Legal & Opposition Issues

Contraception and other reproductive health care services are often regulated by laws and policies. Legal obstacles and challenges to emergency contraception (EC) access arise in a number of countries and contexts.The most common reason for opposition to EC is the belief that EC is a form of abortion, rather than a contraceptive. While the characterization of EC as an abortifacient contradicts mainstream medical and scientific opinion, it has fueled ideological opposition to EC’s use. (Click here for more information on how EC works and how EC differs from medical abortion.)

Global Policy Environment

At the global level, international agreements negotiated by the world’s governments stipulate that women have a right to a range of contraceptive options. The Cairo Programme of Action affirms in paragraph 7.16: “All countries should take steps to meet the family planning needs of their populations as soon as possible and should, in all cases by the year 2015, seek to provide universal access to a full range of safe and reliable family planning methods and to related reproductive health services which are not against the law. The aim should be to assist couples and individuals to achieve their reproductive goals and give them the full opportunity to exercise the right to have children by choice.”

National Policy Environment

At the country level, barriers to EC access can arise via a number of avenues, including legal challenges to national law, medical regulatory authorities’ decisions, lack of inclusion of EC in national norms and guildelines, and “conscience” clauses that give providers license to refuse to provide EC or information about it.

National Law

At the national level,  EC has been the subject of intense legal scrutiny in a number of countries. Opposition to EC has spawned legal challenges to its sale and distribution in several regions. In the Latin American region, in particular, a number of extremists who oppose women’s use of EC have brought their claims to national courts, challenging the availability of EC as a form of contraception. In certain countries, these challenges have affected EC accessibility. In 2009, Honduras banned both free distribution and sale of EC. In Ecuador, a 2006 constitutional court decision characterizing EC as an abortifacient was a major setback for Ecuadorian women. Click here to read Amicus Briefs submitted by the Center for Reproductive Rights in the Ecuador case and a similar case in Colombia.

In the United States, there have been legal challenges to the 2010 Affordable Care Act (ACA) which stipulates that many employers must provide group health insurance that covers co-pay free contraception, including EC, to its female employees.

National Drug Regulation

EC is regulated primarily through drug approval processes. In most countries, national drug regulatory agencies examine scientific evidence submitted by drug manufacturers or distributors and then issue a decision as to whether to allow a drug to be marketed and whether it can be sold over the counter or with a prescription only. For example, in 2005, Canada’s medical regulatory authority, Health Canada, approved the sale of EC by pharmacists without a doctor’s prescription. While decisions of these regulators are ostensibly scientific ones, politics can intrude.

In the Philippines, for instance, the Bureau of Food and Drugs, with the approval of the Department of Health, removed Postinor (levonorgestrel 0.750 mg) from the national drug registry. Although Costa Rica does not explicitly outlaw EC, levonorgestrel (a common EC drug) is not registered as a product, and is, therefore, unavailable through both the public sector and the private market. In the United States, the national Food and Drug Administration delayed making EC available without a medical prescription for three years; non-prescription status for EC was finally granted in August 2006, although only for women ages 17 and older.  For more information on this topic visit our Non-Prescription EC Access page.

National Norms and Guidelines

Finally, national service delivery norms often set policies for public sector provision of contraceptives. While they may not be legally binding, these norms lay out what is expected of public sector service providers. For example, in 2005, Mexico issued national norms approving EC and giving guidance on its use and distribution. On the other hand, in Peru, a 2009 constitutional court decision ordered the Health Ministry to cease providing EC to the public sector, impacting thousands of low-income Peruvian women, especially rape victims.

To increase access to emergency contraception, national norms should include clear guidance for provision of EC to all women who seek it, including advance provision of prescriptions or products to appropriate candidates. Policies set by professional groups — such as nursing associations, OB/GYN societies, and pharmacy boards — may also influence access to EC since professional opinions and statements can sway policymakers who might be uninformed about the science of EC. For up-to-date clinical and service delivery guidelines that can be adapted to national use, please see the 2012 ICEC guidelines, endorsed by the International Federation of Gynecology and Obstetrics (FIGO) and many international organizations.

National and Institutional “Conscience” Clauses:

Another legal issue that affects EC accessibility involves “conscience” clauses. “Conscience” clauses give some service providers, pharmacists, and sometimes even entire organizations license to refuse to provide EC (or other family planning methods) because of personal beliefs. These refusals can significantly impair women’s ability to access EC within the 120 hour timeframe in which EC is effective.

In some cases, “conscience” clauses can go as far as to prevent women from hearing any information about EC. Many women who could benefit from EC, including survivors of rape, are not even told about the existence of EC when they seek care in medical facilities. Government responses to service refusals have been varied. One example of a positive response is Chile’s Norms and Technical Guide on Emergency Care Service for Victims of Sexual Violence, adopted in 2004. According to these norms, an attending physician who, for personal or religious reasons, decides that he or she cannot provide EC to a survivor of rape must refer the case to a provider who is able to grant the patient’s request.

Unfortunately, governments have also failed to protect EC access by allowing conscience clauses to become law and neglecting to mandate that patients be referred to other providers so they can access the services they need. For example, the U.S. state of Mississippi has a sweeping conscience clause law allowing all health care providers (insurers, facilities, pharmacists, pharmacy employees, and social workers) the right to refuse to provide medical services, including counseling and referral, on religious or ethical grounds.

For more information on how lawyers, advocates and policymakers work to protect reproductive health and rights, visit the website of ICEC member the Center for Reproductive Rights (CRR). CRR tracks laws and legal issues related to contraception and other reproductive health topics; download their briefing paper on global laws and policies affecting EC access here.

For more about how the Catholic hierarchy has been working to block access to EC, read “Catholics in Favor, Bishops Opposed” produced by Catholics for Choice and ICEC.