A Plan C for Plan B: A Feminist Legal Response to the Ways in Which Behind-the-Counter Emergency Contraception Fails Women

Abstract:     
On August 24, 2006, the Food and Drug Administration approved Plan B, the brand-name drug sold for emergency contraception, for sale to pharmacy customers eighteen and over without a prescription. However, Plan B must be shelved behind the pharmacy counter; thus, a customer over the age of eighteen seeking this medication must ask a pharmacist for it. A pharmacist with a moral or religious objection to emergency contraception can, therefore, still pose a barrier to a customer seeking to obtain it.

I use a feminist legal perspective to examine the regulation of behind-the-counter sale of emergency contraception to customers over the age of eighteen, addressing two problems with the regulation. First, because the regulation permits only behind-the-counter sale of Plan B, pharmacists are in a unique position to decide whether they think the customer should receive the requested medication - thus making pharmacist refusals possible. Second, the regulation surreptitiously adds an age requirement that was neither contemplated by the manufacturer nor medically justified, which hinders the access of young women and women without the required identification.

I first map out a litigation strategy to challenge pharmacist refusals to dispense emergency contraception. Using New York law as a model, I discuss the various theories of relief upon which a refusing pharmacist could be sued, including professional causes of action and administrative causes of action. I further posit private causes of action - including sex discrimination, wrongful conception, and breach of fiduciary duty - as a way to hold refusing pharmacists accountable to customers seeking emergency contraception.

I next discuss Tummino v. von Eschenbach, a lawsuit that challenges the regulation's age restriction. I argue that the age restriction privileges both age (adults) and gender (male purchasers/non-users) in ways that are unrelated to the use of the drug or its risks. This section applies a feminist legal perspective on the age restriction through use of constitutional theories supporting invalidation of the age restriction, in particular minors' right to decisional privacy.

Keywords: feminism, feminist theory, reproductive rights

JEL Classifications: K00, K30

Accepted Paper Series