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Federal appeals court: Washington can require pharmacies to dispense emergency contraceptives

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SEATTLE — Washington state can force pharmacies to dispense Plan B or other emergency contraceptives, a federal appeals court said Thursday in a long-running lawsuit brought by pharmacists who said they have religious objections to providing the drugs.

The unanimous decision Thursday by the three-judge panel of the 9th U.S. Circuit Court of Appeals overturned a 2012 ruling by U.S. District Court Judge Ronald B. Leighton, who had found that the state's rules violated the religious freedom of pharmacy owners. It was the second time the appeals court reversed Leighton in the case.

"This unanimous decision is a major victory for the people of Washington," Attorney General Bob Ferguson said in a prepared statement. "Decisions regarding medical care — including reproductive rights — are appropriately between a patient and his or her medical professionals."

Washington adopted rules in 2007 following reports that some women had been denied access to Plan B, which has a high dose of medicine found in birth-control pills and is effective if a woman takes it within a few days of unprotected sex. The rules said pharmacies must fulfill lawful prescriptions, but allowed individual pharmacists to refer patients to another pharmacist at the store if they have moral objections to fulfilling certain prescriptions.

A Ralph's Thriftway pharmacy in Olympia and two pharmacists sued, saying the rules required them to violate their religious beliefs, because the drugs can prevent implantation of a fertilized egg, which they consider tantamount to abortion. They argued that they should be allowed to refer patients to a nearby drug store rather than fulfill the prescription themselves.

But the appeals judges — Susan P. Graber, Richard R. Clifton Mary H. Murguia — said that wasn't good enough.

"Speed is particularly important considering the time-sensitive nature of emergency contraception and of many other medications," Graber wrote for the panel Thursday. "The time taken to travel to another pharmacy, especially in rural areas where pharmacies are sparse, may reduce the efficacy of those drugs. Additionally, testimony at trial demonstrated how facilitated referrals could lead to feelings of shame in the patient that could dissuade her from obtaining emergency contraception altogether."

Several groups intervened in the case, including women who said they were denied timely access to Plan B when they needed it — one cut short a vacation to return home to Bellingham, where she knew she could obtain Plan B from her regular pharmacy. They also included HIV patients, who argued that if druggists could refuse to dispense Plan B for religious reasons, some might also refuse to dispense time-sensitive HIV medications.

State officials agreed not to act on any complaints against the plaintiffs during the litigation, and to check with the judge before pursuing complaints against other pharmacies. Health Department spokesman Donn Moyer said Thursday it was not immediately known if the agency had received any recent complaints about women being denied access.

In his initial ruling, Leighton said the rules infringed on the pharmacists' religious freedom and issued an order blocking them, but in 2009 the appeals court reversed that decision. After holding an 11-day trial, Leighton in 2012 basically reaffirmed his original reasoning.

But the appeals court found that the rules were neutral, rather than targeted at suppressing the religious objections of the pharmacists.

"The state of Washington has a clear interest in making sure women can get emergency contraception in a timely and safe manner," said Alex J. Luchenitser, associate legal director of Americans United for Separation of Church and State, in a prepared statement. "A pharmacy owner's personal religious beliefs shouldn't be permitted to undermine that access."

The Washington, D.C.-based Beckett Fund for Religious Liberty, which joined in the representation of the plaintiffs, called the decision unfortunate.

"The government has no business punishing citizens solely because of their religious beliefs," the group's deputy general counsel, Luke Goodrich, said in a news release. "The pharmacists in this case willingly refer patients to over 30 pharmacies that stock the morning-after pill within a 5 mile radius, and no patient has ever been denied timely access to any drug."


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