Columnist

A man with no Plan

New York state’s emergency contraception loophole

By Alexis Grenell |  

June 19, 2016 |  

The owner of Bainbridge Pharmacy in the Bronx is refusing to sell the Plan B pill on religious grounds. (Ryan Somers)

Bainbridge Pharmacy sits atop the highest point in the Bronx, all the way at the end of the D train. A small, family-owned shop, it’s nestled between a greengrocer and a bodega with an ice machine chained to the front. The rest of the block is teeming with specialty stores advertising Mexican, Albanian and South Asian foods. You can inspect slabs of halal meat sitting out on dusty canisters while waiting to pick up your non-governmental emergency ID at the one-hour photo. “EBT accepted” decals dot the entrance of almost every business.

The pharmacy is so cramped it feels like being inside a gumball machine shoved full of pink and blue bottles. You could almost miss the discrete sign on the wall, if the words were not so loud: “No Morning After Pills Sold.”

Bob Ryan, the pharmacist who owns the store, is a husky man with a low-key manner. He says he refuses to sell a drug that prevents the implantation of a fertilized egg. When asked why, he would only explain that “Jesus is my savior.”

The origin of the sign dates back to 2003, when access to the morning-after pill was by  prescription only. That year, the New York City Council passed Local Law 25, which requires pharmacists to post the sign if they refuse to carry it. The law’s intention was to save women time, protect their privacy and spare them any moralizing. Or as Christine Quinn, then chairwoman of the Council’s Health Committee, put it: “That horrible moment where the pharmacist screams out, ‘Do we have the emergency contraception in the back?’ and then the woman is mortified and, like, leaves.”

The U.S. Food and Drug Administration approved levonorgestrel – also known as Plan B – for public use in 1997. But a 2002 report by the City Council surveyed 195 pharmacies and found that only 55 percent carried at least one brand of the pill, and 30 percent didn’t carry it at all. The situation was especially acute in the outer boroughs and at independent pharmacies in particular – in Queens only 37 percent of pharmacies carried it, and on Staten Island, only 47 percent did.

At the Health Committee hearing on the bill, pharmacists from both city and state professional organizations testified against it. They claimed that the bill would brand a scarlet letter on pharmacists who objected to carrying the drug on religious grounds. Then-Councilwoman Margarita López, a gay woman from the Lower East Side, could barely believe her ears.

“I want to suggest that at this moment, the Council look further into this issue,” she said. “How many other religious beliefs are out there that are dictating products being sold by pharmacies in our city, violating the rights of people to have access to those products?”

That’s a question without a straight answer. Although so-called “refusal clauses” for medical professionals exist under federal law for abortion, birth control and sterilization, no such exemption exists for emergency contraception. However, if a pharmacist objects to filling a prescription for reasons of conscience, his or her employer must make reasonable accommodations. Meanwhile, an independent pharmacist can evade the issue by simply not stocking a product.

It’s a loophole large enough to get someone pregnant.

When the City Council bill came to a full vote, Councilman Lew Fidler empathized with the pharmacists and urged the Council to be more sensitive to the needs of small businesses. But he decided that “this would be the wrong place to draw the line. The importance of emergency contraception and availability and the fact that there is a brief time frame in which, you know, emergency contraception is viable and useful, makes this bill imperative.”

Only eight Council members voted against it. With the exception of Simcha Felder, they were all white, Catholic men from parts of the city with the least access: Peter Vallone, Tony Avella, Andrew Lanza, Dennis Gallagher, Allan Jennings, Jimmy Oddo and Mike McMahon.

Mayor Michael Bloomberg vetoed the bill, but the Council voted to override.

Ten years later, in 2013, the FDA approved emergency contraception for over-the-counter use. As a result, New York City’s Department of Consumer Affairs no longer enforces Local Law 25, which defines "emergency contraception" as prescription only.

But pharmacists still maintain the right not to stock or dispense a product.

“They can exert their right but they can’t get in the way of the patient’s right to procure emergency contraception,” explains Martha Rumore, who teaches ethics at Touro College of Pharmacy, where she advises her students to adhere to the American Pharmacists Association guidelines.

The Pharmacists Society of the State of New York also reserves the right not to carry a product, but the organization’s executive director, Kathy Febraio, urges pharmacists to “assure that patients have access to legal medications through referrals to other pharmacists or health care providers while treating that patient in a timely, professional and non-judgmental manner.”

That’s an easy enough accommodation to make in the Bronx, where there’s a CVS half a block from Bainbridge Pharmacy that sells about five to seven packs of emergency contraception per week (according to the pharmacist). But in more rural parts of the state, finding it in a timely manner could prove difficult. A woman needs to take emergency contraception within 72 hours for it to be effective, and every hour lost is a race against biology.

Regardless of geography, Katherine Bodde, policy counsel at the New York Civil Liberties Union, sees a potential conflict: “A pharmacy that refuses to satisfy a woman’s request for a medication that only women use may be discriminating on the basis of her sex.”

Sex discrimination is of course illegal, yet the New York State Office of the Professions, which regulates pharmacists, does not require them to state their position on emergency contraception as a condition of licensing. “The laws are silent with regard to whether or not they have to carry products. It’s free enterprise,” adds Rumore.

The problem is when free enterprise encroaches on someone else’s legal freedoms.

In 2006, the NYCLU filed a complaint on behalf of Planned Parenthood against two upstate pharmacies that refused to refill a prescription for emergency contraception. The complaint asked the Pharmacy Board to “clarify its guidelines by stating that, absent a health-related justification, a pharmacist must log and dispense refills for all prescriptions and that a pharmacist’s refusal to do so on the basis of sex would constitute a violation of New York state’s discrimination law.”

The state Office of the Professions dodged the issue with a generic response, writing that a pharmacist may and should question refills if “there may be harm to a patient, drug interaction, or the drug was mis-prescribed.” One would think that undermining a physician at an organization that specializes in women’s health and is the frequent subject of political attacks would raise some red flags. Instead, the state declined to investigate further on the grounds that such conduct did not meet the definition of professional misconduct.

Bodde disagrees. “Pharmacies have an obligation to make medicine available as consistent with the standard of care,” she said. “Places of public accommodation should not be allowed to discriminate based on their religion.”

Emergency contraception may be only for women, but they’re not the only people who need and can’t get it.

Pharmacists turned away 1 in 5 male customers looking for emergency contraception, according to a 2014 study by Dr. David Bell at Columbia University Medical Center. Bell conducted a mystery shopper survey of 158 pharmacies in various Manhattan neighborhoods, with men between the ages of 19 and 28. Of the pharmacies that refused to serve a man, 73 percent required the presence of a woman or her identification card at the time of purchase and 27 percent "reported" they did not have the product in stock. In addition to screening men out of being full and valid partners in prophylactic care, some pharmacists also gave a range of misinformation. One even told a shopper that the pill would cause a miscarriage or abortion, while another claimed it was associated with birth defects.

Essentially, pharmacists enjoy broad discretion to purchase, refill and dispense products at will.

 

At Bainbridge Pharmacy, Bob Ryan is asked regularly about his sign. It’s provoked several confrontations, which Ryan describes as “aggressive.”

But his position is steadfast.

“I wouldn’t care what anyone told me, I will not stock it. If it becomes illegal, I’ll close,” he said.

That would undermine the market-driven strategy of the signage law. Local Law 25 gives people the right to run a business within certain parameters while affording customers a choice about where to spend their money. In fact, at the City Council Health Committee hearing in 2003, Planned Parenthood of New York City testified that it hoped the sign would incentivize pharmacists to carry emergency contraception rather than suffer public scrutiny. The goal is to put pressure on pharmacists, not drive them out of business.

A year after passing the law, the Council conducted another investigation and found that by 2004, 75 percent of pharmacies were stocking the product – a 20 percent increase over its 2002 findings. Seventy-one percent of pharmacies that had previously not stocked the drug were now carrying it. None of the remaining pharmacists who still refused to stock it had posted the requisite signage.

It’s possible that some refuseniks changed their position, but the more likely explanation is that they decided to start stocking the product to meet growing demand. Maybe the threat of the sign helped nudge them in that direction. Maybe not. Since the city Department of Consumer Affairs no longer enforces the law (and it’s unclear if it ever did), a representative could not provide information about how many signs still exist.

Today, access to the morning-after pill in New York City is relatively high, but getting it is not necessarily easy. Beyond choosing which products to stock, pharmacists can exercise discretion on where they place them in the store. Some pharmacies stock emergency contraception in the aisles alongside other non-prescription drugs, but plenty still keep it behind the counter, even though there’s no guidance from the FDA requiring them to do so.

After I visited Bainbridge Pharmacy, I scoped out the local CVS, which sells about 18 different kinds of condoms in an aisle marked “Family Planning,” with everything from ribbed to the mysteriously named “Trojan Groove.” Their position opposite the nutrition supplements designed to pump up the male physique (“Pre-Work Out N.O. Fury,” anyone?), gives some indication of who the pharmacy envisions its clientele to be. Breeze on down a few shelves and you can pick up some ex-lax and a pack of Tums, all tax-free. There’s no stigma or barrier between sexuality and general well being. For men, they’re one and the same.

A few aisles over, a blue wall of tampons and pads bleeds into the creamy yellows of the baby products directly adjacent. The message is pretty clear: For women, what happens below the waist is all about what comes out of it. Sex is about reproduction and pleasure is secondary.

These thoughts are separate but related to Bob Ryan’s refusal to stock emergency contraception. I’m torn. On the one hand he’s entitled to his beliefs, and on the other I think his conduct is wholly inconsistent. If you refuse to sell a drug because you believe that life begins at conception and you don’t want to violate your interpretation of God’s law, don’t you also have to make sure that every person you sell a pack of condoms to doesn’t intend to have sex outside their marriage? Don’t you also have to refrain from dispensing birth control pills so that a man doesn’t spill his seed in vain? Bob Ryan sells both, yet he’s fixated on that point where sperm meets egg, a phrase he used repeatedly. That’s the whole ballgame, not the rest of God’s law, which also includes stoning adulterers to death. I just can’t get away from the fact that he’s an originalist in this one instance of recreational sex, in which women pay the full freight.

In his universe, people can express agency by using birth control and condoms. When they fail, or a couple fails to use them, it’s up to God. But the Bronx has the highest abortion rate in the city, which Bob Ryan must think is worse than preventing the implantation of a fertilized egg. So he’d rather block access to the morning-after pill than avoid the termination of a several-week-old fetus? There’s no logic to it.

I also don’t see how his constitutional right to religious freedom extends into restricting the legally protected freedoms of others. It is one thing to make a personal choice about what you believe, and another to impose that system on someone else. The exemption he claims is a creeping carve-out, which pre-empts secular law, and it’s up to the state to clarify which has primacy. Senator Liz Krueger has repeatedly introduced a bill since 2010, that would prohibit pharmacists from refusing to dispense any product on philosophical, moral, or religious grounds. It’s currently sitting in the Committee on Higher Education, going nowhere.

Regardless, I think the matter is simple. The morning-after pill is an approved over-the-counter drug. If Bob Ryan can’t dispense it, then he shouldn’t be a pharmacist.

In the meantime, I’ll continue to support Planned Parenthood of New York City, which last year dispensed or sold 1,049 packages of emergency contraception in the Bronx alone.

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