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Feb. 1--Three Massachusetts women are planning to file a lawsuit today against Wal-Mart for failing to stock and sell a prescription emergency contraception pill called Plan B.
Details of the lawsuit and the names of the plaintiffs were not available in advance of a press conference today, but an attorney representing the three women said the case is based on longstanding pharmacy regulations in Massachusetts.
The emergency contraception pill is a high dose of hormones that women can take three to five days after unprotected sex to prevent pregnancy. The pill, because it is viewed by abortion opponents as a way of terminating a pregnancy, has stirred controversy both nationally and locally.
A Wal-Mart spokeswoman said the company doesn't carry a number of products, including Plan B, "for business reasons." The spokeswoman, Sarah Clark, declined to discuss the specific "business reasons" associated with Plan B.
Clark said it is company policy to refer customers seeking a product that Wal-Mart doesn't carry to a competitor who does stock the item. She also said Wal-Mart pharmacies in Massachusetts will stock the Plan B pill if the retailer receives a directive to do so either from the Massachusetts Pharmacy Board or the state attorney general.
"At this time, we know of no such requirement," Clark said.
Until now, Wal-Mart's decision not to carry the Plan B pill has attracted little attention in Massachusetts, partly because the retailer has a relatively small presence here and there are so many other pharmacies where consumers can fill their prescriptions. Wal-Mart operates 44 pharmacies in Massachusetts and 3,700 nationwide.
But the three women, backed by abortion-rights advocates Planned Parenthood League of Massachusetts, NARAL Pro-Choice Massachusetts, and Jane Doe Inc., are planning to argue that Wal-Mart is violating the Massachusetts Consumer Protection Act by refusing to fill a legal prescription for Plan B.
Aside from Wal-Mart, all of the major pharmacy chains operating in Massachusetts carry Plan B. But there is no specific state law requiring a pharmacy to fill Plan B prescriptions and several pharmacies contacted yesterday said they are not aware of any requirement that they stock emergency contraceptives.
A spokeswoman for the Massachusetts Pharmacy Board said it has received no complaints about lack of access to emergency contraceptives.
"Because there is no complaint before it, the board is not in a position to comment or to render a legal opinion on a matter that may be the subject of litigation between private parties," the spokeswoman, Jessica Cates, said.
Cates supplied a copy of the board's regulations, which state that pharmacies "shall maintain on the premises at all times a sufficient variety and supply of medicinal chemicals and preparations which are necessary to compound and dispense commonly prescribed medications in accordance with the usual needs of the community."
A spokeswoman for Attorney General Thomas F. Reilly declined to comment.
The Plan B medication, sometimes called the morning-after pill, was approved by the US Food and Drug Administration in 1999 as a prescription drug. But since delays in getting a doctor's prescription could reduce the effectiveness of the drug, its maker, Barr Laboratories, asked the FDA to approve over-the-counter sales.
The FDA rejected the initial over-the-counter application, despite recommendations from an independent advisory committee and the agency's own scientific staff to do so. A subsequent request from Barr hasn't been acted on by the agency.
In Massachusetts, the drug also has prompted debate. The Legislature last year overwhelmingly overrode a veto by Governor Mitt Romney of a bill that allowed pharmacists to dispense Plan B without a prescription if they underwent special training and consulted regularly with a physician. The measure also required hospital emergency rooms to make emergency contraceptives available to rape victims.
The Romney administration subsequently exempted privately run hospitals from dispensing Plan B to rape victims if a hospital objects on moral or religious grounds. A week later Romney changed course and said all hospitals would be required to offer the morning-after pill to rape victims.
A spokesman for CVS, the state's largest pharmacy chain, said the company stocks Plan B at all of its pharmacies and is putting together a program for some of its pharmacists to dispense the medication without a prescription.
Steven Grossman, owner of J. E. Pierce Apothecary in Brookline, said his pharmacy also is developing an over-the-counter option for customers. Grossman said he is not aware of any law requiring pharmacies to carry Plan B but he believes any pharmacy that receives a prescription for the drug should fill it.
"Your moral responsibility as a pharmacist is to make medicines available to patients," he said.
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