Trial over Plan B prescriptions begins Monday

OLYMPIA — A four-year legal fight over who must provide “morning-after” contraceptives such as Plan B lands in a federal courtroom Monday, testing Washington state Pharmacy Board rules requiring pharmacies to dispense any medication for which there is a community demand.

At issue in the U.S. District Court trial is the right of the Ralph’s Thriftway pharmacy in Olympia, and two licensed Washington pharmacists, Margo Thelen and Rhonda Mesler, to refuse to stock or dispense a lawful medical treatment on grounds of religious conscience. Plan B is considered most effective in preventing an unwanted pregnancy if a woman takes it within 72 hours after unprotected sex.

The state Pharmacy Board has had a rule since 1967 requiring pharmacies to stock and provide medications that are in demand in their communities. Gov. Chris Gregoire and reproductive-rights groups favor the requirements, which have been amended since 2007 to let pharmacists withdraw if others can fill the order.

But Stormans Inc., owner of Ralph’s, also is objecting to stocking the medications.

“All our family wants is the chance to keep doing what Ralph’s Thriftway has aimed to do for four generations: to serve our customers in keeping with our deepest values,” Kevin Stormans, a co-owner of Stormans Inc., argued in a news release issued last week by The Becket Fund for Religious Liberty in Washington, D.C.

The Becket Fund, which is handling the case for Stormans and the pharmacists, describes itself as “a non-profit, non-partisan law firm that protects the religious liberty of all faiths.” Also on the legal team are lawyers Kristen Waggoner and Steve O’Ban with Seattle-based law firm Ellis, Li &McKinstry.

Staffers for Attorney General Rob McKenna, led by senior attorney Rene Tomisser, are defending the Department of Health, agency Secretary Mary Selecky, and the state law, which applies to all medications including those to treat AIDs or any other condition that might draw moral objections.

“The state will argue the rules are neutral, generally applicable and rationally relating to the legitimate interest of the state in promoting timely delivery of lawful medication. The plain language of the rules applies to all time-sensitive medications,” said Janelle Guthrie, a spokeswoman for McKenna, a Republican.

Former state schools chief Judith Billings, who in 1996 announced that she has AIDS, is listed as an intervener in the case on the state’s side, contending the state must ensure that lawful medications are available to those who need them. Also with an interest in seeing the state’s side prevail are women’s-law groups and reproductive-rights groups such as Planned Parenthood Northwest and NARAL.

The federal courts have taken differing positions on some of the legal issues at hand. A federal judge in Tacoma, U.S. District Judge Ronald Leighton, initially issued an injunction blocking the state’s rules and their enforcement against Stormans Inc., but the 9th Circuit Court of Appeals in San Francisco reversed that ruling in 2009.

Those who support the dispensing of Plan B say it is a high dose of the ingredients of a birth-control pill that greatly reduces the chance of pregnancy if ingested by a woman within 72 hours of unprotected sex. The Food and Drug Administration in 2009 ordered that it be available over the counter for teens as young as 17, but with prescriptions for those who are younger.

FDA also says the medication does not affect existing pregnancies, unlike the RU-486 drug, but it has said the medication might act to prevent a fertilized egg from implanting in the womb.

Kevin Stormans has been undeterred and at one point explained that his firm was not stocking the medications, despite state law, based on his belief that Plan B can act as an abortion agent.

As outlined by Becket’s news release, “The plaintiffs … have religious objections to dispensing Plan B and ella,” another morning-after medication. “Their religious beliefs forbid them from dispensing these drugs because they can operate by preventing the implantation of a fertilized egg, thus destroying a human embryo.”

The Becket Fund describes the case as landmark, and it is likely to work its way up the appellate courts before the disagreement is settled legally.

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