Summary: The Women’s Right to the Pill Act would require that all pharmacies must fill lawful contraceptive prescriptions and stock emergency contraception for purchase over-the-counter.
Women seeking birth control prescriptions continue to face refusals when they go to the pharmacy. The anti-abortion movement has encouraged pharmacies and individual pharmacists to refuse to dispense contraception in a variety of circumstances. And a number of states have enacted laws that are specifically intended to permit refusals in the pharmacy. Six states (Arizona, Arkansas, Georgia, Idaho, Mississippi and South Dakota) have enacted laws that explicitly let pharmacists refuse to dispense contraception. Furthermore, refusal laws in Colorado, Florida, Kansas, Maine and Tennessee are so broadly written that they may also cover pharmacists who refuse to dispense birth control.
Refusals to provide emergency contraception have been a particular problem. Emergency contraceptives are Food and Drug Administration-approved forms of birth control that safely and effectively prevent pregnancy after unprotected sex, birth control failure or sexual assault. There are several FDA-approved emergency contraceptives: Plan B One-Step and its generics, which are pills containing the same ingredient found in many birth control pills; ella, another type of contraceptive pill; and the copper intrauterine device (IUD). Following rulings by the Food and Drug Administration and federal courts, some emergency contraceptive pills can be sold at drugs stores without a prescription.
Some of these refusals are based on the mistaken belief that emergency contraceptive pills cause abortion. Emergency contraceptive pills do not interfere with an established pregnancy. Unlike Mifeprex, commonly called the “abortion pill,” emergency contraception does not induce abortion. The anti-abortion movement has built opposition to emergency contraception by deliberately confusing it with Mifeprex—but licensed pharmacists should certainly know the difference. When pharmacists refuse to dispense contraceptive pills, they stand against birth control—not abortion.
Women have also faced refusals for other forms of birth control. The idea that pharmacists or pharmacies have the right to refuse prescriptions has emboldened some to block access to traditional contraception. Pharmacists have flatly refused to fill orders for traditional birth control prescriptions in a number of states.
Some states have laws or regulations that require pharmacists or pharmacies to provide medication to their patients, including birth control. Eight states—California, Illinois, Maine, Massachusetts, Nevada, New Jersey, Washington and Wisconsin—explicitly require pharmacists or pharmacies to provide medication, including birth control, to patients. Three of those states have passed laws, while in others, the pharmacy board or another entity has adopted regulations or policy statements.
SECTION 1. SHORT TITLE
This Act shall be called the “Women’s Right to the Pill Act.”
Section 2. FINDINGS AND PURPOSE
(A) FINDINGS—The legislature finds that:
1) Family planning is basic health care for women. Access to contraception helps women prevent unintended pregnancy and control the timing and spacing of planned births.
2) Although the Centers for Disease Control and Prevention included family planning in its published list of the Ten Great Public Health Achievements in the 20th Century, the United States still has one of the highest rates of unintended pregnancies among industrialized nations.
3) Each year nearly half of all pregnancies in the United States are unintended.
4) Women rely on contraceptives for a range of medical purposes in addition to birth control, such as regulation of cycles and endometriosis.
5) After reviewing data and evidence, the U.S. Food and Drug Administration determined that emergency contraception is a safe and effective method to prevent unintended pregnancy and approved over-the-counter access to some forms of emergency contraception for all individuals, regardless of age.
6) If taken soon after unprotected sex or primary contraceptive failure, emergency contraception can significantly reduce a woman’s chance of unintended pregnancy.
7) Access to the full range of contraceptive methods is fundamental to women’s health care and should not be impeded because of a refusal at the pharmacy.
(B) PURPOSE—This law is enacted to ensure that, at all pharmacies in the state, women can fill contraceptive prescriptions and purchase certain emergency contraception without a prescription.
SECTION 3. DUTY OF PHARMACIES TO ENSURE PROVISION OF FDA-APPROVED CONTRACEPTION
After section XXX, the following new section XXX shall be inserted:
(A) DEFINITIONS—In this section:
1) “Contraception” or “contraceptive” means any drug or device approved by the Food and Drug Administration to prevent pregnancy.
2) “Emergency contraception” means one or more drugs, used separately or in combination to prevent pregnancy within a medically-recommended amount of time after sexual intercourse.
3) “Employee” means a person hired, by contract or any other form of an agreement, by a pharmacy.
4) “Pharmacy” means an entity that is licensed by the state under [insert appropriate citation] to engage in the business of selling prescription drugs at retail, and employs one or more employees.
5) “Product” means a Food and Drug Administration-approved drug or device.
6) “Professional clinical judgment” means the use of professional knowledge and skills to form a clinical judgment, in accordance with prevailing medical standards.
7) “Without delay” with respect to a pharmacy dispensing, providing a referral for, or ordering contraception, or transferring the prescription for contraception, means within the usual and customary timeframe at the pharmacy for dispensing, providing a referral for, or ordering other products, or transferring the prescription for other products, respectively.
(B) DUTY OF PHARMACIES
1) If a customer requests a contraceptive that is in stock, the pharmacy shall ensure that the contraceptive is provided to the customer without delay.
2) If a customer requests a contraceptive that is not in stock, the pharmacy shall immediately inform the customer that the contraceptive is not in stock and without delay offer the customer the following options:
a) If the customer prefers to obtain the contraceptive through a referral or transfer, the pharmacy shall locate a pharmacy of the customer’s choice or the closest pharmacy confirmed to have the contraceptive in stock and refer the customer or transfer the prescription to that pharmacy.
b) If the customer prefers for the pharmacy to order the contraceptive, the pharmacy shall obtain the contraceptive under the pharmacy’s standard procedure for expedited ordering of medication and notify the customer when the contraceptive arrives.
3) The pharmacy shall ensure that its employees do not:
a) Intimidate, threaten, or harass customers in the delivery of services relating to a request for contraception;
b) Interfere with or obstruct the delivery of services relating to a request for contraception;
c) Intentionally misrepresent or deceive customers about the availability of contraception or its mechanism of action;
d) Breach medical confidentiality with respect to a request for contraception or threaten to breach such confidentiality; or
e) Refuse to return a valid, lawful prescription for contraception upon customer request.
4) This section does not prohibit a pharmacy from refusing to provide a contraceptive to a customer in accordance with any of the following:
a) If it is unlawful to dispense the contraceptive to the customer without a valid, lawful prescription and no such prescription is presented;
b) If the customer is unable to pay for the contraceptive; or
c) If a licensed pharmacist refuses to provide the contraceptive on the basis of a professional clinical judgment.
5) Pharmacies shall stock over-the-counter emergency contraception and make it available for purchase without a prescription in accordance with the U.S. Food and Drug Administration protocol.
1) The state [Board of Pharmacy] shall enforce this section in accordance with [section of law dealing with violations of Board policy].
2) Any person aggrieved as a result of a violation of this section may, in any court of competent jurisdiction, commence a civil action against the pharmacy involved to obtain appropriate relief, including actual and punitive damages, injunctive relief, and a reasonable attorney’s fee and cost.
SECTION 4. SEVERABILITY
The provisions of this Act shall be severable, and if any phrase, clause, sentence or provision is declared to be invalid or is preempted by federal law or regulation, the validity of the remainder of this Act shall not be affected.
SECTION 5. EFFECTIVE DATE
This Act shall take effect on XXXX 1, 2016.
[Bill drafting note: Lawmakers should be sure to consult with local advocates to select pharmacy mandates that are most appropriate for your state.]