Wednesday, February 01, 2006

(I'm thistle. I'm a law student and spend 20-30 hours per week working with a legal aid organization where I represent abuse survivors in family court. I'm also a former English major and aspiring vegetarian cook. I expect that I will largely write about legal issues here, though you never know.)

This story caught my attention. The gist is that three women in Massachusetts are suing Wal-Mart for refusing to carry Emergency Contraception. They argue that state policy requiring pharmacies to carry "commonly prescribed" medications should apply to EC. Wal-Mart, which does not carry EC for "business reasons," has stated only that it doesn't agree that EC is "commonly prescribed."

This story makes me happy. I like it when we play offense, and that happens awfully rarely these days because there's so much defense to be done. I also like to see lawyers thinking of ways to make options available to women in practice as well as in theory, and pharmacies have become a battlefield in this arena. I can't speak to the plausibility of their argument because I haven't found a story that includes more information on the source or text of the state "policy" that they cite--I will say that I'm willing to bet that emergency contraception is far more commonly prescribed than other drugs that Wal-Mart does carry.

The Constitution is no longer a good arena for litigation, if the goal is to expand access to contraception and to abortion. Recent Supreme Court appointments (cough *Alito* cough) will make the Supreme Court in particular an unfriendly venue for these cases, and the preponderance of Republican presidents in recent years (other than our 8 years of Clinton, it's been a long time since we had anyone but Republicans making appointments to the federal bench, and Carter's appointees have largely retired) will make federal courts in general reluctant to recognize a genuinely robust abortion right. That's the future of federal litigation around choice; the present is that access to abortion has already been shouted out of court. Supreme Court cases have stated that states--or the federal government--can deny women Medicaid funds for abortions, regardless of risk to the women if they are forced to give birth. States can impose waiting periods, require special counseling, require parental notification for minors, and otherwise burden the ability to obtain an abortion even where a woman can afford one--and if she can't afford it, they certainly are not obligated to pay for it.

Those are the limits on constitutional protection of choice today; they didn't always exist, and they don't have to, and maybe someday in the far future they won't. But there are other limitations that the Constitution won't ever touch--for example, the Constitution can't make Wal-Mart, a private company, carry EC. Massachusetts, on the other hand, probably can. And the beauty of statutory interpretation is that a law that I'm guessing was drafted with no intention of forcing stores to carry EC might be useful to do just that.

The case is only going to affect Massachusetts--and since our dominant pharmacy, CVS, does carry EC (and has a policy that requires its pharmacists to actually fill prescriptions for it or be fired) Massachusetts is not the state that needs the help most. But still, I like the thinking behind the suit.


Blogger Entrophy Wife said...

I read about this story today too. I think it's ridiculous that Wal-Mart claims that it isn't commonly prescribed. Almost every woman I know has taken it once or twice. I certainly can't say that about any other drug.

One thing, though- Unless I've missed something, I don't believe CVS has stated that a pharmacist would be fired for refusing to dispense. K-Mart has, but CVS has only said that pharmacists must inform the store beforehand if they will refuse a prescription for EC, and the store will make accomodations to ensure that the store has a plan in place if that pharmacist is ever alone when an EC prescription comes in.

8:35 PM  
Blogger thistle said...

Oh, okay. I just noted that they were on the Planned Parenthood "good" list--I'll have to look more closely at what their criteria are.

8:43 PM  
Blogger frog said...

"Thinking behind the suit" is such a great line--and with so many meanings. I know that's not the major point of this post, but I really love it.

7:01 AM  
Blogger Sofiya said...

I'm astonished that they state that EC isn't commonly prescribed too. Does anyone know whether Wal-Mart fills prescriptions for, say, Viagra?

9:40 PM  
Blogger Txfeminist said...

Good question! Should not be too hard to find out (no pun intended, har har).

Thistle, I'll be so interested to hear about your experiences defending victims of abuse in family court. I'm an advocate for battered women & children and as a red state inhabitant (not by choice) , it's pretty rough out there.

That is, if that is a topic you will be posting about. I'll be reading this blog, either way.

11:29 AM  
Blogger thistle said...

Sami, I just saw this--sorry! I will probably be talking somewhat about my experiences, though I'm wary to do so very much or in much detail. Even though I'm anonymous online, I feel protective of client's privacy, so there won't be specific anecdotes about my cases. However, I do feel comfortable talking less specifically about frequent occurrences or outcomes in court or talking generally about obstacles my clients have (almost universally) had to overcome, so you might see some of that :)

10:01 AM  
Blogger Txfeminist said...

Your approach makes perfect sense. Your client's privacy is of number one importance. Abusers are positively creepy in their ability to track down anything related to their victim; they are relentless, obsessive, and have no boundaries.

As an advocate, I've seen them do some pretty lousy stuff. Hacking into private accounts, blah blah blah - and it still gets entered as evidence, in spite of it being "fruit of the poison tree".

So, for many reasons, I respect your approach.

8:55 AM  

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