The Washington Board of Pharmacy is considering doing a 180 on rules the group established in 2007, which said pharmacies must fill all legal prescriptions, including emergency contraception.
Currently “any patient who walks into a pharmacy with a legal prescription must be able to walk out with their medication,” says Lisa Stone, Executive Director of Legal Voice (formerly the Northwest Women’s Law Center).
(To be clear: Under the current rules, individual pharmacists can refuse to fill prescriptions due to conscientious objections, but the pharmacies themselves must fill the scrip.)
The new proposal backs off the mandate on pharmacies, setting up a compromise known as a “facilitated referral”—which means that if the pharmacy doesn’t want to fill your prescription (or even stock certain medication), they don’t have to, provided they refer you to another pharmacy that will.
The proposal is troubling to Stone and other woman’s rights groups such as Planned Parenthood, not only because it lowers the current standard but because it may undermine an ongoing federal court case (which was trending in their favor) that could have locked the Board’s higher standard in place.
For three years, the Board of Pharmacy (along with the Washington State Department of Health, the Attorney General and Stone’s women’s legal rights group) have been defending the 2007 standard against a lawsuit from Olympia’s Stormans Inc. and two individual pharmacists. The renegade pharmacists claimed the 2007 Pharmacy Board rules infringed on their First Amendment freedom of religion by forcing them to dispense emergency contraception.
The trial was set for July 26 in Federal District Court in Tacoma. And things looked good for the state. After the District Judge in Tacoma, Judge Ronald Leighton, issued an injunction against the new rules back in 2007 pending his decision on the case itself, the state (along with Stone’s Legal Voice) appealed his injunction to the the 9th Circuit Court of Appeals.
Tossing the injunction last summer, the appeals court specifically upheld the Board of Pharmacy rules, saying they were “neutral” (meaning they didn’t discriminate against anyone); that they served a legitimate need (getting women their legal prescriptions); and they didn’t upend anyone’s First Amendment religious freedoms. The government can limit religious conduct when it believes that conduct threatens a larger public good, like public health. And that is what the higher court concluded about the Board of Pharmacy rules.
But, with an eye on reaching a settlement (according to Karen Jensen, Assistant Secretary for Health Systems Quality Assurance at the Department of Health), DOH (which oversees the Board of Pharmacy) and their counsel, the attorney general, collaborated with their longtime adversaries at Stormans and filed what is called a “stipulation” with Judge Leighton asking for a delay until the Board of Pharmacy works out the new rules. (Here’s a copy of their filing with the District Court.)
Presumably, the new rules would avert the need to duke it out in court. “A settlement is always preferable to going to court,” Jensen told PubliCola when pressed to explain why the board was suddenly reassessing its rules.
Not true, according to Stone. “They snatched defeat from the jaws of victory,” she says, speculating that if Leighton had ruled in favor of Stormans—which seemed likely, given his earlier injunction—the state could have appealed to the sympathetic higher court. “Two weeks ago we were sharing witnesses and legal strategy with the state,” Stone says, “and today, they pulled the rug out from under our clients.”
With a settlement, not only will Stone’s clients—women who have been denied emergency contraception—squander an affirmation from the 9th Circuit (the previous ruling will become “irrelevant” according to Stone), but judging from the stipulation filed in District Court, the new Board of Pharmacy Rules will lock in rules which weaken access to health care.
The stipulation outlined the Board’s new proposal:
Specifically, the Board intends to adopt a rule allowing facilitated referrals for all pharmacies and pharmacists out of stock or unwilling to stock, or timely deliver or dispense lawfully prescribed medications on site to their patients for any reason, including for conscientious reasons.
Jensen would not address the substance of the new proposal, saying only that the health department was committed to full access to legal prescriptions.
“They are not committed to full access,” says Elaine Rose, CEO of Planned Parenthood, who was stunned at the notion of a settlement. “Not with a rule that makes someone travel 30 miles away get their medication. Why would you settle for something that backs away from the rules we’ve got in place?” (Planned Parenthood is also a party in the suit.)
Governor Chris Gregoire, an advocate for access to emergency contraception who brokered the compromise between dissident pharmacists and women’s groups in 2007 to arrive at the original rules—doesn’t have a problem with revisiting the scrip standards per se, according to her spokesman Viet Shelton, as long as there is a thorough public process that ultimately “maintains, or even improves, the access of the current rules, particularly for low-income and rural communities.”
But, Shelton said, Gregoire has “concerns” about the new language both because it “seems to imply a preordained outcome” and because that preordained outcome scales back access.
Shelton says Gregoire was not consulted about the state’s legal move, which could be a sore spot given that AG Rob McKenna—who already famously defied Gregoire by suing the feds over health care reform—signed off on the stipulation for the delay.
It’s worth pointing out that AG Rob McKenna is a big supporter of Steve O’Ban, who’s running for state House against incumbent Democrat Troy Kelley (D-28, West Tacoma, Lakewood, University Place). O’Ban, an attorney with Ellis, Li & McKinstry, is Stormans’ attorney. McKenna spoke at O’Ban’s kickoff.
McKenna’s office has not returned a call for comment.
AG Rob McKenna at O’Ban’s kickoff
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I am shocked, shocked to hear that Rob McKenna is once again using his office to undermine the will of state voters and undermine the intended advisory role of his office in the service of a radical right-wing agenda.
I just don't understand how anyone accepts the ridiculous arguments in this case. Religious objections should not apply to actually fulfilling the job responsibilities of being a pharmacist.
After all, a medical professional can also harbor religious objections to homosexuality or personal objections to non-white people, but that doesn't allow them to deny medical care to a lesbian black woman.
And I assume AG McKenna and others wouldn't publicly take a stand to allow that care to be denied. So why should we allow that here?
“Religious objections”
I do believe, contrary to popular belief, that one could be against this and not be religious.
One could even have personal objections.
No! Not allowed!
The strangest aspect of all is that anyone could think that the state could require any private entity to carry any particular item to sell.
What a totally bizare concept. It's kinda like requiring gas stations to sell tires.
You don't like what a private pharmacy sells, one way of the other?
Then take it on down the road to one that meets your needs.
The state wants to settle because they know they would lose. Let's not forget that Gregoire and Gregoire alone threatened to fire all the board members who, in 2007, refused to require pharmacies to carry any particular product. As a result, they caved as written in the article. But the outcome was obvious from the start.
Amazing. Leftsits are only pro-choice for abortions. Anything else, und uo VILL do vat da shtate demands!
Sheesh.
Unfortunately, there is no precedent as far as medical professionals (i.e., doctors/nurses, etc.) being forced to treat any patient who walks in the door. If the patient is a bleeding/breathing emergency (about to die without treatment), then they must be treated. If not, the medical professional can refuse “service”. They are not compelled to take anyone as a patient. Most people who bring prescriptions to pharmacies are not in emergency situations (about to die). I don't like someone being refused a prescription, but the situations are just not comparable. However, the Pharmacy board could decide that individual pharmacists must fill all prescriptions. Obviously, they don't want to do that. Thus, religious discrimination wins again.
No, it's not kinda like requiring gas stations to sell tires — which, of course, the government does not do.
It's kinda like the government saying that if you choose to operate a gas station, you may only carry these particular octane levels of gasoline. Or you have to pay this particular percentage in tax for the gas sold.
“Thus, religious discrimination wins again.”
You had me up until that.
Do we really want to live in a country in which our government can tell a store what it must stock on its shelves? That kind of power inevitably leads to corruption.
Government licenses pharmacies so apparently the governor believes that it may also tell them what to stock. This is a lazy and coercive approach to meeting a very real medical need – in this case emergency contraception. If your pharmacy doesn't carry the product you want, go to one that does. If no pharmacy in your community carries that product, the government can designate any entity it wants to dispense the medication. For example, let Planned Parenthood dispense it in communities without a willing pharmacy. That kind of solution makes sure the need is met without trampling on anyone's civil rights.
There are lots of ways to meet most of society's needs. Government doesn't have to resort to coercion or threats. In this case, let women who want the contraception get it from willing providers – and make sure each community's health care system has willing providers.
Frankly, it isn't rocket science.
It isn't rocket science, but it is a drug.
“let Planned Parenthood dispense it” means that the Pharmacist's knowledge of interactions, etc is discounted.
If we don't need them for this, we don't need them for anything.
Let's dump them in favor of Redbox, but if things don't go as planned we can't sue, but can only get our dollar back.
of course, you're going from the assumption that Planned Parenthood, for instance, is in all rural communities, and that the person in need has the physical ability (after being raped, for instance) and mode of transportation to get herself to such a place that might be hundreds of miles away.What a heartless group of people some of you are. It's really a disgrace to think that someone at the level of a pharmacy has the right to pass moral judgement and go counter to what is lawful and prescribed by a doctor. Who are you anyway?
I went into a WSLCB store yesterday, wanted to buy a bottle of Potocki, Polish Rye Vodka, but they didn't have any, the franchisee said they don't stock it, and won't be – their decision. Now, since they're the only licensed sellers of alcohol in the State, I assumed they MUST have it – Mustn't they? So do I have a law suit in the making? I want it, they have to sell it.
That's the great article! I just pass 'n read it, two thumbs up!