The January article in the Bar Bulletin, “Plan B Dispute Continues in Court,” is wrong in its opening question and goes downhill from there. It suggests the federal court must choose between a healthcare provider’s right of conscience and a woman’s access to Plan B. Such a choice is neither necessary nor appropriate.
January’s article fails to mention that the Board of Pharmacy provided the court with evidence that Plan B is widely accessible and that the Board itself voted for a pro-conscience regulation before Gov. Christine Gregoire threatened to fire the board members. The article also neglects to mention that neither the Board, Planned Parenthood nor the ACLU were able to provide Judge Ronald Leighton with one woman who was unable to access Plan B in a timely manner.
The article also fails to discuss that the administrative record provides strong evidence that the Board adopted the regulations primarily to prohibit providers from declining to sell Plan B for religious reasons. As the court correctly concluded, this targeting is the precise action that should subject the regulations to strict scrutiny.
Protection for Conscience Rights
Traditionally, this nation has honored rights of conscience, including the conscience rights of healthcare providers. These protections reflect the recognition that it is morally repugnant and unconstitutional to force someone to take innocent human life. Our Legislature adopted two statutes explaining that the right of conscience is a “fundamental right” and that no healthcare provider should be forced to provide a service to which they have a religious objection.1
These statutes, and those like them in other states, have successfully balanced a provider’s constitutional right with a patient’s desire to obtain convenient products. However, some abortion advocates continue to try to force objecting providers to participate in chemical and surgical abortions. Plan B is at the center of this debate.
Plan B: It’s All In How You Define “Pregnancy”
Plan B, also known as the “morning after pill,” is used to prevent or terminate a pregnancy if taken within about 72 hours of sexual intercourse by preventing a woman’s egg from becoming fertilized. As acknowledged by the FDA and Plan B’s manufacturer, the drug can also stop implantation of a fertilized egg in a woman’s uterus.2
Abortion advocates like to say that Plan B cannot terminate a “pregnancy,” but that’s a game of semantics. They have redefined pregnancy to begin after implantation of a fertilized egg. But if life begins at conception, as the Stormans v. Selecky plaintiffs believe, Plan B is an abortifacient that contravenes the plaintiffs’ core religious beliefs.
The Deliberate Targeting Of Religious Providers
One issue dominated the Board’s deliberations: religious objections to Plan B. While the Board had not received any complaints about patients being unable to access Plan B, it had heard of pharmacists in other states refusing to sell the drug due to religious objections. Based on this, the Washington State Pharmacy Association (WSPA) formed an ad hoc committee to consider the issue. The WSPA then recommended to the Board that pharmacists continue to be allowed to refuse to dispense Plan B on moral and religious grounds and to refer the patient to nearby pharmacies.
Groups such as Planned Parenthood, NARAL and the Northwest Women’s Law Center (NWLC) opposed any such regulation. Despite this, the Board passed a regulation that allowed a provider to refuse to dispense a drug and to refer the patient to nearby pharmacies, but prohibited providers from harassing or intimidating patients.
That same day, Governor Gregoire wrote a letter to the Board strenuously objecting to the regulation and later publicly threatened to remove the Board members if they finalized the regulation. After meeting with “key stakeholders,” such as Planned Parenthood and NWLC, the governor submitted an alternative rule that precluded pharmacies and most pharmacists from refusing to sell a drug for ethical, religious or moral reasons. Facing termination by the governor and political pressure, the Board unanimously voted in favor of the substantive provisions of the governor’s regulation.
Once the regulation passed, pharmacists — including Rhonda Mesler and Margo Thelen — began to fear for their livelihoods. Pharmacies, such as the one owned by the Stormans, also began to worry that they would lose their licenses for not stocking one out of more than 10,000 drugs on the market.
Facing a potential investigation and discipline by the Board and the Human Rights Commission, Stormans, Mesler and Thelen filed a federal lawsuit seeking to enjoin the enforcement of the regulations and the Washington Law Against Discrimination based on their refusal to sell Plan B on religious and moral grounds. They quickly filed a motion for preliminary injunction.
Judge Leighton’s Order
Judge Leighton based his preliminary injunction order solely on the plaintiffs’ free exercise claim. The court has not yet considered the plaintiffs’ other claims.
As many U.S. Supreme Court decisions indicate, freedom of religion is in a preferred position, both constitutionally and in our nation’s history.3 Allowing pharmacists and pharmacies to refuse to dispense Plan B honors the mandates of our Constitution. The Board, in passing the regulation, placed itself at odds with the Constitution and history. And it did so by crediting nothing more than mere statements of special interest groups (unsupported by any evidence) that Plan B was unavailable to women and that allowing a religious objection would endanger women’s health. Nothing could be further from the truth. The truth is that the Board’s regulations cloak discrimination in the guise of women’s health.
While it may be convenient to frame the issue as “religion versus medicine or women’s health,” this obscures the fact that few religious or secular healthcare providers support requiring colleagues to participate in the destruction of human life as medicine. As the American Pharmacists Association stated, “We don’t have a profession of robots. We have a profession of humans. We have to acknowledge that pharmacists have individual beliefs.”
The Regulation Does Not Serve A Narrowly Tailored Compelling Interest
The Board claimed it had a compelling interest in ensuring access to Plan B. But Judge Leighton’s order correctly recognized that Plan B is widely available in Washington pharmacies, on the Internet and over the phone.
Most Plan B sales occur without a doctor’s prescription. For women over age 18, the drug is sold without a prescription. For women under age 18, many pharmacists in Washington are authorized to write the prescription themselves. Plan B also is available through Planned Parenthood facilities and government-sponsored health clinics.
The Board’s own survey reveals that nearly 80% of all pharmacies in Washington stock Plan B. Almost the entire remaining 20% decline to stock the drug, citing no customer demand. Someone refused Plan B only has to walk across the street, maybe drive a few miles away or place an order on the Internet to obtain the drug. Given this widespread availability, it is misleading to claim that women’s health will be harmed if some pharmacists can object to dispensing Plan B.
We Should and Must Accommodate Healthcare Providers
Our society has room to, and indeed must, accommodate the deeply held religious convictions of those who do not wish to participate in the destruction of human life. What today might result in a few pharmacists losing their jobs or pharmacy owners shutting their doors, tomorrow may result in a doctor being forced to perform an abortion or participate in an execution or a nurse being forced to administer a drug to end someone’s life. If deeply held religious beliefs can be overcome by a simple citation to convenience, our first freedom, religious freedom, is a dead letter.
Pharmacists and pharmacy owners of faith deserve better than to be driven from their livelihood simply to appease a political agenda that is radically at odds with both the plain facts and the Constitution. While the Stormans plaintiffs support the “reasoned community discourse” called for in January’s article, such discourse can occur only if both sides are fully informed and willing to recognize that this is not an all-or-nothing battle. As seen in other states, reasonable compromises exist without trampling on the free exercise rights of healthcare providers.
Kristen K. Waggoner, a partner at Ellis, Li & McKinstry, PLLC, is lead counsel for the plaintiffs in Stormans v. Selecky. Erik Stanley is senior counsel for the Alliance Defense Fund.
1 RCW § 48.43.065(1)-(2)(a); RCW § 70.47.160(1)-(2)(a).
2 See www.fda.gov/cder/drug/infopage/planB/planBQandA.htm.
3 See Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943).
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