Womenstake

The Ninth Circuit Gets it Right . . . Finally!

by Jen Swedish, Health Law Fellow, 
National Women's Law Center 

Yesterday, the Ninth Circuit Court of Appeals ruled that the State of Washington can fully enforce a rule passed by its pharmacy board that ensures patient access to medication. As we’ve reported before, back in 2007, two pharmacists and a pharmacy challenged the rule in court, because they objected to providing emergency contraception. A lower federal court decided in favor of the challengers, issuing a preliminary injunction that halted the rule as it applied to Plan B emergency contraception.

While the appeal was pending, Washington argued that it should be allowed to enforce the rule in its entirety, but the Ninth Circuit upheld the lower court’s preliminary injunction. This meant that until the Ninth Circuit could decide the merits of the case, Washington women who wanted EC were at risk of delay in accessing the time-sensitive medication because of a refusing pharmacist.

The Ninth Circuit finally decided the merits of the appeal yesterday and said that the lower court was wrong to issue the broad injunction. The pharmacy and pharmacists who brought the case claimed that requiring them to provide EC violated their right to free exercise of religion under the First Amendment. The Ninth Circuit held that the district court should not have applied heightened scrutiny to analyze the rule’s affect on religious freedom. According to the appellate court, the rule’s purpose was not to eliminate religious objections to the delivery of lawful medications, but rather to eliminate all objections that do not ensure patient health, safety, and access to medication. As such, the rule was a neutral law of general applicability, which must withstand only rational basis review to pass constitutional muster. Although the Ninth Circuit sent the case back to the lower court to apply the correct standard of review, it suggested that the rule would likely pass constitutional muster.

Finally, yesterday's Ninth Circuit decision assures Washington women access to EC at the pharmacy!

Weekly Round-Up

by Catherine Kruse, Outreach Intern,
National Women’s Law Center

The FDA approved the first generic form of emergency contraception last week. The generic will be available only to young women 17 and under with a prescription, as reported by the Choices Feminist Campus blog of the Feminist Majority Foundation.

Elizabeth Cox from MomsRising gave personal testimony on the failed health care insurance system, describing the difficulties faced by a woman trying to pay her health insurance costs after a divorce.

Courtney Martin from The American Prospect noted that some have termed the economic crisis a “he-session,” and argued that this terminology will not help ultimately fix gender relations problems in the workplace. 

After attending the NCAA Institute for Ethnic Minorities and Women graduation, Marta Lawrence posted at the Double-a Zone urging colleges to commit to greater diversity in hiring athletics administrators. 

Joanna Weiss from The Boston Globe reviewed a new MTV reality show, “16 and Pregnant,” which, according to the review, does a good job of portraying the difficult realities of teen pregnancy. 

Mommytwingirls blogged at Silicon Valley Moms Blog about dropping her twin girls off at a science camp almost entirely dominated by boys, reflecting the continuing underrepresentation of women in the math and science fields.

Amanda posted at Soccer Science in honor of Title IX’s 37th anniversary, featuring quotes from women athletes and women who work in sports-related careers.

Weekly Round-Up

by Natalie Monkou, Communications Intern, 
National Women's Law Center  

Cara at Feministe argued that with the recent FDA decision that gives 17-year-olds legal access to emergency contraception without a prescription, comprehensive sex education and public education are more important than ever. 

A New York Times article examined the efforts of Allannah Thomas, a New York woman who is helping low-income women improve their math skills to help advance their careers.

For Earth Day, at RH Reality Check, Aparna Krishnaswamy and Elizabeth Arndorfer discussed the benefits of going green and its impact on reproductive health.

Carl Cooper at The Complete Lawyer argued that the economic downturn should be a reminder to law firms that now, more than ever, is the time to mentor and retain women and minority associates (via Ms. JD).

Tennessee Guerilla Women posted a video of Secretary of State Hillary Clinton addressing international family planning and reproductive health care.

Today, same-sex couples in Iowa began applying for marriage licenses thanks to the state Supreme Court’s recent unanimous ruling (via Pam’s House Blend).

New EC in the ER Laws Protect Survivors of Sexual Assault in DC and Utah

by Jen Swedish, Health Law Fellow, 
National Women's Law Center 

As I’ve blogged about before, thus far in the 2009 legislative session, state legislators around the country have introduced a number of bills related to emergency contraception (EC). EC, also known as the “morning after pill,” is a safe and effective way to prevent pregnancy, which is most effective if used within the first 12-24 hours after sex.

Timely access to EC is especially important for survivors of sexual assault, which DC and Utah recently recognized by enacting new EC in the ER laws. These EC in the ER laws require that emergency rooms provide sexual assault survivors with information about and access to EC. With their newly enacted laws, DC and Utah join fourteen other states in recognizing that EC is a critical component of a comprehensive medical response to sexual assault. Kudos to DC and Utah!

Victory That Will Increase Access to Emergency Contraception!

by Gretchen Borchelt, Senior Counsel
National Women’s Law Center

Today, a federal district court confirmed that the FDA put ideology before science when it decided to limit non-prescription access to emergency contraception to individuals 18 and older.

The court ordered the FDA to make Plan B, the emergency contraceptive pill that’s currently on the market, available to women age 17 and older without a prescription within 30 days. And the court ordered the FDA to reconsider whether to make the drug available to women of all ages without a prescription.

The court decided that the FDA’s decisions were “arbitrary and capricious [the legal standard] because they were not the result of reasoned and good faith agency decision-making.” Here are a couple more highlights from the decision explaining why:

• “The FDA repeatedly and unreasonably delayed issuing a decision on Plan B for suspect reasons. . . .”

• “[T]he record is clear that the FDA’s course of conduct regarding Plan B departed in significant ways from the agency’s normal procedures regarding similar applications. . . .”

• The FDA’s justification for making 17 year olds get a prescription “lacks all credibility.”

Now that we have a new Administration and new officials nominated to head the FDA, we look forward to an agency review that emphasizes science, not ideology. We are optimistic the FDA will remove the barriers that keep women from accessing EC, giving women of all ages a second chance to prevent pregnancy.

Pharmacy Refusals - Still Happening All Across the Country

by Judy Waxman, Vice President for Health and Reproductive Rights
National Women’s Law Center

We've received yet another call ─ this time from a woman in Oklahoma who was refused contraception by her pharmacist.

Across the country, pharmacists are still refusing to fill valid prescriptions for contraception and sell emergency contraception over-the-counter.

And did you see the ABC News Program "What Would You Do?" last week? An actor playing a pharmacist refused to fill the birth control prescription of a 16-year-old girl. While most customers thought the pharmacist was wrong, only one woman was willing to speak up. Clearly, there is still much work to be done.

We need your help to make sure that every woman gets the health care she needs. Please learn more about what is happening and take action to help stop pharmacy refusals. Check out Pharmacy Refusals: What You Should Know, the first installment in our new What's at Stake series:

Watch the video

Your actions make a difference. Please join us in our efforts to protect women's access to contraception. Watch Pharmacy Refusals: What You Should Know and share it with your colleagues, networks, and friends!

"Pro-life Pharmacies": A New Way to Deny Women Basic Health Care

by Gretchen Borchelt, Senior Counsel
National Women’s Law Center

Just when we thought we’d seen it all in the area of pharmacists who refuse to give women birth control, along come “pro-life pharmacies.” 

A Washington Post story documents a new effort by pharmacists opposed to contraception -- they are creating pharmacies that don’t stock or sell it. At all. No condoms, birth control pills, or emergency contraception. As NWLC’s Co-President Marcia Greenberger said in the article,

"I’m very, very troubled by this. Contraception is essential for women’s health. A pharmacy like this is walling off an essential part of health care. That could endanger women’s health."

According to a poll by the Washington Post, these “pro-life” pharmacies aren’t even letting people know that they won’t sell contraception. As Marcia also said in the article,

"Rape victims could end up in a pharmacy not understanding this pharmacy will not meet their needs. We’ve seen an alarming development of pharmacists over the last several years refusing to fill prescriptions, and sometimes even taking the prescription from the woman and refusing to give it back to her so she can fill it at another pharmacy."

Even if a pharmacist doesn’t actively obstruct the woman, some might just leave her to fend for herself. As one owner of a “pro-life pharmacy” said,

"If I don’t believe something is right, the last thing I want to do is refer to someone else. It’s up to that person to be able to find it."

That can’t be the professional standard taught in pharmacy school.

Weekly Round-Up

by Mary Robbins, Program Assistant
National Women's Law Center

The U.S. Military Academy recently changed the lyrics of two of the school’s most well-known songs, “Alma Mater” and “The Corps”, to make them more gender-neutral. 

Veronica and Sara at Work It Mom! posted about sexual harassment in schools and shared a few recent statistics (via Viva la Feminista).

Pamela at RH Reality Check applauds Canada for making emergency contraception available over the counter.

A reader at Feministing noted the launch of a new magazine for teens dedicated entirely to promoting abstinence that includes some questionable “facts.”

A Kmart official has commented on the “True Love Waits” sweatpants the store is selling, saying, “It was not associated with any group or any cause. It was just a graphic put on the pants.”

Bean at Lawyers, Guns & Money posted about the increased rates of teen pregnancy and the challenges faced by pregnant and parenting high school students. 

Weekly Round-Up

by Mary Robbins, Program Assistant
National Women’s Law Center

There have been major advances for women in the workplace in the last three decades, but according to a study to be published in the Harvard Business Review in June, discrimination that is thought to be a thing of the past is very much alive and well in the science, engineering, and technology professions. 

The AFL-CIO and Working America launched their “2008 Ask a Working Woman” survey for women to share concerns about issues such as equal pay.

Incite! Women of Color Against Violence launched a new website (via Feministe).

In a speech to the Urban League in Illinois, former Surgeon General Jocelyn Elders spoke out against abstinence-only education and advocated for education programs that provided information about abstinence and contraception. 

The Arizona Republic reports that the percentage of women coaching women’s college teams is approaching an all-time low at 43 percent. 

In Canada, the National Association of Pharmacy Regulatory Authorities approved selling emergency contraception over the counter.

On Thursday, bloggers wrote about human rights atrocities around the world as part of the Bloggers Unite for Human Rights event (via Feminist Law Professors).

Washington Women Seeking EC Not Helped by 9th Circuit

by Gretchen Borchelt, Senior Counsel
National Women’s Law Center

Late last week, the Ninth Circuit Court of Appeals upheld a preliminary injunction issued against a rule passed by the Washington state board of pharmacy. The rule ensures patient access to medication, but was challenged in court by Washington pharmacists and a pharmacy who do not want to give women emergency contraception. As we reported, last November a lower court issued a preliminary injunction that halts the rule as it applies to Plan B emergency contraception.

The Ninth Circuit decision came from a divided panel that illustrates the importance of who our judges are. In the majority were Judge Thomas G. Nelson, who was appointed by the first President Bush, and Judge Jay Bybee, appointed by the current President Bush. Their decision means that while the case is pending, Washington women who want access to EC may face a refusing pharmacist and delay in accessing the time-sensitive medication.

Judge A. Wallace Tashima, who was appointed by President Clinton, wrote a strong dissent. It not only explains the problems with this panel’s decision but also points out the errors of the lower court in issuing the injunction in the first place. Judge Tashima recognizes that rules like Washington’s do not violate pharmacists’ right to free exercise of religion; they help ensure that women are not delayed in their efforts to prevent unintended pregnancies. Hopefully, when the case reaches the merits, Judge Tashima’s logic will carry the day.