Massachusetts Statute Highlights Controversy over Access to Emergency
Contraception
By Leslie Griffin, J.D., Ph.D.
In September 2005 Massachusetts became one of eight states to permit pharmacists to
distribute emergency contraception without a doctor’s prescription. The Bill Providing
Timely Access to Emergency Contraception also required Massachusetts hospitals to
give victims of sexual assault information about and access to emergency contraception.1
The Massachusetts Legislature overrode a veto by Governor Mitt Romney, who
explained his opposition to the bill in the following words:
Because the way this drug works would not only prevent conception – with which
I would not have a problem – but it also, in some cases, terminates life after
conception. And therefore it ceases in that case to be a contraceptive bill. It
becomes an abortion bill, and I indicated I wouldn’t change abortion laws and I
won’t violate that promise.2
Emergency contraception – also known as Plan B – is a heavy dose of hormones that
should be taken within 72 hours of sexual intercourse. It protects against pregnancy by
stopping ovulation, preventing fertilization of the egg, or blocking implantation of the
embryo in the uterus. Unlike RU-486, Plan B is not effective if implantation or
pregnancy has already occurred.3
Like Governor Romney, some opponents of emergency contraception believe that life
begins at conception and that preventing implantation is morally equivalent to abortion.
In contrast, emergency contraception supporters, including the Massachusetts
Legislature, state that victims of sexual assault should have access to “any drug approved
by the federal Food and Drug Administration as a contraceptive method for use after
sexual intercourse,” a definition that includes Plan B, which was approved by the FDA in
1999.4
The morality of emergency contraception has recently been in contention in numerous
states across the country. After some Illinois pharmacists refused to fill or even transfer
emergency contraception prescriptions, for example, Governor Rod Blagojevich issued
an administrative rule requiring pharmacists who sell any contraception to fill the
emergency prescriptions without delay. Georgia and three other states, in contrast,
protect the right of pharmacists to refuse to dispense emergency contraceptives for moral
and religious reasons.5
1
MASS. GEN. LAWS ANN. ch. 94C, § 19A (West 2005); States Pass Laws Allowing Pharmacists to
Prescribe Plan B, FDA WEEK, Nov. 25, 2005, at § 47, available at 2005 WLNR 18940945.
2
Maggie Mulvihill, Gov Seeks to Block Morning-After Pill, BOSTON HERALD, July 26, 2005, at 13,
available at 2005 WLNR 11708034.
3
Scott S. Greenberger, Lawmakers Override Governor's Contraception Veto, BOSTON GLOBE, Sept. 16,
2005, at B4, available at 2005 WLNR 14602057.
4
MASS. GEN. LAWS ANN. ch. 94C, § 19A(a) (West 2005); FDA Clears Way for New Contraceptive,
PHILADELPHIA INQUIRER, July 30, 1999, at A13, available at 1999 WLNR 2513951.
5
JODY FEDER, FEDERAL AND STATE LAWS REGARDING PHARMACISTS WHO REFUSE TO DISPENSE
CONTRACEPTIVES, CRS REPORT RS22293, at 3-4 (Oct. 7, 2005), available at
Massachusetts requires pharmacists to fill all valid prescriptions without exception.6
Nonetheless, the hospital provisions of the new legislation attracted controversy, even
after the Legislature overrode the veto, when the State Department of Public Health ruled
that the new act did not apply to private hospitals.7 According to the Department, private
hospitals could opt out of coverage because they were governed by an earlier
Massachusetts statute that allows private hospitals to refuse for moral or religious reasons
to perform abortions.8 Such “conscience clauses” were passed by Massachusetts and
most other states after the United States Supreme Court’s 1973 decision legalizing
abortion in Roe v. Wade.9
In Massachusetts, it is uncertain if the new bill invalidates the earlier conscience clause
legislation or if hospitals retain the right to opt out of providing emergency contraception
to victims of sexual assault. Initially Governor Romney sided with the Department of
Public Health. After his legal counsel decided that the new law supersedes the old,
however, the Governor expressed support for requiring all hospitals to provide access to
emergency contraception.10
Catholic hospital administrators have expressed particular concern about the new
legislation. Because Catholicism teaches that life begins at conception, Plan B’s possible
prevention of implantation can be viewed as an abortion under church teaching. A
spokesman for the Massachusetts Catholic Conference argues that the old statute is still
valid while legislators and Massachusetts Attorney General Thomas Reilly believe that
all hospitals must follow the new law.11
Litigation is expected to resolve the controversy.
January 2006
http://digital.library.unt.edu/govdocs/crs//data/2005/upl-meta-crs-7544/RS22293_2005 Oct07.pdf (last
visited Jan. 2, 2006). The three states are Arkansas, Mississippi and South Dakota.
6
Planned Parenthood Federation of America, Summary of State Actions Related to Pharmacist Refusals, at
http://www.plannedparenthood.org/pp2/portal /files/portal/media/factsreports/fact-statesummary.xml#1116441577118::700280567102 5239407 (last visited Jan. 2, 2006); see also NATIONAL
WOMEN’S LAW CENTER, DON’T TAKE “NO” FOR AN ANSWER: A GUIDE TO PHARMACY REFUSAL LAWS,
POLICIES AND PRACTICES 8 & n.36 (Aug. 2005), available at http://www.nwlc.org/pdf/82005_Don'tTakeNo.pdf.
7
Scott Helman, Private Hospitals Exempt on Pill Law, BOSTON GLOBE, Dec. 7, 2005, at A1, available at
2005 WLNR 19672929.
8
MASS. GEN. LAWS ANN. ch. 112, § 12I (West 2005); MASS. GEN. LAWS ANN. ch. 272, § 21B (West
2005).
9
Roe v. Wade, 410 U.S. 113 (1973); Maureen K. Bailey, Contraceptive Insurance Mandates and Catholic
Charities v. Superior Court of Sacramento: Towards a New Understanding of Women’s Health, 9 TEX.
REV. L. & POL. 367, 368 (2005); Holly Teliska, Obstacles to Access: How Pharmacist Refusal Clauses
Undermine the Basic Health Care Needs of Rural and Low-Income Women, 20 BERKLEY J. GENDER L. &
JUST. 229, 232 (2005).
10
Scott Helman, Romney Says no Hospitals are Exempt from Pill Law, BOSTON GLOBE, Dec. 9, 2005, at
A1, available at 2005 WLNR 19809780.
11
Helman, supra note 7, at A1.
2