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States of Denial

A rape, a visit to the ER, a request for emergency contraception, a refusal on religious grounds. Welcome to the new front in the battle for reproductive rights, where state law says it's okay to deny prescriptions.
 
 
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Heather Minton couldn't bring herself to tell anyone that she had just been brutally pinned down and raped at a Friday night party at the University of California, Riverside last November. But she did insist that a friend get her out of the party fast and take her to the emergency room. She needed emergency contraception (EC) before it was too late and the clinic on campus wouldn't be able to help her until Monday.

Minton says the ER nurse at Riverside Community Hospital told Minton's friend that she wouldn't treat Minton if she hadn't been raped, and suggested they try another ER a half-hour's freeway drive away. "When we got to the emergency room, I was hysterical," says Minton. "No one knew what had happened to me, just that I had had sex and I wanted EC. But the nurse sent us to another hospital. It was after 2:00 a.m. and we didn't know where we were going or whether they'd refuse to treat me too."

Minton is not the only woman experiencing nightmarish problems getting access to emergency contraception, a combination of drugs that can prevent pregnancy if taken soon after sex. New state laws are giving hospitals, nurses, doctors and pharmacists the right to refuse to offer emergency contraception.

Some are refusing because they see it as abortion, which is against their principles. But because these policies are rarely publicized – and sometimes there is no official policy and decisions are left to doctors or pharmacists – it is hard for women seeking EC to know who will help them and who won't. Trouble is, delays can make EC too late to be effective. Also called Plan B and the Morning After pill, EC is a potent mixture of hormonal birth control pills that can often prevent pregnancy if taken within 72 hours after having sex. The pills – most commonly manufactured by Barr Laboratories under the brand name Preven – are more effective the sooner they are taken.

Riverside Community Hospital did not respond to repeated requests for comment. HCA, the corporation that owns the hospital, says it does not dictate clinical policy to its facilities, and physicians can use their own discretion.

Anonymous calls to Riverside on three different occasions produced three different responses from nurses on duty: "We do not offer emergency contraception"; "It depends on the physicians on duty because [providing] EC is an ethical issue"; "We offer emergency contraception to women who have been raped."

State(s) of Confusion

In some states, new laws allow pharmacists and other health care providers the right to refuse to supply some medications. This is similar to allowing doctors the right to refuse to perform abortions. For example, Mississippi's new law says pharmacists and other health care workers may refuse to fill prescriptions if doing so conflicts with their religious beliefs. Arkansas and Illinois also have laws allowing pharmacists to refuse EC to patients on religious or moral grounds. South Dakota allows a pharmacist to refuse to fill a prescription if "there is reason to believe it will destroy an unborn child"; the state defines a child's life as beginning at fertilization.

In sharp contrast, California, New Mexico, Hawaii, Maine and Washington now have laws enabling pharmacists to provide EC without a prescription as long as they can provide sufficient counseling to women who request it. But even in these states, individuals often have the discretion to refuse to provide EC.

Meanwhile, Catholic hospitals have their own policies – or lack thereof. Some will provide EC, but only to women who have convinced them that they have been raped. Directive 36, handed down by the Vatican, states that in cases of sexual assault, a woman may receive EC from a Catholic provider. However, many Catholic facilities require a pregnancy test and a full medical exam, which discourages women and, by delaying the provision of EC, reduces the likelihood that it will be effective.

According to Teresa Harrison, project manager at IBIS Reproductive Health, a non-profit research organization, "there is no enforcement of laws requiring hospitals to provide EC in cases of rape. Without enforcement, there is no incentive for hospitals to abide by the law."

According to the American Journal of Preventive Medicine, an estimated 25,000 American women become pregnant after being raped every year. But only 167 of 597 US-based Catholic hospitals surveyed in August 2002 offered emergency contraception as an option to women who have been raped, according to "Emergency Contraception in Catholic Hospital Emergency Rooms," a study conducted for Catholics for a Free Choice. The study also reports that Catholic hospitals provide health care to one in five people in the US.

"It's up to the individual hospital how strict they want to be about following the Catholic directives," says Harrison. "Most Catholic hospitals align with the view of their local Bishop. Access can vary around the country depending on the views of a Bishop." None of the 10 Catholic hospitals contacted for this story would describe their EC policy.

Is EC Abortion or Birth Control?

Demand for EC has increased with women's awareness of its availability, but so have the efforts of anti-abortion groups to prevent EC use. When Barr Labs, the makers of Preven, applied with the Food and Drug Administration (FDA) for over-the-counter status for their drug earlier this year, anti-abortion organizations rallied to reject the application.

Groups such as the state Christian Coalitions, American Life League, state-based pro-life groups and others have fought particularly hard in recent years to limit access to EC and to draft legislation giving pharmacists and other healthcare workers the right to withhold medications on the basis of conscience and, chiefly, religious beliefs. Anti-abortion groups, such as Pharmacists for Life, believe that EC "kills babies."

Further stoking the fires of controversy is the Compassionate Assistance for Rape Emergencies Act (S.1564/HR.2527), re-introduced earlier this year in Congress, that would require emergency rooms in all states to provide EC to women in cases of sexual assault.

And even though the American College of Obstetricians and Gynecologists (ACOG), research scientists, and the FDA have considered the drug safe since they approved it in 1999, this past May the FDA overruled its own independent panel of experts and rejected an application for over-the-counter status for EC.

The anti-abortion belief – that emergency contraception is abortion – is at the heart of the difficulties experienced by women like Heather Minton. Scientists and physicians, including representatives from ACOG, Physicians for Reproductive Choice and Health, the American Medical Association, and state health departments tried to clarify the objective distinctions between the effects of abortion and EC on a woman's body.

Anti-abortion organizations such as Americans United for Life claim that EC, like RU-486, is a non-surgical abortion. Dr. Gene Rudd, associate executive director of the Christian Medical Association, wrote in the September issue of The Annals of Pharmacotherapy that "scientific evidence indicates that the drug works in part by preventing a developing embryo from attaching to the uterine wall, leaving it to pass out of the mother's body and die."

Many scientists and doctors disagree, claiming that EC can prevent but not terminate a pregnancy. EC works much like birth control pills: Taken in two doses, the drug stops the release of an egg from the ovary, preventing fertilization. In the case of fertilization, EC may prevent a fertilized egg from attaching to the womb. If a woman is already pregnant and an embryo is already implanted in the wall of the uterus, EC will have no effect.

Truth and Consequences

Some employers, including the Eckert and CVS drug-store chains, have disciplined – and, in some cases, fired – pharmacists for withholding EC and basic birth control. Even professional associations, which believe that their members have the right to refuse to fill prescriptions if it compromises their religious beliefs, also say that such pharmacists should refer women to colleagues who will.

To date, job loss is the worst consequence pharmacists have faced for refusing to fill prescriptions or refer customers to other pharmacists. On bulletin boards and the Pharmacists for Life web site, pharmacists who risk their jobs by denying women access to EC are roundly congratulated.

In a widely reported case in Denton, Texas, pharmacist Gene Herr was fired by Eckert Corp., a large pharmacy retailer, earlier this year for refusing to fill an EC prescription for a woman who had been raped. Herr said that he couldn't fill the prescription because he was a practicing Christian.

Herr still has his license. "The law doesn't say a pharmacist must fill a prescription and it doesn't say a pharmacist may refuse to fill a prescription," explains Gay Dodson, executive director of the Texas Board of Pharmacy. "(So) the Board would have a difficult time disciplining a pharmacist for refusing to fill a prescription. "

In another case in Texas in July, Steve Mosher, a self-described "Christ follower" and the only druggist in the small town of Fabens, refused to fill the birth control prescription of a young woman who was visiting her mother, weeks after she had given birth. The woman and her husband had to drive 40 miles roundtrip to get her prescription filled in El Paso.

"Even if I am not protected by the law, a fertilized egg is an innocent life," Mosher said in a phone interview. "If the law says that I have to dispense birth control, and that means taking an innocent life, they can take their license and shove it. Birth control is against what is written in the Bible."

Mosher, Herr and others are willing to stake their jobs on their beliefs that basic birth control is murder, EC is chemical abortion and abortion is a sacrilege.

Then there is the Christian Coalition of Alabama, which is trying to rescind a state policy of offering EC in the state's clinics. Since January, 11 veteran nurses – all practicing Christians – have quit their state clinic jobs because they believed that they would be fired if they refused to counsel women on reproductive services, including emergency contraception, and dispense EC if patients requested it.

However, Dr. Tom Miller, director of the bureau of family health services for Alabama's health department, says these nurses need not have quit – they could have simply requested new assignments. The state agency is currently working to reassign nurses still on staff who refuse to provide EC to patients. Miller also says that the agency believed it was required to offer EC in order to retain its federal funding.

So the anti-abortion forces sought federal help. In late July, John Giles, president of the Christian Coalition of Alabama, says the Coalition and state Rep. Robert Aderholt contacted Tommy Thompson, secretary of Health and Human Services to clarify the issue. A July 28 letter from HHS said that the state of Alabama was not required to offer EC at its clinics to comply with Title X funding guidelines. But Miller says "the HHS actually said that federal guidelines don't require that we offer EC, but has said that there is an expectation that patients be counseled on all contraceptive options, including EC."

Giles still hopes that Alabama will rescind its policy to provide access to EC in state clinics, "because it blocks the implantation of a fertilized egg, and that's abortion. We may organize a hearing to resolve the issue." And so the fight goes on.

The problem that many reproductive rights advocates see is the lack of data; there is only anecdotal evidence that women have been refused access to EC and basic birth control.

Lilly Spitz, an attorney for Planned Parenthood, says that women who are refused access to EC should send their stories to Planned Parenthood anonymously so that advocates can compile data and cases to present to legislators and government agencies.

"It's an issue of confidentiality that discourages women to file complaints," says Spitz. "It takes a lot of courage to put your name out there and confront the providers who have refused access. And we need data in order to establish new laws and strengthen and enforce existing laws to ensure access. Ideally we'll get EC approved for (over-the-counter) when or if Barr reapplies with the FDA."