Chapter 7.B.1 Contraception

Notes: A Right to Avoid Procreation

1. Another Constitutional Right? For a recent article on the right not to procreate, see I. Glenn Cohen, The Constitution and the Rights Not to Procreate, 60 Stan. L. Rev. 1135 (2008)(exploring unbundling of the right not to procreate into the right not to be a genetic parent, the right not to be a legal parent, and the right not to be a gestational parent).

6. Emergency Contraception. Should minors have ready access to emergency contraception? In Tummino et al. v. Torti, 603 F.Supp.2d 519, 550 (E.D.N.Y., 2009), a federal district court ordered the FDA to lower the age limit for accessing emergency contraception without prescription. The FDA then authorized access to the drug for women over the age of 17 without a prescription. See Gardiner Harris, FDA Easing Access to ‘Morning After’ Pill, at http://www.nytimes.com/2009/04/23/health/23fda.html and Editorial, Broader Access to Morning-After-Pills, at http://www.nytimes.com/2009/03/25/opinion/25wed2.html. The FDA approved a new emergency contraception drug in 2010; this drug “prevents pregnancies if taken as many as five days after unprotected intercourse.” Gardiner Harris, F.D.A. Approves 5-Day Emergency Contraceptive, http://www.nytimes.com/2010/08/14/health/policy/14pill.html. Scientists are not certain whether the new drug works by blocking ovulation or implantation.

For a recent case involving both a minor and emergency contraception, see Anspach v. City of Philadelphia, 503 F.3d. 256 (C.A.3 (Pa.), 2007)(rejecting claims brought by minor and her parents arising from provision of emergency contraception to minor allegedly violating parental rights and child’s right to free exercise of religion).

Debates about the right of pharmacists and others to refrain from participating in providing emergency contraception persist. See Gardiner Harris, F.D.A. Approves 5-Day Emergency Contraceptive, http://www.nytimes.com/2010/08/14/health/policy/14pill.html; Stormans, Inc. v. Selecky, 586 F.3d 1109 (9^th Cir. 2009)(considering validity of lower court injunction applied to state law requiring pharmacists to distribute the drugs); Noesen v. State Dept. of Regulation and Licensing, Pharmacy Examining Bd., 751 N.W.2d 385 (Wis.App., 2008)(state board permitted to discipline pharmacists who refused to refill a prescription for birth control pills and refused to transfer the prescription to another pharmacy).

Problem: Incompetent Persons and Long-Term Contraception

Re Estate of K.E.J., 887 N.E.2d 704, 716 (Ill.App. 1 Dist., 2008) (tubal ligation not in the best interests of the incompetent person whose caregivers had already employed various methods of long term contraception).