Guaranteed Access to Prescriptions
Washington law requires pharmacies to dispense women's birth control. Upon receipt of a valid and lawful prescription, or upon request for a medication or device approved by the FDA for behind-the-counter distribution by pharmacies, a pharmacy must dispense the medication or device or a suitable alternative without delay. If the pharmacy does not have a prescription medication or device or a suitable alternative in stock, the pharmacy must obtain it in a manner consistent with customary pharmacy practice. In the alternative, a patient may choose to have the prescription transferred to a different pharmacy or have the prescription returned to her.
Nothing under Washington law interferes with a pharmacist screening for potential drug-therapy problems, including inadequacies in the instructions, contraindications, drug interactions, or potentially fraudulent prescriptions.
Wash. Admin. Code 246-863-095; Wash. Admin. Code 246-869-010 (Enacted 2007).
A group of pharmacists challenged the constitutionality of the law and in November 2007 a federal district court granted the motion for a preliminary injunction. Storman's Inc. v. Selecky, No. 07-CV-05374-ORD (W.D. Wash. Nov. 8, 2007) (order granting preliminary injunction), appeal docketed, Nos. 07-36039, 07-36040 (9th Cir. Dec. 13, 2007). In May 2008, the Ninth Circuit Court of Appeals denied the appellants' motion to stay the district court's injunction pending appeal, however a motion to expedite oral argument in the case was granted. Storman's Inc. v. Selecky, Nos. 07-36039, 07-36040 (9th Cir. May 1, 2008). In July 2009, the Ninth Circuit lifted the injunction, noting that pharmacists were required to dispense the emergency contraceptive Plan B, even if they personally objected to the medication based on religious reasons, restoring women's access to birth control in the state. While the injunction was lifted and the requirement for pharmacies to stock and dispense Plan B took effect immediately, the case was remanded back to the district court for further consideration. Storman's Inc. v. Selecky, No. 07-36039 (9th Cir. Jul. 8, 2009). In October 2009, in granting the pharmacists' petition for a rehearing, the Ninth Circuit vacated its July opinion but came to a similar decision; it found that the district court abused its discretion when it preliminarily enjoined the enforcement of the law and remanded the case back to the district court to determine if the pharmacists qualify for injunctive relief (however, the court specified that this relief could only apply to the pharmacists in the case, not to the entire state). Storman's Inc. v. Selecky, No. 07-36039 (9th Cir. Oct. 28, 2009).
Although a district court trial was scheduled for July 26, 2010, on July 12, 2010, the district court ordered a stay of the trial proceedings. The court took this action because the Washington Board of Pharmacy announced its intention to amend its rule in order to allow pharmacists who do not have or will not stock the medication to refuse to provide it and refer the woman elsewhere. Storman's Inc. v. Selecky, No. 07-CV-05374 - RBL (W.D. Wash. Jul. 12, 2010). On November 4, 2010, the Board of Pharmacy decided to proceed with rulemaking, a process which had the potential to weaken the law significantly and negatively impact women seeking emergency contraception. In December 2010, however, the panel reversed course and decided not to revise its rule, but instead, to preserve the current policy that guarantees access to birth control. The related litigation will now proceed.
In February 2012, the district court judge enjoined enforcement of the law against the pharmacists in the case. The state has appealed the decision.