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Governors Across the Country Rule on Emergency Contraception Access

The U.S. Food and Drug Administration (FDA) has yet again delayed its decision on Barr Laboratories’ application to allow the sale of Plan B emergency contraception (EC) over the counter for women ages 16 and older. While the FDA continues to drag its feet on this much-delayed decision, several states have taken decisive action concerning the sale of EC.

Illinois Pharmacists Must Fill Prescriptions

On August 17, the Joint Committee on Administrative Rules voted to make permanent the emergency rule that Governor Rod Blagojevich (D) issued in April requiring Illinois pharmacies to ensure prescriptions for contraception are filled without delay.  Illinois pharmacies that carry contraceptives must fill prescriptions for birth control pills, including emergency contraception (EC), just as they would any prescription, for anyone with a valid prescription.

The Governor first implemented the emergency rule in response to the refusal of a Chicago area pharmacist to fill two prescriptions for EC in February, as well as reports that pharmacists around the country were similarly refusing to fill prescriptions for EC, allegedly based on moral objections. The regulation places the burden on pharmacies to guarantee that pharmacists are not interfering with women’s access to prescription contraception.  According to the rule, if the prescribed contraception is out-of-stock, the pharmacy must provide an alternative drug, order it according to standard procedures, transfer the prescription to another local pharmacy, or return the prescription to the customer. The rule also establishes a toll-free number for state residents to report pharmacies that refuse to fill contraceptive prescriptions; pharmacies violating the rule risk losing their licenses.

“Women can feel confident from here on out, that when they have a signed prescription from their doctor for birth control and go to a pharmacy that sells birth control—they’ll get their medication without question or lecture,” Governor Blagojevich said.1

Since the emergency order was issued in April, six pharmacists have sued the state, saying that the rule requires them to violate their moral and religious beliefs. They argue that they should not be required to dispense medication that violates their beliefs and claim this right is protected under Illinois ‘ Health Care Right of Conscience Act, which protects physicians and healthcare personnel. However, state Senator Dan Rutherford of Pontiac (R) said the state has twice tried to add pharmacists to the definition of those included under the conscience clause and both times those efforts failed.2 Governor Blagojevich made it clear that “when we began this battle, we said that filling prescriptions for birth control is protecting a woman’s right to have access to medicine her doctor says she needs. Nothing more. Nothing less.”3

New Hampshire Allows Pharmacists to Dispense EC

In New Hampshire , a law allowing pharmacists to dispense emergency contraception without a prescription went into effect on August 15, making it the seventh state to allow trained pharmacists to dispense EC without a doctor’s prescription. While the law was signed by Governor John Lynch (R) on June 16, w omen will not be able to obtain emergency contraception without a prescription until the state establishes rules and trains pharmacists who choose to participate in the program, said Paul Boisseau, executive secretary of the New Hampshire ‘s Board of Pharmacy. Boisseau said that legislators will most likely use a fast-track process and will probably have rules set within 30-45 days. The state will then spend at least a few weeks providing pharmacists with two-hour training sessions on dispensing the medication to customers.4

The law does not require pharmacists to sell EC as participation is voluntary and the state pharmacy does not yet know how many pharmacists will participate. The law will also allow pharmacists to object to filling the prescription based on moral, religious, or other grounds. The state will present only guidelines, and not a mandate, for pharmacists who refuse to provide the pill, with or without prescription. While advocates are generally pleased with the law, some worry that pharmacists will elect to refuse to fill prescriptions and may not transfer the prescription to another pharmacy. “We hope and certainly encourage pharmacists, if presented with a request, they will do as much as possible to guide that patient to the nearest pharmacy where she can get the medication plan,” Boisseau said.5

Currently, six other states— Alaska, California, Hawaii, Maine, New Mexico, and Washington —also have laws allowing pharmacists to dispense EC without a physician’s prescription.

New York Still Requires Prescription

While EC access is advancing in other states, New York Governor George Pataki (R) vetoed a law in early August that would have made emergency contraception available without a prescription in pharmacies across the Empire State. The bill—approved by the State Assembly in January and by the State Senate in June—would have allowed pharmacists and nurses to dispense EC without a physician’s prescription using blanket prescriptions issued by physicians, certified nurse midwives, or certified nurse practitioners that do not name a specific patient. The measure would have allowed EC patients to access EC without age restriction.

Governor Pataki explained that his primary concerns with the bill were that there were no age restrictions limiting the access of EC for women under the age of 16 and no limit to the number of doses that could be purchased at one time. The Governor also cited the pending federal FDA ruling on the matter. In a clear indication that the Governor sought any excuse imaginable to veto the legislation, he even argued that the bill would allow men to purchase emergency contraception in an effort to persuade young women to engage in intercourse. Pataki suggested that he is open to approving a revised bill that includes an age restriction and patient counseling requirements.

Supporters of the bill believe that Governor Pataki is using the veto to appeal to conservative voters because he plans to seek the 2008 Republican presidential nomination. “It was a Herculean task to get it through the Senate and get the support of right-to-life senators who saw this as good common ground prevention,” said Kelli Conlin, executive director of NARAL Pro-Choice New York. Conlin contends that the governor’s decision “was driven by politics.”6


  1. Angela Green, “Group Praises Ruling on Pill,” Peoria Journal Star, 18 August 2005, accessed 19 August 2005, <>.
  2. John Chase, “Legislators Back Edict on Birth Pills,” Chicago Tribune, 17 August 2005, accessed 22 August, <>.
  3. Ibid
  4. Albert McKeon, “Emergency Contraception Not Yet on Shelves,” Nashua Telegraph, 14 August 2005, accessed 19 August 2005, <>.
  5. Ibid.
  6. Raymond Hernandez, “Pataki Will Veto New Rule on Pill,” New York Times , A1, 1 August 2005; Marc Humbert, “Pataki Vetoes Bill that Would Ease the Availability of the Morning-After Pill,” New York Times, B3, 5 August 2005.