Yesterday, I reported that a Tacoma federal court Judge ruled that one family-owned pharmacy in Washington State and two licensed pharmacists couldn't be forced by the state to stock or sell the Plan B, as it infringed upon their religious freedom to treat women as second-class citizens and/or ovulating furniture. ("I bought this couch from a farmer down the road but the damn thing won't stop bleeding!")
But two questions remained: Would Washington State Attorney General Rob McKenna’s office—which defended the state's prerogative to require pharmacies to dispense the emergency contraceptive in federal court—appeal the decision to the 9th Circuit Court of Appeals? And how would the AG's office interpret how this very specific ruling affect the estimated 1,432 other registered pharmacies in Washington State?
1) If I were a betting woman, I'd say fuck yes, they'll appeal, based on precedent. You see, when the Plan B lawsuit was first filed in 2007, presiding Judge Ronald Leighton immediately decided to suspend the new state rule requiring all pharmacies to dispense Plan B until his court reached a decision on whether it infringed on pharmacist's constitutionally-guaranteed religious freedoms. In response, the AG's office promptly filed an appeal with the 9th Circuit Court to throw out Judge Leighton's injunction:
"When we appealed the injunction the 9th Circuit, they found that Judge Leighton abused his discretion in suspending the rule and lifted the injunction," explains Assistant AG Rene Tomisser, who worked on the case. "I think what the judge did this time in the trial is not consistent with what the 9th Circuit previously ordered him to do, and it’s not consistent with what the Supreme Court has required of courts when analyzing these claims."
He adds: "He made many of the same mistakes again, in much greater detail this time, with regards to his legal analysis."
But Tomisser, who, like most attorneys, enjoys playing coy and not directly answering my questions, stopped short of confirming that his office would file the appeal (attorneys are such rabidly squirrely people!) "If an appeal is to be filed, our office would file it on behalf of the board and the [Department of Health] within the next 30 days," he would only say. And, from a legal aspect, the AG's office has a vested interest in ensuring that more professionals don't cite "religious freedoms" when refusing people access to services they're legally required to render.
"From a legal aspect... we would not like to see that perpetuated," Tomisser confirms.
2) In the meantime, how does the ruling affect other pharmacies (and pharmacists) aspiring to discriminate against women?
"That’s the big question," Tomisser says. (No shit!)
"In my view,* it doesn't. Even if they have a religious objection, they simply wouldn’t be able to refuse to comply and say, 'me too.' They would have to file an injunction as the plaintiffs in this case did."
They can get away with it because the state Department of Health doesn't check up on pharmacies to ensure they're following the rules unless it receives tips from the public. "It’s really a complaint driven process," confirms Tim Church, a spokesman for the Department of Health. "We don’t proactively go out and ask folks what their beliefs are and if they’re following the rule."
Since 2009, the DOH has received just two complaints against pharmacies for denying women access to Plan B. Both of those complaints were investigated and then "closed without action," meaning that the investigation wasn’t able to gather enough evidence to find fault with the pharmacy. The modest number of complaints could indicate that the vast majority of women aren't denied access to emergency contraception they need and can legally purchase, or it could mean that women who are unlawfully denied the drug don't know to complain. "It's hard to say which it is," says Church.
*Which, I'd like to point out, is the only view that matters, as Tomisser is responsible for interpreting how the Judge Leighton's ruling applies to other Washington pharmacies and pharmacists.