Why is Washington State Flip-Flopping on Pharmacy Refusal?

Amie Newman

Suddenly and without warning the Washington state Board of Pharmacy has re-written the rules barring pharmacy refusal - rules decided with extensive public input three years ago.

Washington state’s women’s health and rights advocates are in a state of confused uproar. Suddenly and without warning the Washington state Board of Pharmacy has proposed a change to a rule which, after an immense amount of effort from advocates and citizens in the state back in 2007, required pharmacies to fill all prescriptions regardless of a pharmacist’s personal objection to a patient or a particular medication. This unexpected switchback comes as women’s rights organizations (including the legal advocacy organization Legal Voice), Washington state’s Department of Health and the Board of Pharmacy were preparing to fight a lawsuit brought by Stormans, Inc. (an Olympia, WA pharmacy) and two individual pharmacists who claimed the rule infringed on their first amendment rights. That case has been stayed, meaning the proceedings are suspended, much to the dismay of women’s rights advocates.

According to Seattle news site, Publicola, Judge Ronald Leighton, writing in his ruling to stay the case, said the Board of Pharmacy’s proposed rule-making process, “… if completed as currently contemplated would resolve the legal issues in this case.” This is not good news.

“This issue was vigorously debated for 15 months starting more than three years ago and the State has spent considerable time and resources successfully defending the rule in Court,” said Elaine Rose, CEO, Planned Parenthood VOTES! Washington. “We are shocked the Board of Pharmacy is re-opening the rule and jeopardizing hard-fought rights for women seeking essential health care.”

The Board of Pharmacy (BOP) inexplicably proposed (reportedly during a Board phone meeting on June 29th of this year –  of which there are no public notes available on the Board of Pharmacy web site) a rule change to allow pharmacists the right to “facilitated referral” rather than mandate they fill prescriptions on site. What this means is that, instead of ensuring that any patient – a woman seeking to fill a prescription for emergency contraception or another form of birth control, a person with HIV seeking to fill a prescription for their life-saving medication, a patient with diabetes who needs their medication – has the ability to access legal medication at any pharmacy in a timely manner, they can now be denied their medication at the whim of an individual pharmacist or pharmacy and be forced to go somewhere else.

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If you think this doesn’t sound so bad, consider that in small towns there may be only one pharmacy; in towns or cities with more than one pharmacy, how many pharmacies does a person need to visit in order to find one that has a pharmacist who “agrees” that he or she “deserves” access to their medication?

According to Legal Voice,

“Under the revisions the BOP seeks to make, even when the medication is in stock, available and sitting on a shelf behind the pharmacist, a pharmacy could require a customer to go to a different pharmacy.”

To be clear, the Board of Pharmacy rule that had been set in place in 2007 after an extended period of public input and comment (during which advocates and Washington state citizens from HIV/AIDS activists to reproductive rights organizations to every day citizens, rallied together and fought long and hard) did not force individual pharmacists to fill prescriptions for medication they did not support. It mandated that pharmacies had to have at least one pharmacist on site that would fill prescriptions for patients, regardless of her or his “personal, moral or religious beliefs.”

For a pharmacy with only one pharmacist on staff, or for pharmacy owners that opposed birth control or medication for HIV or AIDS, this meant that they needed to either stock and fill prescriptions for all legal medications requested, use a temporary or on-call pharmacist, or offer telepharmacy services. 

So while the Board of Pharmacy had been working with women’s health and rights advocates, and the Washingon state DOH to defend its original rules against Stormans, Inc. and two individual pharmacists, they changed horses midstream leaving many wondering why.

“Regardless of who you talk to among the coalition of organizations [that have been fighting this] we would all say we have no idea why the state did this or what the motivation is behind it. We don’t know where the motivation came from for The Board of Pharmacy to reopen the rules,” says Lauren Simonds, executive director of NARAL Pro-Choice Washington.

It is true that Judge Ronald Leighton, set to oversee the July 26th case between the pharmacists and the state, may very well have ruled in favor of the plaintiffs (the pharmacy and pharmacists bringing the suit). Leighton provided a small window into his views on issues related to womens’ health and rights during the motion for summary judgement when he stated that he “knew of no other case, in the country, until this one, that chips away at that protective cocoon” established by government after Roe v. Wade to protect those with a religious objection to providing abortion services, via conscience clauses. He was also concerned that his local Catholic hospital, St. Joe’s in Tacoma, WA,  would be forced to provide emergency contraception in their pharmacy, should the case be won by the state. It’s a concern that is curious considering all hospital emergency rooms in Washington state are required to offer rape victims emergency contraception, if the woman is not already pregnant.

Still, the defendants had already enjoyed one victory from the 9th Circuit Court. In addition the rule decided upon in 2007 was created only after an extended and involved period of public comment with public sentiment clearly on the side of patients unimpeded access to legal medications from pharmacies.

The 9th Circuit victory occurred, writes Josh Feit at Publicola,

“After the District Judge in Tacoma, Judge Ronald Leighton, issued an injunction against the new rules back in 2007 pending his decision on the case itself…

Tossing the injunction last summer, the appeals court specifically upheld the Board of Pharmacy rules, saying they were “neutral” (meaning they didn’t discriminate against anyone); that they served a legitimate need (getting women their legal prescriptions); and they didn’t upend anyone’s First Amendment religious freedoms. The government can limit religious conduct when it believes that conduct threatens a larger public good, like public health. And that is what the higher court concluded about the Board of Pharmacy rules.”

Then what gives?

Sara Ainsworth of Legal Voice is baffled and frustrated:

“We can only speculate, we really have no idea why the state has seemingly thrown away the victory we had achieved.”

Ainsworth’s organization, Legal Voice, represents intervenors in the lawsuit. They intervened on behalf of women who need and want access to emergency contraception as well as people living with HIV and AIDS and others whose rights are impeded when prescriptions won’t get filled by pharmacies with an agenda. But Legal Voice also fought long and hard for the 2007 Board of Pharmacy rules. With the case halted, all they can do now, says Ainsworth, is wait for the period of public comment to begin for these newly proposed rule changes. But she’s concerned.

“The state has given us pause with what they’ve said publicly to be worried that they won’t consider what the public says. It is a public process, they are supposed to take public input and we anticipate, given that this issue has received a lot of attention, that the public still feels the same way [they did in 2007]- that they should be able to have their prescription needs met.”

To be clear, the rules put in place back in 2007 were not specifically related to women’s access to emergency contraception. This was – and is –  about ensuring that all Washington state citizens are able to have their prescriptions filled in a timely manner.

Simonds told Rewire,

“These rules were put into place to protect the patients of WA because we all have a right to have our prescriptions filled…If you go back in the history of this it wasn‘t just women who weren’t able to access birth control or medications prescribed on pads from certain physicians. It wasn’t just women and reproductive health related medication. There are some parties in the lawsuit who are people living with HIV and AIDS and people living with diabetes who had prescribed medication denied because pharmacies wouldn’t fill them.”

She goes on,

“A pharmacy has no right to deny someone their medication based on a personal or moral belief. That can be construed as religious discrimination against the person who is seeking to have their prescription filled because someone is impeding upon what that person may believe. This is about the right of all patients in Washington state to access the medications they need and not to have a pharmacy decide for them that they can’t.

The current rule does allow pharmacists a way out as long as there is another pharmacist on staff to fill the prescription.”

The 9th Circuit Court of Appeals, in response to the pharmacists who asked them to reconsider their decision that the 2007 rules did not impede upon their First Amendment rights, noted that “the new rules do not aim to suppress, target, or single out in any way the practice of religion, but, rather, their objective was to increase access to all lawfully prescribed medications.” 

Washington state governor, Christine Gregoire, agrees.

Gregoire does not support the proposed rule change and has consistently supported access to emergency contraception. Back in 2006, in response to the first draft of the rules the Board of Pharmacy developed (before the period of public comment which encouraged the them to ultimately pen the supportive 2007 rules), Gregoire penned a heated letter to the head of the state Board of Pharmacy, telling him, “I strongly oppose the draft pharmacist refusal rules recommended by the Washington State Board of Pharmacy today. The rules under consideration fail to protect Washington families from pharmacists who refuse to dispense lawful prescriptions. They are fraught with contradictory, bureaucratic language that makes unclear a pharmacist’s responsibility.”

In a similar fashion, Gregoire recently sent a letter to Attorney General Rob McKenna who signed off on the Board’s proposed rule change. From Publicola:

“I am not in agreement with the state Board of Pharmacy’s decision to reopen the rulemaking process which currently requires pharmacists to provide all legally prescribed medications to individuals…”

As Ainsworth alludes to, Gregoire is also concerned that there appears to be a “pre-determined outcome” from what’s supposed to be a process of considerable citizen involvement:

“I am concerned that the Board appears to have a predetermined outcome in the new rulemaking process. I will not support a position that does not provide the same level of access, or better, than is currently offered. We cannot restrict access for patients. In rural parts of our state, eliminating access to medication could force people to drive miles to the next closest pharmacy, or simply force them to go without.”

The issue, at this point, sits squarely in the laps of the Board of Pharmacy who has, without rhyme or reason, re-written the rules mid-game. It should then be up the public to decide whether a person’s right to access their legal medication at any pharmacy is paramount. Whether this is the case or not remains to be seen.


Anti-Trans Petition Fails to Make November Ballot in Washington State

Nicole Knight Shine

"Washingtonians stood up against discrimination and secured this significant victory—for our state and our nation—ensuring that transgender people and their families will continue to be protected equally under the law," Kris Hermanns, CEO of The Pride Foundation, an LGBTQ advocacy group, wrote on Friday.

LGBTQ rights advocates in Washington state were cheering the news Friday that a discriminatory proposed bathroom measure requiring individuals to use facilities corresponding to their assigned gender at birth failed to qualify for the statewide ballot.

“Washingtonians stood up against discrimination and secured this significant victory—for our state and our nation—ensuring that transgender people and their families will continue to be protected equally under the law,” Kris Hermanns, CEO of the Pride Foundation, an LGBTQ advocacy group, wrote on Friday, after hearing the news.

The measure’s backer, a group called Just Want Privacy, announced Thursday night the petition hadn’t gathered the required 246,000 signatures to go before voters in November.

Just Want Privacy launched the petition, known as I-1515, shortly after the state Human Rights Commission, in a December rule, affirmed a 2006 state law protecting the right of individuals to use the bathroom or locker room corresponding to their gender identity, among other provisions. The rule applied to private and public facilities, and included stores, schools, restaurants, and most places of employment.

Major corporations like Google, Amazon, Microsoft, and Airbnb had opposed I-1515, as the Seattle Times reported.

Organizers with Just Want Privacy said they’d intended to deliver the signatures to the Washington state Secretary of State’s office Friday morning. They said in an online announcement that they will “not give up the fight.”

In a filing with the Washington Secretary of State, the petitioners argued that the state’s transgender protections would cause “potential embarrassment, shame, and psychological injury” to those sharing a bathroom or locker room with a transgender individual. They contended that the law and recent rule “interferes with a student’s right to privacy and a parent’s right to determine when their children are exposed to sensitive issues and subjects.”

Proponents of discriminatory measures targeting transgender individuals often cite such a “need for safety,” but evidence doesn’t bear that out.

“Over 200 municipalities and 18 states have nondiscrimination laws protecting transgender people’s access to facilities consistent with the gender they live every day,” a statement from a coalition policy and advocacy group recently noted. “None of those jurisdictions have seen a rise in sexual violence or other public safety issues due to nondiscrimination laws.”

As a June article in the New England Journal of Medicine noted, “It is transgender people who have generally been the victims of verbal harassment and physical assaults when trying to use public bathrooms.”

Discriminatory bathroom bills forcing individuals to use facilities that correspond to the gender on their birth certificate have been challenged multiple times in court. This includes North Carolina’s recent HB 2, which the U.S. Department of Justice has sued to block. U.S. Attorney General Loretta Lynch called the North Carolina measure “state-sponsored discrimination.”

Roundups Law and Policy

Gavel Drop: Welcome to the New World After ‘Whole Woman’s Health’

Imani Gandy & Jessica Mason Pieklo

With the recent U.S. Supreme Court ruling, change may be afoot—even in some of the reddest red states. But anti-choice laws are still wreaking havoc around the world, like in Northern Ireland where women living under an abortion ban are turning to drones for medication abortion pills.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

The New York Times published a map explaining how the U.S. Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt could affect abortion nationwide.

The Supreme Court vacated the corruption conviction of “Governor Ultrasound:” Former Virginia Gov. Bob McDonnell, who signed a 2012 bill requiring women get unnecessary transvaginal ultrasounds before abortion.

Ian Millhiser argues in ThinkProgress that Justice Sonia Sotomayor is the true heir to Thurgood Marshall’s legacy.

The legal fight over HB 2 cost Texas taxpayers $1 million. What a waste.

The Washington Post has an article from Amanda Hollis-Brusky and Rachel VanSickle-Ward detailing how Whole Woman’s Health may have altered abortion politics for good.

A federal court delayed implementation of a Florida law that would have slashed Planned Parenthood’s funding, but the law has already done a lot of damage in Palm Beach County.

After the Whole Woman’s Health Supreme Court ruling in favor of science and pregnant people, Planned Parenthood is gearing up to fight abortion restrictions in eight states. And we are here for it.

Drones aren’t just flying death machines: They’re actually helping women in Northern Ireland who need to get their hands on some medication abortion pills.

Abortion fever has gone international: In New Zealand, there are calls to re-examine decades-old abortion laws that don’t address 21st-century needs.

Had Justice Antonin Scalia been alive, explains Emma Green for the Atlantic, there would have been the necessary fourth vote for the Supreme Court to take a case about pharmacists who have religious objections to doing their job when it comes to providing emergency contraception.