Emergency contraception (“EC”) is a form of birth control that is taken after sexual intercourse. Currently, the only drug available in the United States that has been specifically approved by the FDA for use as an emergency contraceptive is Plan B, which consists of a course of hormonal birth control pills taken in a two-dose regimen 1. When the first dose is taken within 72 hours of sexual intercourse, Plan B can significantly reduce a woman’s risk of becoming pregnant2. The sooner that Plan B is taken, the more effective it is in preventing pregnancy3.
Since the year 2000, an average of 74,000 women a year have been victims of rape in the United States4. The National Protocol for Sexual Assault Medical Forensic Examinations declares that when rape or other forms of sexual assault occur, “victims deserve competent and compassionate care.”5 It goes on to say that, “[f]or individuals who experience this horrendous crime, having a positive experience with the criminal justice and health care systems can contribute greatly to their overall healing.”6 The risk of pregnancy from rape is often a cause of great anxiety and significant additional trauma to the victim.7 Requiring hospital emergency room personnel to inform rape survivors about EC and to provide it on request can dramatically reduce that risk.
Neither the U.S. Constitution Nor Any Federal Law Prevents States from Enacting Laws That Require Hospital Emergency Rooms to Provide Emergency Contraception to Rape Survivors.
Some hospitals, particularly Catholic hospitals, have lobbied against proposed state laws that would require emergency rooms to provide EC to rape survivors—often called “EC in the ER laws”—arguing that such laws would violate their religious freedom.8 Their arguments find no support in the Constitution or elsewhere in federal law.
The religion clauses of the First Amendment, which have been made applicable to the States by incorporation into the Fourteenth Amendment,9 provide that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”10
The free exercise of religion affords the right to believe and profess whatever religious doctrine one desires. As a result, the government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma.11
It does not, however, afford the right to refuse to comply with a general law requiring conduct that one’s religion condemns or prohibits. The Supreme Court has clearly held that all persons and institutions are required to comply with “valid and neutral law[s] of general applicability” regardless of any individual religious objections.12
Accordingly, the U.S. Constitution does not prevent States from enacting laws that require hospital emergency rooms to provide rape survivors with emergency contraception, nor does it require states to exempt hospitals or health care providers with religious objections from compliance with such laws.13
The Religious Freedom Restoration Act (“RFRA”) limits the ability of the federal government to impose legal obligations on religious objectors.14 But RFRA does not apply to the States.15 No federal law limits the ability of States to require that hospitals, regardless of their religious affiliation, provide emergency contraception to rape survivors.
Several States Already Have EC in the ER Laws on the Books.
Currently, at least ten States have laws that require hospital emergency rooms to provide emergency contraception to rape survivors who want it: California,16 Connecticut,17 Massachusetts,18 Minnesota,19 New Jersey,20 New Mexico,21 New York,22 Oregon,23 South Carolina,24 and Washington.25 An additional three States have laws that require hospitals to inform rape survivors about emergency contraception, though not necessarily to provide it on demand: Arkansas,26 Colorado,27 and Illinois.28
Legal Challenges to Similar Laws Have Failed.
There have been no reported challenges to EC in the ER laws, but legal challenges to similar laws have been unsuccessful. For example, the highest court of the State of New York held that a New York law which requires certain employer-sponsored health insurance plans to include coverage for contraceptives did not violate the free exercise rights of faith-based organizations that challenged it.29 The court noted that the organizations believe that “the challenged provisions of the [statute] compel them to violate their religious tenets by financing conduct that they condemn. The sincerity of their beliefs, and the centrality of those beliefs to their faith, are not in dispute.”30 Nevertheless, the court held that neither the Free Exercise Clause of the U.S. Constitution nor the Free Exercise Clause of the New York Constitution shielded the organizations from their obligation to comply with the statute.31
Similarly, the highest court of the State of California rejected a challenge by a faith-based organization to a California contraceptive-equity statute. 32 The court held that the California statute did not violate either the U.S. Constitution or the California Constitution.33
Requiring hospital emergency rooms to provide EC to rape survivors who want it can substantially reduce the risk of pregnancy these women face and thereby reduce the overall trauma they are forced to endure as a result of their attacks. Neither the U.S. Constitution nor federal law poses any impediment to States that seek to enact EC in the ER laws. 1. See Plan B Label, available at www.fda.gov/cder/foi/label/2006/021045s011lbl.pdf.
4. Bureau of Justice Statistics, U.S. Department of Justice, National Crime Victimization Survey (2000-2005), available at www.ojp.usdoj.gov/bjs/abstract/cvus/rape_sexual_assault304.htm.
5. Office of Violence Against Women, U.S. Department of Justice, A National Protocol for Sexual Assault Medical Forensic Examinations: Adults/Adolescents(Sept. 2004) at iii, available at ncjrs.gov/pdffiles1/ovw/206554.pdf.
7. Id. at 111.
8. See, e.g., Editorial, Compassion for Rape Victims, N.Y. TIMES, Feb. 4, 2007 (“[T]he Catholic Archdiocese of Hartford opposed the [EC in the ER] bill, saying that it would force the state’s four Catholic hospitals to violate church teaching against birth control and represented a violation of religious freedom.”).
9. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
10. U.S. Const. amend. I.
11. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 877 (1990).
12. Id. at 879.
13. See id.
14. 42 U.S.C. §§ 2000bb – 2000bb-4, see Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 126 S. Ct. 1211, 1216-17 (2006). RFRA would not prevent Congress from enacting a federal EC in the ER law.
15. See City of Boerne v. Flores, 521 U.S. 507, 529-36 (1997).
16. Cal. Penal Code § 13823.11(e).
17. Conn. Pub. Act. No. 07-24 (effective date Oct. 1, 2007).
18. Mass. Gen. Laws ch. 111 § 70E(o).
19. Minn. Stat. § 145.4712.
20. N.J. Stat. Ann. § 26:2H-12.6c.
21. N.M. Stat. Ann. § 24-10D-3.
22. N.Y. Pub. Health Law § 2805-p.
23. 2007 Or. Laws ch. 182 (H.B. 2700) (effective date Jan. 1, 2008).
24. S.C. Code Ann. § 16-3-1350(B).
25. Wash. Rev. Code § 70.41.350.
26. Ark. Code Ann. § 20-13-1403.
27. Colo. Rev. Stat. § 25-3-110.
28. Ill. Comp. Stat. ch. 410 § 70/2.2.
29. See Catholic Charities of the Diocese of Albany v. Serio, 7 N.Y.3d 510, 518 (2006).
30. Id. at 520-21.
31. Id. at 518-28.
32. See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal.4th 527, 537 (2004).