Washington's Plan B ruling overturned

A federal judge overreached when he sided with religious-freedom arguments to block Washington state’s rules mandating the sale of “morning-after” birth control, appeals judges said Wednesday.

The unanimous ruling, from a three-judge panel of the 9th U.S. Circuit Court of Appeals, sends the politically thorny case back to U.S. District Court for further review.

The case revolves around the drug Plan B, a contraceptive that can greatly reduce the chances of pregnancy if taken within 72 hours of unprotected sex.

Some pharmacists and drugstore owners, however, say they can’t sell the pills in good conscience because they consider Plan B’s effect on potential pregnancies too similar to abortion.

Kevin Stormans, an owner of Ralph’s Thriftway, is a party to the federal lawsuit challenging the Pharmacy Board rule. He said lawyers are reviewing the court decision but he does not expect it to affect his immediate operations.

“We’ve not had enough time to evaluate this decision. The attorneys need to evaluate and see ... how it changes things,’’ Stormans said. He understood that the state would not enforce its drug-dispensation rule pending a trial on his legal challenge of it.

Ralph’s pharmacy continues to refuse to stock Plan B, the morning-after pill, on moral grounds, Stormans added.

But Donn Moyer, spokesman for the state Department of Health, said the agency believes the ruling means the state can enforce the Pharmacy Board rule that required the dispensation of legal medications, including Plan B, for any pharmacy.

“We believe patients should have access to all legal medications and the court agreed with us,’’ Moyer added. “We believe it does allow us to begin enforcing it on all pharmacies. ... What the practical effect of that will be is yet to be determined.’’

Moyer said the appellate court sent the case back to U.S. District Court in Seattle for review, and that Ralph’s and the other plaintiffs could still ask for an injunction that applied only to their actions.

The ruling initially caught Janet Blanding, an Olympia activist who organized boycotts of Ralph’s Thriftway over the Plan B issue, by surprise. But she said after reading the 54-page ruling she is “encouraged” and believes access to Plan B will be improved around the state.

Plan B contains a high dose of a drug found in many regular birth-control pills, and prevents ovulation or fertilization of an egg. It also could prevent a fertilized egg from implanting into the uterus, although recent research suggests that is unlikely. Plan B is not the abortion pill formerly called RU-486.

Plan B is available without prescription to adults 18 and older, and over-the-counter sales for 17-year-olds are expected to be approved soon. Purchasers must ask for Plan B at the pharmacy counter and show identification with their date of birth, and anyone too young to qualify for over-the-counter sales needs a prescription.

In 2007, regulators on the state Pharmacy Board ruled that pharmacies could not refuse to sell a lawful product because of moral or religious beliefs.

Developing the regulations became a pitched political battle, with Democratic Gov. Chris Gregoire at one point publicly warning she might replace board members who didn’t follow her wishes on the issue. Her administration worked out the compromise rule that eventually was adopted.

Individual pharmacists were given a limited way around selling Plan B: passing the sale to another employee in the same store, provided the patient’s order was filled without delay. But that left few options for a lone pharmacist, or for a pharmacy owner who has moral objections to a particular drug.

Two druggists, with Stormans, sued the state shortly before the new rules took effect, arguing their constitutional rights were being violated.

U.S. District Judge Ronald Leighton of Tacoma suspended the rules statewide while the lawsuit was being considered, citing the potential for “irreparable injury” to constitutional protections of religious freedom.

But on Wednesday, a 9th Circuit panel led by Judge Kim Wardlaw ruled that Leighton’s injunction was based on the wrong legal tests and was far too broad.

The district court may issue a new injunction when it reconsiders the religious-freedom arguments, but it should apply only to the case’s plaintiffs and their employers, not the entire state, appeals judges said.

“There is no evidence that every pharmacist in the state of Washington considers dispensing Plan B to be a breach of their religious or moral values, and it is unlikely that this is the case,” Wardlaw wrote.

The 9th Circuit did not rule on the plaintiffs’ claims under other laws, including the Constitution’s equal protection clause, because the injunction was tied solely to the religious-freedom claims.

Gregoire spokesman Pearse Edwards said the governor hadn’t read the ruling yet, but “appreciates that the ruling reinforces the value of the doctor-patient relationship and access for all to care that they need.”

The Olympian’s Brad Shannon contributed to this report