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Judge supports pharmacists opposed to Plan B mandate

Washington state cannot force pharmacies to sell Plan B or other emergency contraceptives, a federal judge ruled Wednesday, saying the state's true goal was to suppress religious objections by druggists -- not to promote timely access to the medicines for people who need them.

U.S. District Judge Ronald Leighton sided with a pharmacy and two pharmacists who said state rules requiring them to dispense Plan B violate their constitutional rights to freedom of religion because such drugs can destroy a fertilized egg, which they consider equal to abortion.

Washington's rules require that pharmacies stock and dispense drugs for which there is a demand. The state adopted the dispensing regulations in 2007, following reports that some women had been denied access to Plan B, which has a high dose of medicine found in birth-control pills and is effective if a woman takes it within 72 hours of unprotected sex.

State lawyers argued that the requirements are legal because they apply neutrally to all medicines and pharmacies, and because they promote a government interest -- the timely delivery of medicine, including Plan B, which becomes less effective as time passes.

But Leighton ruled that the state allows all sorts of business exemptions to the rules. Pharmacies can decline to stock a drug, such as certain painkillers, if it's likely to increase the risk of theft, or if it requires an inordinate amount of paperwork, or if the drug is temporarily unavailable from suppliers, among other reasons.

"The most compelling evidence that the rules target religious conduct is the fact the rules contain numerous secular exemptions," the judge said. "In sum, the rules exempt pharmacies and pharmacists from stocking and delivering lawfully prescribed drugs for an almost unlimited variety of secular reasons, but fail to provide exemptions for reasons of conscience."

The decision comes as contraception has been debated in political and health care circles around the nation. A controversy erupted this month when religious groups protested a new federal rule that required church-affiliated universities, hospitals and nonprofits to include birth control without co-pays or premiums in their insurance plans.

The outcry prompted President Obama to change the rule to shift the burden from religious organizations to insurance companies.

Leighton, in his decision Wednesday, did not strike down Washington's rules, but said simply that the way they were applied to the plaintiffs in this case was unconstitutional.

Further appeals were expected, both from the state and from groups that intervened on the state's behalf.

"The question really is whether the patient's rights come first or the pharmacist's rights come first," said Andrew Greene, a lawyer for the interveners.

Margo Thelen, of Woodland, one of the pharmacists who sued over the rules, said she had to leave one job because she refused to dispense Plan B -- and now she can continue working at her new job without fear of being fired.

"Speak to anyone who shops in a pharmacy," she said. "Their product isn't always available."