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Originally published Wednesday, February 22, 2012 at 12:48 PM

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Judge: State can't make druggists sell Plan B contraceptive

Pharmacists will not be required to sell Plan B or other emergency contraceptives. A federal judge ruled Wednesday the requirement infringed on the religious freedom of pharmacists who believe life begins at conception.

The Associated Press

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TACOMA — Washington state cannot force pharmacies to sell Plan B or other emergency contraceptives, a federal judge ruled Wednesday, saying the state's true goal has been 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 sided with a Ralph's Thriftway pharmacy and two pharmacists who said state rules requiring them to dispense Plan B violate their constitutional rights to freedom of religion because such drugs can prevent implantation of a fertilized egg, which they consider equal to abortion.

Washington's rules require that pharmacies stock and dispense drugs for which there is a demand. The state adopted the dispensing regulations in 2007, after reports that some women had been denied access to Plan B, which has a high dose of medicine found in birth-control pills and is effective if a woman takes it within 72 hours of unprotected sex.

State lawyers argued that the requirements are legal because they apply neutrally to all medicines and pharmacies, and because 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 the rules. Pharmacies can decline to stock a drug, such as certain painkillers, if it's likely to increase the risk of theft, requires too much paperwork, or is temporarily unavailable from suppliers, for example.

"The most compelling evidence that the rules target religious conduct is the fact the rules contain numerous secular exemptions," the judge said. "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."

Elaine Rose, chief executive officer of Planned Parenthood Votes Northwest, said the issue was never about Plan B specifically but about the rights of patients. "Really, this is a blow to access for all patients," she said.

"The real issue is when a person walks into a pharmacy with a prescription for a legitimate, legal medication, whether they are going to have that filled by the person behind the counter," Rose said. If any pharmacist or pharmacy can object to dispensing a drug, she said, "Where is this going to stop?"

The state rules have technically been in effect during the long trial process, but state officials agreed with the judge not to pursue any emergency-contraceptive complaints against the plaintiffs pending the trial's end, said Department of Health spokesman Donn Moyer, and to consult with the judge before pursuing similar complaints against other pharmacies or pharmacists.

The decision comes as contraception is being debated in political and health-care circles around the nation. This month, religious groups protested a new federal rule requiring church-affiliated universities, hospitals and nonprofits to include birth control in their insurance plans.

The outcry prompted President Obama to change the rule to shift the burden from religious organizations to insurance companies. Lawmakers in a few conservative states have fashioned proposals that serve as direct challenges to Obama's ruling.

Leighton, in his decision Wednesday, did not strike down Washington's rules, but said the way they were applied to the plaintiffs was unconstitutional.

He also said the state was enforcing its rules selectively, never having taken action against Roman Catholic hospitals, whose inpatient pharmacies give Plan B only to sexual-assault victims and whose outpatient pharmacies don't stock the drug at all.

The state remains free to try to enforce the law against other pharmacies that violated the stocking and dispensing rules for Plan B or other drugs; it's not clear whether courts would reach a similar conclusion if pharmacies objected to selling other drugs for religious reasons.

"I remain concerned about the impacts on patients if pharmacies are allowed to refuse to dispense lawfully prescribed or lawful medications to patients," said Gov. Chris Gregoire, who insisted on the dispensing rule's adoption. "I am especially concerned about those living in rural areas, many of whom may have few alternatives and could suffer lengthy delays in receiving medication or go without entirely."

The judge, an appointee of President George W. Bush, first blocked the state's dispensing rule in 2007. But a 9th U.S. Circuit Court of Appeals panel overruled him, saying the rules did not target religious conduct. It sent the case back to Leighton, who held an 11-day trial before reaffirming his original decision.

Further appeals were expected, both from the state and from groups that intervened on the state's behalf. Before taking more than an hour to read his 48-page opinion in court, Leighton acknowledged that he crafted it for the benefit of a "skeptical" appeals court.

The interveners included women who were denied timely access to Plan B when they needed it — one of whom cut short a vacation 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 interveners.

Assistant Attorney General Rene Tomisser said Leighton's ruling was more detailed but made the same mistake he made in 2007.

Margo Thelen, of Woodland, Cowlitz County, 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 can continue 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."

Seattle Times health reporter Carol M. Ostrom contributed

to this report.

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