Six states allow pharmacists to refuse dispensing or selling contraceptives like Plan B; Access to Birth Control Act would require them to
Should this legislation be Plan A?
Context
In six red states, pharmacists can legally refuse to fill somebody’s prescription based on a moral or religious objection: Arizona, Arkansas, Georgia, Idaho, Mississippi, and South Dakota. This includes emergency contraceptives, such as Plan B.
(Other states including Florida and Tennessee have more general medical refusal protections, but those six states specifically single out pharmacists for such legal protection.)
What the legislation does
The Access to Birth Control Act would circumvent such laws, by requiring any pharmacy to provide a contraceptive to the requesting customer “without delay.”
It also goes into detail about what to do in several situations; for example, if the pharmacy is out of stock, they would either have to refer the patient to another nearby pharmacy or otherwise order the medication immediately.
A small possible loophole is that it would only affect contraceptives provided as part of “interstate commerce,” which Congress has the right to regulate. So if the contraceptive company manufactured their product in the same state as the pharmacy was located, the pharmacy actually might be able to refuse to provide it after all.
The House version was introduced on November 17 as H.R. 6005, by Rep. Carolyn Maloney (D-NY12). The Senate version was introduced the same day as S. 3223, by Sen. Cory Booker (D-NJ).
What supporters say
The Affordable Care Act, popularly nicknamed Obamacare, requires health insurance plans to cover FDA-approved contraception with no copay or deductible, but the legislation’s supporters say that “guarantee” is meaningless if you can be refused service at the pharmacist’s counter.
The legislation would “ensure patients seeking birth control can access their health care without unnecessary barriers or delay,” Rep. Maloney said in a press release. “Health care providers must do their jobs based on science — not ideology — and we cannot let this dangerous trend continue…I won’t stop fighting until everyone can access the care they need, when they need it.”
“Birth control is a vital part of reproductive health care and basic family planning,” Sen. Booker said in the same press release. “At a time when reproductive rights are under increasing attack throughout the country, protecting Americans’ access to contraception is more important than ever. [The legislation] would ensure that all people not only have autonomy over their health but also have affordable and timely access to birth control.”
What opponents say
Opponents counter that such legislation may be unconstitutional. When Washington state enacted a rule just like this legislation on a state level, in 2012 a district court struck it down as unconstitutional and a violation of the First Amendment’s freedom of religion clause.
“It is clear that Washington State can prohibit medical providers from assisting in taking life, and it can permit them to participate in taking a life. But can the state compel medical providers to participate in taking a life?” District Court Judge Ronald B. Leighton wrote in his opinion. “If the [state] had required medical providers to participate in assisted suicide, there is little doubt that the medical providers would have the right to refuse to do so.”
(Emergency contraceptives do not “take a life.” Like all other contraceptives, they prevent conception from occurring.)
However, in 2015, the Ninth Circuit Court of Appeals reversed the district court and upheld the rule as constitutional. The Supreme Court didn’t take up the case at the time, so that decision stood — although it seems less likely that the current conservative Supreme Court would rule the same way today.
Odds of passage
Rep. Maloney first introduced the bill in 2007; that was her first and last iteration with any bipartisan cosponsorship, at 56 Democrats and two Republicans, both of whom — former Reps. Mark Kirk (R-IL10) and Chris Shays (R-CT4) — have since left office.
Since then, cosponsorship fluctuated (for unclear reasons) and none of her versions received a committee vote, even when Democrats controlled the House. The cosponsors totalled 21 in 2010, 30 in 2011, 36 in 2013, 17 in 2017, and 12 in 2019 — the lowest total yet.
Then the tides turned, with her current version attracting by far her most cosponsors yet: 102 cosponsors, all Democrats. It awaits a potential vote in the House Energy and Commerce Committee.
Sen. Booker’s versions, by contrast, have remained fairly steady in their cosponsorship: 21 in 2014, 19 in 2016, 21 in 2017, and 21 again in 2019. None of the cosponsors were Republicans.
The current Senate version has again attracted 21 cosponsors, all Democrats. It awaits a potential vote in the Senate Health, Education, Labor, and Pensions (HELP) Committee.
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This article was written by GovTrack Insider staff writer Jesse Rifkin.
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