Monday, May 5, 2008
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Court Upholds Injunction Against Washington ‘Plan B’ Pill Rules
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals has denied the State of Washington’s request to stay enforcement of an injunction preventing it from enforcing regulations that would prohibit pharmacies and pharmacists from refusing to dispense the “morning after” pill.
In an order issued Thursday, the panel held that the state could not support its argument that allowing the injunction to remain in effect pending an appeal would cause irreparable harm because it failed to present any evidence that access to the contraceptive—also known as “Plan B”—is a problem.
Two pharmacists and the owner of an Olympia, Wash. grocery store containing a pharmacy filed suit in 2007 arguing that enforcement of the regulations would interfere with their religious rights under the Free Exercise Clause of the U.S. Constitution.
The contraceptive—a high dose of a drug found in many regular birth-control pills—prevents ovulation or fertilization of an egg, and can dramatically lower the risk of pregnancy if taken within 72 hours of unprotected sex. Critics claim it is tantamount to an abortion, even though it is different from the abortofacient pill RU-486 and has no effect on women who are already pregnant.
The State of Washington adopted the rules in 2007 on the basis that a patient’s right to purchase the drug trumped a pharmacist’s or pharmacy’s moral objections.
However, when the plaintiffs sought an exemption from the rules, U.S. District Judge Ronald B. Leighton for the Western District of Washington went further and granted an injunction against the rules’ enforcement, agreeing that they interfered with the plaintiffs’ constitutional rights.
He found that “there has been no evidence presented to the Court that access [to Plan B] is a problem. It is available at all but a few licensed pharmacies in Washington state and can be accessed through physicians offices, certain government health centers, hospital emergency rooms, Planned Parenthood and the internet.”
Leighton also relied on a survey conducted by the Washington State Board of Pharmacy which found that, of the 135 pharmacies surveyed, 93 typically stocked emergency contraceptives while 28 did not. According to the survey, 18 of the pharmacies that did not stock the drug cited low demand and three relied on an ‘easy alternative source,’ while only two pharmacies said they did not stock emergency contraceptives because of religious or personal reasons.
He wrote:
“The Court has been presented no evidence establishing that anyone in the State of Washington, including intervenors, has ever failed to obtain Plan B within the 72-hour window of effectiveness because one or more pharmacists-pharmacies refused to fill a lawful prescription for Plan B or refused to stock and/or dispense Plan B as an over-the-counter drug.”
In doing so, Leighton rejected anecdotal evidence provided by the defendants that pharmacists had refused to provide the drug to women, noting that—in the two instances the defendants cited—one woman had been directed to another pharmacy in the area, while the other woman had been able to obtain the drug when another pharmacist on duty at the same store filled the prescription.
On the state’s motion to stay enforcement of the injunction pending an appeal, Judges Thomas G. Nelson and Jay S. Bybee of the Ninth Circuit voted to deny.
“Even assuming the district court erred in concluding that the Washington regulations violate the Free Exercise Clause, there is insufficient evidence that Appellant-Intervenors will face irreparable harm if the injunction remains in effect pending appeal,” they wrote.
However, Judge A. Wallace Tashima disagreed, saying, “[t]he district court’s understanding of the free exercise doctrine is at odds with clearly established Supreme Court and Circuit case law. The State of Washington through its Legislature has entrusted regulation of its pharmacy system to the Pharmacy Board. The Pharmacy Board has spoken, and it has done so consistent with the Constitution.”
Nevertheless, the judges did agree to grant a motion to expedite oral argument of the case, which is now calendared to take place June 3 in Seattle.
A spokesperson for Washington Gov. Christine Gregoire, who had supported the regulations, said:
“We are pleased the court granted the motion to speed up oral argument of the appeal so we can resolve this matter as quickly as possible. We believe the court will ultimately agree that pharmacists must give out all legally-prescribed medications.”
The plaintiffs could not be reached for comment.
Copyright 2008, Metropolitan News Company