While the Food and Drug Administration delays a decision on whether to allow the "morning-after pill" to be sold over the counter, officials in several states are mounting efforts to make the emergency contraceptive easier to get.
In recent weeks, the stakes have increased in the contentious policy debate over the pill, which is sold under the name Plan B , with four pharmacists losing their jobs in Illinois, state attorneys preparing a lawsuit against the FDA in Wisconsin and tempers flaring in Massachusetts.
Emergency contraception is controversial because it poses moral questions similar to those raised in the abortion debate. But to some of the biggest players in the dispute over the morning-after pill, the lines aren't nearly as clear.
Doctors are pitted against pharmacists and the FDA, druggists are fighting their employers, drugstores are fighting state regulators, and states are challenging the federal government.
In Illinois, four Walgreens pharmacists who said they wouldn't fill prescriptions for the morning-after pill were suspended without pay because of a one-of-a-kind Illinois rule put in place by Gov. Rod Blagojevich (D) requiring pharmacies to sell the drug.
Three of the pharmacists filed a complaint Dec. 7 with the Equal Employment Opportunity Commission, arguing their employer "effectively fired" them for their moral beliefs. Blagojevich's order requires all pharmacies that sell birth control pills also to stock the morning-after pill, a set of two pills that contain a higher dose of hormones than standard oral contraceptives. The drug is most effective at preventing pregnancy if taken within 24 hours of sex but can be taken up to five days later.
"The goal is, if a woman walks into a pharmacy with a prescription, Gov. Blagojevich wants that woman to walk out with her medication," explained Sue Hofer, a spokeswoman for the Illinois Department of Financial and Professional Regulation .
Right now, Illinois is the only state with such a requirement, but it won't be for long. California lawmakers pushed through a similar law, effective in January, that differs in one key aspect: It also would give pharmacists with moral objections to dispensing the pill a way to opt out. The compromise won the endorsement of pharmacists, though the more ardent anti-abortion groups still objected.
Wisconsin Attorney General Peg Lautenschlager (D) last week took the first steps toward filing a lawsuit to force the FDA to let the drug be sold without a prescription. Under Wisconsin law, Lautenschlager needs the permission of Gov. Jim Doyle (D) before suing the federal government. Doyle gave his approval on Thursday, Dec. 9.
The manufacturers of Plan B first applied for FDA approval to sell the drug over the counter in 2003. But FDA management held off on the decision, over the objection of an advisory committee and its staff, claiming it did not have enough information on how the drug would affect young teenagers.
Lautenschlager told Stateline.org that she has two chief concerns in pursuing the litigation: the rights of rape victims and the costs to the state -- either because of abortions or ongoing medical bills -- if the drug remains available only by prescription.
As a legal matter, she said the FDA's repeated delays - without an outright rejection of the application -- are "political" and violate the federal Administrative Practice Act, which governs how federal agencies must operate.
Next week, Massachusetts will begin allowing pharmacists to dispense the morning-after pill without a doctor's prescription. The Democratic-controlled Legislature overrode a July veto by Gov. Mitt Romney (R) to make the Bay State the eighth to let patients buy the drug without visiting a physician. The law allows specially trained pharmacists who partner with doctors to write and fill the prescriptions themselves.
It also requires hospitals to offer the drug to rape victims. Earlier this week, Romney's administration ruled that the mandate did not apply to Catholic hospitals, touching off a furor among politicians who say the administration's stance undermines the purpose of the law. But Romney reversed course Dec. 9 after speaking to his lawyers and said that the law will be applied to all hospitals, according to the Boston Globe .
Legislators in New York didn't have the votes to overcome Republican Gov. George Pataki's veto of a similar measure there, but the legislation did clear the Republican-controlled Senate before ending up on Pataki's desk.
In reaction to the emergency contraception controversy, the American Medical Association passed a resolution this summer calling on pharmacists to fill all prescriptions. It even suggested that, if no pharmacist within 30 miles of a patient would fill a script, the patient should be able to buy the drug from the doctor instead.
Opponents of emergency contraception argue that the pill could induce chemical abortions.
In most cases, the medicine works by stopping ovulation. But it also may prevent a fertilized egg from attaching to the wall of the uterus, a possibility mentioned on the label of all oral contraceptives.
Medical experts generally agree that pregnancy begins with implantation, so, under that definition, the medicine does not interfere with a pregnancy. But anti-abortion forces who believe life begins at conception oppose the drug on moral grounds because, in their view, it could end human lives.
Plan B is distinct from the abortion pill RU-486. The abortion pill can terminate pregnancies for up to seven weeks, whereas emergency contraception will have no effect on an embryo that already has attached to the uterus. Pharmacists cannot dispense the abortion pill, because it must be taken in the presence of a doctor.
In other states, opponents of the drug enjoyed small successes in curbing use of emergency contraception this year.
Mississippi enacted a broad law meant to protect pharmacists and other health-care professionals who have moral objections to administering certain drugs, including the morning-after pill. It joins Arkansas, Georgia and South Dakota in giving pharmacists the right to refuse to dispense emergency contraception.
In Indiana and Texas, lawmakers passed measures designed to limit Medicaid funding for emergency contraception.
And when Arkansas legislators told health insurance companies they had to cover contraception, the lawmakers explicitly excluded emergency contraception.
Elizabeth Nash, the state monitoring coordinator for the Guttmacher Institute , an abortion rights research group, said state officials have pushed to broaden access to emergency contraception since the FDA approved it for prescription use in 1999.
"But this is the first year we've seen a lot of push-back to expanding emergency contraception," she said.
In Illinois, Americans United for Life , a Chicago public-interest law firm that opposes abortion, challenged the rule on behalf of five Illinois pharmacists, but a judge ruled the suit was premature. The druggists are appealing.
They argued Blagojevich's order violates a state law that protects the rights of health care professionals. In fact, AUL spokesman Daniel McConchie pointed out, Illinois has one of the strongest right-of-refusal laws in the country. It specifically applies to doctors, nurses and "any other person who furnishes, or assists in the furnishing of, health care services."
McConchie said Blagojevich's action could drive pharmacists into retirement or out of the state, undermining the governor's stated goal of providing health care to the state's citizens. McConchie also questioned why a business should be compelled to stock any product. "We don't require Target to carry condoms or grocery stores to carry alcohol," he said.
But Hofer, the spokeswoman for the Illinois regulatory agency, said a pharmacist refusing to distribute prescribed medicine is like "an evangelical vegetarian working at McDonald's" who refuses to serve meat.