Three Massachusetts women filed suit against Wal-Mart Wednesday, claiming the company violated state pharmaceutical laws by refusing to fill their prescriptions for the morning-after pill.
The women’s attorney Sam Perkins is now looking to force the super-store to stock Plan B, adding that a consumer protection law forbids a business from acting in an unfair or deceptive manner towards customers.
“This is the commonly prescribed medication to fill in what is a missing piece in the contraception picture. All women should have it as backup,” Perkins said. “Every single other chain complies with state laws.”
Katrina McCarty, Rebekah Gee and Julie Battel, in carrying out a coordinated plan, went to separate Wal-Marts in Quincy and Lynn with prescriptions for Plan B, the emergency contraception, and were turned away. Battel said the three women knew they would be denied the pill, and of the three, only Gee did not go to another pharmacy to have the prescription filled.
“In a situation like this where someone has been deprived of medication, that obviously is harm,” said Perkins. “It is the same kind of harm as any consumer fraud situation.”
According to Massachusetts law, pharmacies are required to stock supplies needed for “commonly prescribed medications in accordance with the usual needs of the community.”
However, the law does not specify how pharmacies determine which medications fall under this definition.
Perkins argued that the morning after pill is so widely used it should fall under pharmaceutical law, and that Wal-Mart’s policy to not stock emergency contraception is “based on ideological grounds.”
Perkins cited the fact that 30,000 emergency contraception prescriptions are issued in Massachusetts every year as reason why the Plan B pill should be defined as “commonly prescribed medication.”
Angus McQuilken, public affairs manager of the Massachusetts branch of Planned Parenthood, also argued that Plan B is frequently prescribed and is within the scope of the law.
“We issue dozens of prescriptions every single day,” McQuilken said at the conference.
But, in a letter to Perkins, Wal-Mart’s attorney John Delaney said that without the law specifying which drugs are “commonly prescribed” Wal-Mart cannot be held accountable.
“There is no list or formulary of such medications,” Delaney said, adding that the state Board of Registration in Pharmacy “has never acted to identify any particular prescription medication” as included or excluded under this law.
Dan Fogleman, a spokesman for Wal-Mart, said that the business only carries limited prescription medications. Wal-Mart has 44 store locations across Massachusetts, none of which carry Plan B.
“Wal-Mart chooses not to carry many products for business reasons,” Fogleman said, declining to elaborate on those reasons. “We stress that all Wal-Mart pharmacies must comply with state and federal regulations.”
Fogleman said that if a Wal-Mart store does not carry a certain product, pharmacists are asked to refer customers to other pharmacies.
Delaney also said he does not believe the three women suffered injury so damages should not be rewarded.
Upon the Board or Attorney General’s clarification as to whether or not Plan B is a “commonly prescribed medication,” Wal-Mart will abide by the regulations, Delaney said.
The three plaintiffs have a history of supporting similar causes, such as coauthoring a bill in favor of Plan B and involvement in disputes regarding abortion rights.
Additionally, McCarty works for Jane Doe Inc. and Gee and Battel are an OB/GYN resident and a nurse midwife, respectively, at Massachusetts General Hospital. Gee is also a resident at Brigham and Women’s Hospital.
The plaintiffs stressed the need to have Plan B on hand in case of an emergency.
“Sex doesn’t always happen during office hours,” Gee said.
The FDA has approved plan B by prescription. It can be taken three to five days after unprotected sex to prevent pregnancy, according to the FDA’s website.
Some abortion opponents have sought to block use of Plan B because they see it as interrupting the reproductive process.
In December, the state legislature overrode Gov. Mitt Romney’s initial veto of a measure mandating hospitals to provide women with emergency contraception without a prescription if requested. Pharmacies can choose whether to require a prescription.
The lawsuit is also backed by Planned Parenthood, a leading provider of birth control; Jane Doe Inc., an organization which aims to reduce sexual assault and domestic violence; and NARAL Pro-Choice Massachusetts, a local branch of the national group which favors abortion rights.
Representatives from the Massachusetts branch of the National Right to Life Committee, a group opposing abortion, could not be reached for comment.