Washington state to require pharmacies to stock Plan B

Ned MilenkovichIn July, a three-judge panel for the Ninth Circuit Court upheld a Washington state law requiring pharmacies to provide patients with all medications in a timely manner, specifically including Plan B and other forms of emergency contraception.

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The 2012 decision

The Ninth Circuit’s decision overturned a 2012 U.S. District Court decision that created an exception to a 2007 rule promulgated by the board of pharmacy, which required the speedy delivery of prescription medication for pharmacy owners who object on religious ground to offering emergency contraception.

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The 2012 holding was the result of a suit brought by two licensed Washington pharmacists, who claimed that dispensing Plan B would infringe on their religious beliefs because the drug might prevent implantation of a fertilized egg, an act they equate with taking away human life.

U.S. District Court Judge Leighton stated, "the most compelling evidence that the rules target religious conduct is the fact the rules contain numerous secular exemptions. In sum, the rules exempt pharmacies and pharmacists from stocking and delivering lawfully prescribed drugs for an almost unlimited variety of secular reasons, but fail to provide exemptions for reasons of conscience."

The Ninth Circuit ruling

The Ninth Circuit went on to dismiss the District Court’s reasoning, saying that the Washington Pharmacy Quality Assurance Committee received zero complaints that pharmacies weren’t stocking certain drugs (1) for fear of criminal activity, (2) because they required too much administrative paperwork, or (3) were too expensive. Conversely, the plaintiff pharmacy alone has been the subject of 24 complaints since 2006 for turning away women seeking emergency contraception.

The Ninth Circuit Court also went on to reject the argument that pharmacies could easily and quickly refer customers to nearby pharmacies willing to sell the drugs, noting the state’s concern that emergency contraceptives be provided within 72 hours of a sexual encounter in order to be effective. The panel made sure to point out that Washington allows individual pharmacists to refuse service as long as there is another pharmacist in the same store who will dispense the drug, so that the drug is provided without delay.

The bottom line

The foundation for the Ninth Circuit’s ruling comes from the regulation’s neutrality. The court explained that the rule applies to all equally and does not target any specific religious beliefs. Due to the neutrality of the regulation, the state need only show a rational reason for implementing the rule.

Katherine Waggoner, the plaintiff’s attorney, working with the Alliance Defending Freedom, stated that her clients plan to appeal. She asserted that “the constitution clearly says that the government can’t punish people for their religious beliefs, which is what is happening here.” 

Other counsel for the plaintiffs mirrored Waggoner’s sentiment, stating that “the government has no business punishing citizens solely because of their religious beliefs,” and as “the pharmacists in this case willingly refer patients to over 30 pharmacies that stock the morning-after pill within a five-mile radius, no patient has ever been denied timely access.”

The Ninth Circuit panel rejected the plaintiff’s arguments, stating, “the rules are rationally related to Washington’s legitimate interest in ensuring that its citizens have safe and timely access to their lawful and lawfully prescribed medications.”

This article is not intended as legal advice and should not be used as such. When legal questions arise, pharmacists should consult with attorneys familiar with the relevant drug and pharmacy laws.

Ned Milenkovichis co-chair of the Health Law practice at Much Shelist PC and vice chair of the Illinois State Board of Pharmacy. Contact him at 312-521-2482 or at nmilenkovich@muchshelist.com.