Fed judge considers if pharmacies must sell Plan B

By Gene Johnson

Associated Press

Published: Wednesday, Feb. 1 2012 1:36 p.m. MST

TACOMA, Wash. — A federal judge is considering whether Washington state can require pharmacies to stock and sell Plan B or other emergency contraceptives, even in the face of religious objections by druggists who believe they destroy human life.

Ralph's Thriftway in Olympia and two licensed Washington pharmacists sued the state in 2007, saying that dispensing the drug would infringe on their religious beliefs because it can prevent the implantation of a fertilized egg.

They argue they can easily and quickly refer customers to nearby pharmacies willing to sell the drug, which is effective in preventing an unwanted pregnancy if a woman takes it within 72 hours of unprotected sex. The drug, which has a high dose of medicine found in birth-control pills, has no effect on pregnant women.

The Washington Board of Pharmacy 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. The state says the rules are legal because they apply neutrally to all medicines and pharmacies, and that they promote an important government interest — the timely delivery of medicine.

A group that includes HIV patients intervened in the case on the state's behalf, arguing that if pharmacies can refuse to dispense Plan B for religious reasons, some might also refuse to dispense AIDS medications, for example.

Individual pharmacists are allowed to pass a prescription to another druggist in the same store, provided the patient's order was filled without delay. But that left no option for a lone pharmacist, or for the owner of a pharmacy who also has religious objections to a particular drug.

Lawyer Kristen Waggoner said during closing arguments Wednesday that the state was trying to suppress religious objection to Plan B — an idea she called "repugnant to the Constitution."

The pharmacists "can violate their core religious beliefs and participate in the taking of a human life, or they can lose their license," she told U.S. District Judge Ronald Leighton.

Waggoner noted numerous business exemptions under which it's OK for pharmacies not to stock a drug, including low demand, high cost, insurance concerns, and security reasons in cases where stocking a drug such as the addictive painkiller oxycodone could increase risk of theft.

If the state allows pharmacies not to stock a drug for non-religious reasons, it should also allow them not to stock a drug for religious ones, she argued.

She also said the state showed no interest in rigidly enforcing the rule until Planned Parenthood and related groups began filing complaints and sending test-shoppers and picketers to Ralph's and other pharmacies to see if they would dispense Plan B. She called that an indication that the state's true objective was to stamp out religious objection to the drug.

Plan B was at the center of the state's decision to adopt the dispensary rule in 2007. Following Planned Parenthood's concerns, the state's Democratic governor, Chris Gregoire, warned that she would replace Pharmacy Board members who didn't follow her wishes on the issue. Gregoire later rejected a compromise the board reached that would have allowed druggists to refer patients to other pharmacies for reasons of conscience.

Lawyers for the state insist that the 9th U.S. Circuit Court of Appeals, in an earlier ruling in the case, has already determined that the rules are neutral and do not directly target religious views.

The only question left for the judge to determine, they said, was whether the state has any rationale that supports the rules. They said the state has a clear interest in promoting the timely access to drugs, especially those like Plan B, which become less effective with delay.

Exemptions to the rule allowing pharmacies not to stock a drug for financial or business reasons actually increase the general accessibility of drugs because it helps pharmacies stay in business, the state's lawyers said. Allowing pharmacies not to stock Plan B for religious reasons, however, would in no way promote public access to medicine.

The judge made several comments sympathetic to the plaintiffs during Waggoner's closing argument. At one point, he said the state's decision-making process on the topic reminded him of the U.S. government's arbitrary enforcement of the "don't ask, don't tell" rule banning gays from serving openly in the military.

Hospital pharmacies in the state — such as Catholic hospitals — do not fall under the rules, which govern retail, outpatient pharmacies, and they can refuse to dispense certain drugs for reasons of conscience. The Catholic hospitals won't dispense Plan B except in cases of rape, Leighton noted.

That makes the state's argument about promoting access to the drug a "red herring," he said.

"The poor people who rely on emergency rooms don't get the so-called benefit of the rule," he said. "It's riddled with exceptions and holes. It's Swiss cheese."

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