Fifty years have passed since the US Food and Drug Administration (FDA) approved the birth control pill for sale with a doctor’s prescription. Now ninety-eight percent of all women will use contraception during their lifetimes, and one-third of those will use birth control pills. Despite such widespread acceptance of family planning, a determined minority has taken advantage of majority complacency to campaign for state legislation that would make it harder for a woman to acquire emergency contraception (also called EC) that is now supposed to be available over the counter or even to obtain prescribed birth control pills.
Five states already enable pharmacists to refuse to supply contraception without any protection for the consumer – in two states, dispensers can deny any drug whatsoever and in three the so-called conscience clauses extend to any employee of the pharmacy or other medical institution, including clerks. These laws put the burden on the woman to find a willing pharmacist, rather than on the pharmacy to find a way to fulfill its mandated responsibility. They appear to accept the charge that emergency contraception causes abortion, which it does not. EC works the same way birth control pills work, by inhibiting ovulation.
What has been submerged in the campaign to prioritize the moral and religious concerns of some pharmacists are the moral, religious, and legal rights of women who need and are entitled to access to contraception. The industry standard set by the American Pharmaceutical Association states that if a pharmacist refuses to fill a prescription, established systems must “ensure patient access to legally prescribed therapy.” Refusal to adhere to such a policy is an infringement on the right of women to exercise their own conscientious choices when it comes to reproductive health care.
Because access to emergency contraception without a prescription is limited to women 17 and older, EC is kept behind the counter anyway and requires a pharmacist to dispense it. The pharmacist’s role in the distribution of emergency contraception has provided the entry point for its opponents. They use appeals to religious liberty and spurious claims as to how the emergency pills actually work to win laws that legalize so-called pharmacy refusal without any recourse for the patient-consumer. But the laws can go further; Arizona’s law covers any drug or device intended to inhibit or prevent implantation of a fertilized ovum, which would include monthly pills. Many states have become a battleground for this issue, with opposing bills vying for support in state legislatures.
But even where consumers and patients are supposedly protected, women experience problems. Some pharmacists have refused any kind of birth control pills to teenagers who have a doctor’s prescription, simply because they disapprove of teenagers having sex. Others have denied women emergency contraception based on personal judgments about the medication or the woman’s behavior.
Enacting a clear national standard would ensure access for all women. It would mean women at special risk – younger women, women in rural areas, or those living in ideologically conservative jurisdictions – would all have the same rights. Rep. Carolyn Maloney (D-NY) and Sen. Frank Lautenberg (D-NJ) have introduced such a bill. The Access to Birth Control (ABC) Act will stop pharmacies from refusing to sell contraceptives because of a pharmacy employee’s religious beliefs, while protecting the right of individual pharmacists to refuse to fill a prescription. It will place the burden on the pharmacy to accommodate the patient’s needs by requiring that pharmacies help women obtain the medication they need without delay.
There is certainly a role for state licensing and regulation of pharmacies and pharmacists. But only a federal law can protect women’s constitutional right to obtain contraception in every corner of the land regardless of the religious beliefs of individual pharmacists. Swift passage of the Access to Birth Control Act will make the right of women to control their fertility – a hallmark of the modern belief in gender equality – a right they can count on.
Nancy Ratzan is president of the National Council of Jewish Women