by Katelyn DeRuyter, UMN Law Student, MJLST Staff
Can your access to a legal method of birth control be blocked by your pharmacist? It seems likely. Although emergency contraception (EC) is legal in America and a recent poll found that 77% of Americans object to pharmacies refusing to fill birth control prescriptions, a woman that goes to pick up EC may face a denial of the drug by her pharmacist. According to the Appellate Court of Illinois Fourth District, in recent case Morr-Fitz, Inc. v. Quinn, the state's "Conscience Act" (protecting health care personnel from liability when they refuse to act due to their conscience) protects pharmacists who refuse to dispense EC. Illinois is not alone in providing pharmacists the ability to deny EC. Six states have laws that explicitly permit pharmacists to refuse to administer EC. Five more states (including IL) have "conscience clause" laws that are worded broadly enough that pharmacists may be included.
Under the Patient Protection and Affordable Care Act, as of August 1, 2012 medical insurance plans must completely cover the costs for birth control--including emergency contraception--STD screenings and many other preventive health measures for women. Depending on which articles you read, this expansion in required insurance coverage either marks a hallmark step in women's rights or an egregious affront to one of this country's ideological pillars--the freedom of religion. Regardless of your stance on the new legislation, the fact remains that increased financial access to such services is meaningless if physical access is blocked. This is especially true in regard to emergency contraception which must be taken as soon as possible after intercourse in order to be effective. Thus when a pharmacist refuses to provide access to EC, they are putting their objections to EC above a woman's right to exercise control over her body.
In Pharmacists and the "Morning-After Pill": Creating Room for Conscience Behind the Counter, published in Volume 7 issue 1 of the Minnesota Journal of Law, Science & Technology, Tony J. Kriesel faces this question of whether a pharmacy or individual pharmacist can constitutionally refuse to administer EC. Kriesel starts with the proposition that EC can be viewed as an abortive drug. It is this possibility of EC acting as an abortive that motivates pharmacists' denials. Whether or not EC is considered an abortive drug depends on at what point in reproduction one considers pregnancy to have begun. If pregnancy begins when the egg is fertilized, then EC can act as an abortive if taken during ovulation. If taken during ovulation, EC prevents the egg from implanting in the lining of the uterus, thus causing the fertilized egg to be aborted. However if pregnancy begins when a fertilized egg successfully implants in the lining of the uterus, then EC is not abortive but acts like all other forms of birth control and simply keeps a potentially viable pregnancy from beginning.
After acknowledging there is controversy in the medical community over whether fertilization or implantation begins pregnancy, Kriesel asserts that EC is in fact an abortive and that pharmacists can constitutionally refuse to administer the drug. Kriesel's legal analysis of this issue focuses on the protections provided to the pharmacist by the free exercise clause of the First Amendment and the fact that a woman's right to EC (regardless of its classification as an abortive) does not entail a right to have access to EC wherever is most convenient.
The U.S. Supreme Court has not addressed this question of whether a pharmacy or individual pharmacist can constitutionally refuse to administer emergency contraception (EC). What are your thoughts on the issue? Can (and should) states pass laws that allow pharmacists to deny access to a legal form of birth control? Does the right to freedom of religious expression trump a woman's right to exercise control over her body?