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Plan B Challenge in Washington Hits 9th Cir.

(CN) - The 9th Circuit should find it unconstitutional to require that Washington pharmacies stock and dispense the contraceptive Plan B, an attorney said.

Stormans Inc., owners of Ralph's Thriftway in Olympia, Wash., sued the state in 2007 over new Board of Pharmacy regulations that required pharmacies to stock and dispense Plan B.

U.S. District Judge Ronald Leighton initially barred enforcement of the new stocking rules, but the 9th Circuit overturned the injunction in 2009 after finding that the lower court had abused its discretion and "incorrectly applied a heightened level of scrutiny to a neutral law of general applicability."

Although the injunction was lifted, Washington put off enforcing new rules pending trial. Leighton concluded after a 2012 bench trial that the stocking and dispensing laws were unconstitutional.

A three-judge panel of the 9th Circuit met again on Nov. 20 to hear the state's appeal.

Allen Copsey, from the Washington Attorney General's Office, said the rules were "still neutral" and did not discriminate against religious objectors. Copsey argued that Leighton ignored the 9th Circuit's previous opinion on the injunction, which found the laws neutral and generally applicable.

Washington is not targeting Storman's based on its religious objections, Copsey said, adding that the law actually takes aim at the pharmacy's refusal to provide access to patients.

In addition to Plan B, the law covers a wide variety of drugs that are important to have in stock for patients, Copsey argued.

"The stocking rule has been enforced but never against anybody on the basis of religion," Copsey said.

Judge Richard Clifton Clifton raised his hands in exasperation at this argument.

"But you're taking a position it could be - otherwise why are we here," the judge asked.

Because the pharmacy is in Olympia, where there are lots of other options for patients, Clifton found the problem "somewhat contrived."

"There's not really a problem here, and yet both sides have really gone to battle with big armies over exactly what?" he asked. "What is at stake here?"

Judge Susan Graber appeared frustrated with the state's position, as well, saying the pharmacy board is "not applying the rules at all, which is actually one of the more difficult parts of the case for me."

Clifton kept hammering Copsey for a response.

"So this whole thing is all about one pharmacy in Olympia, where there must be another dozen pharmacies nearby?" Clifton asked. "And the board decides the facilitator referral won't work for that one pharmacy? And you're telling me this case isn't contrived?"

Copsey shot back that "the rules are adopted to deal with the general situation."

Washington was responsible for protecting public health and that included insuring access to medications in a timely manner, the attorney added.

"The fact that the board is trying to take legislative action to deal with the generic problem statewide before it becomes a major problem of access is not a reason to invalidate the rule," Copsey said.

Stormans' attorney, Kristen Waggoner, faced an equal drilling by the judicial panel.

Graber asked Waggoner "what exactly" Stormans objected to in the laws. When Waggoner began by saying the laws were not neutral and generally applicable, Graber interrupted and said the 9th Circuit already ruled that they were.

"That is our starting point as a panel," she said.

Graber then posed a hypothetical question, asking if the state should be required to license attorneys who had a religious belief that keeping secrets was immoral and would therefore not keep the secrets of their clients.

After some prodding, Waggoner said no.

"How is this case any different?" Graber asked. "It's exactly the same thing."

Waggoner said "pro-abortion" groups targeted Stormans, and that the state singled the pharmacy out for enforcement.

Washington's pharmacy board knew other pharmacies, including "boutique" pharmacies and Catholic pharmacies don't carry all the required drugs, but did not investigate those businesses, she added.

Waggoner conceded that the other pharmacies the board elected not to pursue did not face complaints, but said the board still "chose deliberately" not to pursue violations.

This shows that the state was not just trying to protect patients, Waggoner said.

"You don't think that timely delivery of medications to patients that has been prescribed by their physicians is an important right for the state to protect?" Graber said.

"I think that if there is a problem with that access to medication, this would be a very different case," Waggoner replied.

Legal Voice, a women's rights group, was awarded attorneys' fees twice by the 9th Circuit on separate issues.

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