Pharmacy Board Reverses Itself on Pharmacists’ Right of Conscience Case

(photo: Mark Blinch / Reuters)

OLYMPIA, Wash. — In a stunning reversal, the Washington State Pharmacy Board has decided to allow pharmacists with conscientious objections to filling certain prescriptions to merely refer patients to other nearby pharmacies.

On July 7 Judge Ronald Leighton of the U.S. District Court of the Western District of Washington said that state attorneys had asked that the trial, due to start two weeks later, be postponed “to allow the Pharmacy Board time to complete its rulemaking processes” in rewriting the regulation in question.

The original controversial rule was passed by the board in 2007. It states that a pharmacist must fill a patient’s lawful prescription, even if he has a moral objection to complying. The only alternative is to have another on-staff pharmacist, who does not object, dispense the drug.

On Nov. 8, 2007, Judge Leighton ruled in favor of Kevin Stormans, co-owner of Ralph’s Thriftway in Olympia, and two other pharmacists, Rhonda Mesler and Margo Thelen, temporarily halting enforcement of the Washington State Pharmacy Board regulation threatening pharmacists’ conscience rights, which forced them to fill prescriptions for Plan B, an “emergency contraceptive” that can also cause very early abortions.

In granting the injunction, Leighton 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.”

He said that “the regulations appear to target religious practice in a way forbidden by the Constitution” and “appear to intentionally place a significant burden on the free exercise of religion for those who believe life begins at conception.”

State attorneys appealed to the Ninth U.S. Circuit Court in July 2009 to lift the injunction. But the three-judge panel found that Washington State attorneys failed to demonstrate that abortion-inducing drugs, such as “Plan B,” weren’t already easily available.

But the court also stated that the pharmacists would likely have to abide by the state board’s rule, forcing pharmacists to sell Plan B, even though it violated their consciences.

Luke Goodrich, an attorney with The Becket Fund, which has provided legal counsel for the pharmacists, reacted to the Circuit Court ruling, saying: “No Americans should be forced out of their profession solely because of their religious beliefs.

“The government should accommodate and protect the fundamental rights of all members of the medical profession, not punish some members because of their religious beliefs,” he added.

Surprised Planned Parenthood

The reversal caught Planned Parenthood by surprise. Elaine Rose, CEO of Planned Parenthood’s Washington political arm, said that she was “completely bewildered and baffled” by the moves by the board and its lawyers. She pointed out that in settling a lawsuit “you don’t just completely do a 180, and backtrack, [giving] the other side everything they want.”

But the State decided the last thing it wanted was a lengthy court fight.

The decision to reverse course on the regulation was prompted by a realization that this legal battle could continue for another three years or more, according to State Attorney General Rob McKenna’s spokeswoman, Janelle Guthrie.

She added that the board had already been considering changing the regulation in order to speed up access to medications by referral. Board vice chairman Albert Linggi agreed, saying that the present ruling made it “financially not viable” to insist that “pharmacies stock every drug that’s on the market.”

The Pharmacy Board will begin the rulemaking process which consists of public hearings allowing reactions in support of or objecting to the rule change, possibly taking up to nine months to complete. But it is unlikely that the board will decide to leave the regulation as is.

When the Pharmacy Board voted unanimously on June 29, it reached a legal agreement with board members, their attorneys and the pharmacists, stipulating that, by this vote, the board intends “to adopt a rule allowing facilitated referrals for all pharmacies and pharmacists out of stock, or unable or unwilling to stock or timely deliver or dispense, lawfully prescribed medications on-site to their patients for any reason, including for conscientious reasons.”

Linggi said he believes the board will favor giving pharmacists that permission.

Reinforcing that belief, Judge Leighton, in agreeing to a postponement, ruled that: “This court will lift the stay and set trial on an expedited basis upon plaintiffs’ request at any point in the future if plaintiffs reasonably believe at any time during the rule-making process that the proposed rules do not allow them to engage in a facilitated referral instead of stocking or dispensing Plan B.”

Best Possible Outcome

Reacting to the news of the Pharmacy Board’s reversal of its policy, Marie Hilliard, director of bioethics and public policy for the National Catholic Bioethics Center, stated: “We applaud the Washington pharmacists for taking such a stand in defense of conscience.”

Hilliard explained that “legal protection of conscience for all citizens has been the bedrock of our society.” She noted that when an earlier repressive regime used laws to force health care providers to violate conscience, it faced justice at the Nuremberg Trials.

“Laws only reflect the will of the people at any one time; and since they often change, they are no barometer of what constitutes ethical health care practice,” she noted.

Stormans, the pharmacy owner who is one of the plaintiffs in the original lawsuit, remarked recently that he was “cautiously optimistic.”

“If (the Pharmacy Board) end up with what they are indicating they want to do, then this will satisfy our lawsuit,” Stormans said. “There will likely be several [public] hearings,” which he hopes “will not have a negative effect on the board. But time will tell.”

Stormans said that he wasn’t sure why “the board chose to change course and look at adopting this rule,” but he added: “They are in place to protect the interests of the consumer…and the referral process is in the best interest of the consumer, in getting the product they need in a timely fashion, which the board has indicated that they believe as well.”

Hilliard explained the issue from an ethical standpoint, saying: “The proposed rules are not just in reference to a situation in which one will not dispense a medication, but also situations in which one cannot because of unavailability of a medication. Thus, a general policy, that provides for a ‘transfer of care’ to include both scenarios, would be morally licit.”

“One is not asking someone else to carry out an act that one finds morally objectionable, but to transfer care to another provider,” she concluded.

Stormans believes that this approach will work for all pharmacists and pharmacy owners, adding: “After all, this is how it has been handled for years and years.”

Elenor Schoen writes from Shoreline, Washington.