By Kathleen Gilbert

SAN FRANCISCO, California, July 9, 2009 ( – A three-judge panel of the U.S. 9th Circuit Court of Appeals today ruled that Washington pharmacists will likely have to obey a 2007 regulation forcing them to distribute the abortifacient morning-after pill, known as Plan B.

The regulation had been temporarily blocked by a Washington judge in 2007 when pharmacists who refused to distribute the pill launched a suit against the state.  Today's decision overturned that of U.S. District Judge Ronald Leighton, who agreed with the complainants that there was reason to believe the rules violated the pharmacists' right to the freedom of conscience.

The Board of Pharmacy and the State regulations require pharmacy owners to provide the pill, and require individuals to distribute or refer elsewhere for the drug regardless of personal conviction.

While primarily billed as contraception, Plan B is also widely advertised as an early abortifacient that works by preventing new human life from receiving nourishment from the uterine lining.  Olympia's Family-owned Ralph's Thriftway and two pharmacists employed elsewhere fought the rules out of a conscientious refusal to participate in the abortions.

The regulations were pushed through by Governor Christine Gregoire after the state reportedly received complaints from individuals who had been denied the drug by conscientious pharmacists.  When the Board of Pharmacy was considering the regulations in early 2006, Gregoire threatened to remove any board member supportive of pharmacists' conscientious objection to certain prescriptions.

Four months after the rules took effect, Judge Leighton temporarily blocked them after agreeing that the rules likely violated the complainants' First Amendment rights.

“On the issue of free exercise of religion alone, the evidence before the court convinces it that the plaintiffs … have demonstrated both a likelihood of success on the merits and the possibility of irreparable injury,” Leighton wrote.

In reversing the ruling today, the 9th Circuit Court stated it had concluded “that the district court incorrectly applied a heightened level of scrutiny to a neutral law of general applicability,” and called the injunction “overbroad.”

“We hold that the district court abused its discretion in applying an erroneous legal standard of review, failing to properly consider the balance of hardships and the public interest,” wrote Justice Kim Wardlaw in the court's published opinion

The court also ordered the district court to revisit the case and “apply the rational basis level of scrutiny” in deciding whether the pharmacists are likely to succeed in their bid against the rules.  

While the court's decision did not include an assessment of the regulations themselves, the ruling virtually guarantees that they will be upheld, attorney Matthew McReynolds of the Pacific Justice Institute told the San Francisco Chronicle. 

“It clearly was targeted at the few pharmacies in the state that had moral convictions about these types of medication,” he said. “This gives the green light to states like California to impose harsher regulations.”

Pacific Justice Institute (PJI) had filed an amicus brief in this case, urging the Ninth Circuit to protect pharmacists' rights of conscience.

“Today's ruling immediately endangers conscientious pharmacists in Washington State and also strikes a blow at medical professionals throughout the West Coast,” commented PJI President Brad Dacus. 

“The Ninth Circuit's reinstatement of these anti-conscience regulations, despite strong evidence that they targeted people of faith, renders the Free Exercise Clause meaningless.”

In April, Illinois pharmacists fired for refusing to distribute the abortifacient pill won a victory when a judge temporarily barred the Governor and other state officials from enforcing a 2005 executive order forcing pharmacists to dispense the drug.

See related coverage:

Pharmacists Sue Washington State for Forcing Them to Sell Morning After Pill

Illinois Judges Upholds Pharmacists' Conscience Rights

ACLJ to Defend Two Pharmacists Fired for Refusing to Provide Abortifacients