Washington Court Mandate: Pharmacies Must Stock Plan B

Elisabeth Garber-Paul

Last Wednesday, a 9th circuit district appeals court in Washington state ruled that, despite a pharmacist’s personal moral or religious believes, he or she is required by law to stock and sell emergency contraception.

Last Wednesday, a 9th circuit district appeals court in Washington state ruled that, despite a pharmacist’s personal moral or religious believes, he or she is required by law to stock and sell emergency contraception, otherwise known as the Plan B pill. According to a report yesterday in the LA Times, the ruling came after an Olympia supermarket owner filed suit to try and block a 2007 law, which required all pharmacies to provide the drug, which is now available over the counter for women 17 and up.

“Family-owned Ralph’s Thriftway and two pharmacists employed elsewhere sued Washington state officials over the requirement. The plaintiffs asserted that their Christian beliefs prevented them from dispensing the pills, which can prevent implantation of a recently fertilized egg. They said that the new regulations would force them to choose between keeping their jobs and heeding their religious objections to a medication they regard as a form of abortion.”

This is an argument we’ve seen before, from pharmacies refusing to sell anything from condoms to the pill. Here, the pharmacists—Rhonda Mesler and Margo Thelen, two women—and the father and son owners of Ralph’s, actually are saying this is the equivalent of abortion. Were the pharmacies required to sell RU-486 to anyone who walked in, the owners might have an argument. But this is about providing FDA-approved contraceptive medication to women whose regular birth control has failed them—a step, in fact, to decrease the necessity for abortion.

What’s so uplifting about this decision—which came from two judges appointed by Bush, and one appointed by Clinton—is that it may be used as a standard for other cases in the United States. "Any refusal to dispense,” the panel said, “regardless of whether it is motivated by religion, morals, conscience, ethics, discriminatory prejudices, or personal distaste for a patient–violates the rules." It doesn’t matter why a pharmacy doesn’t want to give grown women the choice to stop a pregnancy from beginning; the court is upholding a woman’s right to choose what is best for her body, and her life.

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News Law and Policy

Supreme Court Rejects Challenge to Washington Law Requiring Pharmacies to Stock Plan B

Jessica Mason Pieklo

On Tuesday the Roberts Court turned away a challenge by a pharmacy-owning family who claimed a Washington state law that requires pharmacies to stock Plan B or other emergency contraception violated their religious beliefs.

The Supreme Court on Tuesday refused to hear a challenge by a pharmacy owner who claimed religious objections to a Washington law requiring pharmacies to stock and dispense Plan B or other emergency contraception.

In 2007, the Washington State Board of Pharmacy adopted rules governing the mandatory stocking and delivery of emergency contraception. The rules do not require any individual pharmacist to dispense medication in conflict with their religious beliefs. Instead, if a pharmacy employs a pharmacist who objects to dispensing emergency contraception for religious reasons, the pharmacy must keep on duty at all times a second pharmacist who does not object to dispensing those drugs.

The Stormans family—who own a local grocery store and pharmacy in Olympia, Washington—challenged the rules in 2012, arguing that the rules required them to violate their religious beliefs. Those beliefs, they said, include a conviction that life begins at conception; therefore, emergency contraception acts as an abortifacient, which they also object to providing.

The medical community does not consider emergency contraception to be an abortifacient.

A district court agreed with the Stormans that the rules could force them to violate their religious beliefs by stocking the medication. But in 2015, the U.S. Court of Appeals for the Ninth Circuit reversed and rejected the Stormans’ claim.

On Tuesday the Supreme Court let stand that Ninth Circuit ruling. However, Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas dissented from that decision. Writing for the dissenting justices, Alito called the case “an ominous sign” for religious liberties protections in the country.

“There are strong reasons to doubt whether the regulations were adopted for—or that they actually serve—any legitimate purpose,” wrote Alito. “And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time,” continued Alito.

“If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern,” he continued.

American Civil Liberties Union Deputy Legal Director Louise Melling disagreed with Justice Alito’s assessment of the case. “The court properly refused to take this case,” Melling said in a statement following the order. “When a woman walks into a pharmacy, she should not fear being turned away because of the religious beliefs of the owner or the person behind the counter. Open for business means opens for all,” said Melling.

“Refusing someone service because of who they are—whether a woman seeking birth control, a gay couple visiting a wedding catering company, or an unwed mother entering a homeless shelter—amounts to discrimination, plain and simple. Religious freedom is a core American value and one that we defend, but religious freedom does not mean a free pass to impose those beliefs on others,” Melling wrote.

Meanwhile, Alliance Defending Freedom Senior Counsel Kristen Waggoner, who represented the plaintiffs in the case, expressed disappointment in the decision. “All Americans should be free to peacefully live and work consistent with their faith without fear of unjust punishment, and no one should be forced to participate in the taking of human life,” said Waggoner in a statement after the denial. “We had hoped that the U.S. Supreme Court would take this opportunity to reaffirm these long-held principles.”

News Law and Policy

Washington Contraception Regulations Don’t Violate Religious Rights, Court Rules

Jessica Mason Pieklo

A federal appeals court unanimously ruled Thursday that Washington State regulations requiring pharmacies to fill all valid prescriptions, including for contraceptives, should take effect.

A federal appeals court unanimously ruled Thursday that Washington state regulations requiring pharmacies to fill all valid prescriptions, including for contraceptives, should take effect.

Washington pharmacy commissioners passed regulations in 2007 as a response to a series of incidents involving pharmacists who refused to dispense birth control, emergency contraception, and other medications because of religious objections. The regulations provide an exception for religious objections and permit pharmacists to refuse to fill a prescription as long as a colleague will do so instead.

A federal district court blocked the regulations from taking effect in 2007 after a pharmacy and two pharmacists challenged the rules, arguing they violated their religious beliefs. Thursday’s decision from the U.S. Court of Appeals for the Ninth Circuit reverses that lower court decision and paves the way for the regulations to take effect.

“The state of Washington has a clear interest in making sure women can get emergency contraception in a timely and safe manner,” Alex J. Luchenitser, Americans United’s associate legal director, said in a statement following the decision. “A pharmacy owner’s personal religious beliefs shouldn’t be permitted to undermine that access.”

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Americans United joined reproductive rights advocates like the Center for Reproductive Rights and the National Women’s Law Center in filing amicus briefs in the case. The briefs argued that Washington’s regulations are fully consistent with the tradition of religious liberty in the United States, which has always permitted states to enforce non-discriminatory laws aimed at protecting the health and safety of the public.

The decision is the latest in a string of losses for religious conservatives challenging contraceptive access across the country.

Despite hundreds of legal challenges, so far not a single federal appeals court has sided with claims by religiously affiliated nonprofits that the process for accommodating religious objections to the birth control benefit in the Affordable Care Act violates their religious rights. Meanwhile, the Obama Administration this month announced a work-around to the Hobby Lobby decision that would guarantee access to contraceptive coverage for employees whose employers object to complying with the ACA’s birth control benefit.

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