Federal Judge Rejects Requirement that Pharmacies Dispense Plan B

The Washington State rule unconstitutionally targeted pharmacists’ religious objections to providing emergency contraception, the judge ruled.

A federal judge has ruled that Washington State cannot require pharmacies to sell emergency contraceptives such as Plan B. In a 48-page opinion issued on February 22 in the case Stormans v. Selecky, US District Judge Ronald B. Leighton wrote that he rules in question were unnecessary to ensure that patients had access to the medications and were instead intended to suppress religious objections of pharmacists who believe that using emergency contraceptives is equivalent to abortion.

Following reports that pharmacies had refused to dispense Plan B, which consists of a high dose of birth control medication that can prevent pregnancy if taken within 72 hours of unprotected sex, the state Board of Pharmacy adopted rules in 2007 requiring all pharmacies to stock and dispense medications for which there is patient demand. Lawyers for the state argued that the requirements applied to all medications and pharmacies and helped ensure that medications would be available to patients as quickly as possible, given that some medications, including Plan B, grow less effective over time.

The owners of a pharmacy, Stormans Inc, and 2 other individual pharmacists, all of whom oppose emergency contraceptives on religious grounds, sued, arguing that the rules infringed on their freedom of religion. Leighton, who was appointed to the federal bench by President George W. Bush, blocked the rules in 2007, but was overruled by the 9th US Circuit Court of Appeals, which determined that the rules did not target religious conduct and sent the case back to him. After an 11-day trial held late last year, Leighton has decided against the rule again.

Leighton notes that there are many exceptions to the state’s stocking and dispensing rules. For instance, the Board effectively allows pharmacies to not stock painkillers such as oxycodone due to fear of theft; syringes because they dislike the type of customer who buys them; costly medications due to the low return on investment; medications that fall outside their chosen business niche; medications that are difficult to store or have a short shelf life; medications that require compounding or specialized training or equipment; and even certain medications because they have contracted with the producer of a competing drug. He notes as well that the Board has allowed pharmacies to refuse to dispense a drug that they have in stock because they don’t accept Medicare, Medicaid, or a particular patient’s insurance.

Countering the state’s claims that the rules were not specifically geared toward ensuring that pharmacies stock and dispense emergency contraceptives, Leighton lays out evidence that this was their specific goal. He also points out that the Board received at least 9 complaints about pharmacies’ refusal to dispense drugs other than Plan B in the decade before the new rules were established, but never investigated them. By contrast, Stormans was the subject of 7 complaints immediately following the rules’ implementation and 2 more in the following months. Finally, he points out, a range of Catholic-affiliated hospitals in the state make emergency contraception available to victims of sexual assault in their emergency departments but refuse to provide it to those who have had consensual, unprotected sex, yet they have not been targeted by the new rules.

“The rules operate primarily to force (some) religious objectors to dispense Plan B, while permitting other pharmacies to refrain from dispensing other medications for virtually any reason,” Leighton writes. “They permit Catholic pharmacies to ignore the rules altogether. Nor has the state demonstrated or argued that it has a compelling interest in reaching this result.”

In a statement released in response to Leighton’s ruling, Washington Governor Chris Gregoire indicated that the state was likely to appeal. “The purpose of the Board of Pharmacy rule is to ensure safe and timely access to lawful and lawfully prescribed medications, with particular concern about time sensitive medications,” she said. “I remain concerned about the impacts on patients if pharmacies are allowed to refuse to dispense lawfully prescribed or lawful medications to patients. I am especially concerned about those living in rural areas, many of whom may have few alternatives and could suffer lengthy delays in receiving medication or go without entirely.”

Others likely to appeal include groups that had intervened on the state’s behalf, including women who were refused emergency contraceptives at pharmacies and HIV patients concerned that pharmacists might decline to dispense HIV medication.

The ruling comes at a time when women’s access to contraception has become a major political issue due to criticism of rules issued by the Obama Administration requiring religious-affiliated institutions such as hospitals and universities to provide birth control without charge in employee health insurance plans. In response to the criticism, President Obama has changed the rule to shift the burden for providing birth control from religious-affiliated employers to insurance companies. An effort to block the amended rule in the US Senate failed last week, but lawmakers in several states are proceeding with attempts to circumvent it.

An Illinois law similar to the Washington state rules requiring pharmacies to dispense emergency contraception was struck down by a state judge last April. Several states, including California and New Jersey, also have laws requiring pharmacies to fill valid prescriptions, although they tend to have provisions allowing those with moral objections to refer patients elsewhere. On the other side, at least 4 states—Arkansas, Georgia, Mississippi, and South Dakota—have laws explicitly allowing a pharmacist to refuse to dispense emergency contraception drugs, and at least 4 others—Colorado, Florida, Maine, and Tennessee—have broad laws that do not specifically mention pharmacists but permit them to refuse to dispense contraceptives based on personal beliefs.