Washington 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 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.
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 to 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 directly challenge Obama’s decision.
Leighton, in his ruling Wednesday, said that if Washington allows exemptions for nonreligious reasons, 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.
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.
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.
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.”
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