Injunction Lifted on Emergency Contraception

By Josh Feit July 8, 2009

Exactly a year ago today, when the lawyers from the Northwest Women's Law Center (now called Legal Voice ... huh?) argued in the 9th Circuit Court of Appeals that a federal judge in Tacoma had wrongly issued an injunction against state pharmacy board rules mandating pharmacists provide Plan B while a court challenge to the rules was in play, I reported from the hearing:
You’re not supposed to make predictions about how judges will rule based on what they say in the courtroom. But after the hearing in front of the 9th Circuit Court of Appeals in downtown Seattle this morning, where a lawyer for the Northwest Women’s Law Center argued that the court should lift an injunction against state Board of Pharmacy rules mandating that pharmacies fill prescriptions for Plan B, I’m going to go out on a limb here: The injunction will be lifted and tailored to apply only to the complainants, Storman’s Pharmacy in Olympia and two pharmacists, Rhonda Mesler and Margo Thelen.

Well, I don't know how I missed today's AP report, but here's what the appeals court found (I was right!) :
OLYMPIA — Federal appeals judges say a lower court was wrong when it blocked Washington state's rules mandating the sale of "morning-after" birth control pills.

In Wednesday's ruling, the 9th U.S. Circuit Court of Appeals says a federal judge in Tacoma went too far when he halted enforcement of state rules about the drug, sold as Plan B.

In 2007, state regulators said a patient's right to purchase Plan B trumped any pharmacist's or business' moral objections to its possible effect on potential pregnancies.

U.S. District Judge Ronald Leighton blocked the new regulations, over worries that druggists' religious rights could be violated.

But appeals judges say that ruling was too broad, and used the wrong legal tests. They're sending the case back for more work.

While I was right about the injunction, I wasn't right about the fate of the complainants. They will have to follow the pharmacy board mandate as well. However, the case itself is now back in  U.S. District Judge Leighton's court. Here's today's 9th Circuit Court of Appeals ruling.

UPDATE: NARAL has issued a press release on the ruling. I've linked it below the fold.

Ninth U.S. Circuit Court of Appeals Defends Women’s Health, Reverses Injunction Against Pharmacy Board Rules

NARAL Pro-Choice Washington applauds today’s Ninth U.S. Circuit Court of Appeals ruling that U.S. District Judge Ronald Leighton abused his discretion when he imposed a statewide injunction on two Washington State Pharmacy Board rules (WAC 246-869-010 and WAC 246-863-095) that protect patients’ access to legally prescribed medications and women’s access to birth control.

“The Ninth Circuit clearly saw that Judge Leighton’s blanket injunction against the Pharmacy Board rules unnecessarily and dangerously restricted access to needed medications, including women’s access to birth control,” said Lauren B. Simonds, M.S.W., executive director of NARAL Pro-Choice Washington. “Today’s ruling is a step towards ensuring that our laws and policies serve to increase access to women’s health care, and is an important part of the ongoing national conversation about health care refusal clauses.”

The Ninth Circuit has reversed and vacated the injunction against the rules and has sent the case (Stormans Inc. v. Selecky) back to Judge Leighton’s district court in Tacoma “for further proceedings consistent” with today’s decision. The two rules (1) require pharmacies to ”deliver lawfully prescribed drugs and devices to patients. . . in a timely manner” and make it illegal for a pharmacy to refuse to deliver a lawfully prescribed or approved medicine, and (2) state a pharmacist may not unlawfully discriminate against, intimidate or harass a patient. Furthermore, “a pharmacy may accommodate a pharmacist’s personal objections in any way the pharmacy deems suitable, including having another pharmacist available in person or by telephone.”

“The Pharmacy Board unanimously passed these rules to help ensure that patients will be able to access time-sensitive medications, like Plan B emergency contraception, without hassle or delay,” added Simonds. “The personal, non-medical judgments of pharmacists should not stand between a patient and her or his medical needs. That is why NARAL Pro-Choice Washington and our allies worked so hard to get these rules passed.”
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