Olympia DUI Lawyer Blog

Olympia's Ralph's Thriftway owners filed suit in July of 2007 asserting that the rules issued by the Washington State Board of Pharmacy that require pharmacies to deliver lawfully prescribed Federal Drug Administration ("FDA") approved medication violated the owner's First Amendment rights by requiring them to stock Plan B, an oral contraceptive that significantly reduces likelihood of pregnancy if within 72 hours of intercourse. Thriftway's owners argue that requiring the pharmacy to stock and sell the medication violates their First Amendment right to religious freedom. Owner Kevin Stormans "learned that Plan B can prevent a fertilized egg from implanting in the uterus, and because Storman's owners believe life begins with fertilization, Stormans decided it would not sell the drug." Storman, Inc. v. Selecky, 8448-9. The new rules issued by the Board do not require an individual pharmacist to dispense medication in the face of personal objection, though that pharmacist must have another pharmacist available in person or by telephone. Sending patients to another pharmacy is not an allowable option under the rule.

The US Appellate Court reversed the District Court in an opinion issued July 8, 2009. The United States District Court previously issued an injunction which allowed Thriftway and other pharmacies to not sell plan B until the courts ruled on whether the law violated pharmacists' constitutional rights. The US Appellate Court ruled that the District Court's injunction was overbroad as it allowed any pharmacist to refuse to stock or sell plan b for religious or moral reasons, though general morality is not defined or protected by the constitution. The District Court's ruling allowed pharmacists to refuse to dispense Plan B if they immediately referred the patient to the nearest sourse of Plan B. The defendants include various Washington State agencies and boards as well as seven individual people, including Catherine Rosman, a case manager who deals with victim's of domestic violence and sexual assault. Rosman, who has taken the medication after being the victim of sexual assault, is "concerned that refusals to dispense Plan B will compound the trauma that her clients and thousands of girls and women like them will suffer as a result of sexual violence every year in Washington." Among the seven individuals are two HIV positive people who fear that without timely access to Plan B, they and those in similar situations face serious potential health risks.

The Washington State Board of Pharmacy began investigating Ralph's in the summer of 2006. It "questioned Kevin Stormans, requiring a written statement. Though the Board closed that investigation without taking any action, in January 2007, the Board initiated a new investigation against Ralph's." After Stormans filed suit alleging that the rules violate his constitutional protections, the Board began a new investigation of Ralph's under the new rules. Should The District Court decline to reissue the injunction, Ralph's would face potential disciplinary charges if it continues refusing to dispense the drug. Indeed, "Stormans expects that the Board's investigation will result in disciplinary charges, including possible revocation of its pharmacy license, as well as the initiation of an enforcement action by HRC if the preliminary injunction is overturned."

The Appellate Court ruled that the District Court not only issued an overbroad injunction by including morality and including pharmacists other than those who filed suit, but that in reaching its conclusion, the Court applied the wrong level of judicial review to the legal issue. The Appellate Court further ruled that the lower Court abused its discretion in failing to weigh the balance of hardship to the pharmacists by impacting their financial livelihood by potential job loss or loss of pharmacy license with the hardship to the community by women not having access to Plan B. The Court further ruled that District Court abused its discretion by not analyzing the public interest stating that "it may be in the public interest to deny the injunction to the extent that it is likely that sexually active women of childbearing age will be denied reasonable access to Plan B. Likewise, the injunction may not be in the public interest if it would likely cause unreasonable delay to a woman's ability to acquire and use the drug, where such delay may render the drug ineffective in preventing an unwanted pregnancy."

The Appellate Court vacated, reversed, and remanded the case back down to the District Court. As such, the US District Court will now have to rule on the case again, this time applying the correct, more relaxed rational basis review rather than the strict scrutiny review it initially used to analyze the case. The Court will also have to examine the balance of hardships and the public interest.