Conservative Media Celebrate Judicial Decision To Limit Women's Access To Plan B

Blog ››› ››› ADAM SHAH

Following on the heels of the trumped-up outcry over the Obama administration's regulations allowing women to have access to insurance coverage for contraception, conservative media figures are lauding a federal judge's decision allowing pharmacies to refuse to fill prescriptions for Plan B emergency contraception as well as a host of other important prescription drugs.

In 2007, in response to complaints from groups such as Legal Voice and Planned Parenthood Votes Northwest, the Washington State Board of Pharmacy issued regulations to deal with pharmacies that refused to dispense lawfully prescribed medications such as Plan B and certain AIDS drugs. Pharmacies had also been accused of destroying or confiscating such prescriptions.

While preserving the right of individual pharmacists to refuse to fill prescriptions that conflicted with their religious or moral views, the Board of Pharmacy determined that licensed drug stores had a responsibility to fill the prescriptions that patients and doctors had decided were appropriate or necessary. Thus, if a drug store employs a pharmacist who refuse to dispense certain prescription drugs, it must have another pharmacist available who will do so.

The decision to strike down the regulations could endanger women's health. As Legal Voice and Planned Parenthood Votes Northwest said in a statement:

"We respectfully and firmly disagree with the court's decision today," said Lisa M. Stone, Executive Director of Legal Voice, which co-represented seven individuals who intervened in the lawsuit on behalf of patients. "This ruling adds another brick in the ever-growing wall between women and their health care. What's more, it ignores well-established legal principles long ago articulated by the U.S. Supreme Court."

Women's health care, contraceptive access and abortion rights are being debated across the United States, and the court's decision is yet another instance of a vocal minority injecting their beliefs between women and health care. Even as so many important discussions take place around health care, insurance, and access to health care, this ruling represents yet another interference in the doctor-patient relationship. A refusal to fill someone's prescription for personal reasons can have serious and damaging personal and public health consequences.

"This decision not only affects two pharmacists and one pharmacy, it is a blow to access to health care for all patients. When a pharmacist can refuse to serve a patient because he or she does not like the drug or the patient, where will it stop? The overarching priority in this state should be patient access to health care," said Elaine Rose, CEO of Planned Parenthood Votes Northwest.

But right-wing media personalities are celebrating the decision. National Review Online's Ed Whelan and Red State's Leon Wolf both celebrated the decision, with Wolf calling it a "blow against regulatory fascism." The ruling was also mentioned by Fox News' Gretchen Carlson. All three media personalities suggested the decision might call into question the constitutionality of the Obama administration's regulations giving women access to insurance coverage for birth control.

Not only are these media figures celebrating a judicial ruling that could be harmful for women's health, a closer look at the ruling in question shows that it is also likely headed for reversal on appeal and actually demonstrates how little merit there is to the argument that the Obama administration's contraception ruling is unconstitutional.

An examination of the legal issues in the case is below the fold.

This is not the first time that the judge in the case -- George W. Bush appointee Ronald Leighton -- has tried to strike down Washington's regulations requiring pharmacies to dispense legally written prescriptions. As Legal Voice and Planned Parenthood Votes Northwest note, Leighton made a similar ruling in November 2007 when he granted a preliminary injunction barring Washington state from enforcing the regulation. But Leighton's earlier decision was reversed on appeal.

The U.S. Court of Appeals for the Ninth Circuit overturned Leighton's decision in a unanimous three-judge panel decision written by Clinton appointee Kim McLane Wardlaw and joined by George W. Bush appointees Richard Clifton and N. Randy Smith.

The Ninth Circuit ruled that Leighton had applied the wrong standard to the Free Exercise Clause at issue. The court held that Leighton had wrongly subjected the regulation to "heightened scrutiny," a standard under which laws are usually held unconstitutional.

The Ninth Circuit said that Leighton should have used a much less stringent "rational basis" standard, one under which laws are usually upheld: "Because the rules are neutral and generally applicable, the district court should have subject the rules to the rational basis standard of review. The district court instead introduced a heightened scrutiny to a neutral law of general applicability, contrary to" Supreme Court precedent.

Under rational basis review, the regulation in question should be upheld as constitutional so long as, in the words of the Ninth Circuit's decision, it is "rationally related to Washington's legitimate interest in ensuring that its citizen-patients receive lawfully prescribed medications without delay."

The Ninth Circuit then sent the case back to the district court to determine whether the regulations at issue passed muster under the rational basis test.

However, Leighton proceeded to defy the Ninth Circuit's ruling, deciding after a trial that the regulations at issue "are not neutral and are therefore subject to strict scrutiny."

It is difficult to see how Leighton's decision will result in anything but a swift and firm reversal from the Ninth Circuit.

Furthermore, it shows just how weak the arguments made by opponents of the Obama administration's birth control regulations actually are. After all, two Bush appointees have determined that such a regulation is a "neutral law of general applicability," should be subject to the low bar of "rational basis" review, and therefore is very unlikely to be unconstitutional under current Supreme Court precedents.

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