Emergency contraception (EC) is a time-sensitive FDA-approved form of contraception that prevents pregnancy. Timely access to EC is particularly important for survivors of sexual assault. Providing EC to survivors is an integral component of a comprehensive medical response to sexual assault – failure to provide EC as an option can deny survivors control over their bodies at a critical time and cause further trauma by forcing them to confront an unwanted pregnancy. Unfortunately, there are hospital emergency rooms – Catholic hospitals in particular – that do not provide information about or access to EC to survivors of sexual assault.
Fortunately, states are ensuring that EC information and provision is part of the minimum standard of care for survivors of sexual assault. Sixteen states and the District of Columbia have passed laws that require hospital emergency rooms to provide information about or access to EC to sexual assault survivors. These laws are known as “EC in the ER” laws. Below are elements essential to a successful EC in the ER law.
Elements of a Successful EC in the ER State Law
Information About and Provision of EC
Hospitals should provide information about EC to all sexual assault survivors, as well as the drug itself to survivors who want it. Providing EC to survivors during their hospital visit ensures timely access to a time-sensitive medication. It also saves survivors burdensome additional trips to providers and pharmacies at a moment of crisis.
No Exceptions to the Law
All emergency health care facilities must be included in EC in the ER laws. None of the EC in the ER laws allow for exceptions – all health care facilities specified in the laws must comply.
• Excluding Catholic hospitals could have dire consequences for many survivors of sexual assault. One in six patients in the U.S. is cared for in a Catholic hospital. In one year, Catholic hospitals had more than 19 million emergency room visits.
• Offering EC to survivors is consistent with Catholic hospitals’ statement of identity, which includes work to “foster healing, act with compassion, and promote wellness for all persons and communities, with special attention to our neighbors who are poor, underserved, and most vulnerable.”
• Requiring Catholic hospitals to provide EC does not conflict with the Ethical and Religious Directives for Catholic Health Care Service, which govern Catholic health facilities. Directive 36 specifically states, “Compassionate and understanding care should be given to a person who is the victim of sexual assault. . . . A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medications that would prevent ovulation, sperm capacitation, or fertilization.” Although some Catholic hospitals interpret this directive in an extreme manner in order to deny EC to sexual assault survivors when they most need it, the senior director of ethics for the Catholic Health Association has made it clear that providing emergency contraception to rape survivors does not violate the directive.
• Despite the Catholic Health Association’s claim that Catholic hospitals regularly provide some form of contraceptive medication to prevent pregnancy in women who have been raped, studies have not found that to be the case.
Enforcement
An enforcement mechanism provides a way to ensure that health care facilities are complying with the law in the state, as well as a method for taking action when a hospital is not in compliance. Complaint-based enforcement mechanisms empower survivors denied EC to report violations of the law and direct the state Departments of Health to investigate violations. Proactive enforcement mechanisms – such as monitoring, site visits, and reports – recognize that the burden should not rest solely on the survivor, who may be reluctant to come forward and file a complaint. Therefore, both complaint-based and proactive enforcement mechanisms are critical to ensuring compliance with the law.
Complaint-based enforcement. Eight states – Hawaii, Minnesota, New Jersey, New Mexico, Oregon, Utah, Washington, and Wisconsin – have complaint-based enforcement mechanisms. If the state department of health receives a complaint that a hospital is not complying with the law, the department must investigate the complaint and take appropriate action, including penalties such as fines or license suspension or revocation.
• New Jersey law also requires an annual report to the public, summarizing the complaints and actions taken.
Proactive enforcement. Complaint-based enforcement should be accompanied by proactive enforcement, which puts the onus on either the state to ensure compliance or on the hospitals to demonstrate compliance.
• In Illinois, hospitals are required to submit their protocol for providing sexual assault survivors with information on EC to the Department of Public Health for approval. In May 2005, the Illinois Department of Public Health initiated investigations into hospitals over concerns about unsatisfactory protocols.
• Massachusetts law requires hospitals to report annually to the Department of Public Health the number of times EC is administered to sexual assault survivors.
• The New Jersey Commissioner of Health must determine, at least annually, whether a health care facility is complying with the law.
• In Minnesota and Wisconsin, the Department of Health – in addition to accepting and investigating complaints – must also periodically review hospital procedures to determine whether hospitals are in compliance.
Lack of Enforcement Mechanisms. A lack of enforcement mechanisms in state EC in the ER laws has been linked to low compliance and has frustrated advocates in those states.
• One study found 34% compliance among Catholic hospitals in California and proposed that the lack of an enforcement mechanism in the state’s EC in the ER law may be the reason for the low compliance rate.
• In one survey of advocates in states with EC in the ER laws, those in states without enforcement mechanisms reported not knowing whether hospitals are complying, expressed their desire for enforcement mechanisms, and recommended that other states considering EC in the ER measures include such provisions in the original legislation.
• Because of the lack of proactive compliance mechanisms in the New Mexico EC in the ER law, a bill introduced in New Mexico (but never passed) would have requested the Department of Health to establish a tracking system to determine the success of the law.
Sufficient and Understandable Informational Materials about EC
The information about EC presented to survivors of sexual assault must be medically accurate and culturally competent.
• New York law specifies that materials must be clear, concise, readily comprehensible, and in languages other than English.
• Oregon law specifies that materials must be “clearly written and easily understood in a culturally competent manner,” meaning that materials must be “sensitive to the patient’s faith, race, ethnicity and national origin.”
Health care facilities must receive an adequate supply of the materials.
• Washington law mandates that the Secretary of Health must develop and produce materials relating to EC for distribution and use in all emergency rooms in the state, and mandates that these materials be available in sufficient quantities. Because of this requirement, the Washington Department of Health produced a one-page factsheet about EC, as well as a trifold wallet card, and initially sent 1000 copies to each hospital in the state.
• Oregon law requires the Department of Human Services to distribute materials about EC to all hospital emergency departments in the state, “in quantities sufficient to comply with the requirements of this [law].”
Training and Information about EC for All Hospital Personnel
Training and information about EC for all hospital personnel who interact with survivors of sexual assault is essential. This includes administrative personnel, particularly those who staff the phone and front desk and may be the first person with whom a survivor has contact.
• Studies have shown that many hospital staff may be unaware of or misinformed about EC, even in states with EC in the ER laws. In one study, staff confused emergency contraception with the abortion pill mifepristone and incorrectly said that it is not available in the US or in the state.
• New Jersey and the District of Columbia require all personnel who provide care or information to sexual assault survivors to receive training.
• Training for those who interact with sexual assault survivors should include sensitivity training. One study reported unsupportive and judgmental comments from those answering the phone at Catholic hospitals, such as “Go look in the Yellow Pages under abortion” and “We frown upon that.”
Involvement of All Stakeholders
For a successful EC in the ER law, all stakeholders should be involved in all stages of the process, including developing, implementing, and monitoring the law.
• Washington law requires the formation of a task force, comprising representatives from community sexual assault programs, advocacy groups, medical agencies, and hospital associations to provide input on the development of educational materials and development of rules to implement the law. The Washington State Catholic Conference participated in the task force.
• New Jersey law codifies involvement of the state sexual assault coalition and the Sexual Assault Nurse Examiner (SANE) program in material development. It also requires that SANE be notified of complaints against non-compliant hospitals.
• Oregon law specifies that the Department of Human Services must produce materials “in collaboration with victim advocates, other interested parties and nonprofit organizations that provide intervention and support services to victims of sexual assault and their families."
Conclusion
EC in the ER laws ensure provision of EC on-site in sexual assault survivors’ initial visit to emergency care facilities, thereby guaranteeing timely access to care and preventing additional burdens to survivors. EC in the ER laws should be passed in all states so that survivors of sexual assault receive the compassionate and comprehensive medical care they deserve.
