Yesterday's story on Tacoma District Court Judge Ronald Leighton's decision to suspend the emergency contraception trial and let the state Board of Pharmacy come up with new, watered-down, rules (a blow to the women's advocates who were hoping to defend the current rules) gave the last word to conservative attorney Kristen Waggoner.

(The current rules say pharmacies must fill all legal prescriptions. The proposed new rules say pharmacies can send patients to another pharmacy if they don't want to fill the scrip.)

Waggoner is one of the attorneys for the plaintiffs—religious pharmacists who don't like the current rules, which make them fill emergency contraception (Plan B) prescriptions.

Waggoner's statements prompted an email from Lisa Stone, executive director of Legal Voice, a woman's legal advocacy group that had been working with the state pharmacy board to defend the current rules until this week, when the board and Attorney General Rob McKenna's office asked the judge to suspend the case so the board could come up with scaled-back pharmacy referral rule

"Kristen Waggoner is just plain WRONG about the constitutionality of [the existing] rule," Stone's email (all caps hers) said.

Besides getting off some wicked sound bites (“[Legal Voice is] not about serving the patient’s interest, but about serving a political agenda”), Waggoner had said the current rule—forcing pharmacies with religious objections to fill Plan B prescriptions—was discriminatory because the state allows pharmacies to get out of filling scrips for business reasons, including drug prices and administrative costs.

Stone disagrees: "The Free Exercise Clause [of the First Amendment] does not require that all laws that include any exemptions also include additional exemptions for individuals with certain religious beliefs."

In other words, allowing one exemption doesn't mean all exemptions get the green light.

How do you know who should get an exemption to a rule? Basically, if the plaintiffs can show that a rule is fashioned in such a way that it isolates and then discriminates against their constitutional rights, they could get an exemption. The defendant, the pharmacy board in this instance, has to show that the rule is neutral (ie, doesn't single out a specific group by race or religion or gender, for example) and is written to promote a legitimate state interest, like public health.

Citing the 9th Circuit Court of Appeals (which overruled Judge Leighton's injunction against the pharmacy board rules while the case was in play), Stone says the board's rules are "neutral" and "generally applicable," i.e., not discriminatory:
[The rules] do not suppress, target, or single out the practice of any religion because of religious content. . . .  [Instead,] the ... rules eliminate all objections that do not ensure patient health, safety, and access to medication. . . .  Thus, aside from the exemptions, any refusal to dispense a medication violates the rules, and this is so regardless of whether the refusal is motivated by religion, morals, conscience, ethics, discriminatory prejudices, or personal distaste for a patient.

“Pharmacies and pharmacists who do not have a religious objection to Plan B must comply with the rules to the same extent—no more and no less—than pharmacies and pharmacists who may have a religious objection to Plan B.  Therefore, the rules are ‘generally applicable.’”

Now that the case has been suspended, however, this 9th Circuit ruling defending full access to emergency contraception may become irrelevant. The issue is out of the courts and back with the pharmacy board, which can rewrite the rules as they please.
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