Refusal of Emergency Contraception: Religious Freedom or Inflicting Harm?

By Asafu Suzuki, Law Intern

Freedom of religion is one of the most treasured freedoms in this country. However, some interest groups are distorting this sacred freedom to oppress women’s rights and inflict harm upon women. One manifestation of such repugnant efforts is the adoption of so-called “refusal clause” statutes which allow pharmacists who have moral objections to refuse dispensing emergency contraception (EC) to women who need this FDA-approved, over-the-counter (OTC) medication. Freedom of religion does not entail the right to abuse religious beliefs to inflict harm upon other members of society. Yet, this is precisely what “refusal clause” statutes allow people to do.

The proponents of such statutes are in complete denial of all available science. EC works by preventing or delaying ovulation.1 It cannot have an effect on an existing pregnancy, which the scientific and medical communities have defined as beginning at implantation. Even under the unscientific definition of “pregnancy,” including fertilized eggs before implantation, EC cannot affect a “pregnancy” because an egg cannot be fertilized before it undergoes ovulation. No scientific evidence that EC prevents implantation of fertilized eggs exists, and therefore, EC still won’t cause an “abortion” by affecting a “pregnancy.” Bottom line: EC is a contraceptive.

“Refusal clause” statutes are harmful to women, as they hinder rape victims’ access to EC2 and interfere with women’s autonomy over their bodies. A person’s control over his or her own body should not be controversial, but as applied to women, it is. The U.S. has a culture of obstructing women’s access to women’s reproductive health needs, most strongly demonstrated by the treatment of servicewomen who have been raped while serving this country.3 It is egregious that a woman’s control over her own body is constantly treated as an abomination in a country where a person’s “life, liberty, or property” cannot be deprived “without due process of law.”

Those who waive the flag of religious freedom in order to oppress women’s legally-established rights to access contraceptives4 misunderstand the Free Exercise Clause. While the government cannot regulate religious beliefs, it can regulate religious activities if the law is a “neutral law of general applicability,”5 and—like the Mormon who cannot marry multiple wives6 and the Jehovah’s Witness who must salute the flag in school7 — individuals are required to conform to laws that contradict their religious beliefs. The government may regulate all refusals to dispense all lawful medications, and a person’s ability to deny a woman access to EC (or any other medication) because of a religious objection is not absolute. Religious freedom does not permit denial of women’s autonomy over their own bodies.

1http://ec.princeton.edu/questions/ecwork.html

2 “Raped In Oklahoma? Better Know Your Hospitals,” Robin Marty, RH Reality Check. http://www.rhrealitycheck.org/article/2012/05/30/raped-in-oklahoma-better-know-your-hospitals

3 “A Culture of Coverup: Rape in the Ranks of the US Military,” Naomi Wolf, The Guardian. http://www.guardian.co.uk/commentisfree/2012/jun/14/culture-coverup-rape-ranks-us-military

4Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972).

5 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

6 Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878). 7 Minersville School District v. Gobitis, 310 U.S. 586 (1940).

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