Washington Women Seeking EC Not Helped by 9th Circuit

by Gretchen Borchelt, Senior Counsel
National Women’s Law Center

Late last week, the Ninth Circuit Court of Appeals upheld a preliminary injunction issued against a rule passed by the Washington state board of pharmacy. The rule ensures patient access to medication, but was challenged in court by Washington pharmacists and a pharmacy who do not want to give women emergency contraception. As we reported, last November a lower court issued a preliminary injunction that halts the rule as it applies to Plan B emergency contraception.

The Ninth Circuit decision came from a divided panel that illustrates the importance of who our judges are. In the majority were Judge Thomas G. Nelson, who was appointed by the first President Bush, and Judge Jay Bybee, appointed by the current President Bush. Their decision means that while the case is pending, Washington women who want access to EC may face a refusing pharmacist and delay in accessing the time-sensitive medication.

Judge A. Wallace Tashima, who was appointed by President Clinton, wrote a strong dissent. It not only explains the problems with this panel’s decision but also points out the errors of the lower court in issuing the injunction in the first place. Judge Tashima recognizes that rules like Washington’s do not violate pharmacists’ right to free exercise of religion; they help ensure that women are not delayed in their efforts to prevent unintended pregnancies. Hopefully, when the case reaches the merits, Judge Tashima’s logic will carry the day.