WA Pharms Must Stock Morning-After Pill

(CN) - Washington state's stock-and-dispense rules requiring pharmacies to dispense emergency contraceptives do not violate pharmacists' religious freedom, a Ninth Circuit panel ruled.

Stormans Inc., owners of Ralph's Thriftway in Olympia, and two individual pharmacists sued the state in 2007 over new Board of Pharmacy regulations that require pharmacies to stock and dispense the emergency contraceptive Plan B.

U.S. District Judge Ronald Leighton initially barred enforcement of the new stocking rules, but the Ninth 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 state put off enforcing new rules pending trial. Leighton concluded after a 2012 bench trial that the stocking and dispensing laws were unconstitutional.

On Thursday, a three-judge panel for the Ninth Circuit again overruled Leighton's decision.

The unanimous decision found once again the rules were "neutral and generally applicable" and furthered the state's interest in insuring access to medications in a timely manner.

State rules allow objecting pharmacists to pass the prescription to another pharmacist at the same store.

The panel rejected the pharmacists' argument that they should be allowed to refer patients to other drug stores because of their religious objections to dispensing emergency contraceptives.

"When a drug is unavailable at a particular pharmacy, facilitated referrals help the customer receive the prescribed drug by traveling to another pharmacy where it is available. But the immediate delivery of a drug is always a faster method of delivery than requiring a customer to travel elsewhere. Speed is particularly important considering the time-sensitive nature of emergency contraception and of many other medications. The time taken to travel to another pharmacy, especially in rural areas where pharmacies are sparse, may reduce the efficacy of those drugs," Circuit Judge Susan Graber wrote for the panel.

"Additionally, testimony at trial demonstrated how facilitated referrals could lead to feelings of shame in the patient that could dissuade her from obtaining emergency contraception altogether. In our view, the commission's decision not to allow facilitated referrals falls within its stated goal of ensuring timely and safe delivery of prescription medications and, accordingly, does not demonstrate discriminatory intent," Graber continued.

In a statement, state Attorney General Bob Ferguson called the decision a "major victory for the people of Washington."

The pharmacists' attorney disagreed.

"Today's decision is unfortunate," said Luke Goodrich, deputy general counsel of the Becket Fund for Religious Liberty. "The government has no business punishing citizens solely because of their religious beliefs. The pharmacists in this case willingly refer patients to over 30 pharmacies that stock the morning-after pill within a five mile radius, and no patient has ever been denied timely access to any drug. The pharmacists' practices are also supported by the American Pharmacists Association and are legal in every other state."

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