TACOMA, Wash. — Pharmacists’ right to exercise their conscience won a victory, even if it proves to be short-lived.
On Nov. 8, a federal judge in Tacoma, Wash., ruled in favor of a pharmacy owner and two pharmacists, temporarily halting enforcement of a Washington State Pharmacy Board regulation threatening pharmacists’ right of conscience. Some pharmacists saw the regulation as compromising their profession by forcing them to fill Plan B prescriptions.
According to Jim Ramseth, a pharmacist in Covington, Wash., for the last 40 years, it was cause for celebration. “This is big,” he said. “We are professionals that use our whole ethical being to make our decisions.”
Ramseth emphasized that “if our freedom of religion or conscience is prohibited, that’s against what our country was built on.”
Under the injunction, which is in effect until a trial in October 2008, both pharmacies and pharmacists may refuse to dispense the contraceptive drug, but they must also “immediately refer the patient either to the nearest source, or nearby source, of Plan B.”
In granting the injunction, Judge Ronald Leighton of the U.S. District Court for the Western District of Washington stated that “on the issue of Free Exercise of Religion alone, the evidence before the court convinces it that plaintiffs, individual pharmacists, have demonstrated both a likelihood of success on the merits and the possibility of irreparable injury.”
“This is a much broader issue than Plan B,” Dan Kennedy emphasized. As CEO of Human Life of Washington, he was part of an effort to support the pharmacists. “Both our right and our duty to act according to our conscience is a foundational principle of liberty. …This is an issue that no American can be apathetic about.”
Judge Leighton admitted that the evidence provided in the case pointed to an “overriding objective of the [pharmacy board] regulations … to eliminate moral and religious objections from the business of dispensing medication … [which imposed] a Hobson’s choice for … pharmacists who object to Plan B: Dispense a drug that ends a life as defined by their religious teachings, or leave their present position in the state of Washington.”
Kristen Waggoner, attorney for the pharmacy owner and pharmacists in the lawsuit, explained that the state “cannot target the pharmacists on their deeply held religious beliefs, forcing them to choose between their faith and their livelihood.”
She further stated that a legal injunction, as handed down by the federal court in the case, “is hard to get.” The court had to be convinced that the case could “win on First Amendment grounds” once it went to trial. “That’s huge,” she declared.
Judge Leighton’s written decision offered an explanation of why it is “huge.” He wrote that “the principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in United States Supreme Court opinions.” He emphasized that any state law which intends to discriminate against individuals because of their religious practices or beliefs “is subject to strict scrutiny.”
Nonetheless, State Sen. Karen Keiser, D-Kent, vowed that the Democratic-controlled Washington Legislature would take up a bill to require pharmacists to dispense the pills.
Most state officials were not as eager to say whether they would appeal.
“This is a complex issue with a complex ruling,” said Don Moyer, a state Department of Health spokesman. “We’re certainly going to talk to our lawyers.”
Concern for Access
The defendants in the case insisted that it was always a matter of access to medication. As attorney for the state, Paul Lawrence --— a board member of the American Civil Liberties Union and past president of ACLU of Washington — claimed during oral arguments in September that the focus of the regulation was, in fact, freedom of access. Perceived threats to the right of conscience were merely “an incidental effect,” he declared.
But the judge pointed to the lack of evidence “that anyone in the state of Washington has ever failed to obtain Plan B within the 72-hour window of effectiveness because one or more pharmacists/pharmacies refused to fill a lawful prescription for Plan B.”
Don Downing, associate professor of pharmacy at the University of Washington, appeared to agree when he said that the “vast majority” of pharmacists in the state are “ardent supporters” of Plan B. Now that it can be sold over the counter, most people won’t even need the help of a pharmacist in obtaining the drug.
The most recent threat to pharmacists’ conscience rights occurred in early November when New Jersey Gov. Jon Corzine signed a bill into law threatening pharmacists who refuse to set aside their personal beliefs and dispense drugs like Plan B.
Other cases have dealt with lawsuits concerning wrongful firing by employers, such as the case against Wal-Mart Stores in Illinois. Unlike Washington’s case, the Illinois lawsuits do not affect an executive order from Gov. Rod Blagojevich in 2005 requiring all pharmacists to fill any prescription for a legal drug, even if they cause an abortion.
The American Center for Law and Justice sued Walgreens, Wal-Mart and Blagojevich on behalf of seven pharmacists claiming the governor’s ruling violated pharmacists’ constitutional and statutory rights under the Illinois Health Care Right of Conscience Act.
The state of Illinois agreed this year that the governor’s rule “does not apply to individual pharmacists, and that the state will never apply it to individual pharmacists.” Pharmacy owners must solve any conflicts with the ruling. An attorney in the case suggested a settlement allowing pharmacies the option to work with an off-site pharmacist, filling Plan B prescriptions for pharmacists unwilling to do so.
In March 2007, the Iowa Board of Pharmacy Examiners scrapped a regulation change recognizing the pharmacists’ conscience rights when a local Planned Parenthood clinic organized a protest. Pharmacists have lost their jobs in Illinois, Texas and Wisconsin for their refusal to dispense Plan B.
Elenor Schoen is based in