Academic journal article Texas Journal of Women, Gender, and the Law

Cold Comfort Pharmacy: Pharmacist Tort Liability for Conscientious Refusals to Dispense Emergency Contraception

Academic journal article Texas Journal of Women, Gender, and the Law

Cold Comfort Pharmacy: Pharmacist Tort Liability for Conscientious Refusals to Dispense Emergency Contraception

Article excerpt

I. Introduction

I first learned about emergency contraception as a first-year college student. Returning from the semester break just after New Year, a friend and I began comparing notes about our respective holidays. "It was awful," she told me. "You try driving a crying girl around for hours, searching for a doctor's office or a Planned Parenthood that would be open on New Year's Day. Let me tell you, no one is open."

My friend and her car had been pressed into service by her dear friend from high school, a young woman whose New Year festivities had been punctuated not with the dropping of the ball but with the breaking of a condom. My friend explained to me that when contraception fails or for whatever reason is not used, emergency contraception, or "EC" for short, provides a woman's last, best hope for avoiding an unplanned pregnancy. The drug provides a high dose of hormones, similar to those contained in regular birth control pills, and is up to 89% effective-but only if taken within seventy-two hours of unprotected sex, and the sooner the better.1

New Year's Day fell on a Friday that year, and clinic after clinic had already posted their "closed" signs for the weekend. This was at the beginning of 1999, several months after the U.S. Food and Drug Administration ("FDA") first approved EC for prescription use under the brand name Preven,2 but nearly eight years before the agency would approve a drug for limited over-the-counter availability under the brand name Plan B.3 The seventy-two-hour window of opportunity was rapidly closing for my friend's charge, and without a standing EC prescription from her doctor or an over-the-counter option for obtaining the drug, membership in the anxious sorority of women who nervously counted and recounted the days to their next period was about to increase by one.

For a drug that has the power to obviate the fraught decision among abortion, adoption, and unprepared parenthood, there had to be a better way. For the last several years, pro-choice advocacy groups thought that "better way" was to increase public awareness about the drug's existence and to make EC available on an over-the-counter basis. They are succeeding on both counts. Since 1999, EC's profile has risen considerably. Women are becoming aware of the drug in increasing numbers, and the number of EC prescriptions filled nationwide doubled between 2004 and 2006.4 The American College of Obstetricians and Gynecologists initiated their "Ask Me" campaign in May 2006 to increase awareness of and access to EC by encouraging women to get just-in-case EC prescriptions from their gynecologists during their regular appointments so that, should the patients later need a dose, they would not have to scramble for a prescription.5 And in August 2006, after a controversial, protracted, and according to critics, unscientific and politicized FDA review, that agency approved Plan B for over-the-counter availability for women age eighteen and older.6

But this increasing awareness about EC among the public has not always been accompanied by improved access to the drug. Some pharmacists who believe life begins at conception-the moment of fertilization-equate EC, and in some cases even traditional birth control pills, with abortion because they fear it could interfere with the implantation of a fertilized egg in the uterus. Although there is no scientific evidence of EC ever preventing a fertilized egg from implanting, it is impossible to prove a negative-no one can demonstrate, logically or scientifically, that EC could never inhibit implantation.7 These pharmacists therefore refuse to fill prescriptions for such drugs on the grounds that to do so would be to facilitate abortion in violation of their moral or religious beliefs.8 "Advocates on both sides say the refusals appear to be spreading, often surfacing only in the rare instances when women file complaints" against the refusing pharmacists.9 Although the frequency with which pharmacists refuse to fill prescriptions for EC and traditional contraceptives can be assessed only on an anecdotal basis, such cases have been reported around the United States. …

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