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Hub women file complaint against Wal-Mart

Group also sues over failure to sell morning-after pill

Three Boston-area women yesterday sued Wal-Mart for failing to stock and dispense emergency contraceptive pills. They also filed a complaint with the state board that regulates pharmacies.

The complaint, to the Board of Registration in Pharmacy, may force the agency to decide whether its regulations require Wal-Mart to carry the emergency contraceptive, known as Plan B. Previously, a spokeswoman for the board said it wouldn't take a position on the matter because it hadn't received a formal complaint.

Yesterday, Wal-Mart said it was considering asking the state board for an opinion on Plan B. Wal-Mart doesn't carry Plan B at any of its 3,700 pharmacies nationally for ''business reasons," but said it would stock the drug at its 44 Massachusetts pharmacies if the board or Attorney General Thomas F. Reilly say that's required.

Sam Perkins, the attorney for the three women, said a formal complaint shouldn't have been needed to get the state board to act. ''The board has authority to enforce its regulations any time there's a violation," he said.

The lawsuit, filed in Suffolk Superior Court, alleges violations of the state's Consumer Protection Act. The attorney said Wal-Mart is the only pharmacy chain in Massachusetts not selling Plan B, a high dose of hormones that women can take three to five days after unprotected sex to prevent pregnancy.

''No pharmacy chain can take a political agenda and impose it on the people of Massachusetts," Perkins said at a news conference in Boston.

Marie Sturgis, executive director of Massachusetts Citizens for Life, which believes life begins at the moment of conception, said she did not think Wal-Mart should be forced to sell Plan B.

''I don't think anyone should be forced to be a party to something they morally oppose," she said. ''Not all of us want to partake in the culture of death."

The three plaintiffs said they tried unsuccessfully to fill Plan B prescriptions at Wal-Mart pharmacies in Quincy and Lynn to lay the groundwork for their case. They said they were told that Wal-Mart doesn't stock the drug and were referred to a competitor.

Two of the plaintiffs, Katrina McCarty of Somerville and Julie Battel of Jamaica Plain, did buy the drug at another store; the third, Rebekah Gee of Boston, did not.

McCarty works in the government affairs department at Jane Doe Inc., the Massachusetts Coalition Against Sexual Assault and Domestic Violence, which is supporting the lawsuit. Battel is a nurse midwife, and Gee is an obstetrician/gynecologist who last year helped write legislation to increase access to emergency contraception.

Perkins said Wal-Mart must stock the drug, under a regulation requiring pharmacies to dispense ''commonly prescribed medications in accordance with the usual needs of the community."

He said the pharmacy board cited that section of its regulations in 2002 when it allowed pharmacies to stop stocking OxyContin after a string of robberies. The board noted at the time that the OxyContin decision was an exception to its regulations and was made only after hearings.

Wal-Mart, in a Jan. 26 letter responding to a letter of complaint from Perkins, said the Plan B case had no merit because emergency contraception is not a commonly prescribed medication and the three plaintiffs had not been harmed by having to go to another store.

A recent Supreme Judicial Court decision requires plaintiffs in Consumer Protection Act cases to show they have been harmed.

Bruce Mohl can be reached atmohl@globe.com.

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