This editorial will appear in tomorrow’s print edition.
Viewed from one angle, the state requirement that all pharmacies dispense Plan B – the “morning-after pill” – is a reasonable measure to guarantee women access to emergency birth control.
Viewed from another angle, that same requirement violates the consciences of pharmacists and pharmacy owners who regard Plan B as a potential means of abortion.
From the first angle, the state Board of Pharmacy’s rule is utterly reasonable. From the second, it is a bare-knuckled assault on religious freedom, particularly the freedom of Roman Catholics. The stark conflict between those two views is why the rule has been ping-ponging around the federal courts for five years now.
Once again, U.S. District Judge Ronald Leighton has ruled in favor of pharmacists who say the policy violates their First Amendment rights. The 9th U.S. Circuit Court of Appeals had overturned a similar decision he made in 2007 and sent the lawsuit back to him to apply a different legal standard. Leighton’s new decision could trigger another round of litigation if the state appeals it.
For advocates of Plan B – count us among them – this is not the end of the world.
The rule remains in place; Leighton’s ruling affects only the pharmacy and two pharmacists who challenged it. If it stands, it would obviously open the door for new challenges. But very few pharmacies seem interested in not selling Plan B.
Since 2009, the Department of Health has received only two allegations that pharmacies – beyond the plaintiffs in this case – have refused to sell the drug. As mom-and-pop pharmacies give way to chain stores, any remaining holdouts seem likely to fall by the wayside. If women were having serious problems getting Plan B, you can bet there’d be a bigger uproar than there has been.
This dispute seems yet another proxy war over abortion, with the usual inflamed passions and rhetoric. Ironically, Plan B may not qualify as an abortifacient even in terms of the belief that human life begins with conception. Researchers have been concluding that the drug probably does not prevent the implantation of fertilized eggs, as has frequently been charged.
Still, First Amendment questions are not trivialities. Leighton’s logic in this case can’t be dismissed out of hand: He concluded that the state allows pharmacies not to stock drugs for various secular reasons, including profitability; the hammer has only come down when pharmacists have raised personal religious objections against this particular drug.
In Leighton’s mind, religious conviction has been targeted in a way that secular considerations have not. If he’s right, the mandate would be unconstitutional. The Supreme Court likes any restrictions on the exercise of conscience to be very narrowly tailored. A rule that looked like a blunt instrument might not ultimately fare well on appeal.
In the absence of more evidence that Washington women are actually being denied Plan B when they need it, the state may want to think twice about pushing this case back up the judicial ladder – where it might end up before the Supreme Court.