Ninth Circuit upholds Washington state rule requiring dispensing of Plan B contraceptive

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Wednesday upheld [opinion, PDF] the state of Washington's mandates prohibiting patient discrimination and requiring that pharmacies deliver lawfully-prescribed, approved medications. Under the rules, pharmacists are not required [WAC § 246-863-095 text] to dispense medication if they personally object to it, but will be subjected to professional discipline for destroying or refusing to return an unfilled lawful prescription, violating a patient's privacy, or discriminating against or harassing a patient. Pharmacies will be required [WAC § 246-869-010 text] to deliver lawfully prescribed medications or devices and to distribute drugs and devices approved by the US Food and Drug Administration (FDA) [official website] in a timely manner. A pharmacist's personal objections to dispensing a particular drug may be "accommodated" in any way that the pharmacy decides is suitable, excluding referring the patient to another pharmacy. The ruling reverses a district court decision [JURIST report] that the rules violated pharmacies' and pharmacists' First Amendment [Cornell LII backgrounder] rights, asserting that the lower court incorrectly applied a heightened level of scrutiny to the laws and that the injunction issued was overbroad:

Because the rules are neutral and generally applicable, the district court should have subjected the rules to the rational basis standard of review. The district court instead introduced a heightened scrutiny to a neutral law of general applicability, contrary to the rule of Smith and Lukumi. When a law is neutral and generally applicable, the rational basis test applies. ... Under rational basis review, the rules will be upheld if they are rationally related to a legitimate governmental purpose. ... [I]t appears that the new rules are rationally related to Washington’s legitimate interest in ensuring that its citizen-patients receive lawfully prescribed medications without delay.
Although the rules apply to all prescribed medications, the suit focused on the availability of Plan B [product backgrounder], a post-coital emergency contraceptive, which is supposed to be taken within 24 hours of sexual activity to be fully effective. Due to concerns over pharmacists' refusals to dispense prescribed medications and the importance of timely access, the Washington State Board of Pharmacy [official website] promulgated the rules in 2007.

Plan B has been the subject of considerable legislative and judicial activity since the FDA approved nonprescription access to the drug in 2006. In March, a federal judge in New York overturned [order, PDF; JURIST report] an FDA policy that limited the nonprescription availability of the drug to women over the age of 18. In March 2008, a federal judge in the US District Court of the District of Columbia dismissed [JURIST report] a lawsuit brought by a physicians' group against the FDA seeking to overturn approval of the over-the-counter sale of Plan B. In October 2007, Illinois pharmacists considered a settlement [JURIST report] to a dispute over a state law that would have required them to dispense the Plan B pill regardless of their moral objections to the contraception.

 

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