Tactics Needed to Handle Potential State Bans on Emergency Contraception
April 1, 2023 4 minutes read
Increasingly, states are considering bans on contraception, such as intrauterine devices (IUDs) and emergency contraception (EC), in their rush to increase reproductive health barriers in the post-Roe era.
“People don’t understand how emergency contraception works,” says Kelly Cleland, MPA, MPH, an executive director at the American Society for Emergency Contraception (ASEC) in Lawrenceville, NJ. “Emergency contraception works by preventing ovulation. It doesn’t prevent implantation of a fertilized egg.”
In December 2022, the FDA acknowledged that fact with a packaging label change for Plan B, the EC pill available over the counter at pharmacies. The FDA’s change means the box labeling no longer says the pill may prevent a fertilized egg from implanting in the womb.1,2
While this change is intended to protect access to EC, there are existing state laws that restrict access, and some lawmakers are calling for complete bans of EC. For instance, nine states have enacted restrictions on EC, according to the Guttmacher Institute.3
Six states — Arizona, Arkansas, Georgia, Idaho, Mississippi, and South Dakota — allow pharmacists to refuse to dispense contraceptives, including EC. Arizona, Illinois, Louisiana, and Mississippi allow pharmacies to refuse to dispense EC.3 Some lawmakers and lobbyists in Idaho and Missouri are opposed to EC and have proposed limiting access to Plan B.4
The FDA’s change may not be enough to stop states from further limiting EC or from creating a chilling effect in which some pharmacies refuse to carry the contraceptive. For example, online commenters and contraceptive advocates say Harris Teeter pharmacies fail to stock Plan B.5,6
The U.S. Supreme Court’s 2014 decision in Burwell v. Hobby Lobby allows employers to deny coverage of certain types of contraceptives that they believe are against their moral code.7 This could be used to justify banning or limiting EC.
“There are a lot of policy issues in flux, and we don’t know what will happen at the state level,” Cleland says. “We saw this unfortunate situation in Idaho, where they can’t even talk about contraception or prescribe it. We work with student activists who are trying to promote access on their campuses. This is important to college students who are trying to control their lives and plan their next steps.” (For more information, see the story on the contraceptive ban at public universities in Idaho in the December 2022 issue of Contraceptive Technology Update.)
Two ways to expand access to college students include providing vending machines on campus for dispensing EC and other sexual health products. Vending machines help ensure 24/7 access for students.
“We also work with students who do direct distribution of emergency contraception and send them a starter kit of emergency contraception, condoms, and pregnancy tests,” Cleland says. “We let them figure out the best way for their campus and peers to hand it out. It could be through a text hotline or Google form.” Students could message the hotline and explain they need EC, and someone could deliver the over-the-counter EC to their dorm room.
Reproductive health providers could help improve access to prescription EC by informing patients about the weight limits of Plan B and encouraging advance provision of the EC.
“We know more and more that advance provision is a better strategy because ella [brand of ulipristal EC] is better for everyone, and it works closer to the time of ovulation,” Cleland says. “It is important for women who weigh more than 165 pounds, but if you’re close to ovulation, it might be too late for Plan B.”
Healthcare providers need more information about EC to combat their own misinformation and lack of awareness of how it works. In one recent study, four in 10 physicians erroneously thought that EC was an abortifacient. (For more information, see the story on the EC physician survey in the January 2023 issue of Contraceptive Technology Update.)
“We would need a full-time person to do training and educate healthcare providers, and we need more funding to make that happen,” Cleland says. “There are a lot of groups doing excellent state-level advocacy work. There was a bill introduced in Illinois to require publicly funded state colleges and universities to offer emergency contraception in vending machines.”
The ASEC is working on a document and toolkit for state governments for implementation of legislation to improve access to EC. “One thing I want to emphasize is the urgency,” Cleland says. “For people in states where abortion is difficult to get, they’re already in such a bind.”
Access to contraception is challenging, and the option of abortion is unavailable for many women in abortion-ban states. This makes access to EC critical.
“We have to protect access to Plan B and make it accessible everywhere,” Cleland says. “At a minimum, states should require emergency departments to have emergency contraception to offer to people who come in after a sexual assault.”
Some clinics offer advance provision, but this practice needs to spread to all clinics.
“We encourage doctors of any women of reproductive age who go in for an annual exam to talk about emergency contraception and offer advance provision to any woman who can get pregnant,” Cleland says.
REFERENCES
- Plan B One-Step. How Plan B works. 2023.
- Seitz A. FDA changes Plan B label, clarifies it won’t cause abortion. AP News. Dec. 23, 2022.
- Guttmacher Institute. Emergency contraception. Feb. 1, 2023.
- Luthra S. Here’s how states plan to limit abortion — even where it is already banned. The 19th. Dec. 5, 2022.
- Blunnie C. We won’t stay silent: Fighting for access to Plan B at Harris Teeter. Reproaction. Jan. 9, 2018.
- WelcomeToGilead. Post about Harris Teeter and EC. Reddit. 2023.
- Fitzgerald D. Summary of the Supreme Court’s decision in Hobby Lobby. National Health Law Program. July 7, 2014.
Increasingly, states are considering bans on contraception, such as IUDs and emergency contraception, in their rush to increase reproductive health barriers in the post-Roe era.
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