Emergency Contraception - United States Legal and Ethical Controversies

United States Legal and Ethical Controversies

A great deal of controversy accompanied the FDA approval of over-the-counter (OTC) access to Plan B. Supporters of over-the-counter access believe that easier access will reduce unintended pregnancy and abortion rates; some abortion opponents believe that EC itself is a form of abortion. The American Medical Association, the American Academy of Family Physicians, the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, and other leading U.S. medical organizations all supported OTC access. An advisory committee to the FDA recommended that Plan B be made available over the counter in 2003. In 2004, the FDA refused the advisory board's recommendation and prohibited over-the-counter sale, citing insufficient evidence that ECPs could be used safely by adolescents without medical supervision. In 2005, Susan F. Wood, assistant FDA commissioner for women's health and director of the Office of Women's Health, resigned to protest the FDA's delay. Reproductive rights supporters accused the FDA of basing the decision on political pressure from the pro-life lobby. The Center for Reproductive Rights filed a lawsuit regarding the approval process, which had not been resolved as of December 2006. In the legal proceedings, two senior FDA officials alleged in depositions that the decision to reject the OTC application was made on political, rather than scientific, grounds to "appease the administration's constituents". In 2006, the FDA approved over-the-counter access to Plan B for women 18 years of age and older. In April 2009, the FDA followed the ruling of a New York Federal District Court and loosened the restrictions to allow Duramed Pharmaceuticals to provide Plan B without a prescription to 17-year-olds. However, as of June 2009, Duramed had not yet put a non-prescription Plan B product for 17-year-olds through FDA approval, a process that could take some time.

A Massachusetts law that went into effect on 14 December 2005 requires all hospitals in the state to provide emergency contraception to any "female rape victim of childbearing age" including Catholic Hospitals who oppose the provision of emergency contraception. In a letter criticizing the joint UN/WHO Inter-agency Field Manual on Reproductive Health in Refugee Situations, the Catholic Church explains its belief that emergency contraception, along with IUDs and hormonal contraception, cannot be considered "solely contraceptive because in the case of effective fertilization a chemical abortion would be carried out during the first days of pregnancy." The Catholic position on family planning is explained further in Ethical and Religious Directives for Catholic Health Care Services. Because of this expressed moral stance against emergency contraception, the Massachusetts Catholic Conference opposed this law, stating interference with religious freedom. According to The New England Journal of Medicine, "compelling arguments can be made both for and against a pharmacist's right to refuse prescriptions for emergency contraception."

In isolated instances across the United States, pharmacists have refused to dispense emergency contraception even when presented with a legal prescription. In 2010, the Washington State Pharmacy Board decided that pharmacists do have a right to refuse to dispense emergency contraception. In addition, Wal-Mart, the nation's fifth-largest distributor of pharmaceuticals, refused to stock EC, beginning with Preven in 1999. However, Wal-Mart reversed this position when it was announced that stores would sell Plan B in March 2006.

The Congregation for the Doctrine of the Faith in the 2008 Instruction Dignitas Personae (Paragraph 23) stated that: "Alongside methods of preventing pregnancy which are, properly speaking, contraceptive, that is, which prevent conception following from a sexual act, there are other technical means which act after fertilization, when the embryo is already constituted, either before or after implantation in the uterine wall. Such methods are interceptive if they interfere with the embryo before implantation and contragestative if they cause the elimination of the embryo once implanted...Therefore, the use of means of interception and contragestation fall within the sin of abortion and are gravely immoral. Furthermore, when there is certainty that an abortion has resulted, there are serious penalties in canon law."