Legal obstacles and challenges to EC access
continue to arise in a number of countries. This
section describes some of the legal issues around
provision of EC, and includes resources from ICEC
partners for overcoming legal obstacles to access.
Reproductive health and contraception are often
regulated by laws and policies. For more information,
visit the website of ICEC member the
Center for Reproductive Rights. 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.
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."
At the national level, while restrictions on most
forms of contraception are rare, EC has been the
subject of intense legal scrutiny. Attempts to
make EC available to women have faced a number
of legal challenges. 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.
Opposition to EC has spawned legal challenges
to its sale and distribution in several regions.
In the Latin American region, a number of extremists
who oppose women's use of EC have brought their
claims to national courts, challenging the availability
of EC as form of contraception. Most of these
challenges have so far not resulted in a denial
of women's access to EC. However, a May 2006 constitutional
court decision in Ecuador characterizing EC as
an abortifacient was a major setback for Ecuadorian
women and may have reverberations elsewhere in
the region. Read
Amicus Briefs submitted by the Center for Reproductive
Rights in the Ecuador case and a similar case
in Colombia.
EC is regulated primarily through drug approval
processes. In
most countries,
national drug
regulatory agencies
examine scientific
evidence submitted
by drug manufacturers
or distributors,
to issue a decision
of whether to
allow a drug to
be marketed, and
whether it can
be sold over the
counter or with
a prescription
only. For example,
Health Canada
recently approved
sale of EC by
pharmacists without
a doctor's prescription.
While decisions
of these regulators
are ostensibly
scientific ones,
politics can intrude.
For example, in
the Philippines,
the Bureau of
Food and Drugs,
with the approval
of the Department
of Health, removed
Postinor (levonorgestrel
750 mcg) from
the national drug
registry. 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.
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, Mexico recently issued
national norms approving EC and giving guidance
on its use and distribution. 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 product to suitable candidates.
Policies set by professional groups - such as
nursing associations, ob/gyn societies, and pharmacy
boards, may also influence access to EC.
Other legal issues
"Conscience" clauses: Some service
providers or pharmacists may refuse to provide
EC (or other family planning methods) because
of their personal beliefs. These refusals can
significantly impair women's ability to access
EC within the 120 hour timeframe in which EC is
effective. 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 recently adopted
Norms and Technical Guide on Emergency Care Service
for Victims of Sexual Violence. 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.
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