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Spokane, Washington  Est. May 19, 1883

Pharmacists lose Plan B pill ruling

They cited religious belief in not dispensing ‘morning after’ drug

Carol J. Williams Los Angeles Times

Pharmacists are obliged to dispense the Plan B pill, even if they are personally opposed to the “morning after” contraceptive on religious grounds, a federal appeals court ruled Wednesday.

In a case that could herald judicial policy across the Western states, a supermarket pharmacy owner in Olympia failed in a bid to block 2007 changes to pharmacy regulations requiring all Washington pharmacies to stock and dispense the contraceptive.

Family-owned Ralph’s Thriftway and two women employed at other pharmacies sued Washington state officials to assert that their Christian beliefs prevented them from dispensing the pills that can prevent implantation of a recently fertilized egg. They claimed the new regulations would force them to choose between keeping their jobs and heeding their religious objections to a medication they regard as a form of abortion.

Ralph’s owners, Stormans Inc., and pharmacists Rhonda Mesler and Margo Thelen sought protection of their First Amendment right to free exercise of religion and won a temporary injunction from the U.S. District Court in Seattle pending trial of the constitutionality of the regulations. That order prevented state officials from penalizing pharmacists who refuse to dispense Plan B as long as they referred consumers to a nearby pharmacy where they could get it.

On Wednesday, a three-judge panel of the 9th U.S. Circuit Court of Appeals lifted the injunction, saying the district court was wrong in issuing it based on an erroneous finding that the rules violate the Free Exercise Clause of the Constitution.

Other constitutional challenges are pending with the district court, which had been waiting for the 9th Circuit ruling on the injunction, said Chad Allred, a Seattle lawyer whose firm represents Stormans Inc. and the pharmacists. In anticipation of the injunction being vacated, Stormans and the two pharmacists secured an agreement with the state not to pursue sanctions against them until the other issues are decided at trial, Allred said.

“We’re still optimistic that we’re doing the right thing and that we will prevail in the end,” said Kevin Stormans, who with his father and two siblings owns the supermarket at the center of the legal challenge.

The 9th Circuit ruling, however, means that the requirement that pharmacies stock and dispense Plan B takes immediate effect, said Joyce Roper, an assistant state attorney general.

While the courts have yet to rule on other aspects of the pharmacists’ lawsuit, the unanimous ruling on the Free Exercise Clause could portend concurring judgments as the case moves forward that a patient’s right to timely medication supersedes an individual pharmacist’s personal convictions.

The three judges found common ground despite broadly differing outlooks: two conservatives named by President George W. Bush and a liberal named to the court by President Bill Clinton made up the panel.

The right to freely exercise one’s religion “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” the 9th Circuit panel wrote.

“Any refusal to dispense – regardless of whether it is motivated by religion, morals, conscience, ethics, discriminatory prejudices, or personal distaste for a patient – violates the rules,” the panel said.