Wash. to appeal over emergency contraceptives

OLYMPIA — State officials announced Wednesday they will appeal a federal judge’s ruling that Washington state cannot force pharmacies to sell Plan B or other emergency contraceptives.

Gov. Chris Gregoire issued a statement announcing the action, saying she “fully supports” the appeal that will be filed by the office of Attorney General Rob McKenna on behalf of the state Department of Health and the state Board of Pharmacy.

“Any decision that puts patients at risk by delaying or denying them lawful and lawfully prescribed medications should be carefully reviewed by a higher court,” Gregoire said in a written statement.

Washington’s rules require that pharmacies stock and dispense drugs for which there is a demand. The state adopted the dispensing regulations in 2007, following reports that some women had been denied access to Plan B, which has a high dose of medicine found in birth-control pills and is effective if a woman takes it within 72 hours of unprotected sex.

U.S. District Judge Ronald Leighton said in his ruling last month that the state’s true goal in adopting the rules at issue was not to promote the timely access to medicine, but to suppress religious objections by druggists who believe that such drugs can have an effect tantamount to abortion.

State lawyers argued that the requirements are legal because they apply neutrally to all medicines and pharmacies, and because they promote a government interest — the timely delivery of medicine, including Plan B, which becomes less effective as time passes.

But a pharmacy and two pharmacists sued, saying the rules infringed on their religious freedom, and the judge agreed.

Leighton, however, noted that the state allows all sorts of business exemptions to the rules. Pharmacies can decline to stock a drug, such as certain painkillers, if it’s likely to increase the risk of theft, or if it requires an inordinate amount of paperwork, or if the drug is temporarily unavailable from suppliers, among other reasons.

His ruling did not strike down Washington’s stocking and dispensing rules for pharmacies, but said simply that the way they were applied to the plaintiffs in this case was unconstitutional. The appeal of his ruling has been filed to the 9th Circuit Court of Appeals.

The judge, an appointee of President George W. Bush, first blocked the state’s dispensing rule in 2007. But a 9th Circuit Court of Appeals panel overruled him, saying the rules did not target religious conduct. It sent the case back to Leighton, who held an 11-day trial before reaffirming his original decision.

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