Update on Pharmacy Refusal Case

On Friday, February 15, 2008 a federal judge in Tacoma reasserted that the Board of Pharmacy rules that protect patients’ access to needed medications are temporarily unenforceable.  Planned Parenthood of Western Washington and the Northwest Women’s Law Center, along with the State of Washington Department of Health, Board of Pharmacy and Human Rights Commission, had asked the court to permit the rules to stand pending appeal.  The organizations, along with the firm Heller Ehrman LLP, are representing seven concerned citizens from around the state who have been allowed to intervene in the case.

The organizations say the lower court ruling misconstrues well-established legal precedent, and are confident that the regulations will be upheld and fully reinstated on appeal. The U.S. Court of Appeals for the Ninth Circuit will hear the appeal.

This ruling means that the appeal brief is due on February 29, 2008 and the trial is still scheduled for October 2008.  It is currently unknown when the Ninth Circuit will hear argument on the appeal.

Leaders of health care groups are backing the action. “We applaud the decision to appeal the court’s order blocking enforcement of the pharmacy board rules,” said Ania Beszterda, Lead Policy and Community Advocate for Lifelong AIDS Alliance. “People across the state need to know that they can get their prescriptions filled without discrimination or difficulty.”

“In rural communities, especially, a pharmacy refusing to dispense creates a real barrier to care. There are fewer pharmacies, so patients have less choice. It’s unacceptable to expect people to drive another 30 or 40 miles in hopes of finding a pharmacy that will fill their prescription,” said Dian Cooper, executive director of the Cowlitz Family Health Center, a community health clinic in Longview.

On Nov. 8, U. S. District Court Judge Ronald B. Leighton issued a preliminary injunction putting on hold rules enacted by the Washington State Board of Pharmacy in April 2007.
The rules (WAC 246-869-010 and WAC 246-863-095) were adopted after a lengthy rule-making process, including numerous public hearings, 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 in all cases, the pharmacy must fill the prescription in a timely manner.

When the rules took effect in July, two individual pharmacists and a pharmacy owner (Stormans, Inc.) sued the State of Washington, challenging the new rules. 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.

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

Handling the case for the intervenors are Rima Alaily, Molly Terwilliger and Joshua Selig of the firm Heller Ehrman LLP; Nancy Sapiro of the Northwest Women’s Law Center; and Kelly Reese of Planned Parenthood of Western Washington.