to abandon their beloved profession simply because they have remained true to their convictions”, commented Andreas Kersten on the case.

Forcing individuals to act against their deeply-held beliefs raises ethical questions about autonomy and respect for conscience.

Different countries have different approaches to balancing professional obligations and freedom of conscience, but most European countries do recognise freedom of conscience, which in Poland is referred to as the ‘conscience clause’. This judgment may set a precedent for similar cases in the future, influencing how courts will take personal beliefs into account, including in the performance of professional duties,” points out Julia Książek of Poland’s Ordo Iuris Centre for International Law.