JURIST - Paper Chase: Federal judge finds Washington emergency contraception law unconstitutional

[JURIST] A judge for the US District Court for the Western District of Washington [official website] ruled [opinion, PDF] Wednesday that requiring pharmacies to sell Plan B and other emergency contraceptives violates the pharmacists' constitutional right to freedom of religion. Under Washington law [WAC § 246-869-010] pharmacies are required 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. Judge Ronald Leighton wrote, "[T]he rules are facially constitutional—they do not on their face require or permit discriminatory conduct. It is in their operation that the rules force a pharmacy to choose between compliance with the delivery and stocking rules and employing a conscientious objector as a pharmacist." The state argued that the requirements were legal because they applied neutrally to all pharmacies and served a government interest. The pharmacies urged, and the court agreed, that the true goal was to suppress religious objections as evidenced by the secular exemption language in the law. This ruling did not strike down the law, and the state remains free to enforce the law [AP report] against violations by other pharmacies.

In 2007, a district court decision blocked the law [JURIST report] ruling that it violated pharmacies' and pharmacists' First Amendment [Cornell LII backgrounder] rights. That decision was overruled [JURIST report] in 2009 by the US Court of Appeals for the Ninth Circuit [official website] because the injunction was overbroad. Plan B [product website; JURIST news archive] has been the subject of considerable legislative and judicial activity since the FDA approved access to the drug in 2006. Last December, a federal judge for the US District Court for the Eastern District of New York [official website] revived a six-year-old lawsuit [JURIST report] over the Plan B contraceptive. In March 2009, a federal judge in New York overturned an FDA policy [JURIST report] 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 [official website] 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.