Hormonal emergency contraception refers to drugs administered after unprotected intercourse—condom rupture, sexual assault or unplanned unprotected intercourse—to avoid unintentional pregnancies. Worldwide, the most used drugs for emergency contraception are levonorgestrel and ulipristal acetate (ellaOne), available over the counter and without a prescription in over 60 countries, including Canada, Australia, the United States and EU countries. In theory, classifying these drugs as non-prescription represents a significant advancement for the right to bodily integrity and to safeguard women’s reproductive rights. However, free access must be scrutinized in the context of a highly volatile political climate surrounding women’s reproductive health.
Recently, we witnessed opposition by the US to promote a rounded protection of sexual violence survivors in conflict, legal developments in six US States “preparing for a possible day when Roe v. Wade is overturned”, as well as growing tensions demanding that the UK government step in to address systemic human rights violations caused by abortion laws in Northern Ireland. In light of the recent abortion ban in Alabama, signed into law to protect the “the sanctity of life” in a state that otherwise upholds the death penalty, contemporary women’s rights face old enemies. The tendency of states to revert to immature and outdated national practices only reinforces the categorical nature of human rights, acting as a last supranational recourse for desisting legislative and societal regress.
Under international human rights law, states have obligations to ensure that “a full range of contraceptive methods are available, accessible, acceptable, and of good quality”. In practice, free access is not without flaws. Without a medical examination, pharmaceutical counselling, and provisions guaranteeing sufficient information, free access might endanger women’s contraceptive choices and outcomes. If free access fails to deliver on its ultimate aspiration to avoid unplanned pregnancies and potential unsafe (or even illegal) abortions, it becomes urgent to amend policies and guarantee that women can make the most of what free access has to offer.
Let’s start with a bit of background. The effectiveness of emergency contraceptives depends on a number of factors such as dosage, the time interval between unprotected intercourse and administration, or the overall prior risk of conception. The only undisputed claim and main mechanism of action of these pills is related to the fact that they delay ovulation. If these drugs are administered too close to, or after ovulation occurs, they are ineffective and unnecessary. Recently, academics cautioned against “overstating the efficacy of emergency contraceptive pills (ECP)” and underlined that “a basic understanding of the fertile window is crucial to understand the mechanism of action of ECP”. This basic understanding—that women are, on average, fertile about two days per month, while the average man is fertile 365 days a year—is exactly what men passing anti-abortion laws in US allegedly lack. Second, a central factor that is often overlooked is that women’s high BMI and obesity are associated with a high risk of emergency contraceptive failure. The latest WHO worldwide obesity index signalled that 39% of adult women are obese, making it imperative that women have access to information related to contraceptive failure and understand alternative methods, such as intrauterine contraceptive devices (IUDs)—which are long-acting, reversible, and considered the most effective form of birth control.
Informed decision making is a woman’s right
Family planning is a human right. In the context of contraception, a human rights approach demands that women “have the right to be fully informed by appropriately trained personnel, [that] have the responsibility to convey accurate, clear information, using language and methods that can be readily understood”. The right to be fully informed implies that women are fully engaged in family planning, the quality of technical information offered by providers is at the highest standards and providers have counselling and communication skills to ensure access to a wide-range of information. Here is where free access policies fall short.
First, they operate on a presumption that women have access and retain sexual information that encompasses complex technical information related to luteinizing hormone (LH) surges that trigger ovulation and impacts the efficacy of these drugs. Even if national standards for sexual education contain programmatic principles empowering women to access accurate fertility information, it is unlikely that women have the skills to access clinical studies and interpret advanced research data. For women younger than 18, this could be particularly dangerous.
Furthermore, academics advise that women weighing more than 165 lbs (75kg) should be offered ulipristal or the copper IUD. In this case, free access operates under the assumption that providers, largely pharmacists, are aware of the impact of BMI on a patient’s contraceptive choice, they measure and discuss the weight of the patient and make alternative recommendations. This assumption is problematic given that Western countries where emergency contraception is freely available are the ones pushing narratives of body neutrality and body positivity. Pharmacists could display reservations in discussing body weight out of fear of being perceived as prejudiced. In some cases, women might choose to procure emergency contraception online or through a third party, avoiding pharmaceutical counselling altogether.
Perhaps providers could claim that these drugs contain a patient leaflet and thus, provide women with sufficient information to make informed decisions. However, research suggests that only one in four individuals reads patient leaflets, and when they do, they do so selectively, mainly checking the sections of contraindications and side effects. In the case of emergency contraception, the patient leaflet for ellaOne claims that “you can take the tablet at any time in the menstrual cycle”, without acknowledging that the effectiveness of the pill depends on when the drug is administered during the cycle. Moreover, it discounts claims of failure for obese women, and advises patients that [it is] “still recommended for all women regardless of their weight or BMI”. The same information is provided in the patient leaflets for Levonelle. The distribution motto of providers seems to be “take it and hope for the best”. This practice can endanger women’s reproductive safety and their human rights. It should come as no surprise that pharmaceutical companies could be inclined to take advantage of data inconsistencies to manipulate language and offer reassurance of their products’ effectiveness for monetary profit.
These issues should not be viewed as supporting arguments for making emergency contraception less available or banning free access. Women need more protection, not less. To make the most of current medical advances to guarantee women’s rights, public and private stakeholders must ensure that free access is accompanied by successful information policies and campaigns. As it stands, current policies, disguised as beneficial and liberal, place the burden of information on women, leaving them at risk for unplanned pregnancies if contraceptives fail. In view of recent abortion bans and political tensions, it is paramount to ensure that contraception policies, including those regulating sexual education, patient leaflets and pharmacy protocols, guarantee women’s empowerment and err on the side of caution when providing access to emergency contraception.