Committee On Health Regarding Access To Emergency Contraception

Good morning. My name is Rebekah Diller. I am Director of the Reproductive Rights Project of the New York Civil Liberties Union (NYCLU). The NYCLU is the New York State affiliate of the American Civil Liberties Union and has approximately 25,000 members in New York State. For three decades, the NYCLU has been in the forefront of advocating and litigating for women’s rights to access comprehensive reproductive health care in New York.

I would like to thank Assembly Member Gottfried for convening today’s hearing as well as for his history of leadership on reproductive rights issues. By expanding access to a critical, yet underutilized, means of pregnancy prevention, these two bills would help ensure that New York women enjoy comprehensive reproductive health rights at a time when they are under relentless attack at the federal level.

Emergency contraception is often misunderstood and underutilized. Emergency contraceptive pills are really just high doses of oral contraceptives, the birth control pills that millions of U.S. women take every day. EC has been proven highly effective in preventing unintended pregnancy when taken no more than 72 hours after unprotected intercourse; it is most effective when taken within 12 hours. EC works by preventing ovulation, fertilization, or implantation. It does not disrupt an established pregnancy, which the medical community defines as beginning with implantation. EC should not be confused with mifepristone (RU-486), a drug approved by the Food and Drug Administration in September 2000 for early abortion. EC prevents unwanted pregnancy. It does not induce an abortion.

Despite the tremendous potential of EC to drastically reduce unintended pregnancy, it is not nearly as available nor as widely known as it should be. The bills you consider today would dramatically expand access to EC and provide a crucial boost to reproductive freedom and women’s health. I will address each in turn.

The Unintended Pregnancy Prevention Act (A. 888) would vastly expand access to emergency contraception for women in New York State, with the potential to bring about a dramatic decrease in unintended pregnancies. This bill would permit women to obtain EC directly from a trained pharmacist, without a patient-specific prescription from her provider. The bill would allow licensed physicians, certified nurse practitioners and licensed midwives to write non-patient specific prescriptions for EC to be dispensed by licensed pharmacists and registered professional nurses, thereby mimicking an “over-the-counter” model of access. The bill would not alter in any other way the prescribing scopes of physicians, nurse practitioners, and licensed midwives.

We know that time is of the essence in ensuring the effectiveness of EC. However, because EC currently may not be dispensed without a prescription in the United States, many women who could benefit from this drug cannot access it in time to realize its full efficacy, because, for example, their doctor is unavailable over the weekend or a holiday or they are unable to miss work or arrange for child care in order to visit their doctor. Those unable to visit a doctor, get a prescription and fill it within the narrow window of opportunity may face an unwanted pregnancy as a result. This problem is exacerbated in rural areas of New York State with fewer medical resources.

Research suggests that widespread fast access to EC would prevent nearly half of the unintended pregnancies in the United States, a number estimated to be as high as 2.5 million each year. By approximating an “over-the-counter” framework for the administration of EC, this legislation would reduce the number of unwanted pregnancies by ensuring fast access to EC during the critical window of opportunity. No longer would a woman be at the mercy of her physician’s answering service, if she has a regular physician, when this urgent need arises. Instead, she could simply go to a participating pharmacy immediately after unprotected intercourse or a birth control failure.

This model of collaboration among providers is not new to the health care arena. For example, New York Education Law § 6537(6) permits physicians to write non-patient specific prescriptions to enable registered professional nurses to administer immunizations and emergency anaphylaxis treatment. The legislative history of that measure shows that it was prompted by concern about the need for expanded access to flu shots. Given the unacceptably high rates of unintended pregnancy, expanded access to EC is certainly a similarly urgent public health priority. California and Washington state have led the way by creating successful models for pharmacist dispensing of EC.

Finally, EC is an appropriate subject for this type of legislation as a safe and effective drug with few side effects and directions that may be easily followed without the need for physician oversight.

Assembly Bill No. 15 would mandate that emergency rooms counsel rape survivors concerning the availability of EC and, upon her request, provide EC on site. Perhaps nowhere is access to EC more urgently needed than in emergency rooms treating survivors of rape. Each year, more than 600,000 American women are raped, with an estimated 25,000 of those rapes resulting in pregnancy. As many as 22,000 of those pregnancies could be prevented by timely administration of emergency contraception.

The major medical organizations agree: rape survivors should be counseled about and offered EC. The American College of Obstetricians and Gynecologists (ACOG) recommends that physicians treating rape survivors, as part of their overall sexual assault exam, administer pregnancy tests and offer the patient EC. Likewise, in their guidelines for treating sexual assault survivors, the American Medical Association advises physicians to ensure that sexual assault patients are informed about and, if appropriate, provided EC. Quite simply, providing EC as part of sexual assault treatment is the standard of care.

Yet, despite this consensus, many hospitals fail to provide rape survivors with EC and some fail even to inform women about the available treatment. Others allow treating physicians to do no more than write a prescription for the pills or to refer women to a physician who is willing to write a prescription.

A woman who has just survived rape is already in crisis and should not have to track down EC on her own, after she has undergone a rape exam in an emergency room. In addition to the emotional burdens of having to seek this medical care elsewhere, the rape survivor would face increased risk of pregnancy because of the delay inherent in having to find a physician to prescribe and a pharmacist to dispense EC. By the time a woman arrives at an emergency room, hours may have already elapsed since the rape took place. In the time remaining before the 72-hour window expires, obtaining EC may be virtually impossible. Moreover, as the hours tick by, her chances of preventing pregnancy decrease.

The Department of Health has issued protocols stating that hospitals should counsel rape survivors about EC and either offer it on-site or make arrangements to ensure timely access to the drug from another provider. While these protocols go a ways toward ensuring access to EC, they do not ameliorate the need for this legislation for two reasons. First, they fail to make on-site provision of EC a blanket requirement, leaving open the possibility that a rape survivor, having just experienced a brutal and horrific crime, will experience delay in care and be forced to travel elsewhere for a critical component of care. Second, while these protocols articulate a standard, they contain no enforcement mechanism. Arguably, the only enforcement mechanism is fear on the part of a hospital of incurring malpractice liability for violating a DOH protocol. However, the chances of a rape survivor coming forward to bring a lawsuit on this basis—and thereby invite exposure as well as the reliving of trauma—are extremely low. Therefore the remote chance of a malpractice claim is insufficient protection.

Along these lines, I would suggest that this Committee ensure that the bill you are considering be tied to a sufficient enforcement mechanism at the Department of Health.

Some health care institutions, invoking religious objections, refuse to provide EC because it may interfere with the implantation of a fertilized egg. The NYCLU is a staunch defender of religious liberty; however, we believe that an institution’s religious objections to EC must not imperil a rape survivor’s access to timely and comprehensive treatment. Emergency rooms – whether religiously affiliated or not – are ethically and morally obligated to offer the best care possible to everyone who comes through their doors in need of care.

A rape survivor is often taken to a hospital by the police or emergency medical technicians. Under these conditions, most women lack the time, information, and opportunity to assess a given hospital’s EC policy and ask to be taken to a facility that provides EC. Nor should she be expected to do so after surviving such a brutal crime. EC is basic health care for rape survivors and religious objections cannot be allowed to stand against the urgent needs of a rape survivor. Moreover, hospitals treat and employ people of many faiths; they should not be allowed to impose one set of religious beliefs on the people of diverse backgrounds who provide and seek their care.

In short, a hospital’s failure to provide EC unacceptably leaves women at risk for becoming pregnant as a result of the assault. This bill would ensure that hospitals abide by the standard of care when treating rape survivors. For all these reasons, the NYCLU urges support for A. 15.