Judge blocks birth control rule

Gene Johnson / The Associated Press /

Published Feb 23, 2012 at 04:00AM

TACOMA, Wash. — 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 sided with a 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 destroy 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, following 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.

Other exceptions

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, or if it requires an inordinate amount of paperwork, or if the drug is temporarily unavailable from suppliers, among other reasons.

“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.”

The decision comes as contraception has been debated in political and health care circles around the nation. A controversy erupted 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.

The outcry prompted President Barack Obama to 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, did not strike down Washington’s 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; it remains unclear whether courts would reach a similar conclusion if pharmacies objected to selling other drugs for religious reasons.