Politics & Government

Court sides with state on Plan B sales

Pharmacy manager Theresa Arneson fills a prescription in July 2007 for one of her customers at the Ralph’s Thriftway pharmacy in Olympia.
Pharmacy manager Theresa Arneson fills a prescription in July 2007 for one of her customers at the Ralph’s Thriftway pharmacy in Olympia. Staff file, 2007

A state mandate for pharmacies to sell all prescription drugs doesn’t discriminate against religious believers, a federal appeals court ruled Thursday.

The decision overturns a trial court’s ruling in favor of two pharmacists and Ralph’s Thriftway, an Olympia grocery store and pharmacy, who objected on religious grounds to selling emergency contraception.

But the court found Washington’s mandate is rational and applies to all drugs and pharmacies in a neutral way.

“The rules are rationally related to Washington’s legitimate interest in ensuring that its citizens have safe and timely access to their lawful and lawfully prescribed medications,” Judge Susan Graber wrote for the unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals.

The legal fight doesn’t end there. The store and pharmacists who sued the state in 2007 plan to appeal, either to the full circuit court or directly to the U.S. Supreme Court. Unless a court steps in, the state will be able to enforce the rule against the plaintiffs as it already may against other pharmacies.

“It potentially means that Ralph’s is going to lose their store, so they will appeal,” said Kristen Waggoner, an attorney with Seattle firm Ellis, Li & McKinstry who — along with Steve O’Ban, a lawyer and state senator from Tacoma — represents the plaintiffs. “There’s a lot at stake.”

And not just for her clients, Waggoner said. Many pharmacies including those affiliated with Catholic hospitals would be affected, she said.

Rules set by the state pharmacy board allow individual pharmacists to refuse to dispense certain drugs, but only if a co-worker at the same pharmacy can fill the order. The rules don’t allow a pharmacy to refer people to another pharmacy.

No other state has such restrictive rules, said Waggoner, who also is a senior vice president of Arizona-based nonprofit Alliance Defending Freedom.

“The trial-court record demonstrates no woman anywhere in Washington has been denied timely access to these drugs for religious reasons, so access is not an issue,” Waggoner said.

But the court said referrals could either shame women into not buying the drug or delay their purchases, especially in rural areas with few drug stores.

“Speed is particularly important considering the time-sensitive nature of emergency contraception and of many other medications,” Graber wrote.

Sometimes known as the morning-after pill and sold under the names Plan B and ella, emergency contraception can prevent pregnancy when taken in the days following sex.

It is different from the abortion pill, and studies have shed doubt on the idea that it can interfere with a fertilized egg. But the pharmacists who object to it contend it causes abortion.

“With 33 pharmacies stocking the drug within 5 miles of our store, it is extremely disappointing that the court and the state demand that we violate our conscience or lose our family business,” said a statement from Kevin Stormans, president of the company that owns Ralph’s Thriftway, Stormans Inc.

Attorney General Bob Ferguson, whose office defended the state rules, welcomed the ruling. “Decisions regarding medical care — including reproductive rights — are appropriately between a patient and his or her medical professionals,” he said a statement.

The case, Stormans, Inc. v. Wiesman, has some parallels with the one known as the Hobby Lobby case that ended last year in a landmark U.S. Supreme Court ruling that the federal government can’t force family-owned companies to pay for insurance coverage for contraception.

But the high court’s ruling in the Hobby Lobby case cited a federal law protecting religious freedom that doesn’t affect Washington state actions. In the Stormans case, District Court Judge Ronald Leighton found the rules violated the First Amendment and other parts of the U.S. Constitution.

Now the 9th Circuit has declined to use the Constitution to extend the principle behind the Hobby Lobby decision to the states, said Alex Luchenitser, an attorney with the Washington, D.C.-based nonprofit Americans United for Separation of Church and State.

“It vindicates the principle that businesses should not be able to impose their religious beliefs on the customers they serve,” Luchenitser said.

The U.S. Supreme Court could have the final word.

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