Judges strike broad ban on Washington's Plan B rules

OLYMPIA — A federal judge overreached when he sided with religious-freedom arguments to block Washington state's rules mandating the sale of "morning-after" birth control, appeals judges said Wednesday.

The unanimous ruling from a three-judge panel of the 9th U.S. Circuit Court of Appeals sends the politically thorny case back to U.S. District Court for further review.

The case revolves around the drug Plan B, a contraceptive that can greatly reduce the chances of pregnancy if taken within 72 hours of unprotected sex.

Some pharmacists and drugstore owners say they can't sell the pills in good conscience because they consider the effect on potential pregnancies too similar to abortion.

Plan B contains a high dose of a drug found in many regular birth-control pills and prevents ovulation or fertilization of an egg.

It also may prevent a fertilized egg from implanting into the uterus, although recent research suggests that is unlikely. Plan B is not the abortion pill RU-486.

Plan B is available without prescription to adults, and over-the-counter sales for 17-year-olds are expected to be approved soon.

Purchasers must ask for Plan B at the pharmacy counter and show identification with their date of birth. Anyone too young to qualify for over-the-counter sales needs a prescription.

In 2007, regulators on the state Pharmacy Board ruled that pharmacies could not refuse to sell a lawful product because of moral or religious beliefs.

Developing the rules became a pitched political battle, with Gov. Chris Gregoire at one point publicly warning she might replace board members who didn't follow her wishes on the issue. Her administration worked out the compromise rule that was adopted.

Individual pharmacists were given a limited way around selling Plan B: passing the sale to another employee in the same store, provided the patient's order was filled without delay.

But that left few options for a lone pharmacist or for a pharmacy owner who has moral objections to a particular drug.

Two druggists and an Olympia pharmacy owner sued the state before the new rules took effect, arguing their constitutional rights were being violated.

U.S. District Judge Ronald Leighton, of Tacoma, suspended the rules statewide while the lawsuit was considered, citing the potential for "irreparable injury" to constitutional protections of religious freedom.

But Wednesday, a 9th Circuit panel led by Judge Kim Wardlaw ruled that Leighton's injunction was based on the wrong legal tests and was far too broad.

The district court may issue a new injunction when it reconsiders the religious-freedom arguments, but it should apply only to the case's plaintiffs and their employers, not the entire state, appeals judges said.

"There is no evidence that every pharmacist in the state of Washington considers dispensing Plan B to be a breach of their religious or moral values, and it is unlikely that this is the case," Wardlaw wrote.

The 9th Circuit did not rule on the plaintiffs' claims under other laws, including the Constitution's equal-protection clause, because the injunction was tied solely to the religious-freedom issue.

Chad Allred, an attorney for the plaintiffs, said the ruling was expected. Allred said an order from the district court earlier this year spelled out what would happen next in the event the 9th Circuit overturned the previous injunction.

"All of the plaintiffs' claims are still alive."

Gregoire spokesman Pearse Edwards said the governor hadn't read the ruling yet but "appreciates that the ruling reinforces the value of the doctor-patient relationship and access for all to care that they need."