Judge: Druggists may withhold "morning-after" pill

A federal judge has suspended controversial state rules requiring pharmacies to dispense so-called "Plan B" emergency contraceptives, saying the rules appear to unconstitutionally violate pharmacists' freedom of religion.

The rules appear to force pharmacists to choose between their own religious beliefs and their livelihood, Judge Ronald B. Leighton of the U.S. District Court in Tacoma wrote Thursday.

Some pharmacists believe the emergency contraceptive pills, also called "morning-after pills," are tantamount to abortion because they can in some cases prevent implantation of a fertilized egg.

"Whether or not Plan B ... terminates a pregnancy, to those who believe that life begins at conception, the drug is designed to terminate a life," the judge wrote in a 27-page order granting a preliminary injunction.

Thus, Leighton said, the current rules "appear designed to impose a Hobson's choice for the majority of pharmacists who object to Plan B: dispense a drug that ends a life as defined by their religious teachings, or leave their present positions in the state of Washington."

Under Leighton's order, pharmacists may now refuse to dispense the medication but must refer a patient to "the nearest" or "a nearby" source for the drug.

State officials said it was too early to say whether they would appeal.

"This is a complex issue with a complex ruling," said Donn Moyer, a state Department of Health spokesman. "We're certainly going to talk to our lawyers."

Trial scheduled next year

The injunction was issued in a federal lawsuit filed against the state in late July by pharmacists and the owner of Ralph's Thriftway in Olympia, who objected to providing Plan B to customers. A trial is still scheduled to be heard before Leighton next October.

The state regulations, passed in July, required pharmacies to dispense Plan B and allowed individual pharmacists to opt out only if a co-worker on hand in the same pharmacy could do the job.

Those rules were meant as a compromise after long, contentious hearings and intervention by Gov. Christine Gregoire, who threatened to replace members of the Board of Pharmacy who didn't vote to protect women's rights.

Gregoire and other supporters said the rules were meant to keep pharmacists from imposing their personal religious or moral views upon patients by barring access to valid, legal prescriptions.

But opponents of the rules argued that pharmacists, like other health providers, should be able to refuse to provide a service that they object to on conscience or religious grounds.

At the core of the debate is a fundamental disagreement on whether Plan B can terminate a pregnancy.

If taken within 72 hours of unprotected sex, the drug usually works by preventing ovulation or fertilization. It won't terminate an established pregnancy, but in some cases it could prevent implantation of a fertilized egg in the uterus.

That doesn't constitute abortion under current law, but it does under some religious standards.

In his injunction, Leighton said no evidence has been presented that anyone in Washington has ever failed to obtain Plan B within the 72-hour window because of pharmacists' or pharmacies' refusals.

Outrage from some

Nonetheless, women's-rights advocates quickly condemned Leighton's decision.

"I think this is another step on the assault on women's rights to control our own bodies," said Helen Gilbert, an activist with the group Radical Women. "If [pharmacists'] beliefs are in conflict with doing this job, then they should do a different job."

State Sen. Karen Keiser, D-Kent, vowed that the Democrat-controlled Legislature would take up a bill to require pharmacists to dispense the pills.

"It is unconscionable that we would allow pharmacists to deny women access to a legal form of birth control," Keiser said. "We need to take this issue out of the courts and into state law."

But C.J. Kahler, a longtime independent pharmacy owner and former president of the Washington State Pharmacy Association, a private trade group, said the judge was right to suspend the current rules.

"I think the rules that the Board of Pharmacy enacted made pharmacists choose between their livelihoods and their deeply held moral and religious beliefs," Kahler said. In most cases, the rules worked well, but in smaller, owner-operated pharmacies, where only one pharmacist was employed, "he was pushed into the corner," Kahler said.

Rod Shafer, the current CEO of the trade group, said that allowing pharmacists or pharmacies to refer patients to other pharmacies protects the rights of both patient and pharmacist.

"I thought [the judge] did a great job, reviewing all the legal precedents, looking at the issue not only from the pharmacists' viewpoint but the patient's viewpoint," Shafer said.

But others were not so sure the injunction would have any real immediate effect.

The "vast majority" of pharmacists in the state are "ardent supporters" of Plan B access, said Don Downing, an associate professor of pharmacy at the University of Washington.

And because Plan B can now be sold over the counter to most women and men 18 or older, he said, most people can get it without a pharmacist.

Carol M. Ostrom: 206-464-2249 or costrom@seattletimes.com