Conscience Tug-of-War in Washington
State Pharmacy Board: ‘The original ruling stands.’
BY ELENOR K. SCHOEN
| Posted 2/22/11 at 2:02 PM
OLYMPIA, Wash. — The Washington State Pharmacy Board has decided not to amend a controversial ruling on pharmacists’ ability to refuse to fill prescriptions.
The board, which reports directly to Gov. Christine Gregoire, had issued a regulation requiring all pharmacists to fill all legal prescriptions, including Plan B, the so-called emergency contraceptive that is also an abortifacient. On July 7, 2010, the board suggested it might consider allowing pharmacists to refer patients to nearby pharmacies rather than fill objectionable prescriptions.
The board’s reconsideration was prompted by the possibility of an expensive three-year legal battle over the issue of conscience rights, according to the state attorney general’s spokeswoman, Janelle Guthrie.
Previously, Judge Ronald Leighton of the U.S. District Court of the Western District of Washington ruled to temporarily halt enforcing the Pharmacy Board regulation.
The plaintiffs in the case are Kevin Stormans, co-owner of Ralph’s Thriftway in Olympia, and two other pharmacists, Rhonda Mesler and Margo Thelen, who are represented by The Becket Fundfor Religious Liberty, along with Kristin Waggoner and Steve O’Ban of the Seattle firm Ellis, Li, & McKinstry, PLLC.
The Becket Fund specializes in these cases, as a non-partisan, public interest law firm, “dedicated to protecting the free expression of all religious traditions.”
Judge Leighton said the rule would “target religious practice in a way forbidden by the Constitution” and “intentionally place a significant burden on the free exercise of religion for those who believe life begins at conception.”
State attorneys then appealed to the 9th U.S. Circuit Court in July 2009 to lift the injunction. The circuit court believed pharmacists need to follow the board’s ruling, but also found that Washington attorneys failed to demonstrate that abortion-inducing drugs like Plan B weren’t already easily accessible.
With the decision to possibly amend the rule, Leighton postponed the case in order to allow “the Pharmacy Board time to complete its rule-making processes.” He added that he would “lift the stay and set trial on an expedited basis” if the plaintiffs believed that the proposed rules “do not allow them to engage in … referral [rather than] stocking or dispensing Plan B.”
The Nov. 4, 2010, public meeting of the Pharmacy Board to decide on amending the rule was watched carefully by Planned Parenthood and members of the National Organization for Women, physicians from across the state, the Washington State Pharmacy Association and various Catholic and Christian organizations.
The board members’ discussion on amending the rule was based in part on public comments, according to the Board of Pharmacy minutes. Motions were presented for a vote after discussion.
The first motion deferred any decision to amend the 2007 rule until the next meeting in December 2010, following a meeting with the Department of Health and the governor in order “to reach a better understanding of the views that have developed since the adoption of the current rules.” This motion failed to pass. A second amended version of the motion also failed to pass.
Assistant Attorney General Melissa Burke-Cane told the board that since the lawsuit was proceeding, their decision should be based “on their regulatory responsibility to protect the public.”
Burke-Cane said that the board should ask: “What minimum standard for pharmacists and pharmacies can the board craft that will improve access beyond what is reached by its current rules?”
Dan Connelly then moved that “the board continue with the option to change the rule” at the following December meeting. The motion was passed.
At the December meeting, voting followed the discussion by board members. Rebecca Hille moved that the board keep the Pharmacy Board’s 2007 ruling as originally written, closing the rule-making process. The motion passed, with one opposed and one abstaining.
Donn Moyer, a Washington Department of Health spokesman, stated that “there was no reversal” from the board’s original ruling.
“The board voted to end the rule-making inquiry because the existing rule is effective as it is … rule-making isn’t necessary. That’s what the board decided,” he explained.
With the decision of the board to retain the regulation as originally written, the three plaintiffs asked and were granted a trial date of Nov. 28, 2011, in Tacoma Federal Court, presided by Judge Leighton.
Gov. Gregoire seemed happy with leaving the board’s ruling as is, saying that she “could not support a ruling that would limit a patient’s access to medication.”
“The Pharmacy Board made a good decision,” she added.
Plan B and Ella
Karen Brauer, president of Pharmacists for Life International, disagrees.
Brauer believes the governor and Washington Pharmacy Board are “out of touch with actual pharmacy practice,” as exemplified by the Plan B pill.
“This is the rare prescription drug (outside of some antidotes) which is now being required [to be available] at pharmacies, a standard [not applied] to most life-saving drugs,” she noted.
“The odd prioritization of an optional drug shows the extreme politicization … of the Washington Board of Pharmacy,” she stated.
All pharmacies may eventually be required to dispense “a list of 200 time-sensitive drugs,” she explained. If this were enforced, “all pharmacies would be burdened with additional costs for this unfunded mandate. Even hospitals are not required to offer a full range of life-saving prescriptions,” she stated.
The FDA has just approved another medication, Ella, as a “morning-after pill.” Ella is chemically similar to RU-486, which causes a chemically induced abortion in later-stage pregnancies but was never meant to be used immediately following sexual activity, as Plan B is. With Ella, there is no required medical supervision, Brauer stressed, unlike the requirements for taking RU-486.
“It will be interesting to see how the Washington State Board of Pharmacy addresses this,” Brauer remarked.
“The facts about Plan B’s mechanisms of action have been withheld from women by the FDA and their compatriots in the abortion industry,” Brauer said. With pharmacists refusing to dispense these pills, this should be a warning to women “to make informed choices about their birth control.”
“Pharmacists for Life International pray for the success of Washington pharmacists opposing this decision by their pharmacy board,” she concluded.
“A health-care provider is not a morally blind automaton, providing any service for which a patient lays claim and will purchase,” said Marie Hilliard, director of bioethics and public policy for the National Catholic Bioethics Center in Philadelphia. “Such a model of health care can lead to catastrophic patient abuses whereby drugs and health-care procedures are for sale.”
Insisting that pharmacists “fill every legally valid prescription — this provides for no due diligence on the part of the pharmacist, endangering public safety,” Hilliard said.
But Washington State has an additional problem, she said: “When the right of conscience of a health-care provider is violated, especially where assisted suicide is legal, what is legal is interpreted as something that now is ethical, enabling an ensuing assault on human dignity and human life in the name of the law.”
In a July 9, 2009, article
in First Things, attorney and author Wesley Smith uncovered a little-noticed section of the 2008 Washington state assisted-suicide law under its “immunities section.”
The law states that “providers” are not required to “participate” in an assisted suicide. But the law “narrowly defines the meaning of participation,” he said.
It exempts from participation attending physicians, consulting physicians and counselors, but not those “dispensing the lethal prescription or filling out the forms required of pharmacists,” Smith emphasized.
“Ironically, one professional role pharmacists are supposed to play — which is why they do far more than merely count pills into bottles — is to protect patients from receiving prescriptions that could conflict with other prescribed drugs, resulting in their deaths,” he noted.
Smith, senior fellow in human rights and bioethics at the Discovery Institute and consultant for the International Task Force on Euthanasia and Assisted Suicide, advocates exempting pharmacists from forced participation — “in essence, a conscience clause,” he proposes.
“Otherwise, pharmacists who don’t want the figurative blood of suicidal patients on their own hands will be forced to leave the profession, or at least, leave the state,” Smith stresses. “Of course, that is precisely what assisted-suicide advocates would like.”
Register correspondent Elenor K. Schoen writes from Shoreline, Washington.
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