Currently "any patient who walks into a pharmacy with a legal prescription must be able to walk out with their medication," says Lisa Stone, Executive Director of Legal Voice (formerly the Northwest Women's Law Center).
(To be clear: Under the current rules, individual pharmacists can refuse to fill prescriptions due to conscientious objections, but the pharmacies themselves must fill the scrip.)
The new proposal backs off the mandate on pharmacies, setting up a compromise known as a "facilitated referral"—which means that if the pharmacy doesn't want to fill your prescription (or even stock certain medication), they don't have to, provided they refer you to another pharmacy that will.
The proposal is troubling to Stone and other woman's rights groups such as Planned Parenthood, not only because it lowers the current standard but because it may undermine an ongoing federal court case (which was trending in their favor) that could have locked the Board's higher standard in place.
For three years, the Board of Pharmacy (along with the Washington State Department of Health, the Attorney General and Stone's women's legal rights group) have been defending the 2007 standard against a lawsuit from Olympia's Stormans Inc. and two individual pharmacists. The renegade pharmacists claimed the 2007 Pharmacy Board rules infringed on their First Amendment freedom of religion by forcing them to dispense emergency contraception.
The trial was set for July 26 in Federal District Court in Tacoma. And things looked good for the state. After the District Judge in Tacoma, Judge Ronald Leighton, issued an injunction against the new rules back in 2007 pending his decision on the case itself, the state (along with Stone's Legal Voice) appealed his injunction to the the 9th Circuit Court of Appeals.
Tossing the injunction last summer, the appeals court specifically upheld the Board of Pharmacy rules, saying they were "neutral" (meaning they didn't discriminate against anyone); that they served a legitimate need (getting women their legal prescriptions); and they didn't upend anyone's First Amendment religious freedoms. The government can limit religious conduct when it believes that conduct threatens a larger public good, like public health. And that is what the higher court concluded about the Board of Pharmacy rules.
But, with an eye on reaching a settlement (according to Karen Jensen, Assistant Secretary for Health Systems Quality Assurance at the Department of Health), DOH (which oversees the Board of Pharmacy) and their counsel, the attorney general, collaborated with their longtime adversaries at Stormans and filed what is called a "stipulation" with Judge Leighton asking for a delay until the Board of Pharmacy works out the new rules. (Here's a copy of their filing with the District Court.)
Presumably, the new rules would avert the need to duke it out in court. "A settlement is always preferable to going to court," Jensen told PubliCola when pressed to explain why the board was suddenly reassessing its rules.
Not true, according to Stone. "They snatched defeat from the jaws of victory," she says, speculating that if Leighton had ruled in favor of Stormans—which seemed likely, given his earlier injunction—the state could have appealed to the sympathetic higher court. "Two weeks ago we were sharing witnesses and legal strategy with the state," Stone says, "and today, they pulled the rug out from under our clients."
With a settlement, not only will Stone's clients—women who have been denied emergency contraception—squander an affirmation from the 9th Circuit (the previous ruling will become "irrelevant" according to Stone), but judging from the stipulation filed in District Court, the new Board of Pharmacy Rules will lock in rules which weaken access to health care.
The stipulation outlined the Board's new proposal:
Specifically, the Board intends to adopt a rule allowing facilitated referrals for all pharmacies and pharmacists out of stock or unwilling to stock, or timely deliver or dispense lawfully prescribed medications on site to their patients for any reason, including for conscientious reasons.
Jensen would not address the substance of the new proposal, saying only that the health department was committed to full access to legal prescriptions.
"They are not committed to full access," says Elaine Rose, CEO of Planned Parenthood, who was stunned at the notion of a settlement. "Not with a rule that makes someone travel 30 miles away get their medication. Why would you settle for something that backs away from the rules we've got in place?" (Planned Parenthood is also a party in the suit.)
Governor Chris Gregoire, an advocate for access to emergency contraception who brokered the compromise between dissident pharmacists and women's groups in 2007 to arrive at the original rules—doesn't have a problem with revisiting the scrip standards per se, according to her spokesman Viet Shelton, as long as there is a thorough public process that ultimately "maintains, or even improves, the access of the current rules, particularly for low-income and rural communities."
But, Shelton said, Gregoire has "concerns" about the new language both because it "seems to imply a preordained outcome" and because that preordained outcome scales back access.
Shelton says Gregoire was not consulted about the state's legal move, which could be a sore spot given that AG Rob McKenna—who already famously defied Gregoire by suing the feds over health care reform—signed off on the stipulation for the delay.
It's worth pointing out that AG Rob McKenna is a big supporter of Steve O'Ban, who's running for state House against incumbent Democrat Troy Kelley (D-28, West Tacoma, Lakewood, University Place). O'Ban, an attorney with Ellis, Li & McKinstry, is Stormans' attorney. McKenna spoke at O'Ban's kickoff.
McKenna's office has not returned a call for comment.
AG Rob McKenna at O'Ban's kickoff