Washington state's women's health and rights advocates are in a state of confused uproar. Suddenly and without warning the Washington state Board of Pharmacy has proposed a change to a rule which, after an immense amount of effort from advocates and citizens in the state back in 2007, required pharmacies to fill all prescriptions regardless of a pharmacist's personal objection to a patient or a particular medication. This unexpected switchback comes as women's rights organizations (including the legal advocacy organization Legal Voice), Washington state's Department of Health and the Board of Pharmacy were preparing to fight a lawsuit brought by Stormans, Inc. (an Olympia, WA pharmacy) and two individual pharmacists who claimed the rule infringed on their first amendment rights. That case has been stayed, meaning the proceedings are suspended, much to the dismay of women's rights advocates.
According to Seattle news site, Publicola, Judge Ronald Leighton, writing in his ruling to stay the case, said the Board of Pharmacy's proposed rule-making process, “... if completed as currently contemplated would resolve the legal issues in this case." This is not good news.
"This issue was vigorously debated for 15 months starting more than three years ago and the State has spent considerable time and resources successfully defending the rule in Court,” said Elaine Rose, CEO, Planned Parenthood VOTES! Washington. “We are shocked the Board of Pharmacy is re-opening the rule and jeopardizing hard-fought rights for women seeking essential health care.”
The Board of Pharmacy (BOP) inexplicably proposed (reportedly during a Board phone meeting on June 29th of this year - of which there are no public notes available on the Board of Pharmacy web site) a rule change to allow pharmacists the right to "facilitated referral" rather than mandate they fill prescriptions on site. What this means is that, instead of ensuring that any patient - a woman seeking to fill a prescription for emergency contraception or another form of birth control, a person with HIV seeking to fill a prescription for their life-saving medication, a patient with diabetes who needs their medication - has the ability to access legal medication at any pharmacy in a timely manner, they can now be denied their medication at the whim of an individual pharmacist or pharmacy and be forced to go somewhere else.
If you think this doesn't sound so bad, consider that in small towns there may be only one pharmacy; in towns or cities with more than one pharmacy, how many pharmacies does a person need to visit in order to find one that has a pharmacist who "agrees" that he or she "deserves" access to their medication?
According to Legal Voice,
"Under the revisions the BOP seeks to make, even when the medication is in stock, available and sitting on a shelf behind the pharmacist, a pharmacy could require a customer to go to a different pharmacy."
To be clear, the Board of Pharmacy rule that had been set in place in 2007 after an extended period of public input and comment (during which advocates and Washington state citizens from HIV/AIDS activists to reproductive rights organizations to every day citizens, rallied together and fought long and hard) did not force individual pharmacists to fill prescriptions for medication they did not support. It mandated that pharmacies had to have at least one pharmacist on site that would fill prescriptions for patients, regardless of her or his "personal, moral or religious beliefs."
For a pharmacy with only one pharmacist on staff, or for pharmacy owners that opposed birth control or medication for HIV or AIDS, this meant that they needed to either stock and fill prescriptions for all legal medications requested, use a temporary or on-call pharmacist, or offer telepharmacy services.
So while the Board of Pharmacy had been working with women's health and rights advocates, and the Washingon state DOH to defend its original rules against Stormans, Inc. and two individual pharmacists, they changed horses midstream leaving many wondering why.
"Regardless of who you talk to among the coalition of organizations [that have been fighting this] we would all say we have no idea why the state did this or what the motivation is behind it. We don’t know where the motivation came from for The Board of Pharmacy to reopen the rules," says Lauren Simonds, executive director of NARAL Pro-Choice Washington.
It is true that Judge Ronald Leighton, set to oversee the July 26th case between the pharmacists and the state, may very well have ruled in favor of the plaintiffs (the pharmacy and pharmacists bringing the suit). Leighton provided a small window into his views on issues related to womens' health and rights during the motion for summary judgement when he stated that he "knew of no other case, in the country, until this one, that chips away at that protective cocoon" established by government after Roe v. Wade to protect those with a religious objection to providing abortion services, via conscience clauses. He was also concerned that his local Catholic hospital, St. Joe's in Tacoma, WA, would be forced to provide emergency contraception in their pharmacy, should the case be won by the state. It's a concern that is curious considering all hospital emergency rooms in Washington state are required to offer rape victims emergency contraception, if the woman is not already pregnant.
Still, the defendants had already enjoyed one victory from the 9th Circuit Court. In addition the rule decided upon in 2007 was created only after an extended and involved period of public comment with public sentiment clearly on the side of patients unimpeded access to legal medications from pharmacies.
The 9th Circuit victory occurred, writes Josh Feit at Publicola,
"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...
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."
Then what gives?
Sara Ainsworth of Legal Voice is baffled and frustrated:
"We can only speculate, we really have no idea why the state has seemingly thrown away the victory we had achieved."
Ainsworth's organization, Legal Voice, represents intervenors in the lawsuit. They intervened on behalf of women who need and want access to emergency contraception as well as people living with HIV and AIDS and others whose rights are impeded when prescriptions won't get filled by pharmacies with an agenda. But Legal Voice also fought long and hard for the 2007 Board of Pharmacy rules. With the case halted, all they can do now, says Ainsworth, is wait for the period of public comment to begin for these newly proposed rule changes. But she's concerned.
"The state has given us pause with what they’ve said publicly to be worried that they won’t consider what the public says. It is a public process, they are supposed to take public input and we anticipate, given that this issue has received a lot of attention, that the public still feels the same way [they did in 2007]- that they should be able to have their prescription needs met."
To be clear, the rules put in place back in 2007 were not specifically related to women's access to emergency contraception. This was - and is - about ensuring that all Washington state citizens are able to have their prescriptions filled in a timely manner.
Simonds told RH Reality Check,
"These rules were put into place to protect the patients of WA because we all have a right to have our prescriptions filled...If you go back in the history of this it wasn‘t just women who weren’t able to access birth control or medications prescribed on pads from certain physicians. It wasn’t just women and reproductive health related medication. There are some parties in the lawsuit who are people living with HIV and AIDS and people living with diabetes who had prescribed medication denied because pharmacies wouldn’t fill them."
She goes on,
"A pharmacy has no right to deny someone their medication based on a personal or moral belief. That can be construed as religious discrimination against the person who is seeking to have their prescription filled because someone is impeding upon what that person may believe. This is about the right of all patients in Washington state to access the medications they need and not to have a pharmacy decide for them that they can't.
The current rule does allow pharmacists a way out as long as there is another pharmacist on staff to fill the prescription."
The 9th Circuit Court of Appeals, in response to the pharmacists who asked them to reconsider their decision that the 2007 rules did not impede upon their First Amendment rights, noted that “the new rules do not aim to suppress, target, or single out in any way the practice of religion, but, rather, their objective was to increase access to all lawfully prescribed medications.”
Washington state governor, Christine Gregoire, agrees.
Gregoire does not support the proposed rule change and has consistently supported access to emergency contraception. Back in 2006, in response to the first draft of the rules the Board of Pharmacy developed (before the period of public comment which encouraged the them to ultimately pen the supportive 2007 rules), Gregoire penned a heated letter to the head of the state Board of Pharmacy, telling him, "I strongly oppose the draft pharmacist refusal rules recommended by the Washington State Board of Pharmacy today. The rules under consideration fail to protect Washington families from pharmacists who refuse to dispense lawful prescriptions. They are fraught with contradictory, bureaucratic language that makes unclear a pharmacist’s responsibility."
In a similar fashion, Gregoire recently sent a letter to Attorney General Rob McKenna who signed off on the Board's proposed rule change. From Publicola:
“I am not in agreement with the state Board of Pharmacy’s decision to reopen the rulemaking process which currently requires pharmacists to provide all legally prescribed medications to individuals..."
As Ainsworth alludes to, Gregoire is also concerned that there appears to be a "pre-determined outcome" from what's supposed to be a process of considerable citizen involvement:
“I am concerned that the Board appears to have a predetermined outcome in the new rulemaking process. I will not support a position that does not provide the same level of access, or better, than is currently offered. We cannot restrict access for patients. In rural parts of our state, eliminating access to medication could force people to drive miles to the next closest pharmacy, or simply force them to go without."
The issue, at this point, sits squarely in the laps of the Board of Pharmacy who has, without rhyme or reason, re-written the rules mid-game. It should then be up the public to decide whether a person's right to access their legal medication at any pharmacy is paramount. Whether this is the case or not remains to be seen.