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Federalism and Bioethics—the Case of Emergency Contraception

An article by Rebekah Gee in the July 6 issue of the New England Journal of Medicine describes another bioethical issue—in this case emergency contraception—where states are exercising more control over who gets access to these medications and under what conditions than the federal government. The Food and Drug Administration (FDA) has refused to grant over-the-counter status to the so-called “Plan B” emergency contraception. Some states, however, are taking action under their traditional powers to regulate the practice of medicine and pharmacy to make Plan B or other emergency contraceptives more available.

Nine states, for example, allow specially trained pharmacists to dispense emergency contraceptives under established protocols, and others have passed or interpreted existing laws to require pharmacists to fill legally sanctioned prescriptions. Others allow pharmacists to refuse to fill a prescription, but require the pharmacy to make alternative arrangements to provide the drug to the patient in a timely fashion. To cite another example, Dr. Gee and two co-plaintiffs brought a successful complaint against Walmart, which initially refused to carry Plan B in its pharmacies, in front of the Massachusetts state pharmacy board. This success, together with a threat to repeat the challenge in other states, appears to have been a major factor in convincing Walmart to begin carrying the drug nationwide.

Conservatives and pro-life groups, some of whom consider Plan B an abortifacient, have been pressing states to enact so-called “refusal clauses” or “conscience clauses” which would allow pharmacists to refuse to dispense Plan B or any other drug that they find morally objectionable without any consequences. Several states have enacted different versions of these provisions, which vary widely in their scope and coverage.

This wide variety of state approaches to emergency contraception has almost certainly produced wide disparities in access to Plan B across the states. While one can applaud or decry this outcome, it’s obvious that anyone wishing to understand—or influence—this debate needs to know something about states.
- Jim Fossett