OPINION - 2
The rule primarily
at issue, commonly known as the “delivery rule,” requires pharmaciesto timely deliver all lawfully prescribed medications, including the emergency contraceptivesPlan B and
Under the delivery rule, a pharmacy’s refusal to deliver is grounds fordiscipline, up to and including revocation of its license. In operation, the delivery rule bars apharmacy from referring patients seeking Plan B to other pharmacies, meaning they mustdispense the drugs.In violation of the regulations, but in conformity with their religious beliefs, the Plaintiffsrefused to dispense Plan B to Planned Parenthood test shoppers and others. The Board launcheda series of investigations, and this suit was the result. Based on the evidence presented at trial,the Board’s regulations, while facially acceptable, are in practice unconstitutional.
Plaintiffs are two individual pharmacists and a corporate pharmacy.
Each holds thesincere religious belief that life begins at conception, when an egg from the female is fertilizedby the sperm from the male. Taken after unprotected sex, emergency contraceptives Plan B and
The other new rule (the “pharmacist responsibility rule”), and the pre-existing “stockingrule,” are also at issue in this case. They are discussed below.
Plaintiffs amended their Complaint to add allegations regarding
when it becamewidely available in 2010. [Dkt. #s 470 & 474]. For ease of reference, the two are referred to as“Plan B” in this Opinion.
A detailed history of the Rules’ promulgation and enforcement is set forth in the Court’sFindings of Fact and Conclusions of Law, filed herewith. Only those facts essential to theCourt’s opinion are reiterated here.
Plaintiffs are Margo Thelen, Rhonda Mesler, and Stormans, Inc. Stormans owns andoperates two grocery stores, one of which contains a retail pharmacy.
Case 3:07-cv-05374-RBL Document 560 Filed 02/22/12 Page 2 of 48