Womenstake

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. 

Not an Anniversary to Celebrate

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

This week marks one year since the Supreme Court decided Gonzales v. Carhart the case upholding a federal ban on a medically-approved abortion procedure that does not contain protections for women’s health. What has happened in the year since the case was decided? 

The most direct impact of Gonzales v. Carhart is the attempt to pass copycat state bans. From our friends at the Guttmacher Institute we know that 23 bills have been introduced in 11 states so far. I’ve blogged about the ones that seem to be moving, including one that was vetoed by Arizona Governor Janet Napolitano. These bans, like the federal ban, fail to include an exception for women’s health. And they make it possible for the state to aggressively prosecute violations, with stricter jail terms for doctors in many versions. 

Even more troubling, states accepted the Court’s invitation to give women information that will discourage them from having an abortion. Most prominent so far in the current legislative session are bills focused on ultrasounds – 16 measures have been introduced in 11 states. Measures in eight states would require women seeking abortions to undergo an ultrasound even if not medically necessary. In some of these states, the woman would be forced to view the image, although two bills allow the woman to avert her eyes if she doesn’t want to see it (gee, thanks!). Like Carhart, in which the Supreme Court said banning a procedure necessary for women’s health was actually for women’s own good, mandatory ultrasound bills purport to benefit women but are really about distrusting women and undermining women’s decision-making power. As our friends at Feministing said, "Because obviously women who have made the decision to end a pregnancy won't understand the 'truth' unless it's put up on an easy-viewing screen."

So here we are, one year later. It’s clear that Gonzales v. Carhart set the stage for new attempts to chip away at women’s ability to control their reproductive lives. This is not an anniversary to celebrate.

Governor Napolitano Gets It!

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

Last Friday, Arizona Gov. Janet Napolitano vetoed her state’s copycat of the federal ban upheld in Gonzales v. Carhart. As I’ve reported before, these state bans are an attempt to bring state enforcement mechanisms to bear and punish doctors more harshly than the federal law allows. The Arizona bill is a prime example – it did not cap jail time doctors could face (in the federal law, doctors can go to jail for “only” two years). 

Governor Napolitano gets why these bills are so troubling and misguided. As she said in her veto letter, “Rather than introducing more criminal penalties into the relationship between a woman and her physician, let us focus our collective efforts to remedy the root issue of unwanted pregnancies by addressing such important topics as family planning and the prevention of sexual violence against women.” Exactly.

It's No Fun To Say "I Told You So"

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

One of the immediate impacts of Gonzales v. Carhart was a rush in state legislatures to copy the federal ban. Just a reminder: the federal ban prohibits a medically-approved abortion procedure without making an exception for women’s health. Anti-choice legislators want their own state version because they want harsher penalties for doctors and more aggressive enforcement of the law. 

Louisiana was the first to pass a copycat ban, doing so only three months after Carhart came down. At the time, I said more states would follow suit. Looks like states are well on their way to proving me right:

• On Monday, Arizona’s copycat ban passed the House. It now goes to the Senate, where a companion bill has already received preliminary approval.
• In Wisconsin, a copycat ban just passed the Assembly and now goes to the Senate. 
• The Kentucky Senate has passed a version, as has the Michigan Senate. 

Sometimes I hate being right.

Update on EC Case

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

Almost a year ago, we reported on a case filed by anti-choice groups, including the Family Research Council and Concerned Women for America, against the FDA for its approval of emergency contraception (EC or the morning-after pill) for non-prescription use by women 18 and older. Among other claims, the groups said that the FDA approval was unlawful and the decision was improperly influenced by political pressure. Yesterday, the U.S. District Court for the District of Columbia dismissed the case. The court said the groups lack standing to sue, and recognized that many of their arguments were unsupported, going so far as to call one a “stretch.” The court also held that the groups failed to exhaust administrative remedies.

On the other side of the issue, the lawsuit brought by the Center for Reproductive Rights (CRR) is still ongoing. CRR filed suit against the FDA for its failure to make EC available over-the-counter for women of all ages. CRR alleges that the FDA broke its own rules and regulations, ignored sound medicine, and is holding EC to a different and higher standard than other over-the-counter drugs. We will keep you updated as developments occur in that case.

Survey Says: Emergency Contraception Access Restricted in Yet Another State

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

Another survey of pharmacies reveals that women’s access to emergency contraception (EC or the morning-after pill) is restricted. NARAL Pro-Choice Washington just conducted a survey of pharmacies in Washington state. The survey showed that more than 10 percent of the pharmacies in the state do not stock or refuse to dispense EC.

This survey comes on the heels of a federal district court decision permitting pharmacists to refuse to provide EC, despite a rule passed by the pharmacy board saying otherwise. 

WA NARAL helpfully provided a map of all the pharmacies they surveyed, so Washington women can figure out if they will be able to access this time-sensitive drug at a particular pharmacy. Wouldn’t it be nice if women could count on getting it at any pharmacy? Or better yet, at grocery stores and gas stations, like other over-the-counter products? Or if women under 18 could access it without a prescription?

If you’re getting frustrated with the continued assault on EC, here are two things you can do:

1. Sign up for our webinar next week, which will walk you through our new toolkit on working with state pharmacy boards to stop refusals.
2. Sign onto a petition put together by Choice USA and Advocates for Youth, urging the FDA to make EC truly over-the-counter for all women. 

7 Questions with NWLC's Gretchen Borchelt

by Jessica Lauredan, Outreach Intern
National Women’s Law Center

This post is part of a weekly series profiling our blog authors.

Gretchen Borchelt fights for reproductive justice as Senior Counsel for Health and Reproductive Rights at NWLC.

Q: Health and reproductive rights are often governed by politicians but executed by physicians. Where should the line be drawn between doctors and politicians on medical decisions?
Gretchen: I don’t think it should be one or the other. Medical decisions should be made by the patient, with advice and support of the doctor and whomever else the patient chooses to include.

I certainly think that for the most part politicians should stay out of medical decision-making; Terri Schiavo showed us that. But that doesn’t mean there is not a role for politicians. It is important for politicians to protect and ensure individual rights and access to care. For example, we urge legislators to pass laws requiring hospitals to offer rape survivors the morning-after pill. The guiding principle should be whether a law helps individuals get the kind of care they and/or their doctors think is best for them, without interference and unnecessary hurdles. Doctors, politicians, and patients all factor into the equation.

Q: What makes you remain hopeful that progressive change for women’s issues is still possible?
Gretchen: To be honest, sometimes I’m not so hopeful. For the past eight years, we’ve faced a very unfriendly administration, and it’s been difficult to push proactive policies that help women. And our two new Supreme Court justices seriously undermined women’s rights during their first full term together. Even more frustrating, we’re always fighting apathy and the misconception that women already have full equality. I’m not sure why people are so deluded — we know that women still face unequal pay; that 35 years on, we’re still fighting to control our reproductive decision-making; that we’re still trying to figure out ways to balance work and family . . . (I’ll stop there).

What makes me hopeful is that every day, through the work of NWLC and our coalition partners, we are making change. We are coming up with creative strategies to make the law work for women and their families. We are turning apathy into action. Oh, and the fact that we’ll have a new administration. That helps too!

Forget State Legislatures. Work with Your Pharmacy Board to Stop Refusals

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

Anti-choice state legislators just won’t give up. In states like Indiana, legislators continue to introduce legislation that would give pharmacists a right to refuse to provide women with contraception in the pharmacy. They do this even though the public is against pharmacist refusals. Yet these legislators see nothing wrong with a woman being denied her validly prescribed contraception – they keep trying to push such bills through state legislatures.

But don’t despair - there’s hope. Many people don’t realize that it is not legislators who are at the forefront of the issue. It’s pharmacists; specifically, state pharmacy boards. In case you’ve never heard of a state pharmacy board, it is an administrative agency in your state that has the power to enforce pharmacy laws and develop pharmacy regulations and policies. State pharmacy boards have a lot of power – pharmacists and pharmacies have to obey them or face discipline. In states across the country, pharmacy boards have stepped up to protect patient access to medication at the pharmacy.

Because pharmacy boards are largely unknown or ignored, we decided to help educate people on how pharmacy boards can be allies in preventing refusals. Partners in Access: Working with State Pharmacy Boards to Stop Refusals in the Pharmacy is a step-by-step toolkit for advocates. It explains what state pharmacy boards are, how to figure out if the board in your state is friendly, and what actions it can take to help protect patient access to medication. Partners in Access is filled with helpful tips, insights, and resources. So check it out. And remember: State pharmacy boards are your friends, not your foes!  Work with them to improve women’s access to contraception in the pharmacy.

The Good and Bad News About Abortion in the U.S.

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

Today, the Guttmacher Institute released a report on abortion in the U.S. The report contains both good news and not-so-good news about abortion.

Good news: Looking at data from 2005, the report says that the U.S. abortion rate is at its lowest since 1974. This could be due in part to better contraceptive use and lower levels of unintended pregnancy. 

Bad news: The lower abortion rate also could be due to women not being able to access abortion, because of restrictions in the states where they live, distance to a provider, limits on when a provider will perform abortions, and cost.

Good news: Access to early medical abortion has made a difference in women’s lives. It likely has increased access to abortion, but hasn’t increased the number of abortions.

Bad news: Despite an increase in the number of physicians providing medical abortion, the number of abortion providers overall continues to decline. There are 2 percent fewer abortion providers than in the year 2000. If not for medical abortion, we would have lost even more providers. 

So what can we learn from this study?

• We must do more to give women the tools they need to prevent unintended pregnancies. Although the abortion rate is decreasing, slightly more than one in five pregnancies ends in abortion. This means unintended pregnancy is still far too common in the U.S. (just ask Jamie Lynn Spears). We must ensure that women have what they need to make responsible decisions for themselves and their families.
• Your right to abortion should not depend on where you live. According to the report, 87 percent of counties do not have an abortion provider, and 34 percent of women of childbearing age live in these counties. Add in state restrictions, and it’s easy to see that the right to abortion depends on geography.
• We need to remove barriers to abortion. From onerous regulations on abortion providers, to restricting abortion funding for low-income women, to other kinds of burdensome requirements, we need to make sure the right to decide whether to have an abortion is truly meaningful for all women.

Gonzales v. Carhart – Soon, It Won't Be Academic

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

At the recent Association of American Law Schools meeting in New York, one of the “hot topics” for discussion was the Supreme Court’s April 2007 decision Gonzales v. Carhart, which upheld a federal ban on a medically-approved abortion procedure. The panel was made up of some of the country’s leading law professors. Evidently the panel was quite interesting and has stimulated further discussion in the blogosphere. The Reproductive Rights Prof Blog provides a summary of the panel; Professor Dorf further reflects on his and another panelist’s take on overturning Roe; and Feminist Law Professors provides some substance to back up what an audience member said about who the law affects.

I missed the panel, but this Carhart discussion reminds me that soon it won’t be just academic. The state legislatures are opening for the 2008 legislative session, and we’ll be seeing the implications of the case play out soon enough. Womenstake will continue to keep you updated as things move forward . . . or backwards.