Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

FOR IMMEDIATE RELEASE: 
Jul 23 2015

Pharmacies must follow state rules ensuring patients have timely access to medication, including emergency contraceptives

PORTLAND, Ore. — In a closely watched case with significant repercussions, including for women’s reproductive rights, the federal Ninth Circuit Court of Appeals today agreed with the Attorney General’s Office’s that pharmacies must follow state rules to give patients timely access to medications.

“This unanimous decision is a major victory for the people of Washington. Decisions regarding medical care — including reproductive rights — are appropriately between a patient and his or her medical professionals,” Attorney General Bob Ferguson said.

In its unanimous decision, a three-judge panel reversed the lower court ruling in Stormans v. Wiesman, in which a pharmacy owner and two pharmacists challenged Washington rules requiring pharmacies to fill lawful prescriptions.

The plaintiffs refuse to provide certain prescriptions for emergency contraceptives based on their religious beliefs. For example, the pharmacy at Ralph’s Thriftway in Olympia, owned by plaintiff Kevin Stormans, turned away dozens of women seeking emergency contraceptives. The state argued that the rules comply with the First Amendment and ensure that Washington residents have timely access to necessary medications.

In its ruling today, the appellate court agreed with the Attorney General’s Office that the state rules are neutral and generally applicable, because they apply to everyone regardless of their motivation. The court also agreed that the state has a legitimate interest in ensuring that Washingtonians have safe and timely access to lawful and lawfully prescribed medications.

The court noted: “The rules also permit a religiously objecting individual pharmacist to deny delivery, so long as another pharmacist working for the pharmacy provides timely delivery.”

This case, formerly known as Stormans v. Selecky, has a long history. The rules at issue were adopted by the Washington Board of Pharmacy in 2007, after a lengthy process of discussion and public comment.

Stormans, of Ralph’s Thriftway, and two pharmacists who work elsewhere sued in federal court shortly after the rules were adopted. The plaintiffs objected to stocking and dispensing the emergency contraceptives Plan B and ella.

At the trial level, Judge Ronald B. Leighton of the federal District Court for the Western District of Washington had concluded that the rules violated the First Amendment by impinging on the plaintiffs’ exercise of their religion, and he issued a preliminary injunction blocking the rules from being enforced.

The state appealed, and in 2009 the Ninth Circuit reversed the preliminary injunction, concluding that the rules did not discriminate on the basis of religion and thus should be reviewed under the “rational basis” test, which asks whether the state has any rational basis for the rules. The Ninth Circuit sent the case back to Judge Leighton for review under this standard.

Judge Leighton concluded, however, that rational basis review did not apply, and in 2012 conducted a trial regarding the rules. Although nothing about the rules had changed since the Ninth Circuit’s 2009 ruling and the rules had not been enforced in the interim, Judge Leighton again concluded that the rules violated the First Amendment by impinging on the plaintiffs’ exercise of their religion.

The state appealed that decision in 2012. That appeal is the subject of today’s unanimous ruling written by Judge Susan P. Graber, appointed in 1998 by President Clinton, and joined by Judge Richard R. Clifton, appointed in 2002 by President George W. Bush, and Judge Mary H. Murguia, appointed in 2011 by President Obama.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Attorney General Bob Ferguson is working hard to protect consumers and seniors against fraud, keep our communities safe, protect our environment and stand up for our veterans. Visit www.atg.wa.gov to learn more.

Contact:

Peter Lavallee, Communications Director, (360) 586-0725; PeterL@atg.wa.gov