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Washington State Pharmacies: The Next Frontier for Religious Freedom?

A court battle in the Pacific Northwest has opened another front in the fight over religious liberty, raising questions over whether pharmacies are legally obligated to provide patients with emergency contraception despite moral objections.

Plaintiffs in Washington state are challenging a mandate that pharmacists not refer customers elsewhere because of religious objections to drugs like the so-called
morning-after pill. The state, thought to have the most restrictive policies in the nation, also requires that pharmacies stock a representative assortment of drugs – such as the pill – to meet patients’ needs. And with the country’s renewed focus on religious freedom in the wake of a
Kentucky clerk’s denial of same-sex marriage licenses, the debate could ripple to other states – particularly if the case ends up before the Supreme Court.

“The opponents to religious liberty keep escalating their demands,” says Douglas Laycock, a law and religious studies professor at the University of Virginia School of Law. “People who are offended by religious opposition to emergency contraception may bring political pressure to enact such rules despite the lack of any need for them.”

The U.S. in recent weeks has been grappling with where to draw the line when it comes to issues of religious freedom, with much of the focus on same-sex marriage.

In September,
Kim Davis, a Kentucky county clerk, was
jailed after refusing to issue marriage licenses to same-sex couples because she said it violated her religious beliefs.

Unlike Davis, pharmacists aren’t employees of the state. And while they wouldn’t be thrown in jail for refusing medication on the basis of religious objections, they could lose their jobs or be forced to shutter their businesses.

The plaintiffs in the Washington state case are two pharmacists and Stormans Inc., a family-owned company that operates a grocery store containing a pharmacy. The group first won an injunction against the regulations in federal court, then saw the ruling reversed by the U.S. Court of Appeals for the 9th Circuit. The Becket Fund for Religious Liberty – the same firm that won private businesses the
right to deny employees health coverage for some methods of contraception – plans to petition for Supreme Court review, and will likely hear a decision about whether the court will take the case by spring.

The plaintiffs oppose dispensing Plan B and another emergency contraception pill, ella, because they say the medications can prevent a fertilized egg from attaching to the wall of a woman’s uterus, which they liken to an abortion. Planned Parenthood and other groups have disputed this description of Plan B in particular, which they say is outdated and has been proved inaccurate by multiple studies, although the label the Food and Drug Administration approved for Plan B and the drug’s website say the drug “may also work” by preventing implantation. A
brochure for ella also states it’s “possible” the drug works by preventing implantation.

“For the plaintiffs, it’s a matter of life and death,” says Luke Goodrich, the Becket Fund attorney representing the group. “Not everyone shares their view of life and death, but to them, even if there is a risk, they don’t want to be involved.”

Often in states where individual pharmacists oppose certain medications, pharmacies make provisions for someone else on staff to provide them, or allow pharmacists to refer patients to a nearby pharmacy when they are working alone. The Washington regulations don’t prohibit individual pharmacists from refusing to dispense the drug because of religious objections, as long as someone else at the same pharmacy can fill the prescription.

But while a pharmacy may refuse to carry emergency contraception because it cannot make enough of a profit from the drug, it is not allowed to refuse to carry it due to an owner’s religious beliefs – which is the case at the Storman store. In their defense, the Stormans say clients have never been denied timely access to emergency contraception because employees have connected women with one of other multiple pharmacies nearby, and have even called ahead to secure the drug.

[READ: U.S. Teens Waiting Longer to Have Sex: CDC]

Planned Parenthood – which supports the state’s position and lobbied former Washington Gov. Christine Gregoire for passage of regulations prohibiting so-called conscience-based referrals starting in 2005 – argues that the time-sensitive nature of the medication is paramount, so women should be able to get it right away. The group also says it would be difficult for a woman who is disabled to travel to more than one pharmacy, and notes rural areas often don’t have pharmacies that are close together.

What’s more, the group says, allowing refusals and deferrals on the basis of religious objections could stretch further: A pharmacist also could refuse to provide lifesaving medication to a
patient with HIV who is gay, for example, or could refuse needles to an unsavory-looking patient who has

“There is going to be a tension there. In our view, the balance falls in favor of the patient who needs a medication,” says Laura Einstein, chief legal counsel for Planned Parenthood of the Great Northwest. “It’s better for women’s health if there are laws or regulations on the books where there is a statement by the regulatory agency that it’s a priority that women’s health care needs are met.”

But the American Pharmacists Association, the Washington State Pharmacy Association and 33 other pharmacy groups support the plaintiffs, saying in a friend-of-the-court
brief that pharmacists should be able to exercise their rights of conscience and calling Washington’s regulations “truly radical” and “grossly out of step with state regulatory practice.”

Laycock says the arguments posed by Planned Parenthood and supporters of the state’s regulations are hypothetical at best.

“If a particular pharmacy is locally a monopolist – the only one for 30 miles – then there is something to that argument,” Laycock says. “But for the bulk of Americans that isn’t true. It’s a version of, ‘We have all the rights and the other side has no rights.'”

He adds that pharmacies don’t stock all drugs on the market for a variety of reasons: They may lack enough storage space, or a drug simply may not be in high demand. Goodrich also points out that Walgreens pharmacies in the state don’t accept new patients from
Medicaid, the government’s program for low-income Americans – a move he says equates to turning down poor people.

“The regulations allow pharmacies to refer to all kinds of reasons as long as it’s not religious reasons,” Goodrich says.

Also, Washington state’s
Death with Dignity law specifically carves out a health care provider’s right not to help terminally ill patients induce their own death. And earlier this year, leading pharmacist trade groups
took steps to discourage their members from providing drugs that could be used in capital punishment, though states do not force pharmacies to do so.

“The difference is political,” Laycock says. “We all agree those are killings, but we don’t all agree that abortions are killing and we don’t all agree that Plan B is an abortion.”

Einstein says she thinks the Supreme Court has been clear on cases like this.

“I understand why there is sympathy when you hear about a pharmacist who might lose her job because she doesn’t want to dispense a drug and there’s another pharmacy down the street,” she says. “While people have a right to their religious beliefs, they don’t have a right if the state decides their religion is detrimental to their citizens. The individual pharmacist matters but the general public good is equally if not more important.”

Pharmacies must abide by state laws and regulations, which vary and are written by state lawmakers and by state pharmacy boards. The laws generally provide guidance about why a pharmacist can refuse to dispense a particular drug. A pharmacist could notice, for instance, that an interaction with another drug could be harmful, or that the dosage prescribed is incorrect. Or he or she could refuse to provide a painkiller out of suspicion that a
patient is abusing opioids.

In fact, a
report emerged this year of a woman who needed to take
misoprostol – which can be used to induce an abortion – after a miscarriage, but was denied by a Wal-Mart pharmacist who reportedly didn’t know why the woman would need the drug. (Misoprostol can also be prescribed for the treatment of ulcers, and when its purpose is for abortion it is typically dispensed at a provider’s office.) While Wal-Mart said the denial wasn’t for a reason of conscience, the incident offers insight into what patients can struggle with internally when seeking medication a pharmacist might object to.

A similar case to the one in Washington came to an end three years ago in Illinois, when an appeals court ruled in favor of two pharmacists arguing against an executive order issued by former Gov. Rod Blagojevich that required all pharmacists to sell Plan B. Though the National Women’s Law Center has
collected reports of pharmacists refusing to refer patients elsewhere for drugs because of religious beliefs, the majority of those cases occurred before Plan B became available over the counter and without age restrictions.

One of the plaintiffs in the Washington case lost her job because there wasn’t always another pharmacist to dispense emergency contraception, and another individual plaintiff could have to transfer to a pharmacy in another state depending on the case’s outcome. If the Supreme Court takes up the case and rules against the plaintiffs, the state will revoke the pharmacy license of the family owned company.

According to the National Women’s Law Center, eight states explicitly require pharmacists or pharmacies to provide medication to patients, and seven allow refusal but say pharmacists cannot obstruct a person’s access to medication. Six states have laws or regulations that specifically allow pharmacies or pharmacists to refuse medications for religious or moral reasons.

Laycock says both sides in the religious freedom debate tend to take an “all or nothing” approach, and that the mutual vitriol between Planned Parenthood and some religious Americans doesn’t help.

“Both sides in the culture wars want to have everything they want with no inconvenience,” he says. “The only way we can have the rights of all Americans protected is to seriously consider the objections of both sides.

“Each side thinks the other’s concerns count for zero. They both have to count.”

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