Pharmacists Fight Law Prohibiting Religious Objections to Plan B Dispensing

A Washington State pharmacy and 2 pharmacists continue to fight a law prohibiting the state’s pharmacists from using religious objections to refuse to dispense emergency contraceptives.

Rhonda Mesler and Margo Thelen, the 2 pharmacists objecting to the law, do not wish to work for a pharmacy that stocks emergency contraception. Mesler said she would need to move outside the state if the law was upheld, while Thelen stated that she had to transfer to a different pharmacy because her requests regarding Plan B could not be accommodated.

Ralph’s Thriftway, meanwhile, has seen boycotts and picketing involving some members from the governor’s office because of the pharmacy’s desire not to stock emergency contraception.

On behalf of Ralph’s Thriftway and the 2 pharmacists, a law firm called Alliance Defending Freedom has filed a petition for a writ of certiorari in order to have the Supreme Court review a federal appeals court’s decision in not to allow pharmacists in Washington cite religion to refuse to fill a prescription.

Some of the petitioners’ arguments include:

• Pharmacies have traditionally been able to choose not to sell a drug for reasons related to business, economics, convenience, and conscience. If a pharmacy does not have a product in stock or does not want to keep a product in stock, it typically provides a referral to another pharmacy. These conscience clauses have been supported by the American Pharmacists Association and the other 49 states.
• There are more than 30 other pharmacies that carry Plan B within 5 miles of Ralph’s Thriftway.
• Patients have “never been denied timely access to any drug,” according to the petition.
• Dispensing drugs like Plan B “would make them guilty of destroying human life,” according to the petition.

Kristen Waggoner, senior counsel and senior vice president legal advocacy for Alliance Defending Freedom, told Pharmacy Times that she and her clients are optimistic that the court will grant the petition.

She noted that 35 state and national pharmacy associations support referrals, including those motivated by conscience.

“The referral process used by [the] petitioners is approved by the American Pharmacists Association and has long been legal in all 50 states,” Waggoner said. “Referrals allow pharmacies to shape their stock in order to provide optimal service to patients, and the trial court found that none of the petitioners’ customers, and no patient in Washington, has been denied access to Plan B in a timely manner.”

On the flip side of the coin, the July 2015 decision from the unanimous 3-judge federal appeals court panel placed a great emphasis on the time-sensitivity related to emergency contraception.

“Speed is particularly important considering the time-sensitive nature of emergency contraception and of many other medications,” wrote Judge Susan Graber who authored the panel’s opinion. “The time taken to travel to another pharmacy, especially in rural areas where pharmacies are sparse, may reduce the efficacy of those drugs.”

Additional reasons for the federal appeals court’s decision include:

• Patients may feel they are being shamed if they receive a facilitated referral to another pharmacy, and this may discourage them from obtaining contraception at another pharmacy.
• Allowing conscience clauses for Plan B could lead other pharmacies to deny access to oral contraceptives, HIV/AIDS medications, and other devices and products such as syringes and prenatal vitamins.
• The court argued that this could lead to a “potential deleterious effect on public health.”

Washington Attorney General Bob Ferguson applauded the decision when it occurred and called it a “major victory” for Washington residents. He argued that matters concerning reproductive rights should be between a patient and his or her physician.

Meanwhile, the Becket Fund for Religious Liberty showed support for the pharmacists’ request to have the decision reviewed.

“No one should be forced out of her profession solely because of her religious beliefs,” said Luke Goodrich, deputy general counsel of the Becket Fund for Religious Liberty, in a statement. “We are optimistic that the Supreme Court will step in and strike down this blatant discrimination against people of faith.”

Washington is the only state that prohibits pharmacists from making conscience-based referrals.