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Legislative Memo: Emergency Contraception

This bill would allow licensed physicians, certified nurse practitioners and licensed midwives to write “non-patient specific” prescriptions for emergency contraception (“EC”), which could then be dispensed by licensed pharmacists and registered professional nurses.< Under welcome changes in federal law, EC, also known as Plan B, is now available over the counter for women over the age 18.

Unfortunately, federal law still requires that a woman under the age of 18 who requires EC must make an appointment with or contact her doctor, who must then write her a prescription, which she must then have filled by a pharmacist. All these steps take precious hours as the drug’s effectiveness wanes.

Under the existing prescription procedure, therefore, this highly effective contraceptive can be rendered useless because young women may not be able to obtain the drug in a timely manner.

There is no medical or public policy justification for maintaining the barriers that continue to impede access to EC for women under the age of 18, are FDA-approved as a safe and effective means of preventing pregnancy following unprotected sex. Emergency contraception pills should not be confused with mifepristone (or “RU-486”), an FDA-approved drug for early abortion.

EC does not interfere with an established pregnancy, which the medical community defines as beginning after implantation. EC has been proven highly effective in preventing unintended pregnancy when taken within seventy-two hours after unprotected intercourse; it is most effective when taken within twelve hours. Timely access is therefore critical.

However, because EC currently may not be dispensed in the United States for women under the age of 18 without a prescription, many young women who could benefit from this drug cannot obtain it in time to realize its full efficacy. A woman who is unable to visit her healthcare provider, obtain a prescription, and get it filled within the briefest window of opportunity may well face an unwanted pregnancy.

Young women who live in rural areas of the state, where there are fewer health care facilities and providers, are especially likely to face this predicament. Regardless of location, young women will likely find that seeking a prescription on a weekend, a weekday evening or a holiday is an exercise in futility.

The proposed legislation would prevent countless unintended pregnancies in New York by affording young women the opportunity to obtain EC within the limited time period that the medication can be effective.

The law would enable these and other women to access EC immediately after unprotected intercourse or a birth control failure by permitting pharmacists and nurses to immediately dispense EC based on non-patient-specific prescriptions. This model of non-patient specific prescription is not new to the health care arena.

New York Education Law § 6537(6) already permits physicians to write such prescriptions so that registered professional nurses are able to administer immunizations and emergency anaphylaxis treatment. California and Washington have adopted similar models for the dispensing of EC by pharmacists.

EC is an appropriate medication for a non-patient specific prescription model because (1) it is safe and effective; (2) it has few side effects; and (3) directions for the use of EC are so simple that physician oversight is not needed.[5] 

Although the recent federal law prohibits the sale of over-the-counter EC to women under 18, there is no basis for continuing to limit young women’s access to EC in New York State. 

Supreme Court jurisprudence and New York State law recognize the right of women under 18 to make decisions regarding their reproductive and sexual health, including consent to contraception, abortion, diagnosis and treatment of STIs, and prenatal care.[6]

Consistent with these legal standards, New York law should ensure that young women have unimpeded access to medication that will reduce the incidence of unintended pregnancy. For women over 18, the proposed legislation further serves to ensure affordable access to over-the-counter EC by including amendments to the insurance law.

The amendments would require that insurance policies that previously covered EC as a prescription-only medication, continue to do so regardless of the change in federal status.

This law will therefore prevent EC from becoming cost-prohibitive, and will safeguard the broad accessibility that the FDA intended when it approved EC for over-the-counter sale. New York law should remove the unnecessary barriers that continue to limit young women’s access to safe and effective reproductive healthcare.

A.627 removes such a barrier while also working to ensure affordable access to EC for women of all ages; for these reasons the NYCLU urges legislators to vote in support of this bill.


[1] “FDA Approves Over–the-Counter Access for Plan B for Women 18 and Older – Prescription Remains Required for Those 17 and Under”, Food and Drug Administration, Aug. 24, 2006.

[2] See also 45 C.F.R. § 46.202(f) (2003) (federal clinical research human subject protection guidelines, defining pregnancy as “the period of time from implantation until delivery”).  EC works by preventing ovulation or fertilization.  In a few rare cases, it may also interfere with implantation.  However, medical research on this question is inconclusive.  See See K. Gemzell-Danielsson & L. Marions, Mechanisms of Action of Mifepristone and Levonorgestrel When Used for Emergency Contraception, 10 Human Reproduction Update 341 (2004); H.B. Croxatto et al., Pituitary–Ovarian Function Following the Standard Levonorgestrel Emergency Contraceptive Dose or a Single 0.75-mg Dose Given on the Days Preceding Ovulation, 70 Contraception 442 (2004); Weismiller, supra, at 709; Anna Glasier, Emergency Postcoital Contraception, 337 New Eng. J. Med. 1058, 1060 (1997).

[3] Implementing non-patient specific prescriptions for EC would also provide access to undocumented women who are over 18 and otherwise eligible to purchase the medication, but are unable to provide the forms of government-issued identification that are currently required by federal law at the time of purchase.

[4] See, e.g., CA Bus. & Prof. Code § 4052(a)(8) (West 2003) (permitting trained pharmacists to dispense emergency contraception in accordance with protocols developed by the pharmacist and an authorized prescriber acting within his or her scope of practice); Wash. Rev. Code § 18.64.011(11) (West 2003) (defining the scope of the practice of pharmacy to including the initiation or modification of drug therapy in accordance with written guidelines or protocols previously established and approved for his or her practice by a practitioner authorized to prescribe drugs).

[5] David A. Grimes, M.D. et al., Emergency Contraception Over-The-Counter: The Medical and Legal Imperatives, 98 Obstet. & Gynecol. 151 (2001).

[6] N.Y. Pub. Health Law §§ 2305; 2504; Carey v. Population Servs. Int’l, 431 U.S. 678, 693 (1976).

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