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Pharmacists don't have to sell Plan B contraceptive, judge rules

TACOMA, Wash. (AP) — Washington state cannot force pharmacies to sell Plan B or other emergency contraceptives, a federal judge ruled Wednesday, saying the state's true goal was to suppress religious objections by druggists — not to promote timely access to the medicines for people who need them.

U.S. District Judge Ronald Leighton heard closing arguments earlier this month in a lawsuit that claimed state rules violate the constitutional rights of pharmacists by requiring them to dispense such medicine.

The state requires pharmacies to dispense any medication for which there is a community need and to stock a representative assortment of drugs needed by their patients.

Ralph's Thriftway in Olympia, Wash., and two licensed Washington pharmacists sued in 2007, saying that dispensing Plan B would infringe on their religious beliefs because it can prevent the implantation of a fertilized egg, an act they equate with taking human life.

The state argued that the requirements are legal because they apply neutrally to all medicines and pharmacies, and that they promote a government interest — the timely delivery of medicine, including Plan B, which becomes less effective as time passes.

But Leighton ruled that the state allows all sorts of business exemptions to that rule. Pharmacies can decline to stock a drug, such as certain painkillers, if it's likely to increase the risk of theft, or if it requires an inordinate amount of paperwork, or if the drug is temporarily unavailable from suppliers, among other reasons.

On the heels of national debate

The decision comes as contraception has been debated in political and health care circles around the nation. A controversy erupted earlier this month when religious groups protested a new federal rule that required church-affiliated universities, hospitals and nonprofits to include birth control without co-pays or premiums in their insurance plans.

Their opposition led President Barack Obama change the rule to shift the burden from religious organizations to insurance companies. Lawmakers in a few conservative states have taken up the fight with proposals that serve as direct challenges to Obama's ruling.

Leighton, in his decision Wednesday, said that if Washington state allows exemptions for non-religious reasons, Leighton said, it must also allow them for religious or moral ones.

"The most compelling evidence that the rules target religious conduct is the fact the rules contain numerous secular exemptions," Leighton ruled. "In sum, the rules exempt pharmacies and pharmacists from stocking and delivering lawfully prescribed drugs for an almost unlimited variety of secular reasons, but fail to provide exemptions for reasons of conscience."

He did not strike down the rules, but said simply that the way they were applied to the plaintiffs in this case was unconstitutional. The state remains free to try to enforce the law against other pharmacies that violated the stocking and dispensing rules, whether for Plan B or other drugs.

Blocks state rules

The judge blocked the state dispensing rule in 2007, finding that it would violate the plaintiffs' freedom of religion. But a 9th U.S. Circuit Court of Appeals panel overruled him, saying that he applied the wrong legal standard and that the rule appeared constitutional because it was neutral and did not directly target religious views.

The appellate court sent the case back to Leighton, telling him to apply the correct standard. He held an 11-day trial to flesh out the matter, and said that he was issuing his ruling with the benefit of a more complete understanding of the rules than the 9th Circuit judges had.

Further appeals were expected, both from the state and from groups that intervened in the case on the state's behalf. The interveners included women who were denied timely access to Plan B when they needed it — one of whom cut short a vacation in central Washington to return home to Bellingham, where she knew she could obtain Plan B from her regular pharmacy — as well as 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.

"The question really is whether the patient's rights come first or the pharmacist's rights come first," said Andrew Greene, a lawyer for the intervenors.

Assistant Attorney General Rene Tomisser said Leighton's ruling made the same mistake he made in 2007 when he determined that the laws were not neutral or generally applied.

"This is more detailed, with the same error being made," Tomisser said.

Pharmacist quit over rule

Margo Thelen, of Woodland, one of the pharmacists who sued over the rules, said she had to leave one job because she refused to dispense Plan B — and now she can continue working at her new job without fear of being fired.

"Speak to anyone who shops in a pharmacy," she said. "Their product isn't always available."

At the early February trial, Leighton said the contraceptive issue is more important than many other freedom-of-religion cases, such as those concerning religious dress or other ceremonial matters.

Half-measure didn't work

Plan B had been at the center of the state's decision in 2007 to adopt the Washington Board of Pharmacy's dispensary requirements. The drug, which has a high dose of medicine found in birth-control pills, is effective in preventing pregnancy if a woman takes it within 72 hours of unprotected sex.

Individual pharmacists were allowed to pass a prescription to another druggist in the same store, provided the order is not delayed. But that leaves no option for a lone pharmacist or a pharmacy owner with religious objections to a particular drug.

The pharmacists argued they can easily and quickly refer customers to nearby drug stores willing to sell the drug, but women's rights groups said that may not be the case in rural areas. It might also be difficult for those with disabilities if their pharmacists decide not to dispense it for personal reasons, they said.