Six years after state regulators clarified that pharmacies must dispense emergency contraceptives when asked, the legal fight over an Olympia pharmacy owner’s refusal to comply is continuing.
The boycott of the Ralph’s Thriftway pharmacy that local activists began in 2006 has, at least formally, long gone away. But Kevin Stormans, whose family owns the Ralph’s pharmacy at the heart of the dispute, still is in federal court fighting for the right to not dispense. His case has been delayed by legal fights over the requirements of the federal Affordable Care Act.
“The Stormans have had a tremendous burden in not knowing if their pharmacy would be closed and have enormous legal fees,” argued Kristen Waggoner, a member of a legal team that has been representing the Stormans family since it sued in 2007 to overturn a state dispensing rule.
The family won at trial in U.S. District Court in Tacoma in February 2012, but the state Department of Health and Pharmacy Commission is appealing that decision, which included an award of legal fees in excess of $2 million that the state would have to pay if it ultimately loses.
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The central legal issue is whether a private business can assert a right to exercise religious conscience in not following the state law.
“This case for the state has never been about Plan B alone. From our perspective and from the rule the (commission) adopted, it was with respect to all legally prescribed drugs,” said Joyce Roper, senior attorney with the Attorney General’s Office, who represents both agencies. “The concern is a free exercise claim would allow a pharmacy owner to decide they are not going to provide medications needed by patients based on the pharmacy owner’s beliefs when it may be necessary for the patient.”
But Judge Ronald Leighton found the state was singling out religious objectors for failing to dispense medications.
The case was on its way toward possible closure in the Ninth Circuit Court of Appeals in San Francisco last month but is now on hold. The Ninth Circuit wants to wait until the U.S. Supreme Court hears a pair of legal challenges to the Affordable Care Act’s requirement that health insurance policies cover women’s contraceptives free of charge. The requirement is part of the health law’s requirement that insurers cover preventive care.
Arguments could be heard by the Supreme Court in March in two consolidated cases — one known as Conestoga Wood Specialties v. Sebelius, which involves a Pennsylvania cabinet-maker, and the other involving the Hobby Lobby crafts chain in Oklahoma. Conestoga lost in federal appeals court, but Hobby Lobby won, setting up the high court review.
The companies argue that the Religious Freedom Restoration Act of 1993 shields them from the coverage mandate as private employers. That federal claim is different from the Stormans case, but the two companies also assert a free exercise of religion claim under the First Amendment that is similar to the Stormans claim, Waggoner says.
Parties on both sides of the Stormans debate are hopeful of victory.
In fact, the Pharmacy Commission is still willing to act against any other pharmacy that violates the rule requiring pharmacies to stock or dispense medications that are in demand.
Leighton’s decisions in the case of Stormans Inc. v. John Wiesman applied only to the Stormans-owned pharmacy and to two pharmacists who work elsewhere in the state and were parties to the case in asserting a similar religious right not to dispense contraceptives.
“The rule still says you have to carry it and dispense it,” Department of Health spokesman Tim Church said. “But in Stormans’ case, they won. But still the rule says you have to carry it and dispense it.”
The state has not been getting complaints against other pharmacies for failing to dispense medications.
Kevin Stormans, the spokesman for his family, could not be reached recently. But he’s said that his objection is to Plan B, which is a high-dose contraceptive, on grounds that he thinks it could prevent a fertilized egg from implanting in a womb.
Past descriptions of Plan B by the Food and Drug Administration have said that might happen, but more recently FDA officials have said that emerging evidence suggests the drug does not inhibit implantation.