Women sue Wal-Mart over access to emergency contraception

BOSTON --Three Massachusetts women backed by pro-abortion rights groups sued Wal-Mart on Wednesday, saying the retail giant violated a state regulation by failing to stock emergency contraception pills in its pharmacies.

The suit filed in Suffolk Superior Court seeks a court order compelling the company to stock the so-called "morning after pill," in its 44 Wal-Marts and four Sam Club stores in Massachusetts, all of which have pharmacies.

"Wal-Mart apparently thinks it is above the law," said Sam Perkins, a lawyer for the three plaintiffs.

A new state law that took effect late last year following heated debate on Beacon Hill requires all hospitals to provide the morning-after pill to rape victims. It also allows pharmacists to dispense the pill without a prescription, but does not require it.

The suit, backed by Planned Parenthood of Massachusetts, NARAL Pro-Choice Massachusetts and Jane Doe Inc., argues Wal-Mart is violating a state policy that requires pharmacies to provide all "commonly prescribed medicines." They are suing to force compliance with the regulation through the Massachusetts Consumer Protection Act.

"Massachusetts pharmacies are required to stock all medications that are commonly prescribed to meet the usual needs of the community," Perkins said.

Dan Fogleman, a spokesman for Bentonville, Ark.-based Wal-Mart, said the company "chooses not to carry many products for business reasons," but he declined to elaborate.

However, in a letter to Perkins regarding the lawsuit, Wal-Mart attorney John W. Delaney wrote that Wal-Mart has "long had the corporate policy of declining to make available EC (emergency contraception) medication, based on, among other things, a view that EC medication is not 'commonly prescribed' and within the 'usual needs of the community.'"

Delaney also wrote that if a Wal-Mart pharmacy doesn't carry a certain prescription, the pharmacist is instructed to refer the customer to a different drug store.

He added that Wal-Mart would formally request clarification of the state regulation from Attorney General Tom Reilly or the state's Board of Pharmacy. He said if either directs the company to carry certain products, "Wal-Mart will abide."

Fogleman said Wal-Mart stores in Illinois stock Plan B, as required by state law. But the drug is not stocked by Wal-Mart in any other state.

The morning-after pill provides a high dose of hormones that women can take up to five days after sex to prevent pregnancy. Some abortion opponents believe emergency contraception is a form of abortion because it blocks the fertilized egg from being implanted on the uterine wall.

The plaintiffs are Katrina McCarty, 29, of Somerville, Julia Battel, 37, of Boston, and Dr. Rebekah Gee, 30, of Boston. All three were turned away when they tried to buy emergency contraception pills at area Wal-Marts.

The women said they knew they would be refused when they went to the Wal-Marts in Quincy and Lynn and that the action was planned with the abortion rights groups and lawyers.

After being refused, McCarty and Battel went to other pharmacies and got their prescriptions filled. CVS, the state's largest pharmacy chain, stocks the pill at all of its pharmacy locations, as do the state's other major pharmacy chains.

"I did this on behalf of my patients," said Gee, who is completing her residency at Brigham and Women's/Massachusetts General Hospitals in Obstetrics and Gynecology. "Women shouldn't be refused needed medication."

The lawsuit also seeks $25 in damages for each woman, plus attorneys' fees, which is all they're entitled to under the state's consumer protection law. Perkins has asked Wal-Mart to settle the matter within 30 days.

Perkins did not know of similar lawsuits against Wal-Mart in other states.