SANTIAGO, Chile (WOMENSENEWS)–Chile’s Constitutional Court is reviewing a case that threatens to make all forms of emergency contraception illegal. The lawsuit also challenges the government of President Michelle Bachelet to prevail or face a reversal of years of contraceptive policy advances.
Thirty-six socially conservative legislators brought the case in March 2007. Echoing Catholic authorities–who say that emergency contraception is tantamount to abortion–the legislators argue that emergency contraception violates the right to life ensured by the Chilean constitution. Chilean law bars abortion in all circumstances, even in cases of rape or when the woman’s life is in danger.
Lawyers representing both sides have given their arguments, but officials here say it is unclear when the judges will rule.
While the verdict looms, the government is also battling three private pharmacy chains that have refused to stock emergency contraception, also known as the "morning-after pill." Pharmacies sell the pill for about $20 and are obligated by law to offer it.
Prescription sales were first approved in 2001 but were not made fully available to the public until November 2005, when the Constitutional Court legalized usage in a separate case.
Since assuming office in March 2006, President Bachelet and Health Minister Maria Soledad Barria have instructed public health authorities to work aggressively to ensure the pill’s availability not just at public clinics–where it is distributed for free to women 14 and over–but at all major pharmacies, enabling its availability to women from all social strata.
Decisive Action by Health Ministry
Health officials began investigating private pharmacy chains after daily newspaper La Tercera flagged the issue in a September 2007 report that indicated only 8,000 of the 35,000 emergency contraception pills ordered by the government were distributed in the first half of 2007.
The Santiago Regional Health Ministry responded in October by levying a fine of $69,000 against each of the three largest pharmaceutical chains in Chile–Salcobrand, Farmacias Ahumada and Cruz Verde–for not selling emergency contraception.
The Health Ministry’s Region IX branch, which covers a mainly rural area about 400 miles south of Santiago, followed suit by fining 62 pharmacies a total of $104,000. Unlike in Santiago, where whole chains were fined, the sanctions in southern Region IX were applied to individual branches, which resulted in some pharmaceutical companies receiving more than 10 infractions.
The issue of pharmacists who refuse service for moral reasons continues to simmer. In Washington state, for instance, a bill to prohibit pharmacists from refusing to dispense emergency contraception was tabled by a state senator last week pending the outcome of a legal challenge. Two pharmacists and a pharmacy owner have sued the state for the right to refuse on grounds of religious freedom.
Emergency contraception, sold in Chile under the brand name Postinor 2, is taken orally up to 72 hours after unprotected sexual intercourse to prevent fertilization or implantation. The pills are readily available in most Western nations, but Catholic influence in Chile and other South American countries has made them a contentious issue.
"Pharmacists should not only be able to advise patients on the appropriate use of the medication, but also the ethical implications of the use of certain medications," said Pope Benedict XVI during an October congress of pharmacists held at the Vatican. "How can they alleviate their consciences knowing that they have averted the implantation of an embryo?"
Nevertheless, governments across South America are moving to make emergency contraception more widely available in the region, which is home to half of the world’s Catholics.
Brazilian and Argentine lawmakers legalized the emergency contraception pill in 1999 and 2002 respectively, and it continues to be available in pharmacies and clinics. Peru’s Constitutional Court ruled last year that emergency contraception should be available to every woman.
Ecuador is an exception. Its Constitutional Court ruled in 2007 that no form of emergency contraception should be available.
Growing Public Acceptance
Chile’s efforts come amid signs of public approval. Forty-nine percent of Chileans said that emergency contraception should be made available to any woman who wanted it, up from 40 percent the year before, according to a November poll by La Tercera. Nearly 60 percent of respondents said they would want their daughters to take emergency contraception after unprotected sex.
"We want people to be able to decide for themselves. Pharmacies are private entities, but they provide a public service," Barria told reporters.
"It is part of our job to make sure that the pharmacies provide the pill," said Cesar Torres, director of the southern Region IX health ministry. "It is pharmacies’ job to have available all medications mandated by the government so that their clients can buy them if they want."
The pharmacies first responded to fines by appealing them. But the stance of Cruz Verde and Ahumada quickly softened, as representatives from both chains met with health officials in November. At that meeting, the two chains said they had troubles securing a steady shipment of the product and insisted they had no ethical qualms about selling it. In spite of the dialogue, pharmacy officials did not agree to pay the fines.
Pressure on Pharmaceutical Chain
Officials from Salcobrand declined to participate in the meeting. That month, Salcobrand stores displayed signs that read "selling the morning after pill goes against our conscience and violates our rights and freedom as a company." Salcobrand also placed inserts in newspapers declaring that citizens should respect their freedom to sell the products that they want to sell and warned that government fines could plunge the company into the red.
When contacted by Women’s eNews, company officials said those statements most accurately represent the company’s position and declined to comment further.
However, both Health Ministry officials and legislators recently said that Salcobrand has restocked the emergency contraceptive.
"It is something which has not been reported in the mainstream media, but Salcobrand has quietly put the pill back on stock," said Rep. Maria Antonieta Saa, a member of the Party for Democracy.
The government’s decision to fine non-compliant pharmacies has pitted public health needs against the right of private businesses to operate as they see fit.
"I am absolutely against the public stance of the pharmacy Salcobrand," said Saa. "A pharmacy should not represent the conscience of the people. Individuals have their own conscience. This pharmacy is making a decision that is not its to make."
"We have to keep on pressuring these pharmacies so that they keep on selling the pill," she added. "The people need to defend their rights. If the pharmacies are not fulfilling their duty, then the people need to let authorities know. The Health Ministry cannot be everywhere at the same time."
Meanwhile, anti-pill politicians have attempted to redirect Chile’s contraception debate, claiming the government’s stance abridges economic and political freedoms.
"I reject the government’s fines for pharmacies that don’t sell a drug that they, in their legitimate exercise of freedom, do not want to sell," argued Jorge Sabag, a representative from the Christian Democratic Party. "I consider this a restriction on economic freedom, especially since the pill has an abortion effect and is subject to scientific controversy."
Matt Malinowski is the editor of the Santiago Times, Chile’s only English language daily. His freelance articles have appeared in Women’s eNews, Christian Science Monitor and EcoAmericas.
For more information:
International Planned Parenthood Federation, Chile (in Spanish):
Chile’s Health Ministry (in Spanish):
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