Court Blocks Rules Ensuring Access to Medicine

Pictured from left to right: Emily Schmidt, Dr. Jeff Schouten, Molly Harmon, Rhiannon Andreini, and Catherine Rosman

A federal court today put on hold two rules enacted in April by the Washington State Board of Pharmacy. The rules would have required pharmacies to dispense medications regardless of individual pharmacists' personal feelings about a particular medicine.

Judge Ronald B. Leighton of the U.S. District Court for the Western District of Washington issued a preliminary injunction blocking the Board of Pharmacy rules from taking effect until constitutional issues surrounding the rules are decided in a full trial. The rules, if allowed to stand, would require pharmacies to fill valid prescriptions and provide medications without discrimination or delay. In a ruling in September, the court allowed seven concerned citizens from across the state to join the suit to defend the pharmacy rules at trial.

"This case is in the very early stages. We are confident that at the end of this case, the court will determine that these rules are valid and that they were passed for the purpose of increasing access to medications for all Washingtonians," said Nancy Sapiro, senior legal counsel at the Northwest Women's Law Center.

"We are gravely concerned that today's ruling allowing pharmacy refusals will harm public health," said Kelly Reese, staff attorney for Planned Parenthood of Western Washington.

"The Pharmacy Board rules strike the appropriate balance between patients' rights of access to medication and pharmacists' individual rights. We hope the court ultimately will recognize this and reinstate the rules," said Sarah Dunne, legal director of the ACLU of Washington.

After a lengthy rule-making process, including numerous public hearings, the state Board of Pharmacy issued the rules (WAC 246-869-010 and WAC 246-863-095), to protect patients' access to lawful prescription medications and medications with restricted distribution without discrimination or delay. Under these rules, if a pharmacist objects to dispensing a particular medication for personal, moral, or religious reasons, the pharmacy can accommodate the objecting pharmacist, but only if doing so does not put patient health at risk. In all cases the pharmacy must fill the prescription in a timely manner.

On July 26, 2007, the day the rules took effect, two individual pharmacists and a pharmacy owner (Stormans, Inc.) sued the State of Washington, challenging the new rules on constitutional grounds. The plaintiffs want pharmacies to be allowed to refuse to fill customers' requests for valid prescriptions that conflict with personal beliefs. In court papers filed in August, the intervenors asserted public health concerns, saying patients should be allowed to promptly obtain needed medications. Patients should not be required to go from pharmacy to pharmacy to find one willing to provide medications – particularly time-sensitive medications – that they need and have been prescribed. In many parts of the state, when a pharmacy refuses to fill a prescription, the next-nearest pharmacy is many miles away.

The Washington State Pharmacy Association, which represents the pharmacy profession, participated in the rule-making and supports the challenged rules. More than 70 organizations, including Senior Services of Seattle/King County the American Academy of Pediatrics - Washington Chapter, Washington Coalition of Sexual Assault Programs, and Lifelong AIDS Alliance, also support the rules.

The intervenors are:

• Judi Billings, former State Superintendent of Public Instruction, who is HIV-positive and has advocated for the rights of HIV and AIDS patients for 10 years. Ms. Billings noted, "Timely access to HIV medication is extremely important, because going without for even a short time can raise my resistance not only to the particular drug, but to the entire class of drugs. This makes the managing the HIV virus much more difficult. If I could not get timely access to these medications, it would expose me to serious health risks."

• Molly Harmon, a married small business operator in Seattle. She experienced harassment when she sought to fill a prescription for emergency contraception. "Nobody should be harassed or intimidated when they seek a lawful medication." Harmon said.

• Dr. Jeff Schouten, a professor of surgery at the University of Washington and a primary care provider at Harborview Hospital, who stated, "As an HIV care provider, I am aware that some people associate HIV with what they perceive as lifestyle choices with which they do not agree. I am concerned that this poses a risk to people who need access to HIV medication, in that they might face denial or harassment when attempting to fill prescriptions."

• Rhiannon Andreini, a student at Western Washington University, who was refused access to emergency contraception by a pharmacy in Mukilteo. She sought emergency contraception after her regular birth control method failed. "All women should have timely access to emergency contraception to prevent an unintended pregnancy without harassment or hostility," she said.

• Catherine Rosman, a married graduate student living in Spokane, a member of the Methodist Church and a member of Spiritual Youth for Reproductive Freedom. She has heard of numerous pharmacists refusals. "Women should be treated with respect when they need medication at a pharmacy," said Rosman.

• Emily Schmidt, a single graduate student from Wenatchee, who was refused Plan B by three different pharmacies in Wenatchee. "Women should get timely access to the medications they need to prevent an unintended pregnancy," she said.

• Tami Garrard, a single woman from Seattle. "Sometimes regular birth control fails, so women should always have access to Plan B," Garrard said.

Handling the case for the intervenors are Rima Alaily, Molly Terwilliger and Matthew Carvalho of the firm Heller Ehrman LLP; Sarah Dunne and Aaron Caplan of the ACLU of Washington; Nancy Sapiro of the Northwest Women's Law Center; and Kelly Reese of Planned Parenthood of Western Washington.

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