MOBILE
Judge says Wash. can’t make pharmacies sell Plan B
Andrew Greene, an attorney representing H.I.V. patients who intervened on behalf of Washington state in a court case to determine if Washington state can force pharmacies to sell Plan B or other emergency contraceptives, talks to reporters, Wednesday, Feb. 22, 2012, in Tacoma, Wash., after a federal judge ruled that Washington state may not require pharmacies to sell the contraceptives.
February 22, 2012 2:53 p.m. - Updated: 2:56 p.m.
TACOMA, Wash. (AP) — Washington state cannot force pharmacies to sell Plan B or other emergency contraceptives, a federal judge ruled Wednesday, saying the state’s true goal was to suppress religious objections by druggists — not to promote timely access to the medicines for people who need them.
U.S. District Judge Ronald Leighton heard closing arguments earlier this month in a lawsuit that claimed state rules violate the constitutional rights of pharmacists by requiring them to dispense such medicine. The state requires pharmacies to dispense any medication for which there is a community need and to stock a representative assortment of drugs needed by their patients.
Ralph’s Thriftway in Olympia, Wash., and two licensed Washington pharmacists sued in 2007, saying that dispensing Plan B would infringe on their religious beliefs because it can prevent the implantation of a fertilized egg, an act they equate with taking human life.
The state argued that the requirements are legal because they apply neutrally to all medicines and pharmacies, and that they promote a government interest — the timely delivery of medicine, including Plan B, which becomes less effective as time passes.
But Leighton ruled that the state allows all sorts of business exemptions to that rule. Pharmacies can decline to stock a drug, such as certain painkillers, if it’s likely to increase the risk of theft, or if it requires an inordinate amount of paperwork, or if the drug is temporarily unavailable from suppliers, among other reasons.
The decision comes as contraception has been debated in political and health care circles around the nation. A controversy erupted earlier this month when religious groups protested a new federal rule that required church-affiliated universities, hospitals and nonprofits to include birth control without co-pays or premiums in their insurance plans.
Their opposition led President Barack Obama change the rule to shift the burden from religious organizations to insurance companies. Lawmakers in a few conservative states have taken up the fight with proposals that serve as direct challenges to Obama’s ruling.
Leighton, in his decision Wednesday, said that if Washington state allows exemptions for non-religious reasons, Leighton said, it must also allow them for religious or moral ones.
“The most compelling evidence that the rules target religious conduct is the fact the rules contain numerous secular exemptions,” Leighton ruled. “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.”
He did not strike down the rules, but said simply that the way they were applied to the plaintiffs in this case was unconstitutional. The state remains free to try to enforce the law against other pharmacies that violated the stocking and dispensing rules, whether for Plan B or other drugs.
The judge blocked the state dispensing rule in 2007, finding that it would violate the plaintiffs’ freedom of religion. But a 9th U.S. Circuit Court of Appeals panel overruled him, saying that he applied the wrong legal standard and that the rule appeared constitutional because it was neutral and did not directly target religious views.
The appellate court sent the case back to Leighton, telling him to apply the correct standard. He held an 11-day trial to flesh out the matter, and said that he was issuing his ruling with the benefit of a more complete understanding of the rules than the 9th Circuit judges had.
Further appeals were expected, both from the state and from groups that intervened in the case on the state’s behalf. The interveners included women who were denied timely access to Plan B when they needed it — one of whom cut short a vacation in central Washington to return home to Bellingham, where she knew she could obtain Plan B from her regular pharmacy — as well as HIV patients who argued that if druggists could refuse to dispense Plan B for religious reasons, some might also refuse to dispense time-sensitive HIV medications.
“The question really is whether the patient’s rights come first or the pharmacist’s rights come first,” said Andrew Greene, a lawyer for the intervenors.
Assistant Attorney General Rene Tomisser said Leighton’s ruling made the same mistake he made in 2007 when he determined that the laws were not neutral or generally applied.
“This is more detailed, with the same error being made,” Tomisser said.
Margo Thelen, of Woodland, one of the pharmacists who sued over the rules, said she had to leave one job because she refused to dispense Plan B — and now she can continue working at her new job without fear of being fired.
“Speak to anyone who shops in a pharmacy,” she said. “Their product isn’t always available.”
At the early February trial, Leighton said the contraceptive issue is more important than many other freedom-of-religion cases, such as those concerning religious dress or other ceremonial matters.
Plan B had been at the center of the state’s decision in 2007 to adopt the Washington Board of Pharmacy’s dispensary requirements. The drug, which has a high dose of medicine found in birth-control pills, is effective in preventing pregnancy if a woman takes it within 72 hours of unprotected sex.
Individual pharmacists were allowed to pass a prescription to another druggist in the same store, provided the order is not delayed. But that leaves no option for a lone pharmacist or a pharmacy owner with religious objections to a particular drug.
The pharmacists argued they can easily and quickly refer customers to nearby drug stores willing to sell the drug, but women’s rights groups said that may not be the case in rural areas. It might also be difficult for those with disabilities if their pharmacists decide not to dispense it for personal reasons, they said.
Well this is going to cause misj to vapor lock…
LOL
I dont get why anyone thinks a private business has to sell any item if they dont want to. I bet if a black bookstore owner was forced to sell david duke autographed copies of his feelings, they would say no.
This is no different.
Who cares? These mom & pop places like the one mentioned in the story are dinosaurs anyway…Walgreens, CVS, Rite-Aid and all of the national retail chains are putting them out of business.
BTW: I wonder if the pharmacy in the story sells rubbers. If so, Catholics ought to be boycotting it for the same reasons.
Loudin
Won’t stand and it shouldn’t. It’s bi-ness, not religion. Should a greasy spoon run by a catholic tell some satan worshipers they won’t be served? Or what about a skinhead pharmacy refusing to sell antibiotics to blacks? If your business is in the public realm then you leave your religion at home.
Personally, I think this is a bad deal… However I understand what people are thinking.
To me, any pharmacy that has certain moral or religious reasons to not carry or dispense certain drugs, should have to advertise that fact. Then people can make an educated choice.
However, I also see some serious potential side effects of this ruling (yeah, pun intended). This can be a real slippery slope…
Who’s to say that on moral grounds I find that religion X is against my beliefs, and as a business owner, I choose to not serve anybody who is a member of that religion.
OR
Perhaps I am an strict member of X church and we find homosexuality to be abhorent. Can’t I then say, that my moral and religous beliefs mean you are not allowed to come into my restaurant. I refuse to serve you, based on your sexual preference and my religious morals.
BUT
Lets not forget that there are still many fundamentalist organizations that see black people as inferior. What’s to stop members from discriminating against blacks in their communities, but this time it’s based on religious and moral grounds.
Sad, but this is where we are heading as a country… We are masking our prejudices in a religous/moral cloak.
Hey, maybe this could work to my advantage. Personally find the tea party to be reprehensible and I object to them on moral grounds. So, I think I will sue the government and ask them to not allow the TP to openly demonstrate or meet on any public property where I am at.
Stupid? I don’t know… The current GOP, teaparty and Fox are really pushing the limits of “separation of church and state”. I can guarantee they will use this ruling as a banner.
WHS
I don’t really care. They can follow their consciences while I follow mine and spend my money elsewhere.
No shirt-No shoes-No cervix
Once again the bible thumpers win. What ever happened to separation of church and state. You shouldn’t be a pharmacist if you can’t or wont do your job. If you have a problem dispensing drugs that make you feel bad, maybe you should be something else. When I was an animal control officer there were some officers that did not like cats or snakes or whatever - they were still required to pick up all stray or injured animals they were assigned. It’s very interesting this judge claims the state only wanted to suppress religious ideologies. No bias there. It’s almost as bad as the law in Texass that says a woman wanting an abortion has to have a sonogram given by a doctor and then wait 24 hours after the test to still get the abortion. The idiot who came up with the bill said he only wanted to ensure everyone gets good medical care - riiight. Even though sonograms of any other nature do not require a doctor to even be present. Religious hypocrisy at its finest.
This one’s clearly headed to the USSC. I side with the state, only because pharmacy is licensed profession, which is very much like a regulated monopoly in that in return for being granted a government-enforced monopoly on selling certain products, the members of the profession agree to accept a level of regulation that would be unconstitutional otherwise. Restaurants and grocery stores, for example, not being given any sort of exclusive right to sell food, are largely free to sell or not sell whatever food they want to whomever they want, so long as they’re not denying service to a protected class. The latter rule is enforced by the feds, who have the interstate commerce clause and preemption to back them up.
For any profession, state licensing can be a Faustian bargain. Yes you get to curtail competition, but you also have to accept tight regulation.
The judge, in fact, didn’t question the state’s right to regulated pharmacists. His judgment is based on the fact that they allow many exemptions for secular reasons, so this particular requirement singles out religion. I tend to think this is the wrong fight to pick on both sides. Since only a few small-time pharmacists refuse to stock this drug, it’s hard to claim that anyone is really being harmed by their refusal. I think their moral objections are legitimate, but I think as members of a licensed profession they have to obey state law. This issue has every indication of being a needless pissing contest between “women’s rights” and “religious nuts” (or between “abortionists” and “right to life” if you prefer) where very little is really at stake but both sides are convinced that if they don’t achieve a total victory they will start down a slippery slope to total loss. It may be more about re-fighting old battles than doing anything that’s actually helpful to anyone.
Diana is absolutely correct in her succinct response to this ruling. It’s all about freedom, people, which includes the freedom NOT to patronize a store if we don’t want to.
Diana…sounds like a true American…an R is you will.
This is a very big and important case. Obama should notice it and see what’s coming his way.
And Manly I agree…you don’t like it…don’t buy it. Nobody can force you into buying something you don’t want…sound familiar??
Well done Courts!
Thayne,
How do the bible thumpers win? What if it were Islamic people and they were forced to sell pork? Or black Americans forced to sell KKK memorabilia? Would that be OK? Why should any private business be forced to sell any product? They cant discriminate about who they sell to, but should be able to pick what they sell and dont sell.
Diana has the right of it. If you disagree, dont do business with them. I dont buy Dave Mathews CD’s anymore because he is a hypocrite, and i dont agree with his hypocritical views. That wont stop others though, and i dont care.
Religious Wacko’s at it again. Religion is the worst thing ever thrust upon mankind responsible for more death destruction and divisiveness than anything ever created,not to mention the oppression of Women and on and on. just look at the current crop of GOP candidates running for head preacher who want to turn our democracy into a theocracy. idiots all of them and an embarrassing laughing stock to much of the world. personally I wish for once a candidate would come out and say he’s an Atheist and doesn’t believe in fairy tales. it’s sad that whoever runs must claim to believe in one or the other B.S. religions to be considered. is this the 21 century or the 13th? you have to wonder
“…just look at the current crop of GOP candidates running for head preacher…”
Thanks for that, I just about snorted Old Vine Zin through my nose!
; )
Because their profession is that of a regulated monopoly, which reduces the public’s choices and increases the public’s costs. In return for these none-to-small inconveniences, the public gets some say-so over how they run their “private” businesses. The Muslim butcher needn’t sell pork, because there are plenty of other places people can buy pork.
That, at least, is the argument in favor of the State’s power to dictate to pharmacists what they must sell. The judge’s decision, though, is based entirely on the fact that there are numerous other examples of drugs that the state allows pharmacists the option of not selling for all kinds of reasons. If the State hadn’t allowed all those other options, it appears that the “plan B” requirement would have been allowed.
Perhaps the argument to the USSC will come down to whether the right to religious freedom trumps any state professional licensing provisions.
As far as the legal challenges go, it seems like only the pharmacists have “standing” to bring a suit, since they can claim to be harmed by being forced to act against their religion. If the law was the other way around, I think it would be hard for anyone to have standing to sue the state for NOT requiring pharmacists to provide “plan B”. They’d have to prove that they’d been harmed, in some way that translates into money, which would be tough since no matter where they lived, they could easily go to some other pharmacy that would sell them the drug.
Pharmacists are LICENSED health care providers.
If their “consciences” prevent them from providing such care…..they should consider a career choice.
Or get a cardboard sign an a good freeway off-ramp.
None of Leighton’s stated exemptions are comparable to the subject at hand, and there is no mention of what evidence he based his ruling on (i.e. that there is some anti-religion conspiracy).
What a crap ruling. Maybe when Leighton gets denied medication or services because of someone’s conscientious objection, then he will get a clue.
No PlanB…Leighton can go to another pharmacy. We like choices….we don’t like being forced to do anything. No monopoly….and this surely isn’t a monopoly. You don’t like it, buy it elsewhere. Simple Constitutional protection.
It amazes me the lack of respect for human life at its most vulnerable stage. Everyone thank your mothers for making the choice to have you if you were born post Roe v Wade.
Plan B should be available for purchase with age verification at ANY STORE.
Adults don’t need a prescription to obtain Plan B!
There are a HELL of lot of other VERY DANGEROUS products for sale in all kinds of stores.
Puritanism, please, just go the heck away.
Leighton can go to another pharmacy, unless he is in an area without alternatives and he has no time constraints. Guess he doesn’t deserve to live if he hasn’t planned ahead. And Dazz, remember that at some point you or someone close to you may very well be denied medication or services because some numnuts has an objection. But that would be ok, right?
Article:
“’The question really is whether the patient’s rights come first or the pharmacist’s rights come first,’ said Andrew Greene, a lawyer for the intervenors.”
Er, no. The patient has no right that others supply him with medications, or anything else (other than a fiat right invented by the State, of course). Others are not her slaves or handmaidens. The pharmacist, on the other hand, has a natural right to carry any product he wishes, fort any reason he wishes, as long as it is not contraband, just as does any other merchant. Pharmacists are not agents or servants of the State and have no duty to advance the collectivist agenda of populist demagogues.
So there is no question of whose rights come first. There is only one right involved – that of the pharmacist.
WHS wrote,
“Who’s to say that on moral grounds I find that religion X is against my beliefs, and as a business owner, I choose to not serve anybody who is a member of that religion.”
You’d be perfectly within your rights. Of course, I’m speaking of real rights here, not fiat rights conjured from thin air by the State.
Why aren’t the republicans going after vasectomies? And condoms? Those prevent babies also, or is it because those are geared to males and it’s the women’s right to choose that the republicans really hate.
oneanddone wrote,
“If your business is in the public realm then you leave your religion at home.”
No business is “in the public realm,” unless it has a contract with the State. They are all in the private realm. They are all private property owned by private individuals who wish to do business with other private individuals. They are not departments or agents or servants of the State. They may do business or decline to business with anyone they please, for any reason they please.
In a free country, at least.
Thayne wrote,
“You shouldn’t be a pharmacist if you can’t or wont do your job.”
What is a pharmacist’s job is for the pharmacist to decide, not you and not the State. He is not your servant, your employee, or your slave. You get to decide for only one person what is his job – you.
Diana wrote,
“I don’t really care. They can follow their consciences while I follow mine and spend my money elsewhere.”
Excellent comment, Diana. The pharmacist has no duty to serve you, and you have no duty to patronize his business.
RedCedar wrote,
“Because their profession is that of a regulated monopoly, which reduces the public’s choices and increases the public’s costs. In return for these none-to-small inconveniences, the public gets some say-so over how they run their ‘private’ businesses.”
You have the cart before the horse, Red. There is no justification for such regulated monopolies in the first place. Regulated monopolies are justifiable only when free competition is economically unfeasible. That is not the case with pharmacies.
PlanB wrote,
“Maybe when Leighton gets denied medication or services because of someone’s conscientious objection, then he will get a clue.”
What makes you think you have a “right” to the services of others?
Every person has a right to deny his services to anyone, for any reason. Pharmacists do not “owe* services to anyone, any more than does anyone else.
This is EMERGENCY contraception.
Time is of the ultimate essence in using this product.
17 year-olds and above NEED NO PRESCRIPTION to get this drug.
No other non-prescription medication not subject to recreational abuse is held hostage by a pharmacist.
PlanB should be available, OVER the counter, in ANY store capable of enforcing the age restriction.
If the only pharmacy within 60 miles doesn’t stock this EMERGENCY product, a woman may in fact become pregnant unless she has the means and time to travel to a pharmacy that does stock the product.
Greenlibertarian2nd:
Apparently you are as illogical and sophomoric a writer as Greenlibertarian the original….
Some grocery stores stop selling pseudoephed a few years ago when it was being used by drug dealers to make meth. No one yelled “hey it is a legal substance; I have my rights!!!!” The big bad Gregoire administration didn’t come in and say “YOU WILL SELL THIS PRODUCT OR ELSE!!!”
No one said “WHAT if people who live sixty miles from store can’t get pseudoephed; their noses could run…time is of the essence….”
This entire court case was nothing more than typical liberals attempting to dictate their will and values upon others using the force of government. The courts called it right.
IF one lives sixty miles from a vendor of products, one should preemptively prepare before engaging in activity that might require those products…duh.
It is called being responsible for ones actions; a concept foreign to children and liberals alike…
========
Gmorton was correct…Diane had a great comment.
I stopped shopping at Jones Pharmacy when the pharmacist owner made a big deal about emergency contraception and PLAN B… Linda was a huge advocate of post conception chemical assassination of human zygotes. She thought she could clean up by making sure everyone new that this “emergency” contraception was available at HER store…
She was force to sell out due to a huge drop in business; within a few short years, Jones Pharmacy closed for good….despite being in the same shopping area with a very popular and busy grocery store…. that doesn’t have a pharmacy…
Vote with your feet folks….
Is it any wonder why our state is cutting education funding when we have a governor who is so hell bent on forcing her beliefs on others….
ALL the money spent on this court case by the state could have been spent on educating children.
Good riddance frau Gregoire…..
greenlibertarian2nd wrote,
“This is EMERGENCY contraception.”
It most certainly is not. An “emergency” is a situation in which life or property is in imminent danger of death or destruction. A possibility that a woman will become pregnant is not such a situation.
Moreover, even if it were an emergency, that possibility imposes no obligation on pharmacists to prepare for it, any more than the possibility that someone will suffer a heart attack imposes a duty on you to trade in your SUV for an ambulance, just in case you encounter such a situation.
” . … a woman may in fact become pregnant unless she has the means and time to travel to a pharmacy that does stock the product.”
Well, then, if she is worried about that possibility, perhaps she should be sure she has an ample supply of PlanB in her purse before she sets out for her evening adventure, instead of forcing unwilling pharmacists to rush to her rescue. Hmmm?
liberal_in_right_wing_land wrote,
“Why aren’t the republicans going after vasectomies? And condoms?”
Why not address the real issue?
No one is “going after” PlanB. No one is proposing to ban PlanB, or forbid pharmacists from selling it. The subject here is despotism – forcing merchants to engage in a business of which they disapprove.
There is a word for forcing people to perform work they do not wish to perform – “slavery.” Perhaps you’ve heard of it.